Prosecuted for receiving something unwanted and deleteing.

Bikerman2019

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

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

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

_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

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

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

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

randomrb

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

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

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

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.

Bikerman2019

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.

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

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

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.

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

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

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

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

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

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

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

Whole thing sounds weird.

coylemj

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

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

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.

punisher5112

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

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

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...

Quantum Erasure

Quantum Erasure wrote: »

she wasn't the one reported either...

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

GM228

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

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.

punisher5112

Dodge wrote: »

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

Well I certainly hope not but maybe there is more to it, I wasn't lead to believe there is unless I've missed something in the report.

punisher5112

punisher5112 wrote: »

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.

Gsoc, if you have any issues with Garda investigations

punisher5112

bubblypop wrote: »

Gsoc, if you have any issues with Garda investigations

I was advised to let it go by solicitor as there was more to it.

Happened on the job too.

Opened my eyes though as I was too trusting and forthcoming.

punisher5112

punisher5112 wrote: »

I was advised to let it go by solicitor as there was more to it.

Happened on the job too.

Opened my eyes though as I was too trusting and forthcoming.

You should get another solicitor!

punisher5112

bubblypop wrote: »

You should get another solicitor!

Too long ago now went on from 2014 to 2016 in court 4 times.

I had to take on board what I was advised as there was the real threat of me losing my job and as I'd be in the area all the time that I would be targeted....

He works out of pierce at and is the most obnoxious and vindictive person I've ever come across.

He even used the Gaurd that dealt with me as a witness stating he seen me doing what they said but yet the Gaurd hadn't a clue when he came to me. He even was joking and laughing with me and as the offence was so serious I actually wouldn't have been let carry on....

Madness

GM228

ecoli3136 wrote: »

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

Oh I know very well and have pointed out this before, but, to be fair the IT and Declan Brennan are fairly on the ball with such reporting (now if it was the Daily Mail or The Sun etc I wouldn't even bother making comment).

Being a CC criminal prosecution with a guilty plead there will unlikely be any further reading on the issue as any involvement of the higher courts is unlikely so it's all we have to go on.

But back to the point I made in relation to a potential issue of mens rea as raised by STC, based on the facts we have (assuming that is all to the issue) the knowledge of possession can indeed be satisfied objectively.

hierro

Quilty plea, summary of the facts so impossible look to look to deep into it.

Forensic acquisiton of mobile phones recovers deleted images etc. Metadata is recovered which would likely prove reciept and deletion.

If the image/video was deleted by the defendant and recovered wouldn't that have to make a prosecution unlikely and a never a quilty plea.

There's something missing in the article and story which makes this a wholely implausible story and hard to draw conclusions upon it. People with folders of stuff have recieved similar sentences.

CIARAN_BOYLE

hierro wrote: »

Quilty plea, summary of the facts so impossible look to look to deep into it.

Forensic acquisiton of mobile phones recovers deleted images etc. Metadata is recovered which would likely prove reciept and deletion.

If the image/video was deleted by the defendant and recovered wouldn't that have to make a prosecution unlikely and a never a quilty plea.

There's something missing in the article and story which makes this a wholely implausible story and hard to draw conclusions upon it. People with folders of stuff have recieved similar sentences.

4 month suspended sentence is light enough. Which is consistent with the facts of the case.

Being found guilty is what it is and means she won't work in the field she wanted to work (childcare) at all during her life as she won't pass garda vetting.

osarusan

I deleted a whatsapp image last night to see what happened and what options it gave me, and I didn't get the already-ticked 'delete media file' option somebody else mentioned, so I don't think we can be sure she actually untick that option.

AlanG

She pleaded guilty so there must have been some evidence that she knowingly stored the data. Anyone who gets a video showing the rape of a child and does nothing about it certainly shouldn't be working in childcare so i think the outcome of this case is good for society. Hopefully they can track down the person who sent it to her.

coylemj

osarusan wrote: »

I deleted a whatsapp image last night to see what happened and what options it gave me, and I didn't get the already-ticked 'delete media file' option somebody else mentioned, so I don't think we can be sure she actually untick that option.

