England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ Hone QC
T20160333

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/08/2018

Lord Justice Irwin:

1. On 1 September 2016 in the Central Criminal Court following a trial before HHJ Hone QC and a jury, the applicant was convicted of possession of indecent photographs of a child contrary to section 160(1) of the Criminal Justice Act 1988 (count 1) and possessing extreme pornographic images contrary to section 63(1) of the Criminal Justice and Immigration Act 2008 (counts 2, 5 and 6). He was acquitted of counts 3 and 4.
2. On 30 September 2016 before the same Court and constitution, he was sentenced to 6 months imprisonment suspended for 12 months. He was ordered to pay a Victim Surcharge of £80. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, the applicant was required to comply with the provisions of Part 2 of the Act (Notification to the police) for a period of 7 years.
3. This matter has a complex procedural history. The Appellant was previously tried at the Norwich Crown Court in October 2014 on the same evidence and was convicted of one count of possession of an indecent photograph of a child and all five counts of possessing extreme pornographic images. He appealed those convictions successfully. On 4 February 2016, his convictions were quashed and a constitution of this court ordered that he should be re-tried: see R v Cyprian Okoro (No 1) [2016] EWCA Crim 1076.
4. Following his convictions on re-trial at the Central Criminal Court, the Appellant made application to a second constitution of this court for leave to appeal. He was granted limited leave on 30 June 2017: see R v Cyprian Okoro (no 2) [2017] EWCA Crim 1057. We set out below the grounds in respect of which leave was granted.

The Facts

5. On 28 August 2013, the police seized the applicant's smartphone. They took a download from the phone the same day and returned it to him. The data was examined by DC Appleton. He found thousands of images on the phone. Amongst them was a video of 1 minute 29 seconds in length of a young male child simulating sex with an adult female (count 1). That video was found in a vault application on the phone, in other words a storage area, protected by a password. It had been downloaded on 20 November 2012 but it was not possible to say if or when it had been viewed.
6. The videos in relation to the other counts, depicting extreme pornographic images were as follows. Count 2, a dog having oral and penile sex with a woman and a woman performing oral sex on the dog. This was also stored in the vault application and had been downloaded on 9 March 2013. Count 5, a man penetrating a snake with his penis whilst the snake was positioned between a woman's legs. That was downloaded on 2 May 2013 and was stored on the device and not in the vault. Count 6, a woman having vaginal sexual intercourse with a horse. This was downloaded on 30 March 2013 and was stored in the vault.
7. The appellant's phone was seized by police again on 6 February 2014 and further examined. The videos described in Counts 1 & 2 were still stored in "NQ Mobile Vault".
8. In his police interview on 6 February 2014, the appellant provided a prepared statement in which he said that the images had been sent to him via WhatsApp. He had not requested or sourced any of the images and did not know what they contained until he downloaded or opened the videos. He believed that he had deleted the images and he had only accessed them once, as he found them disgusting. He maintained that he had never sent or forwarded any of these images and had not accessed such material via any other computers or mobile device. He admitted to having been sent videos of dogs having sex with humans and a video involving a man with a snake. He also said he had seen a video of a young boy in a nappy playing with an adult female. He maintained during the proceedings that this was not the video referred to in count 1.
9. The prosecution case was that the appellant was in possession of all the images when his phone was initially seized by the police on 28 August 2013.
10. The defence case was that he had not requested any of the images; that he had not seen any of the videos prior to the date of the offences and had not kept them for an unreasonable time. The appellant relied upon the statutory defence pursuant to s.160(2)(b) and(c) of the Criminal Justice Act 1988 and s.65(2)(b) and (c) of the Criminal Justice and Immigration Act 2008. It was argued on his behalf that it was not possible to determine if a video had been viewed or when it was viewed. There was no evidence that any of the videos had been viewed prior to the appellant's second interview. It was not possible to determine when the relevant videos had been deleted or moved to the vault and it was possible to move a video into the vault by error and en-masse. The presence of a video in the vault did not mean that it had been viewed. The appellant's phone vault app contained a variety of material and not just "hidden" pornographic video clips. He had deleted a number of the videos when his phone was re-examined and had ample time to delete the unlawful videos that remained on his phone between the interviews. The phone had been destroyed by the police and was not available for the trial.
11. The central issues for the jury were whether the appellant had seen the videos that were the subject of the indictment and whether he had cause to suspect they were indecent. Further, since he had not requested the videos, whether he had kept them for an unreasonable length of time.
12. There was agreed expert evidence in the case which was summarised by the judge in his written directions to the jury, as follow:

