In the section on Defences the Government’s own advice (now archived) says this about Possession.
“… the person had been sent the image without having asked for it, on their own behalf or through someone else, and, having looked at it had not kept it for an unreasonable length of time. This will cover those who are sent unsolicited material by any means and who act quickly to delete it or otherwise get rid of it.”
What constitutes an unreasonable amount of time depends on all the circumstances of the case.
A number of concerned experts have collaborated with Backlash to produce advice about electronic images that might fall under this law. This advice could be useful for people in the following cases:
- Those researching this area of law.
- Those who have accidentally accessed or downloaded extreme pornography and wish permanently to remove such images from their possession.
- Those entering England, Wales or Northern Ireland from Scotland, or any jurisdiction outside the United Kingdom, with any electronic data storage equipment (e.g. a PC with a hard disk or a USB stick) or anyone importing such items, that may have items of extreme pornography on them.
- Those who have come into possession of second hand electronic data storage equipment that may store extreme pornography that they wish to remove.
- Those living in Scotland who wish to remove items of extreme pornography from their possession before the prohibition is enacted by the Scottish parliament.
Anyone who possesses material in England and Wales that is classed as ‘extreme pornography‘ without a good reason is committing a crime. In the (probably unlikely) event that the police investigate you, they will take your computer and any other computer data storage and investigate it for signs of illegal material. You must not be in possession of them, download them or access them in any way.
It is a defence to have shown that you did not intend to come into possession of any extreme images, which can be demonstrated partly by removing such material from your possession in a not unreasonable amount of time. In order to demonstrate your intent not to possess, it is clear that, in most cases, it’s enough to have made an honest effort to delete these items. If you can’t yourself, with your knowledge and your software, retrieve it, that counts as deletion, even if someone else with special software could retrieve it.
This means that if you look like you know how to do more, you’ll be expected to do it. It is necessary to find and delete all images that would break the law. If the police find more than one or two that you’ve missed you could be in trouble. And software that can find traces of deleted images can also (in theory) be used to retrieve them, thus allowing you to ‘possess’ them again.
Contact backlash if you need specific advice.