It's when you delete the message within WhatsApp that you get the popup screen about deleting the associated image. If you delete the image as an individual file outside WhatsApp (as I do frequently as housekeeping), there is no interaction with WhatsApp.

The lady in this case claimed she deleted the message which contained the image so she should have seen the WhatsApp popup screen.

AAAAAAAAA

More of a tech question than a legal question, but is there a difference in behaviour between android and iOS on this? Does Android have the pop-up to delete the media from the phone, where the iOS version simply removes it from the app as it doesn't have permission to modify saved files?

If this is the case, I can see well why she would have been in the belief the video was completely destroyed.

CiaranIRE

Putting everything aside like should she have reported it...

If the video was stored in the system files(swap, temp files, cache or whatever, but not camera roll), I presume it would have been difficult/impossible to charge her if she had an iPhone as this would have been inaccessible to user without jailbreaking, but on an Android phone it's possible to browse the file system?

Seems really harsh unless there's more too it..

...and then again, what would stop another person saving everything to a system folder and playing innocent.

Strange case.

coylemj

AAAAAAAAA wrote: »

If this is the case, I can see well why she would have been in the belief the video was completely destroyed.

Good point.

Except..... while represented by a legal team led by a Senior Counsel, she pleaded guilty to this crime......

6.—(1) Without prejudice to section 5 (1)(e) and subject to subsections (2) and (3), any person who knowingly possesses any child pornography shall be guilty of an offence

http://www.irishstatutebook.ie/eli/1998/act/22/section/6/enacted/en/html#sec6

By her plea, she admitted that she was 'knowingly' in possession of the offending material. In plain English, she knew it was there.

My guess is that if she had pleaded not guilty, the prosecution had an abundance of other evidence against her. She knew she was cornered and, on legal advice, pleaded guilty to one offence.

So can we please stop speculating that she didn't know the file was still on her phone?

AAAAAAAAA

AAAAAAAAA wrote: »

More of a tech question than a legal question, but is there a difference in behaviour between android and iOS on this? Does Android have the pop-up to delete the media from the phone, where the iOS version simply removes it from the app as it doesn't have permission to modify saved files?

If this is the case, I can see well why she would have been in the belief the video was completely destroyed.

On my Android phone running Android 10, deletion in Whatsapp (default aettings) works as follows:

(a) select image in the chat.

(b) tap the trash can.

(c) A dialogue box opens with the Text "Delete Message from [sender]?" and a tick box which offers the option of "Delete media in this chat".

(d) There are also the options of "Cancel" or "Delete for Me" provided. That is, assuming you are not an admin of the chat when you also get the "Delete for Everyone" option.

(e) If I tick the box for "Delete media in this chat" and then select "Delete for me", the image is deleted from the Whatsapp chat and from a sub-folder in my Gallery which Whatsapp presumably created called "Whatsapp images" where all images I view in Whatsapp chats appear to be automatically stored (there are similar folders called "Whatsapp Animated Gifs" and "Whatsapp Video")

(e) If I don't tick the box for "Delete media in this chat" then the Delete function works to delete it from the chat but the image remains in the "Whatsapp Images" folder.

I have to say, it is less than clear to a user who hasn't addressed their mind to this (like me until this morning), based on all of that, that failing to tick the box leaves the image accessible from the Whatsapp sub-folders, even if it is deleted from the chat. I would accept that a person might not appreciate that a deletion from chat without ticking the box leaves the image/video on your phone, if they had not noticed the Whatsapp Image folders (which is a whole other question).

Edited to add - while I was aware of the Whatsapp sub-folders in my Gallery app, until I checked the process myself this morning, I was not specifically conscious of the fact that deleting from the chat left the image or whatever in the Whatsapp sub-folders. I've actually never bothered to delete a message or an image from Whatsapp until this morning when I tried it this morning (which perhaps tells you how dull but unambiguously lawful my Whatsapp chats are).

