Prosecuted for receiving something unwanted and deleteing.

Bikerman2019 · 04-02-2020 04:34PM #1

I just read a very interesting article on the Irish Times today. A lady received an illegal whatsapp video. On realising what it was, deleted it and told the sender to get lost (it appears)

They still got prosecuted for having it as it appears to have been stored by the operating system, even though she deleted it.

The only thing I can think of is she may have been done for NOT reporting it to the gardai. Either that, or there is more to the story that we do not know. Any opinions or thoughts on this one?

Link
https://www.irishtimes.com/news/crime-and-law/courts/criminal-court/woman-prosecuted-for-child-porn-she-innocently-received-on-whatsapp-1.4161343

Quantum Erasure · 04-02-2020 04:48PM

She deleted it from the whatsapp conversation, but it was still in her phones gallery. It says in the article that failing to report it isn't a crime.

_Brian · 04-02-2020 04:53PM

I know at work the policy is if you receive any porn in email it’s expected it will be deleted immediately.

Failure to delete within a timely manner will be a disciplinary and I’ve seen it implemented. IT can tell how long between opening and deleting the email.

Bikerman2019 · 04-02-2020 04:55PM

_Brian wrote: »

I know at work the policy is if you receive any porn in email it’s expected it will be deleted immediately.

Failure to delete within a timely manner will be a disciplinary and I’ve seen it implemented. IT can tell how long between opening and deleting the email.

But it appears she did delete it. However, the operating system stored a copy. So on that basis, you could be prosecuted, even though you deleted it.
I think this one is extreme. Unless it could be shown you SAVED a copy before deletion? Where does it end. If your sys admin backup everything that comes in, then they could be liable as well.....

Homer · 04-02-2020 05:00PM

She was sent child porn and told the sender to "get lost" instead of reporting it to the Gardaí?? Deserves whatever she gets in my opinion. So, she never ever looks at her camera roll and sees a child porn video in the gallery? Hmmmmm
We are not getting the full story here. Her defence team claimed "there but for the grace of god goes any of us" some chancer

Alun · 04-02-2020 05:01PM

It's a bit more complicated than that. When you delete a post from a WhatsApp message you get a popup that contains a check box labelled "Delete media in this chat", if that's left unchecked a copy will remain locally on your phone. However, even if you do check that box, on some phones, it's possible that a copy of that media will already have been uploaded automatically to a cloud service such as Google Photos before you deleted it.

Samuel T. Cogley · 04-02-2020 05:08PM

Am I the only one that thinks there's a mens rea problem here? Very likely that I am.

randomrb · 04-02-2020 05:17PM

Samuel T. Cogley wrote: »

Am I the only one that thinks there's a mens rea problem here? Very likely that I am.

I think you could argue lake of mens rea if she hadn't checked her whatsapp before she was caught, otherwise she knew or ought to have known the video was on her phone

Samuel T. Cogley · 04-02-2020 05:19PM

randomrb wrote: »

I think you could argue lake of mens rea if she hadn't checked her whatsapp before she was caught, otherwise she knew or ought to have known the video was on her phone

But she deleted it. I suppose you could argue that she was still in possession of it before she deleted it, notwithstanding it was elsewhere on the phone.

randomrb · 04-02-2020 05:20PM

Samuel T. Cogley wrote: »

But she deleted it. I suppose you could argue that she was still in possession of it before she deleted it, notwithstanding it was elsewhere on the phone.

She deleted one of the versions of it, now I don't know if she argued that she thought that that was permanent or not but she should be aware whats on her phone

coylemj · 04-02-2020 05:21PM

randomrb wrote: »

I think you could argue lake of mens rea if she hadn't checked her whatsapp before she was caught, otherwise she knew or ought to have known the video was on her phone

You haven't read the entre thread. When you get a WhatsApp message which contains media, the media file is stored on your phone storage. Deleting the message does not guarantee that the photo or video that came in that message is deleted from your phone storage.

The judge acknowledged that she had no legal obligation to report the initial message. Which she deleted.

Why she pleaded guilty is a mystery to me. But as we are constantly remind here, you can't judge the case by the press report because there's usually more to it than what gets reported.

04-02-2020 05:27PM

Bikerman2019 wrote: »

But it appears she did delete it. However, the operating system stored a copy. So on that basis, you could be prosecuted, even though you deleted it.
I think this one is extreme. Unless it could be shown you SAVED a copy before deletion? Where does it end. If your sys admin backup everything that comes in, then they could be liable as well.....

When you delete a message with media, e.g. an image in whatsapp, there is a box, that is pre-checked stating "Delete media in this chat", which deletes it from the conversation and from your gallery. Either by mistake or on purpose she unticked that box which left a copy on her phone.

As I said in another thread, if you received that kind of message wouldn't you make 100% sure it was off your phone?

It was found during a search for something else in her house and her phone was seized.

She's either really really unlucky or something else is going on here.

04-02-2020 05:40PM

She pleaded guilty to the offence of possession contrary to Section 6 of the Child Pornography Act, 1998.

That offence is committed where a person "knowingly possesses any child pornography"

She elected to plead guilty, having been advised and represented by a full legal team.

You simply don't know what the extent of the admissible evidence the prosecution would have been in a position to adduce at trial was, and whether it would be sufficient to ground a conviction, but she did.

coylemj · 04-02-2020 06:02PM

ecoli3136 wrote: »

She elected to plead guilty, having been advised and represented by a full legal team.

+1 led by a SC.

I received a WhatsApp message today which contained an image, it's pretty trivial so I marked it for deletion. A popup panel immediately appeared offering to delete the attached media file. The default (a ticked box) is to delete.

