theForum » Insurance » Personal insurance policies » No defence or mitigation offered by my defence solicitor on indecent images charge.

No defence or mitigation offered by my defence solicitor on indecent images charge.

Our Alfie — Fri, 10 Jul 2020 07:48:55 GMT

Hi

This may have been covered in earlier posts if so I apologise.

In January 2017 my house was searched and devices taken by police. I was arrested and interviewed about indecent images of children. My lap top was analysed by the police who discovered 13 indecent images of which only 1 ( which was a Cat A) had been deleted and were, according to the police inaccesible.

On the advice of my solicitor I entered a guilty plea at the magistrates court because I was told by.my solicitor that as the images were on my PC I was guilty of making images ( three charges of making indecent images of a child). I was advised that if I went to trial and was found guilty my punishment would be more severe, ( custody could not be ruled out)than if I had pleaded guilty and it was very likely the local press would report it.

On the day if sentencing the CPS read out the charges but ommitted to mention that all but 1 image had been deleted and that there was no evidence that I had viewed it.

I genuinely do not recall receiving anyninapropiate images. I used to enter sex chat rooms but never discussed children in an inapropriate manner. The CPS have asserted that I used code to discuss underage ( ridiculous).

The point I wish to be considered and would welcome comments is should my solicitor have entered in my defence solicitor in mitigation that all but 1 image had been deleted and made inaccessible?

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

JASB — Fri, 10 Jul 2020 07:48:55 GMT

Hi

Since my sentencing I have tried to understand the logic behind the actual sentence given by the Judge and where they gain guidance from.

In brief:

my initial PO pre-sentence report promoted the option of a non-custodial supervisory sentence.

My PO's manager did later instruct him to include a custodial sentence option though I was never informed why.

the investigating police and CPS supported a non-custodial supervisory sentence.
2 x independent psychological assessments supported a non-custodial supervisory sentence

The Judge decided to give me 4 years, after a 20% reduction for a early guilty plea - note I accepted guilt on arrest and due to Court process issues I could not make my plea in Court until after 15 months of bail, and it took another 11 months to be sentenced!

The only reason I could obtain for his decision was because I was sentenced on the same date as a major Government report being released on prostitution. Yes my offence was paying for sexual services but no mitigation evidence was provided to the Judge - I didn't go to trial - and the Police did not obtain the mobile phone blackmail evidence supporting my statement.

I do not raise this point to try and dismiss my offence but to highlight no matter what the "guidance books" say, "Political agendas" do have an influence.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

punter99 — Mon, 06 Jul 2020 12:57:50 GMT

The sentencing guidelines are there to inform the judge, although the CPS will refer to them, in court, as will the defence, to highlight the bits that they want the judge to focus on. But it is the judge who decides the final sentence, not the CPS. The judge can take into account anything they want, even if not mentioned in the sentencing guidelines. Sometimes the judge will say what they have taken into account, but sometimes they won't, so you don't really know for sure how they worked out the sentence.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

xDanx — Sun, 05 Jul 2020 21:20:02 GMT

[quote]

[b]jcdmcr - 5 Jul 20 7:29 PM[/b]

[quote]

[b]punter99 - 5 Jul 20 11:31 AM[/b]

What you have to bear in mind, in these cases, is the totality of the evidence against you. There will be bits of the CPS evidence that are not 100% accurate, and you could challenge those, but it will not necessarily mean you get all the charges dropped, even if you are successful in that challenge. The possession law is really pretty simple. You either had images on your device or you didn't. Saying, for example, that the images are now deleted, won't get you off, because you had images in your possession, at some point in the past, even if they aren't there right now. Equally, if the CPS say the images were downloaded in 2015, when you know they were downloaded in 2017, that doesn't change the fact that the images were on your device, at some point. It's a technicality and it won't stop them charging you.

The solicitor has to weigh all of that up, in deciding how to advise you. If they think, on balance, taking into account all the evidence, that you are going to be found guilty, then they will advise you to plead guilty as early as possible. That's not negligence. Admittedly, they don't always go through the evidence with you, usually because they have seen enough similar cases to know what the end result is going to be. They just give you their opinion of how they think things are going to go and that comes down to one thing. Guilty or not guilty.

