child pornography

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.)

The importance of instructing a Defence Expert in indecent images Investigations

Roger Sahota, an acknowledged authority in this area, explains why it is essential that the technical evidence relied on by the police and CPS should be properly scrutinised.

In any indecent images investigation the critical evidence that will largely determine the outcome of a case will be the Crown’s expert forensics examiners report.

Commissioned by the police at the pre-charge investigation stage, the report will be compiled by a police officer from the hi-tech crime unit or independent forensics expert.  The identity of the expert will be important – police officers who are asked to produce these reports can often be challenged on grounds of bias or because they do not meet the definition of an expert.

The report will contain an analysis based on an electronic audit of what is recovered from a hard drive, RAM or digital storage seized by police during the searches of property connected to a suspect. Importantly, the report will not just confirm if illegal material has been found. It should also identify when, where and by whom the device was used at the time any material was downloaded or viewed.

Surprisingly, the work commissioned by the police is often riddled with errors. Our research suggests that, for example, 40% all the images located in the police data base are incorrectly graded according to the sentencing guidelines matrix.

Moreover, with the impact of swingeing cuts to police budgets, many police forces are limiting the scope of the work they ask their experts to conduct in order to save costs.

Cutting corners in this way means that there are often gaps or errors in the contents of the report produced by the prosecution because for example a full review of the entire contents of a hard drive may not be executed.

As a starting point, defence lawyers should therefore never assume that the contents of any report relied on by the Crown are complete and reliable. Nor should they assume that the Crown’s experts have correctly applied the law to the facts of a case.

Frequently, we have found that the reports relied on in cases we have been instructed in do not contain sufficient information so as to satisfy the legal test for the prosecution of the two main offences that arise i.e. either the possession or the making of indecent images.

To prove the offence of making (the legal term which includes the act of downloading) for example the onus is on the Crown to show that each individual file discovered was deliberately downloaded with knowledge of its contents. In other words, the Prosecution must demonstrate how each individual picture/movie/thumbnail/cached image was downloaded and by whom. Often it will be difficult to establish this (depending on where in the hard drive the images or video files were found.)

To prove the offence of possession of extreme or indecent images, the prosecutor must produce evidence that material found on a computer had been viewed. Any possibility that the illegal data comprises e.g. pictures from the cached section of a web page that may not been viewed by the user has to be eliminated. Once again, depending on the location of the  suspected images or video files, the Crown may struggle to prove this fact.

Without the benefit of a defence expert’s report, defence lawyers may not be able to take advantage of a range of technical defences that regularly arise in these types of cases. 

Contact Roger Sahota at our London office if you have a query concerning an indecent images or computer related police investigation. 

 

 

Indecent Images Investigation Success

Following an intervention by Roger Sahota of this office, Berkeley Square Solicitors can report another success in an indecent images investigation. Police investigators decided to take no further action in a case involving one of our professional clients. All the computer and phone equipment seized has been returned.

As one of the leading practitioners in this area of criminal investigations Berkeley Square Solicitors are available to assist any individuals who are concerned that they may become subject to a police enquiry.