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Fresh confusion arose last week as to when an individual may be found guilty of possessing extreme porn, with the acquittal of a pensioner on the grounds that no one could be sure when he actually downloaded the images in question.

While this may be heartening news for those with poor memories and ageing hard drives, The Register is having some difficulty in squaring the outcome of this case with the letter of the law.

Former stand-up comic Michael Silk, of Sanderling Way, Iwade, was charged with six offences of possessing extreme porn featuring dodgy goings-on between humans and animals. Silk denied the charges which, it was alleged, had been committed in May 2009.

For the prosecution, Kent Online reports, Alex Wilson told the judge at Maidstone Crown Court last Tuesday that, following discussions with an expert, he would offer no further evidence as he believed there was no realistic prospect of conviction.

According to the same report, there had been considerable debate as to the meaning of possession of the images on 70-year-old Silk's computer. Although the new law that came into effect on January 26 last year makes it an offence to possess such images, it was suggested that the expert could not determine when Silk viewed the images.

In a puzzling statement for the defence James Martin, told Judge Philip St John-Stevens: "We are talking about someone who has viewed something and not downloaded it.

"He simply viewed it and the computer has stored it temporarily."

That could suggest like the image was viewed and remained in cache, a fact that has been sufficient to convict individuals in respect of other possession offences – most notably in respect of indecent images of children. We therefore spoke to the CPS Head Office for the definitive view on the subject.

A CPS spokesperson told us: "We keep all cases under constant review and, as part of that process, consulted an expert in computers, downloads and caching in relation to this case.

"Following this consultation, it became apparent on the evidence available in this case that we could not be sure when the material in question had been downloaded. It was also apparent from the evidence that the defendant was not computer literate.

"At the time the defendant’s computer was seized the material was held in the computer’s internet cache. There was no evidence that the defendant had saved the images or sought to keep them. In order to 'possess' the images in that state the law requires knowledge that the images exist and the means or know-how to retrieve them.

"The defendant was in possession of the images at the point in time that he accessed them and viewed them. On the evidence available in this case it was not possible to prove that he did so at some time after the Act came into force. We could not therefore proceed with the prosecution and we accordingly offered no evidence."

Perhaps this is not quite so inconsistent: in other cases, it has been held that whether an image is possessed or not will depend on the ability of the defendant to retrieve the said image. Simply deleting an image will not save you if you are computer literate enough to retrieve it. Contrariwise, it appears that if you are a total computer illiterate, that might be enough to get you out of a fix.

The judge entered formal not guilty verdicts. ®

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