[/quote]

“To make” has been widely interpreted by the courts and can include the following:

Opening an attachment to an email containing an image (R v Smith [2003] 1 Cr. App. R. 13)
Downloading an image from a website onto a computer screen (R v Jayson [2002] 1 Cr. App. R. 13)
Storing an image in a directory on a computer (although depending on where that image is stored, this could also be a possession charge under s. 160 CJA 1988) (Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248)
Accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism (R v Harrison [2008] 1 Cr. App. R. 29)

"" source: https://www.cps.gov.uk/legal-guidance/indecent-and-prohibited-images-children

[/quote]

I believe I included the same link in a previous post of mine and included a link to the sentencing guidelines which can be found here https://www.sentencingcouncil.org.uk/wp-content/uploads/Sexual-offences-definitive-guideline-Web.pdf
Page 76 it states "Distribution includes possession with a view to distributing or sharing images. Production includes the taking or making of any image at source, for instance the original image.Making an image by simple downloading should be treated as possession for the purposes of sentencing." This is the same pdf I was sent by my solicitors and I wish I had spotted this sooner, but here we are.

In this instance CPS are wrong and everything they include in that link that warrants a "making" charge is an absolute joke. Lets keep in mind what the sentencing guidelines say in comparison to the CPS.
In order to view any attachment given by email it must first be "downloaded" to your computer in order to view it. If it was a JPG attachment now days you can just view it in your web browser which could then leave data on your computer for quicker loading times in future. If it was a zip file which had an image inside, you would usually have to "download" the zip file to open it and view the contents.
Viewing a website does not "download" websites or any data to your computer screen, instead data is stored on your hard drive which can be used to access the website data to load the site faster in future.
A pop up can appear at any point while browsing online ( thats why ad blockers were created ) and is ultimately out of the users control. a pop up is usually considered as an event that opens up another instance of your web browser which is technically no different to accessing a normal website. a pop up is its own website which also stores data on your computer so if it was to "pop up" again, it would load faster.
The final point I wish to make is to take a look at those cases they include. They date to 2002 - 2003 which in my opinion should not be used because the understanding of computers back then was extremely poor, and continues to be today.

So the real question is, Do the CPS take over the sentencing guidelines or does the sentencing guidelines take over the CPS?

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

jcdmcr — Sun, 05 Jul 2020 19:29:14 GMT

[quote]

[b]punter99 - 5 Jul 20 11:31 AM[/b]

[/quote]

“To make” has been widely interpreted by the courts and can include the following:

Opening an attachment to an email containing an image (R v Smith [2003] 1 Cr. App. R. 13)
Downloading an image from a website onto a computer screen (R v Jayson [2002] 1 Cr. App. R. 13)
Storing an image in a directory on a computer (although depending on where that image is stored, this could also be a possession charge under s. 160 CJA 1988) (Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248)
Accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism (R v Harrison [2008] 1 Cr. App. R. 29)

"" source: https://www.cps.gov.uk/legal-guidance/indecent-and-prohibited-images-children

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

Was — Sun, 05 Jul 2020 18:37:35 GMT

I never saw the evidence I pled guilty to. My legal aid was only granted after the case management hearing, so I had to make a plea at the magistrates court "blind". However, my barrister's advice was that every image would have to be shown to a jury and if there was only one of them they disagreed with, I was guilty. I wasn't prepared to take that risk and have the tariff reduction withdrawn.

I do wonder what would have happened if I had challenged the police and CPS in court in their factual inaccuracies, but that was not the fault of my solicitor or barrister. They gave me the facts. I made a tough decision. It was my decision and I own it.

It is counter-productive to try to "re-litigate". Far better to get on with improving your life.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

punter99 — Sun, 05 Jul 2020 17:19:00 GMT

[quote]

[b]xDanx - 5 Jul 20 12:30 PM[/b]

[quote]

[b]punter99 - 5 Jul 20 11:31 AM[/b]

[/quote]

I believe there was negligence due to the fact that despite repeated requests to review the evidence, I never seen a single piece, never got advice from him. He had a care of duty to follow and he simply never followed it
Came across this link while I was looking online https://www.traceysolicitors.ie/en/knowledge/professional-negligence/

If the codes of conduct or the codes of practice, both the police and solicitors have in place are not followed. Is that technically a breach of contract? is that then not considered negligence?

