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.)