"Mr Akinsanya read to you the expert reports of Mark Rigby dated July and early August 2016 as agreed evidence. Mr Rigby examined both downloads obtained by the police on 28 August 2013 and later in February 2014. There was a great deal more material in the second download than the first, over 13,000 messages as at the date of the first examination and further 9,000 messages between the first and second examination.

In relation to the video on Count 1, he [Mr Rigby] said he had seen the baby video several times before on other mobile phones, it is indecent from the start and very distinctive. There is no mistaking its content. He verified that all six videos were present on the first download but only Counts 1 and 2 videos remained on the second download but as an expert he said it is not possible to say when the deletions had taken place.

When a user sends a WhatsApp message that contains a video file, the file is copied to a WhatsApp folder within the device's file system and is displayed as a still "thumbnail image. The user has to click on the thumbnail in order to play the video. If the user deletes the message containing the video, the video file remains in the app's file system which is displayed in the Gallery folder, so simply deleting the message does not delete the video which can still be played by clicking on it from the Gallery.

The user has to click one or several files to select them for inclusion in the vault. Once the required files have been selected, the user clicks "import" and the files are moved to the vault. Simply clicking a file selects it but does not import it until "import" has been clicked separately.

Mr Rigby then set out the message conversations with Chinere Onwusanya on 2 May 2013 (Count 5) starting with the video Female Masturbating With Toilet Brush and the Defendant's response "Absolutely sickening," followed by the video of Male Having Sex With a Snake.

In the second report Mr Rigby found 369 videos in the first download of which 120 were in the vault and of those 120 in the vault, 110 are pornographic in nature and 10 are non-pornographic. At the second download, there were 564 videos in total of which 70 were in the vault and of those 70, 53 are pornographic in nature and 7 are non-pornographic."

Grounds of Appeal

13. As we have indicated, this court gave leave on limited grounds only, drawn from the broader grounds drafted by the appellant in person. They are as follows:

"Ground 1

i) The Learned Trial Judge failed to give any, or indeed a complete direction on the meaning of possession of the images, dealing with the mental and physical elements.

Ground 2

ii) The Learned Judge erred in his direction to the jury in respect of Count 1. The jury were left with the clear impression that the Appellant must have viewed this video (Count 1) immediately after receiving the earlier video to which he made a comment about. The danger was that the jury were left with the impression that the video must have been viewed by the defendant.

Ground 4

iii) The Learned Judge erred in his direction to the jury in respect of count 2. The jury were left with the impression as per count 1 above that the defendant was admitting to viewing the material."

14. We address those grounds in turn.

Ground 1 – Direction on Possession

15. The starting point on considering this ground, which potentially affects all the counts, arises from the written directions prepared by the judge for the jury. It now being common practice for written directions on law to be prepared so that the jury use them throughout their deliberation, the judge did so in this case. Part of the written directions read as follows:

"… in this case the Defendant admits that in each of the 6 counts charged, the Prosecution has proved to the required criminal standard that he had "possession" of the relevant images in the limited sense that they were stored in his phone and that the images are indecent (Count 1) and extreme pornographic images as defined in the various Particulars of Offence in Counts 2-6. Because these matters are admitted by the Defence, the only issue is whether the Defendant has established either of the statutory defences which are available to him and which I set out below.

Count 1 (Baby with nappy)

This is an allegation of possessing indecent images of a child, contrary to section 160(1) of the Criminal Justice Act 1988. The Defendant admits that he had in his possession an indecent image of a child, namely the video which was sent via WhatsApp to his phone on 20 November 2012, lasting 1 minute and 29 seconds, but he says he did not know the content of the video was indecent. DC Appleton's unchallenged evidence was that the video was obviously indecent from its first few seconds, a view shared by Mr Rigby the defence expert. You also have Agreed Fact 2a which summarises the content. That video was saved in the vault. In his interview, the defendant was shown three screen shots from that video: see X1 pages 8, 9-10, 14, 18 and 21, but he said in his evidence that the video he was describing in interview was a quite different "jokey" video and one that was not indecent at all.

