Section 70 of the Crimes Act creates an offence for possession of child pornography.
Under sub-s (4) law enforcement officials and people authorised by the Chief Commissioner of Police don’t commit an offence by possessing child pornography if they possess it to perform a lawful power or duty.
What about an accused person’s lawyers? Section 70(2)(b) provides a defence for possessing child pornography ‘for a genuine legal purpose’, which probably covers receiving a copy of material under the disclosure provisions in the Criminal Procedure Act 2009.
In R v LR [2010] EWCA Crim 924 the UK Court of Appeal had to settle a bunfight between the Crown Prosecuting Service and lawyers for an accused about disclosing copies of child pornography.
The trial judge ordered disclosure to the lawyers, considering it wasn’t appropriate for a police officer to remain within hearing of the accused so as to supervise the images he was charged with possessing.
The CPS objected, and said it would commit an offence by creating fresh copies. Ultimately, the trial judge stayed the prosecution, holding that the CPS’s refusal to hand over copies of the exhibits amounted to an abuse of process.
The CPS appealed. And lost. Unsurprisingly, the Court of Appeal held that when circumstances require the accused to review the subject matter of the charges against him or her, they must have an opportunity to do so in the proper confines of the lawyer-client relationship.
[18] As some fundamental aspects of the administration of criminal justice are engaged, we propose to make some general further observations.
[19] The principle that the defendant is entitled to private and confidential discussions with his legal advisers, unsupervised and unobserved by police officers or representatives of the CPS, is too elementary to require citation of authority. In the context of the issue which arises in this case, at such a conference the defendant and his lawyers need access to the material relied on by the Crown. Without such access, first, the defendant’s lawyers cannot give him and he cannot receive clear and unequivocal advice about his position, and second, proper preparations for the forthcoming trial in which the very material in question provides the entire basis for the prosecution case cannot be made.
[20] Arrangements to provide defence lawyers with the relevant material for the sole purpose of discharging their professional responsibilities to their client, and the acceptance by them of access to such material for this purpose, cannot, in any circumstances, be regarded as criminal. This elementary principle is acknowledged within the relevant legislation. Both the Protection of Children Act 1978 and the Criminal Justice Act 1988 provide defences for solicitors and counsel who for these purposes are in possession of what would otherwise be prohibited material. So. too, does the Sexual Offences (Protected Material) Act enacted in 1997, but not yet in force. The same defences would be available for the jury at any trial. So far as the legal advisers are concerned, it is normal to invite undertakings in relation to the retention and control of such material, which are readily given, and, as far as we know, have never yet been broken.
[21] Lawyers and jurors alike must be trusted to act in good faith, unless and until there is some reason to suggest that they are deficient in any respect. They are provided with the material for a very limited and strictly defined purpose. Possession and use outside these limited purposes is unlawful, and would put them in peril of prosecution. Thus, at the risk of stating the obvious, no further hard copies or digital copies beyond those necessarily required for the purpose of the conference (or indeed a trial) should be made. All the material must be returned to the custody of the Crown Prosecution Service when the relevant trial has concluded.
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[23] We do not intend to be prescriptive. The processes should ensure that when issues like the present arise, or where, for example, in the event of a guilty plea, there is a dispute about the nature and gravity of the material, it should be made available for examination in circumstances of confidentiality between the defendant and his lawyers, and at the same time, for all those properly involved to understand that although this limited possession is protected, if the Crown’s case that the material is indecent for the purposes of the protected legislation were correct, any circulation or continued possession beyond the strictly limited purposes for which it is made available would be criminal.