I am not particularly technical but I would assume that aside from all that the phone could be forensically examined with a view to recovering images that were downloaded but deleted, much like any data storage device.

Notwithstanding the quirky delete function as I have found it to be, I would still point out that, as I said previously, the accused knew the nature of the case against her, had a full legal team to advise her, and chose to plead guilty to knowingly possessing child pornography.

I was just interested to check out how the delete function works myself based on some of what has been said and what is reported as having been said in court. I don't have an iPhone to compare OS.

Dodge

iPhone you can just select the media and delete it

If you have your settings to save all media (the default setting), it will also be saved in your photos and will have to be deleted there (separately, by clicking on the photos app/icon etc)

It isn’t as coylemj posted above and I could easily see how some forget it’s auto saved

coylemj

Dodge wrote: »

iPhone you can just select the media and delete it

Same on Android.

Dodge wrote: »

It isn’t as coylemj posted above and I could easily see how some forget it’s auto saved

Can you elaborate - what did I say that you find fault with?

What I said was that if you delete the WhatsApp message, it offers to delete the associated media file. And you have to untick the option to retain the image or video file. So you cannot claim that the file was retained without your knowledge.

And she pleaded guilty to the crime of 'knowingly' being in possession of child pornography so I really can't see why we're still flogging this dead horse.

coylemj

coylemj wrote: »

Same on Android.



Can you elaborate - what did I say that you find fault with?

What I said was that if you delete the WhatsApp message, it offers to delete the associated media file. And you have to untick the option to retain the image or video file. So you cannot claim that the file was retained without your knowledge.

And she pleaded guilty to the crime of 'knowingly' being in possession of child pornography so I really can't see why we're still flogging this dead horse.

On my phone (android 10, WhatsApp default settings), as described above, you have to tick the box to delete from a WhatsApp folder of saved images. I suspect it depends on your settings.

The default option is that it does not delete from there.

You said previously that the default was that the delete function would delete from the chat AND the saved media folder so that she must have consciously selected the option of only deleting from the chat, which "may have been her downfall" or something odd like that.

It's not a dead horse. This a discussion forum and you offered an erroneous analysis of the case being discussed based on your flawed understanding on how WhatsApp works (which may reflect settings on your device, but not everyone elses).

coylemj

ecoli3136 wrote: »

On my phone (android 10, WhatsApp default settings), as described above, you have to tick the box to delete from a
WhatsApp folder of saved images. I suspect it depends on your settings.

I wasn't talking about deleting the image from the 'WhatsApp folder of save images', I was talking about what happens when you delete the original WhatsApp message itself.

When you highlight a WhatsApp message and click the bin (delete) icon, a popup panel asks you to confirm or cancel the delete and an (already ticked) option says 'Delete media in this chat'. You have to untick that box to retain the media.

ecoli3136 wrote: »

You said previously that the default was that the delete function would delete from the chat AND the saved media folder so that she must have consciously selected the option of only deleting from the chat, which "may have been her downfall" or something odd like that.

I did. See my response to your next comment......

ecoli3136 wrote: »

It's not a dead horse. This a discussion forum and you offered an erroneous analysis of the case being discussed based on your flawed understanding on how WhatsApp works (which may reflect settings on your device, but not everyone elses).

I simply laid out what happens when you delete a WhatsApp message. My phone is running Android 9 and the latest version of WhatsApp. I haven't changed any settings which would affect what happens when you delete a message.

The woman in the case said that she had deleted the original message. But the offending file was still on her phone. Which means that when she deleted the message, she unticked the option to delete the movie. That is to say, she made a conscious decision to keep the movie file.

What is 'flawed' about that conclusion?

Still waters

When i delete messages from WhatsApp i dont untick the box and the image is still in my gallery, i have to go into gallery and delete again, why is this?