Statutory Defences

Section 160(2) of the Act provides statutory defences for a defendant. The Act places the burden of proving this defence upon the defendant. That means he does not have to make you sure of it (which is the criminal law standard of proof), but he does have to satisfy you to the lesser (civil law standard of proof) on the balance of probabilities, namely that it is "more likely than not".

To establish either of the two statutory defences available to him the defendant has to prove, more likely than not: (1) that he had not himself seen the video and did not know, nor had any cause to suspect, it to be indecent or (2)(a) That the image was sent to him without any prior request made by him and (2)(b) That he did not keep it on his phone for an unreasonable length of time. Both limbs must be proved for the second statutory defence to succeed."

16. The written directions went on to make clear that the appellant had said when the video in count 1 "arrived via WhatsApp" he did not view it. He had intended to delete it but "by mistake it went into his vault". He did not realise it was indecent until viewing it with his legal team after his arrest and interview by the police.
17. The written directions continue:

"If you think he has proved that explanation is probably true your verdict will be not guilty. If you think he has failed to prove that he had not seen a video and that he had no call to know or suspect that it was indecent you should consider the second statutory defence."

18. In that respect the written directions reminded the jury (in relation to section 160(2)(a) of the Act) the defendant stated throughout that he had not requested the video: there was no electronic evidence that he had made such a request and if the jury thought his evidence was probably true, the first limb of the defence is made out. As for the defence under section 160(2)(b), the defendant's account was he did not keep the indecent video on his phone for an unreasonable length of time. If the jury considered his explanation was more likely than not to be true then their verdict would be not guilty. If the appellant failed to satisfy the jury on either (a) or (b) the verdict would be guilty.
19. In relation to counts 2-6, the written directions set out for the jury at each count, alleged possession of an extreme pornographic image, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008. The written direction went on:

"The defendant admits that the prosecution have proved that he had possession on his phone of an extreme pornographic image as defined in the Act."

20. The written directions went on to explain to the jury the statutory defences set out in section 65 of the Act as being in substance identical to those with which the directions had already dealt under section 160(2) of the Criminal Justice Act 1988. The judge amplified that matter in the following terms:

"To establish either of the two statutory defences available to him the defendant has to prove, more likely than not:

(1) That he had not himself seen the video and did not know, nor had any cause to suspect, it to be indecent or

(2)(a) That the image was sent to him without any prior request made by him and

(2)(b) That he did not keep it on his phone for an unreasonable length of time.

Both limbs must be proved for the second statutory defence to succeed."

21. Again, the written directions set out for the jury that the defendant had the burden of proving the defences to the standard of probability ("more likely than not").
22. The judge properly provided to counsel copies of his proposed draft written directions, seeking to ensure that counsel were content they were sufficient and correct. This court has seen a transcript of the exchanges with counsel just before the summing up began. It seems clear that no objection was lodged on behalf of the appellant, save for one or two minor matters of spelling and expression.
23. However, nearly two hours after the jury retired, trial counsel asked the judge to return to court. The defendant had raised certain points with him. The first related to count 1 and the point was that the defendant said the video in court 1 was "not a video he accepts that he has seen". Well, that point had been made clear to the jury, as the relevant passage in the written directions quoted above demonstrates.
24. Counsel went on to argue that the direction to the jury that the appellant had admitted possession of this video was incorrect – possession had "a mental element and his case is "I didn't know"".
25. The judge then asked counsel what further directions he sought. Counsel offered to take some time to clarify that. In the meantime he raised count 2 with the judge, where also the defence was he had never seen it. The judge indicated he would listen to any application concerning further directions, although he pointed out that he had emailed his draft directions the day before "precisely to address these points" or in other words to avoid arguments at the last minute.
26. The judge rose again and counsel continued discussions. At 12:45pm, the jury having been out since 10:39, the court re-convened. Trial counsel Mr Akinsanya wanted the judge, in relation to count 1, to give the following direction:

"The defendant denies that he possessed an indecent image of a child; namely, the video which was sent via WhatsApp to his phone on 20 November 2012, lasting 1 minute and 29 seconds. He became aware of the video on 6 August 2014 when viewing it with his legal representative at the police station. He was unaware of the video being on the phone. He said in his evidence that the video he was describing in interview was a quite different jokey video".

