Making Indecent photographs of children
It is an offence to make an indecent photograph of a child.
That involves three elements.
I will deal with the last two first.
- an indecent photograph. It is accepted that the photos were indecent.
- of a child. Again it is accepted that the photos portrayed children.
So, the only question for you to consider in relation to Count * is whether or not the defendant made at least one of the photographs.
As a matter of law, someone “makes” a photograph if he opens an attachment to an email which contains an indecent photograph, provided that when he does so, he does so intentionally and with the knowledge that it was, or was likely to, contain an indecent image of a child.
Downloading a photograph from the internet to a computer screen also constitutes the making of a photograph provided that when the downloader does so he does so intentionally and with knowledge that it was or was likely to be an indecent photograph of a child.
There is no need for the prosecution to prove that the defendant saved the photograph to his computer, or printed it.
In this case, there is no doubt that someone downloaded, or otherwise caused, the photographs to be on the computer. In other words someone made the indecent photographs which are the subject matter of this count.
However the defendant says that he did not do it.
So, the key question for you to answer in relation to Count *, having regard to all the evidence and the directions which I give you, is this
Did D** cause the photographs to be on the hard drive of the computer?
If you are sure that the answer is “yes”, the defendant is guilty of Count *. If the answer may be “no”, he is not guilty of Count *.
Distributing indecent photographs of children
It is an offence to distribute an indecent photograph of a child.
Again, that involves three elements.
Again, I will deal with the last two first.
- an indecent photograph. It is accepted that the photos were indecent.
- of a child. Again it is accepted that they portrayed children.
So, the only question for you to consider in relation to Count * is whether or not the defendant distributed at least one of the photographs.
As a matter of law, someone “distributes” a photograph if he parts with possession of it (even if he retains the original). That includes emailing it to another person, provided that when he does so, he does so intentionally and with the knowledge that the email included, or was likely to include, an indecent photograph of a child.
In this case, there is no doubt that someone distributed the indecent photographs which are the subject matter of this count.
However the defendant says that he did not do it.
So, the key question for you to answer in relation to Count *, having regard to all the evidence and the directions which I give you, is this
Was it D** who emailed the photographs to X**?
If you are sure that the answer is “yes”, the defendant is guilty of Count *. If the answer may be “no”, he is not guilty of Count *.
Possessing indecent photographs of children
It is an offence to possess an indecent photograph of a child.
Again, that involves three elements.
Again, I will deal with the last two first.
- an indecent photograph. It is accepted that the photos were indecent.
- of a child. Again it is accepted that they were of children.
So, the only question for you to consider in relation to Count * is whether or not the defendant possessed at least one of the photographs.
As a matter of law, someone “possesses” a photograph if he has control and knowledge of it. The owner of a computer has control over the contents of his computer, provided that they are accessible.
In this case, there is no doubt that the photos were contained in the defendant’s computer and that *** of them were accessible.
This means that the only issue in relation to Count * is knowledge. Did D** know that the photos were in his computer?
You can infer someone’s knowledge from the surrounding circumstances.
The defendant says that he did not know that the photographs were in his computer.
So, the key question for you to answer in relation to Count *, having regard to all the evidence and the directions which I give you, is this
Did D** know that the photographs were in his computer?
If you are sure that the answer is “yes”, the defendant is guilty of Count *. If the answer may be “no”, he is not guilty of Count *.