[/quote]

I can't really comment on the specifics of your case. One thing I do know is that the CPS, very often, deliberately keep from disclosing their evidence to the defence, until the last possible moment. It's not illegal for them to do that. The defence solicitor will keep asking to see it and the CPS will keep stalling them, until the last few days before the case is due to go to court. In extreme cases, the defence only gets to see the full evidence, on the morning of the hearing. They then have to read it all very quickly and make a judgement, on how strong it is, before advising their client to plead guilty or not guilty. This is where the solicitor will use their experience of other cases to decide if it's worth fighting that evidence or not. This is only their opinion, at the end of the day and you, as the client, are free to ignore that opinion, if you want.

I realise hindsight is a wonderful thing and that realistically, most of us don't argue with our solictor and just do what they advise us to do. But that was the moment, to say to the solicitor, that you want more time to study the evidence, in which case they can ask for an adjournment, to give you extra time.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

xDanx — Sun, 05 Jul 2020 12:30:15 GMT

[quote]

[b]punter99 - 5 Jul 20 11:31 AM[/b]

[/quote]

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

punter99 — Sun, 05 Jul 2020 11:31:02 GMT

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

xDanx — Sat, 04 Jul 2020 17:40:57 GMT

[quote]

[b]jcdmcr - 4 Jul 20 5:05 PM[/b]

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

I've just seen this - so i'm going to have to read it, but going off the title my solicitor was exactly the same.

[/quote]

Mine too.

its only now after some research I came to the conclusion that this was in fact negligence

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

jcdmcr — Sat, 04 Jul 2020 17:05:18 GMT

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

I've just seen this - so i'm going to have to read it, but going off the title my solicitor was exactly the same.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

jcdmcr — Fri, 26 Jun 2020 02:05:56 GMT

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

I've had the same conversation with 3 solicitors, they have you bang to rights. It doesn't matter if its deleted or not, its also the same if its a pop up window. If a pop up appears with underage children then you're effectivly guilty.

As a side note - I read an article on the daily mail website about an obesse child. Before putting a comment I googled "average weight of an 11 year old". I had monitoring software that captured screens and key strokes (future digital). The next day I was arrested and questioned over this search, the CPS stated in court this proved a contact offence was imminent. I was questioned by the police, probation and a forensic psychiatrist.

After getting my dad to google for the article and find my comment that started with "just googled it he is overweight..." they dropped this.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

JASB — Mon, 24 Feb 2020 15:56:34 GMT

[quote]

[b]TheWeird1 - 24 Feb 20 11:51 AM[/b]

Hi Zack

I was in a similar position I had only 2 Cat A images.

I found the magistrates worse than the Crown Court because:

- They took too long to process me.

- The legal clerk was no use in finding paperwork.

- The CPS credit where its due and they are to present the facts, and tarnish you the did state I had a good character etc but they said they did have a SHPO and they couldn't find it.

- The Judges despite after being asked for a presentence report, still felt that the crown court could only deal with me.

When I went to Crown the first thing the Judge said was "The magistrates could have dealt with this but here we are".

I find the issue in itself usually with the police, because I had been accused of an unrelated matter and volunteered my own mobile for forensics, and they still proceeded to scan after my ex decided to drop the charges; Equally, they aren't so forthcoming with returning an item of mine either.

[/quote]

Hi
I do hope I have understood your words correctly so my response is valid.
In regard to timeframes I am not sure what you are benchmarking it to: It took me 5 months to get to magistrates.
Who was going to create the pre-sentence report for the magistrates court as I believe they would be done by Probation after guilty plea/post trial conviction?
The police/CPS who visited me 4 days before sentencing - after 2 years on bail and many visits - told me I would not be going to prison. I got 4 years.
In regard to returning kit by the Police, when I was arrested they took my step fathers PC, even though I did not live there - my car was registered for that address so long story.
Anyway it took much chasing and 7 months for me to get all my IT equipment back - nothing was found.
Your ex dropping the charges does not matter as that only gave them access and they found the images which would enable them to continue with their investigations into the new offence.
Finally the Judge praised me verbally - in my presence - for my honesty and remorse. he then dismissed the Probation Office report which suggested 30 months supervisory and gave me 4 years with a life time SOR!!

As ever do not see my words as being offensive but more of suggesting that the information presented to you by solicitors did not quite match the reality of the processes.
I wish you good luck and please do not think of me being to cynical - its just one of those days...