She had to untick that option to retain the offending movie file. An overt act which was probably her downfall.

Bikerman2019 · 04-02-2020 06:02PM

coylemj wrote: »

+1 led by a SC.

So can you confer anything from that? A full legal time advising and she pleaded guilty.

So either there was more to it, or the law says she should have known there would be a copy on the operating system somewhere.
The article says she came from africa, probably as a refugee. We are assuming she had education. Would she have known or is she expected to know that a copy would have been made by the device?

Or pehaps she saved it. We will never know I guess.

Edit.
Just seen coylemj's latest post. That puts a different slant on it.

04-02-2020 06:06PM

All media like that is stored under Other in my Gallery. I clicked it recently and couldn't believe how much stuff was in it. Never would have known stuff would be saved.

GM228 · 04-02-2020 06:08PM

Samuel T. Cogley wrote: »

Am I the only one that thinks there's a mens rea problem here? Very likely that I am.

(a) knowingly acquires or possesses child pornography

Un-ticking the check box to properly delete is probably enough to satisfy the knowledge of possession objectively.

Bikerman2019 · 04-02-2020 06:09PM

Deleted User wrote: »

All media like that is stored under Other in my Gallery. I clicked it recently and couldn't believe how much stuff was in it. Never would have known stuff would be saved.

You would never have known, but are liable for it in a court of law.

coylemj · 04-02-2020 06:50PM

Bikerman2019 wrote: »

You would never have known, but are liable for it in a court of law.

Not really, this is not like driving with an expired license. Road traffic legislation does not require the Gardai to prove that you ‘knowingly’ drove without a license. Whereas the act under which that lady was prosecuted specifically requires knowledge (on the part of the accused) of possession of child pornography.

Per post #13. ......

ecoli3136 wrote: »

She pleaded guilty to the offence of possession contrary to Section 6 of the Child Pornography Act, 1998.

That offence is committed where a person "knowingly possesses any child pornography"

Quantum Erasure · 04-02-2020 06:59PM

coylemj wrote: »

I received a WhatsApp message today which contained an image, it's pretty trivial so I marked it for deletion. A popup panel immediately appeared offering to delete the attached media file. The default (a ticked box) is to delete.

She had to untick that option to retain the offending movie file. An overt act which was probably her downfall.

GM228 wrote: »

Un-ticking the check box to properly delete is probably enough to satisfy the knowledge of possession objectively.

this must be a new feature on Whatsapp? i dont think it worked that way last time i tried it

MrMusician18 · 04-02-2020 07:00PM

So if someone received a vhs in the post with illegal material on it, would they be liable for prosecution?

If they opened the packet but hadn't played it?

My reading of it is that they would, which seems overly draconian.

Jinglejangle69 · 04-02-2020 07:04PM

Definitely more to this story that probably couldn't be used in court.

Whole thing sounds weird.

coylemj · 04-02-2020 07:13PM

Jinglejangle69 wrote: »

Definitely more to this story that probably couldn't be used in court.

For 'couldn't be used', I'd suggest 'was not used'. Because I suspect the prosecution had more ammunition. Which they would have presented as evidence if she had pleaded not guilty.

cobhguy28 · 04-02-2020 07:25PM

Samuel T. Cogley wrote: »

Am I the only one that thinks there's a mens rea problem here? Very likely that I am.

No your not, but I think we are missing a lot of the details.

punisher5112 · 04-02-2020 07:29PM

I'd understand if she forwarded it or it was proven she watched more times and had more but that is absolutely bizarre.

No way should that have even made court as it's absolutely ridiculous.

The person that sent it should be the one getting done.

Seriously how much time and money has this cost us the tax payer.

Christ on a bike I wish I had that Gaurd in the cases of assault etc on me over the years.

04-02-2020 07:35PM

punisher5112 wrote: »

I'd

The person that sent it should be the one getting done.

Seriously how much time and money has this cost us the tax payer.
.

Considering she didn't report the person that sent it to her, it would be hard.
There is clearly more to the evidence than reported today.
Also, FYI, that guard didn't decide to prosecute her

Dodge · 04-02-2020 07:37PM

punisher5112 wrote: »

I'd understand if she forwarded it or it was proven she watched more times and had more but that is absolutely bizarre.

No way should that have even made court as it's absolutely ridiculous.

The person that sent it should be the one getting done.

Seriously how much time and money has this cost us the tax payer.

Christ on a bike I wish I had that Gaurd in the cases of assault etc on me over the years.

You don’t honestly believe she was prosecuted *solely* for receiving a message in a group, do you?!?

Quantum Erasure · 04-02-2020 07:38PM

bubblypop wrote: »

Considering she didn't report the person that sent it to her, it would be hard.

she wasn't the one reported either...

04-02-2020 07:39PM

Quantum Erasure wrote: »

she wasn't the one reported either...

Her phone was found to have a child porn video stored on it.

04-02-2020 07:45PM

GM228 wrote: »

Un-ticking the check box to properly delete is probably enough to satisfy the knowledge of possession objectively.

You can't resolve this on the basis of a media report of a sentencing hearing. The information is incomplete for two reasons.

punisher5112 · 04-02-2020 07:50PM

bubblypop wrote: »

Considering she didn't report the person that sent it to her, it would be hard.
There is clearly more to the evidence than reported today.
Also, FYI, that guard didn't decide to prosecute her

You know what I mean, very rarely have gotten any back up and I've been wrongfully put through the system with made up statements, names of witnesses changed and footage corrupt and any footage given was 20 minutes after the incident.

Prosecuted for receiving something unwanted and deleteing.

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