indecent images lawyer

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.)

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.

BSQ Success in Indecent Images Crown Court Acquittal

Another success for BSQ’s private crime department in an indecent images prosecution. This case also highlights the need for defendants in these cases to seek advice from specialist lawyers who are experienced in this field.  

Our client, a business owner of good character had been charged with various counts of making i.e. downloading indecent images contrary to section 1(1)(a) of the Protection of Children Act 1978.  The client sought alternative legal advice as he was unhappy with the quality of service provided by his previous lawyers and instructed BSQ. The case was listed for a Crown Court trial at this stage.  

Having reviewed the evidence and consulted our defence forensic resident experts, BSQ partner Roger Sahota drafted representations to the Crown submitting that the evidence disclosed did not present a case to answer based on the clients stated explanation that he was engaged in the mass and indiscriminate downloading of large amounts of material from the internet.

The CPS accepted these representations and withdrew all charges, offering no evidence at the Crown Court in relation to all counts on the indictment.

Our private crime team has a niche in representing professionals accused of indecent images offences. If you require advice in connection with a criminal prosecution please contact our London offices.

Indecent Images Prosecution Discontinued

In another notable result for our private crime department we have been notified that the police have discontinued an indecent images investigation.  Our client, a prominent business figure remains a man of good character. Pre-charge BSQ made a range of enquiries with defence defence forensic experts and leading counsel instructed to advise our client.

If you need advice in an indecent images prosecution please contact our London office.

Court of Appeal Reviews Sentencing Guidelines in Downloading Indecent Images Cases

BSQ partner Roger Sahota comments on a recent important Court of Appeal decision - R v Pinkerton [2017] EWCA Crim 38 - in which the Court reviewed the operation of sentencing guidelines in downloading indecent images cases. In P the Judge had sentenced an offender taking a starting point beyond the Sentencing Guidelines Council (“SGC”) guidelines because of the particularly depraved nature of images found and the harm this type of behaviour caused.  

Background

Amended sentencing guidelines for indecent image offences were introduced on 1 April 2014. They replaced the old guidelines which had been in force since 14 May 2007. The new simplified regime saw a reduction from the five levels of categories introduced in the 2007 guidelines to 3 levels of categories as follows;

Category A (Images involving penetrative sexual activity and images involving sexual activity with an animal or sadism) incorporates the former Levels 4 & 5.

Category B (Images involving non-penetrative sexual activity) incorporates the former Levels 2 & 3. There is accordingly no longer a distinction between non-penetrative sexual activity between adults and children and between children.

Category C images are Indecent Images not falling within A or B.

Decision

The main points arising from the decision are summarised below. It is important to note that the decision is unlikely to change the general sentencing practice in the Crown Court where first time offenders not engaged in distribution remain likely to receive non-custodial sentences. The Court did however criticise the approach that the Judge took both in the procedure adopted during sentencing and the way the sentence was calculated. Notably;

1.     While the Court of Appeal upheld the sentence imposed, it felt it inappropriate for the judge to have strayed beyond the upper range of the sentencing guidelines. The SGC guidelines were created after extensive research and consultation. It was not for police officers and judges to create their own separate categories above and beyond those created by the SGC as the dangers of inconsistency and subjectivity were all too obvious.

2.     The SGC guidelines for downloading cases took into account concerns this behaviour caused harm and in particular indirect harm – downloading played a part in perpetuating a market for this type of material – and Judges should not give undue weight to this factor.

3.     Given the existence of the database, it was unnecessary for judges to view the materials produced in these cases save in exceptional circumstances

Conclusion

BSQ welcomes an end to the worrying trend for prosecutors and police officers to provide their own gloss and commentary on the guidelines and their application when providing detailed descriptions of images found during sentencing. By providing greater clarity in the application of the guidelines this decision will hopefully result in more consistency in the sentences handed down for the most serious cases and enable lawyers to better advise their clients of the possible outcomes.

 

BSQ Briefing - Indecent Images - Time to reform the Law?

For more information about our indecent images specialisation visit our indecent images practice page

Simon Bailey, the National Police Chiefs’ Council lead for child protection made headlines last week when he called for law enforcement agencies to focus their resources on pursuing high risk offenders who viewed indecent images of children online. He complained that with 400 men a month arrested for this type of conduct, police forces were stretched to breaking point in dealing with these cases.

In making these remarks Mr Bailey drew a valuable distinction between those individuals whose online activities are targeted at making contact with children with a view to committing serious sexual offences and those who are not.

There can be no argument that law enforcement agencies should be vigilant and use all available means to apprehend those criminals who pose a risk of contact offending.

But, from our experience the vast majority of those individuals accused of viewing or downloading indecent images do not pose such a risk.

BSQ’s criminal defence team has extensive experience of representing individuals who are either under investigation or facing prosecution having viewed illegal material online. By and large our clients are professional individuals with no previous criminal history. Normally the police will be alerted to their online activities from reports submitted by their ISP providers, not from concerns from any chatroom activity. There is often little indication from their personal or family background that would suggest they pose any risk of contact offending. Many times their behaviour can be described as solitary and compulsive – typically an individual may have downloaded huge amounts of adult legal porn and other material as well as illegal child porn. They may not have viewed all of it. There will be no history of social media or other online interaction with children.

Sadly, this type of behaviour sadly appears to far more widespread that the headline statistic of 400 arrests a month would suggest. A recent report by the NSPCC suggests the number of individuals looking at such images could exceed half a million and constituted a "social emergency". The scale of the problem explains why some police forces, rather than arresting suspects in these cases are issuing cease and desist warning notices to first time offenders.

Against this background we believe efforts to divert those offenders who do not pose a risk of contact offending away from the criminal justice system to treatment within the community deserves urgent attention.

More immediately, amending the sentencing guidelines for the offence of possession or downloading of illegal child porn (p.75-81,  which makes no specific reference to a low risk of contact offending) should also be considered. Where this can be shown from expert evidence (we routinely instruct an a  psycho-sexual expert in these cases) and is coupled with evidence that an offender has made efforts to address their behaviour, it should be recognised as an additional mitigating factor.

If rehabilitation is the primary objective, criminalising those men who do view this type of material but pose no appreciable risk of contact offending is not the answer.     

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.