Information Provided to Secure a Warrant to Search for Indecent Photographs
| Author | Alisdair A. Gillespie |
| DOI | 10.1350/1740-5580-76.2.112 |
| Published date | 01 April 2012 |
| Date | 01 April 2012 |
| Subject Matter | Divisional Court |
has expired) were the CPS construction to have been accepted. If the
paper were lost, then presumably the s. 172(4) defence would not apply
as it would not have been reasonable diligence to lose the paper. That is
a very high burden to place on a private citizen.
The Divisional Court noted that if such a requirement were placed
onto private citizens other aspects of the Act would become superfluous.
The offence under s. 172(2) can be committed not only by a person, but
also a legal entity (s. 172(2)(b)). Bodies corporate have additional
obligations placed on them. Not only must they disclose the identity
where ‘it is in [their] power to give’, they may not access the defence
under s.172(4) unless they ‘show no record was kept of the persons who
drove the vehicle and that the failure to keep a record was reasonable’
(Road Traffic Act 1988, s. 172(6)). If the logic of the CPS were adopted,
it would be not necessary for s. 172(6) to exist since, in essence,
everyone would be obliged to keep records since otherwise they would
not be able to satisfy the continuing duty to exercise reasonable dili-
gence in identifying the driver of a car (for a discussion on this, see at
[22] and [26]).
The natural conclusion therefore is the one that the Divisional Court
reached: that the obligation to provide the identity of the offender exists
at the time the notice under s. 172 is issued. If the driver knows the
identity of the driver at that time, then he must disclose it. Similarly if he
can discover the identity of the offender by reasonable diligence, he
must do so and the identity must be disclosed. The Court of Appeal
noted that this construction potentially helps the prosecution where, for
example, a registered keeper later realises the identity of the driver even
though he did not know at the time the vehicle was driven (see at [23]).
Where the registered keeper has forgotten, or did not know, the identity
of the person and cannot now find out the identity, the defence under
s. 172(4) is triggered and the person should be acquitted.
Alisdair A. Gillespie
Information Provided to Secure a Warrant to Search for
Indecent Photographs
G v Commissioner of Police for the Metropolis [2011] EWHC 3331
(Admin)
Keywords
Search warrant; Indecent photograph of child; Fraud; Inter-
net; Technicalities
On 18 May 2009 the Metropolitan Police applied to the City of West-
minster Magistrates’ Court under s. 4 of the Protection of Children Act
1978 alleging that G may have indecent photographs of children in his
possession. The information read, inter alia:
. . . information has been received [from Belarus that] a person called [G]
with an email address of . . . and supplying bank account details in the
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