indecent images

Court of Appeal clarifies Meaning of ‘Possession” in Indecent Images Prosecutions

BSQ Partner Roger Sahota considers the recent case of R v Okoro (No 3) [2018] EWCA Crim 1929

 In a significant recent decision the Court of Appeal has clarified the meaning in the criminal law of “possession” as it applies to digital images that are sent electronically and are unsolicited. The ruling takes into account recent developments in technology which mean that firstly, vast volumes of information can now be stored on individual’s phones and secondly, much of that information may be unknown and indeed inaccessible to the ordinary phone user.  

In Okoro (no 3) the Accused was charged with possession of an indecent image of a child contrary to s160(2) of the Criminal Justice Act (“CJA”) 1988. This is one of two potential “possession” offences that apply in regards to digital images. S.63 of the Criminal Justice and Immigration Act 2008 (“CJIA”) further criminalises the possession of extreme pornographic images. The Accused also faced charges under this section. Charges of “possessing” indecent images are often pursued when the CPS are unable to prove the “Making” or Downloading offence contrary to S.1(1) of the Protection of Children Act 1978 (usually where indecent material is found on a device but it cannot be shown who downloaded it and/or how it arrived or they are unsolicited.)

 The main issue the Court considered was whether it was necessary for the Crown to show that a user knew what the contents of a file were to prove “possession.’ There is no statutory definition of the concept of “possession.” Several cases had considered the question but the Court of Appeal clearly felt the time had come to update the law in this area. The Defence claimed the Trial Judge had misdirected the jury on this point. It was their case that the Accused did not know what was in the files that were sent to him via Whatsapp as they were unsolicited and he had not viewed them.

 Taking into account modern technological advances the Court held that it would be unrealistic for the law to require that an Accused should know of the contents of each relevant file on his device to prove possession.  This could however be established;-

 “if the accused can be shown to have been aware of a relevant digital file or package of files which he has the capacity to access, even if he cannot be shown to have opened or scrutinised the material.”

 In other words, an Accused would have possession if he knew that he had received custody or control of a file or package or group of electronic files. He did not have to know what the contents were of each image. Knowledge for example that digital files had been sent by email as attachments or on Whatsapp would suffice i.e.-

 “for these statutory purposes we are clear that possession is established if the accused can be shown to have been aware of a relevant digital file or package of files which he has the capacity to access, even if he cannot be shown to have opened or scrutinised the material.”

 The correct approach in these cases was therefore for the Crown to show, firstly, that the legal definition of possession was made out.

 Thereafter, an Accused who claimed as in Okoro (no 3) that the files were sent unsolicited and had never been viewed could advance one of the statutory defences under s.160(2) of the CJA 1988, limbs (a)-(c)[1] which he had to prove was more likely than not to be true;-  

 (a)  that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or

 (b)  that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to suspect, it to be indecent; or

 (c)   that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

 Unfortunately for the Accused in Okoro (no 3), the jury decided that he had not made out either of the statutory defences he relied on at limbs (b) and (c). This was always likely to be an uphill struggle for the Accused – while there was no technical evidence to conclusively show he had viewed one indecent image of a child the jury were invited to infer that he had from other technical evidence which showed that he had chosen to save it his personal “vault” and then never deleted it (he claimed that he intended this but had forgotten to do so.)

 Ultimately the Court of Appeal therefore found no error in the Judge’s direction to the jury that the Appellant had admitted possession of the two images, but that he said (relying on the statutory defences under s.160 CJA 1988 and s.65 CJIA 2008) that he did not know the content of them. In setting out the way in which the law should be applied in “possession” of digital images cases this decision provides some welcome precision in a highly technical area of the criminal law.

 If you require any advice or assistance in an indecent images prosecution contact our London offices


[1] The same defences apply to the extreme pornography charge under s.63 of the CJIA 2008 (see s.65 CJIA statutory defences.)

Ringing the Death Knell for the Entrapment Defence – Paedophile Vigilantes and the Law - BSQ Briefing

 BSQ partner Roger Sahota examines TL[2018] EWCA Crim 1821  the most important decision on the abuse of process doctrine handed down by the Court of Appeal in many years.

 Every criminal court has the inherent power to stop a prosecution (or 'stay' an indictment in the Crown Court) if the court is of the opinion that to allow the prosecution to continue would amount to an abuse of the process of the court. This power is an important bedrock of the rule of law. It allows the courts to act independently of the state by striking down a prosecution where there is a risk that a defendant may not receive a fair trial.

 This power arises because, as famously stated by the House of Lords in the landmark case of Bennett [1994] AC1

 “the judiciary accept(..) responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.”

 It is a power that is most commonly used in cases where there has been improper or even unlawful conduct by an agent of the state such as a police or customs officer in the course of an investigation leading up to the prosecution of an individual. However, it can in principle apply to any complaint of impropriety as the recent case of TL[2018] EWCA Crim 1821 demonstrates.

 The decision in TL is interesting because it lays down guidelines for when the criminal courts should stop prosecutions where “non-state actors” – specifically citizen vigilantes known as “paedophile hunters” – are said to have behaved improperly when investigating criminal conduct that is later brought to the attention of the authorities and results in criminal prosecutions. 