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

Dean91 — Mon, 24 Feb 2020 11:51:54 GMT

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

Zack — Thu, 12 Dec 2019 16:33:15 GMT

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

In theory it's possible to mount an appeal, if your solicitor did not give you complete legal advice, I think it's a strong test though, and I guess an expensive one too. A guilty plea makes things harder. The system doesn't want to open the floodgates. I think the odds are stacked against you. But only an experienced solicitor who knows this area and is experienced in appeals could advise. I found this: http://doughty-street-chambers.newsweaver.com/Appeals/mckaqv7xihm?a=1&p=698889&t=174031
I'd be interested to know how you get on. My partner has a similar conviction, and was given a rather badly written streamlined forensics report the day before the plea hearing (despite being produced many months before). We have been considering getting legal advice about an appeal - but unsure if it is a fight that is worth fighting.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

punter99 — Fri, 06 Dec 2019 14:28:58 GMT

Wise words from others there, but just on the original point. I don't think it would have helped your case to say the images were deleted. One of the aggravating factors in sentencing is attempting, or being seen as attempting, to destroy evidence or to cover your tracks. The judge could have viewed it as more serious, if they interpreted it that way. I believe there is a defence if you can show you deleleted an image very, very quickly after it was downloaded, but because you had other images apart from that one, you would still be guilty of possession. Whether you viewed the image or not, is immaterial and the onus is on you to prove you didn't view it, not on them to prove you did! There is almost no way for anybody to beat the possession laws in court, because they are strict liability offences, so pleading guilty at the first hearing is almost always advised.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

JASB — Fri, 06 Dec 2019 12:46:41 GMT

[quote]

[b]Our Alfie - 6 Dec 19 7:32 AM[/b]

[quote]

[b]JASB - 5 Dec 19 3:47 PM[/b]

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

Hi
In brief mitigation decisions by solicitor rely on what can be proved or cast doubt on the prosecution's case. The CPS are there to word charges in a manner that will get the verdict 'they' want so will not offer any escape routes for you.
Remember their position in regards to being viewed by society.
However and possibly more importantly you pleaded guilty to the charges and your solicitor in his speech prior to the Judge giving sentence may have felt mentioning could of created more damage to your case e.g. you are trying to deny.
I appreciate it may sound weird / illogical but that is the legal logic.
My 'victim' actually sent 'blackmail' text messages which both the Police and my solicitor were aware of. As I pleaded guilty they were not used in mitigation.

Sorry but you will know you cannot appeal now unless you have new evidence, the solicitor will of moved on and forgot you.
My advice is to concentrate on the now and future. Accept what you cannot change so work on the future as that is what you can shape.
Good luck

[/quote]

Thank you so much for your reply. It has helped to just be able to discuss my situation.

Kind regards

[/quote]

Hi
I am glad I am able to add words that you see as supportive.
As Mr W mentioned there are various books to possibly offer ways to allow you to move forward.
One I started reading was by Paul Gilbert called the Compassionate Mind.
It helps understand the way your brain works in a light yet informative way.

Keep going and visiting and you will be able to offer support and compassion to other - no matter their offence.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

Our Alfie — Fri, 06 Dec 2019 07:32:59 GMT

[quote]

[b]JASB - 5 Dec 19 3:47 PM[/b]

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

Thank you so much for your reply. It has helped to just be able to discuss my situation.

Kind regards

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

Mr W — Thu, 05 Dec 2019 17:30:13 GMT

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]

First of all, welcome and I’m sorry to hear you’ve no doubt had a very stressful three years. I can assure you that you’re not alone here.

As a first time offender, I was also shocked at how much is and isn’t said on the day of sentencing, certainly not helped by press coverage. Only you know truthfully the extent of the offending but the phrase - which is like nails on a blackboard for me - is "we are where we are".

As JASB points out you admitted the charges and, while I don’t know what sentence you received, I would wonder how different would the sentence have been if you did fight the detail you mention after pleading guilty? The sentencing is loosely pretty similar for everyone, ‘that’ register for 5 - 10 years, an order for a similar number of years, a community order or a short jail term often suspended and a programme to attend. An approach which consistently ruins people’s lives to all sorts of extents without tackling any of the many issues at play.

It will take time to come down from all the stress you’ve had to deal with since January 2017. Moving forward, I can’t recommend specialist talking therapies enough such as private therapy, Lucy Faithful Foundation etc (and this forum), it's important to hold on to the people you have in your life and, although the future may not be easy, know that the worst is over with. Stay strong.

RE: No defence or mitigation offered by my defence solicitor on indecent images charge.

JASB — Thu, 05 Dec 2019 15:47:48 GMT

[quote]

[b]Our Alfie - 5 Dec 19 3:27 PM[/b]

[/quote]