R v Christopher Rowe: CA (Crim Div) (Lord Chief Justice Lord Judge, Mr Justice Swift, Mr Justice Cranston): 3 November 2008
The appellant (R) appealed against his conviction for 12 counts of possessing indecent photographs of children on a reference by the Criminal Cases Review Commission.
The police had searched R?s parent?s house and seized 20 floppy disks and a computer tower from R?s bedroom. Eight disks contained several deleted files and two non-deleted files of images of child pornography, and two movie images. There were also three deleted files of child pornography on the computer tower. At trial, experts agreed that R would have needed specialist software to access the deleted files, which he did not appear to have. It was not possible for them to prove whether the deleted files had actually been viewed. The last time that the non-deleted files had been accessed was years before the date on the indictment.
Held: (1) The convictions on the counts relating to the deleted files were unsafe as R no longer had custody or control of the images, R v Porter (Ross Warwick)  EWCA Crim 560,  1 WLR 2633 applied. The original jury were not directed to consider the potential significance that the deleted files had on R?s ability to have had knowledge of the images. The counts relating to the deleted images were quashed. (2) The absence of the counts relating to the deleted files made a significant change in the factual evidence, and only eight still images in non-deleted files remained. Had the jury only had that evidence to assess they might have had reservations in finding R guilty of possessing the non-deleted files. Those counts were also unsafe and were also quashed.