 As over 50% of contested trials in the crown court now feature allegations of sexual misconduct, there are now many cases where the conduct of unregulated organised groups of so-called “paedophile hunters” come under the spotlight. A common defence strategy in these cases is to apply for a prosecution to be stopped under the “abuse of process” doctrine based on complaints that the “paedophile hunters” involved have acted improperly in “entrapping” the accused by inciting that individual to commit an offence they would otherwise not have contemplated.

 Such was the position in TL. TL faced charges of attempting to meet a child following sexual grooming. Online he had met someone he believed to be a 14 year old female and via Whatsapp arranged for them to meet at his flat for a sexual encounter with his girlfriend. Unbeknownst to him TL was actually communicating with Mr U, the organiser of a group called “Predator Hunters,” posing as the child. Police were tipped off and arrested TL when he attended the meeting they had arranged.

 At trial the Defence said the Accused had been unfairly enticed into a trap. The Trial Judge agreed and ordered a “stay” or dismissal of the prosecution as an abuse of process. He found that ‘Predator Hunters” had acted improperly because they conducted themselves “like an internet police force, and … behave(d) in a proactive way, in order to obtain evidence on which to mount a prosecution”.

 On appeal the Court of Appeal reversed that decision. It said that theoretically the abuse of process doctrine could be applied where “non-state actors” had acted improperly.[1] But, the Court held it would be very rare to find a case where the facts justified stopping a prosecution. The Court did not speculate about what those unusual circumstances might be. However, it considered the actions of the Predator Hunters group in this case, and by extension other groups of a similar ilk, fell far short of the type of misconduct they had in mind;-

 "the zeal of some "vigilantes" may lead them to seriously improper conduct. It would be much better for those in Mr U's position immediately they have suspicions about the conduct of an identifiable individual to involve the police and leave them to investigate. But the question before us is whether the judge was right to stay the proceedings as an abuse of process. Our conclusion is that he was not." (para.39.)

 Those involved in “paedophile vigilante” activities will no doubt feel vindicated by this decision. For Defence lawyers TL does not quite spell the death knell for applications that a case should be stayed where paedophile hunters are involved. Cases where a stay will be justified will require proof of “seriously improper conduct’ so as to bring the administration of justice into disrepute.” They will be few and far between.

 


[1] In the case of Wilson (CA, 9 May 1996) the same was said in a case concerning the activities of private informants.

Indecent Images Update - Court of Appeal Revises Guidelines in SHOPO Cases

A recent decision by the Court of Appeal provides welcome clarity to defendants and participants in indecent images cases.

SHOPOS – Sexual Harm Prevention Orders are routinely imposed in cases where individuals are convicted of indecent image offences. The terms of the orders normally place restrictions on an individual’s internet usage and contact with children under 18.

Previously the leading case on SHOPOS is (and remains) R v Smith [2011] EWCA Crim 1772; [2012] 1 WLR 1316.

 In R v Parsons [2017] EWCA Crim 2163 the Court revised the Smith guidelines on SHOPO’s in the light of developments in technology and everyday life.  In summary it held;

1.     SHOPOS should not include a blanket ban on Internet Usage – this was unrealistic, oppressive and disproportionate.”

2.     Where an individual can show that his employers have risk monitoring software at work there is no requirement for additional software to be implemented on work equipment by the Police. The Court formulated a model direction to be imposed in such cases:-  

"The Defendant is prohibited from:

(1) Using any computer or device capable of accessing the internet unless:

 (a) He has notified the police VISOR team within 3 days of the acquisition of any such device;

 (b) It has the capacity to retain and display the history of internet use, and he does not delete such history;

 (c) He makes the device immediately available on request for inspection by a Police officer, or police staff employee, and he allows such person to install risk management monitoring software if they so choose.

 This prohibition shall not apply to a computer at his place of work, Job Centre Plus, Public Library, educational establishment or other such place, provided that in relation to his place of work, within 3 days of him commencing use of such a computer, he notifies the police VISOR team of this use.

3.     SHOPOs often include a clause restricting contact between the person convicted and children under 18. In Smith it was held that is "not legitimate to impose multiple prohibitions on a defendant just in case he commits a different kind of offence". There must be "an identifiable risk of contact offences" before prohibitions on contact can be justified. In Parsons the Court considered a case that was,

 “close to the borderline. The appellant's relevant offending comprised making indecent photographs of children. That said, the facts (set out above) disclosed his browsing or searching for websites which could be used for online chats with young children. Such searches could have been a first step towards the commission of predatory offending, seeking out children for sexual purposes. In the circumstances, we are persuaded that the inclusion of some contact prohibitions in the SHPO was necessary and proportionate.”

As the appellant's offending related to female children it held that that the SHOPO prohibitions should be confined to female children.

“The most important practical aspect of this decision to our clients will be that it leaves open the possibility that after a conviction individuals can continue in their previous occupations without having specialist police monitoring software installed on their work computers.”
— Roger Sahota

If you require advice in an indecent images case please contact our London office.

BSQ Briefing – Sexting, Children and the Law

BSQ Briefing – Sexting, Children and the Law

In January 2016 the Home Office introduced a new type of disposal for cases where young people were accused of sexting i.e. distributing sexual imagery by social media or some other form of electronic communication. This article examines how the new disposal - known as outcome 21 has worked in practice - and what the law holds for young people who engage in sexting.