Over recent years there has been a vast increase in the number of second hand mobile phones being sold online through such sites as eBay or Gumtree. Such purchases may not be without risk as a client found when charged with making indecent images!
Chesterfield criminal defence solicitor David Gittins recently represented a client who had bought such a phone. He had been 
arrested and charged with possessing indecent images on his second hand mobile phone. David’s client was adamant that he knew nothing about the images. He maintained he was not aware that they were in his phone.
The year long investigation was followed by proceedings before Chesterfield Magistrates’ Court. At trial David successfully argued that there was no case to answer. As a result the charges were dismissed.
Free and independent advice in police interview
David’s client had been arrested in the summer of 2016 for unrelated matters. His mobile phone was seized by the Police and 
examined. The Police found a small number of indecent images on the phone. Understandably they wanted to interview our client about this.
He sought free and independent legal advice from VHS Fletchers and was represented by David during two separate sets of interviews. Our client denied the offence saying he knew nothing about the images. He was unable to comment about how they got to be in his phone, nor could he help with when they got there.
‘Making indecent images’
As a result the our client could do little else but deny the allegation. The police and prosecution were not happy with these denials so he was charged to Chesterfield Magistrates’ Court. The charge was making indecent images between two dates in 2016.
Making indecent images does not necessarily involve taking a photograph. Downloading an image and making a new digital file is sufficient for a person to be guilty of an offence. The offence is likely to be treated seriously by the courts and therefore a prison sentence is often imposed. Although the ‘maker’ of the image is unlikely to have met the child, it is serious because there is a child victim at the end of the chain of ‘makers’ who copy the image.
The Trial
David met with his client on several occasions to take instructions and give advice before trial. David’s analysis of the technical evidence showed that the prosecution could not show when the images arrived on the phone. In order to prove the offence the prosecution would have to show that our client was responsible for making indecent images.
The prosecutor could not show that the images were placed on the phone while it was owned by David’s client. Additionally, there was no evidence that the images had been opened and viewed since our client had owned the phone.
At no point during the prosecution was evidence called to challenge our client’s account that the phone was bought second hand. The prosecution simply sought to rely on a need by our client to explain the images. Our client, however, had the benefit of the burden and standard of proof and did not have to prove anything.
After the prosecution case had finished David considered the evidence that the court had heard. Because of this he decided to make an application of no case to answer. This can lead to a case being stopped before the defence case. It is possible in cases where there is no likelihood of a court finding a defendant guilty.
The Magistrates’ in this case agreed with David’s argument and the case against his client was dismissed.
His client was understandably delighted with this result. He had never been in trouble with the police before so kept his good name. He will hopefully be able to put the fourteen months that he had serious proceedings hanging over his head behind him.
Free representation with Magistrates’ Court legal aid
Legal aid is available for advice and representation before the Magistrates’ Court. It is dependent upon our clients satisfying the legal aid agency of the merits of their cases and that they qualify on their means. If it is granted then our advice and representation will be free of charge.
Contact a Chesterfield criminal defence solicitor
Whatever the allegation that you face, you will want to instruct an expert criminal defence solicitor who will analyse the evidence in your case and prepare it accordingly. In cases such as this, it is important that any gaps in the evidence are identified and exploited to obtain the best result for you.
Please call us on out office number 01246 283000. Alternatively you can use the contact form below.
