minime2k9, playing devil's advocate, it's pretty unlikely someone would just turn up on your doorstep and ask for the material. You'd almost certainly have had a phonecall at least first, so at that point could contact the OIC/CPS to verify the claim, and get a fax/emailed copy of any order/court recording sent to you (if you weren't in court yourself). Even if they did just turn up on your doorstep, you could probably still ask them to wait half an hour or an hour even to obtain the above if they didn't have anything with them, which wouldn't be unreasonable.
Of course if for some reason you couldn't get any record of this person having a right to the material it wouldn't be unreasonable to not hand it out. But I think we're going down a sliding scale of unlikeliness now 😉
I guess though if it's true they have had guidance from ACPO that they need a court order he was put in an awkward position. Perhaps the confusion may lie as a result of the intended meaning of the 'court order' in the ACPO guidance was assumed to include orders from the court by a judge not just a formal document (but not deemed necessary to specify that).
My 2p worth!
Some HTCUs including the one I was associated with are reluctant to release images (evidence files) to the defence and would prefer the defence examiner to carry out their examination at the HTCU premises.
Obviously most defence experts for numerous reasons preferred to carry out their analysis at their own premises. In these cases most HTCUs will release evidence files to the defence where the defence bona fides are known. Sometimes where the bona fides aren't known or where there is a policy in place a court order is requested. The practicalities of this requires the defence to go before a judge and seek such an order. The order may well be verbal (as it appears to be in the Kent case) but will have been known to those representing the prosecution at the hearing where the request was made. In cases I have been involved in where I have been instructed by management to request a court order from the defence I was subsequently advised by the defence expert (or their admin staff) that an order had been obtained. I would routinely check this out with CPS, occasionally I ascertained that the defence firm was not being entirely truthful.
With regards to the legalities being debated a similar thread over at Digital Detective contains a sensible commentary on this by Peter Somner.
In a similar vein why do HTCUs regularly refuse to supply their Encase case file containing their bookmarks?
Regards
Cant explain why HTCU staff have been reluctent to release encase files,as a HTCU we would upon request provide them. They are unused material so perfectly reasonable request.
Thank you. Exactly.
Unfortunately "it's pretty unlikely someone would just turn up on [at my] doorstep and ask for the material" is no longer sufficient. I personally would not stake my career on such statistics, lest we forget all the recent rash of public humiliation of governments and large companies by publicly released information.
I think the point was that if you werent at court and assuming that nobody was from the police side of the case (unlikely I know) that you would require some paper work as you were not there to recieve that order and it wouldnt have been given to you specifically either, it would likely have been to CPS.
At the end of the day its all well and good saying you dont need a piece of paper to release these images, but as most people in the public sector know, when brown stuff hits the fan that paperwork keeps you in your job. Its a sad state of affairs but that doesnt change reality.
jhup - Not entirely sure what point you're trying to make - what have statistics got to do with anything? That likelihood 'statistic' is only referring to the likelihood of that being the circumstances in this case, which in any event matters little. Your duty being to comply with the judge's orders, not the arbitrary rules of an organisation. Going against the judge's orders being contempt, following them being legal…..
As dc1743 says, there's good commentary from Peter Sommer on the DD board regarding the legality, and using his personal example it isn't/wasn't hard to check out the validity of a request for material if you weren't there in person at court (which as I say i've also done).
I haven't personally had a problem with requesting the relevant material from various forces when doing defence cases. Usually they're more than helpful, and just require the signing of an MOU stating the material will be returned or destroyed following the conclusion of the case.
Just my 2p worth!
Isn't a MOU a "scrappy piece of paper"?
Interesting debate, and even though there has been CPS guidance on the matter I have long suspected it would come to situations such as this.
The appropriate CPS guidance may be found here
The bit of relevance states
The s1B defence is available where a person 'making' an indecent photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. Archbold 31 - 107a and 107b.
So in summary the defence against the offence of making IIoC under S1(b) of the Protection of Childrens Act 1978 is provided by the amendment of Section 46 of the Sexual Offences Act 2003. Does this cover making IIoC for the defence, AND supplying/distributing such images? "for the purposes of criminal proceedings"
Suffice to say IMHO it remains ambiguous.
I am surprised however that the police expert has been dragged before the court and then has been forced into a position where he has had to say sorry for following policy, procedure and protocol. IME where this has occurred the Judge has asked for the Policy Owner to come before the court. Whilst I am not criticising the Judge, I have sympathy for the police analyst.
The Judge has an interest in ensuring the defendant has a right to a fair trial. How can this be achieved if the defence do not have access to relevant material? It has also been my experience that situations like this have been dealt with by a MOU. However it still doesn't clarify matters. Of course "for the purposes of criminal proceedings" may be an argument for access to such material by the defence.
Surely, the IIoC do not need to be examined, what needs to be examined is how they were made, distributed or how they came into the possession of the defendant. As we all know, to establish answers to these questions all the computer evidence has to be examined, which ultimately means providing material where IIoC may be derived from.
Although I have used MOU's in the past, I remain unconvinced that this appropriately addresses situations such as this.
Surely, the IIoC do not need to be examined
I have been very surprised at how poor the grading has been in many cases. Most indictments feature a roll up global possession count. The quoted number can often be reduced in many cases. Unfortunately the defence has to see the images for this reason.
Regards,
Unfortunately the defence has to see the images for this reason.
Whilst I agree, let us not detract from the point of the thread. The viewing of the images can be done subjectively at court hearings more appropriately in a controlled manner without the need for protracted in depth examinations.
I've often found the grading exercise of images demeaning to abused children. They are either indecent images or they are not. Either way it is up to the Judge to view the images for sentencing purposes, which isn't the point of this thread.
Surely, the IIoC do not need to be examined
I have been very surprised at how poor the grading has been in many cases. Most indictments feature a roll up global possession count. The quoted number can often be reduced in many cases. Unfortunately the defence has to see the images for this reason.
Regards,
Of course - it's fundamental that the quantity of IIoC as well as grading and ageing are verified.
Back on topic, the articles state that the prosecution expert ignored the judge's directions on three separate occasions. The expert justified this by saying that it was his unit's policy. Policy and guidelines do not outweigh court orders.
This article made me laugh quite a bit.
questions though that I must ask and I mean no disrespect by them
The wig - Is it required as part of the court that they wear it ? If a Judge here in the US wore a outfit like that I would not be able to take them seriously without holding back laughter as they said "You do not require a scrappy piece of paper……." Again just my thoughts I don't mean any disrespect to the country or the court.
More so on the article, court orders come first. They are required to process everything on a timely manor and granted they did delay the trial this is a serious offense and should result in the changing of those guidelines to prevent future occurrences. This is a lesson learned for the agency.