Original URL: http://www.theregister.co.uk/2009/05/22/bates_hard_drives/

Police chief tilts at windmills in 'porn' disk case

Portishead in a storm

By Jane Fae Ozimek

Posted in Law, 22nd May 2009 11:58 GMT

Avon and Somerset police chief's claims that he would rather risk prison than return alleged indecent images to a computer forensic expert appear to put him at odds with his own legal team which agreed to a consent order to return the material.

At the weekend, it was reported that Avon and Somerset Police Chief Colin Port was "threatening to defy a court order to hand back a mass of suspected paedophile images", seized by his officers. The difficulty with this claim is first that the court do not appear to be making quite such an explicit demand – and second that his own legal department is aware that the court has not requested this.

During a raid on Jim Bates’ home address last September, police seized three things:

* Hard drive clones, which were duplicates of hard drives relevant to an up-coming court case in Bristol

* Printed material, which Mr Port is reported as saying represent over 2,500 hard copies of child abuse images

* A further 80-plus hard drives which police counsel claimed, during judicial review (para 27), were seized because "it was possible that the computers might have contained communications... relevant to the investigation of conspiracy".

According to the court order produced in response to the judicial review - of which we have seen a draft - the police agree that their search was unlawful, and they also agree to return all items seized during that search. However, the order further stipulates that the hard copy material will be held by Jim Bates "in circumstances such as they are sealed and untouched until such time that there be agreement between parties as to examination or disposal of same".

No specific reference is made in the order to the cloned drives. We understand, however that Mr Bates is happy to pass these (sealed) to lawyers now working on an appeal case relating to indecent imagery allegedly downloaded to these drives. In theory, therefore, for these two categories of material, there appears to be little difference between what the Police and Mr Bates would like to see happen to it – apart, perhaps, from a quarrel over location.

The order was a consent order, which implies that is was made with input from Avon and Somerset’s legal department.

This leaves the issue of the other hard drives. Again, the Chief Constable is reported as saying: "We don't know what's on these hard drives, but it is highly likely they contain indecent material going back to the 1990s".

It is possible that they do: Mr Bates has been working on computer forensics since that time, and it is conceivable that images or trace images remain on those drives for any number of reasons – for instance, through failure to wipe a disk thoroughly after the end of a case.

If that is so, and crucially, if Mr Bates' instruction to act in one or more of the cases concerned had lapsed, then, according to at least one legal expert, Mr Bates could be committing an offence despite his previous status as an expert witness.

Professor Peter Sommer, an academic and expert witness told us: "Case law means that individuals – even those for whom a statutory exemption exists – must wipe indecent images at the end of an instruction. Otherwise, statutory exemption would be a cover – a loophole - behind which anyone with an inappropriate interest in this sort of material could hide."

The problem remains that the Police cannot simply go rummaging around on these drives without good reason to do so. The justification they gave for this raid – even though the warrant was kicked out in court - was the recovery of the two cloned drives and looking for e-mail evidence of conspiracy. This means that apart from the co-incidence that these drives are now on police premises, they have no more right to go searching them than to wander into anyone’s private dwelling and start rummaging around their hard drive because of what "might" be there.

We have put the above concerns to Avon and Somerset Police: at time of publication, we have received no response from them. ®