27. In relation to count 2, counsel wanted the judge to add:

"The defendant denies that he was aware of the video. His answers to the screenshots he was shown were in relation to the other videos on counts 3 and 4, which also had similar content, which he admitted seeing and deleting."

28. In relation to count 5, counsel wanted the judge to repeat the direction he had already given that the appellant had deleted the video "after he had watched [the video] but not completely".
29. Finally, in relation to count 6, counsel wanted the judge to remind the jury that the defendant's case was he had "never seen the video but had deleted it in the autumn of 2013".
30. Counsel then went on to say:

"And then just one other observation, my Lord, if I may, in relation to this issue of videos which he was not aware of and what the jury understand by possession, of course, possession involves both the physical and mental element and the mental element is knowledge; the defendant must knowingly have had custody and control of the video found on the device in question.

So whilst there is an acceptance on one had that he physically possesses the video, there is also the mental element. Obviously he doesn't know that the video is on the phone, there is a query as to whether he can actually possess something he doesn't know is there."

31. The position of the Crown was that no separate question arose in relation to possession, and no further direction was needed. The statutory defences and the directions given in relation to these defences was sufficient. Once it was proved (or admitted) that a defendant had the relevant images on his device, then the question of possession, in effect, fell to be decided by reference to the statutory defences.
32. Ms Devas made some specific submissions. The judge then rose for lunch.
33. Before the argument could be concluded, the jury indicated they had reached their verdicts which they duly returned at 14:05. Thus, no further direction was ever given.
34. Against that background we turn to the grounds for which leave has been given.

Ground 1 concerns the necessary direction on possession.

35. We must address the two different statutes concerned.

"Criminal Justice Act 1988, s.160

(1) Subject to section 160A, it is an offence for a person to have any indecent photograph [or pseudo-photograph] of a child. . . in his possession.

(2) Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—

(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.

Criminal Justice and Immigration Act 2008, s.63

(1) It is an offence for a person to be in possession of an extreme pornographic image.

[…]

(8) In this section "image" means –

(a) a moving or still image (produced by any means); or

(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

36. Section 65 CJIA 2008 contains statutory defences to s.63 that are materially the same as s.160(2) CJA 1988.
37. In neither statute is "possession" defined. This court has considered the definition of possession under s.160 CJA 1988 for digital images held on a computer on several occasions. The matter was first considered in Atkins v Director for Public Prosecutions [2000] 2 Cr App R 248. The defendant in that case had viewed indecent images on his computer, but unknown to him, the images were automatically saved to the "cache". He was convicted under s.160 CJA 1988, the magistrate holding that knowledge was not an essential element of the offence. He appealed to the Divisional Court, by way of case stated. The court held that this was not an offence of strict liability: knowledge was an essential element of the offence, and it had to be shown that the defendant knew of the existence of the "cache" of images. This was said to accord with general principle in cases concerning physical possession of objects.
38. In R v Porter [2006] EWCA Crim 560, Dyson LJ, giving the judgment of the court, held that in order for a person to have possession of an image contrary to s.160 CJA 1988, he must have custody or control of it – this required the particular individual to be capable of retrieving the images. The defendant in Porter had deleted a large number of indecent images from his computer, but they remained on his hard drive. They were accessible with specialist software, but the defendant did not have such software. The court found that there had been no direction by the trial judge about the factual state of affairs necessary for possession, thus removing a vital issue from the jury. Further, the court held that there was no direction on the mental element of possession – they opined, without deciding, that this would require proof that the defendant did not believe that the image in question was beyond his control.
39. The principle in Porter was affirmed and applied in the decision of Lord Judge CJ, in R v Leonard [2012] EWCA Crim 277. The judge had misdirected the jury about the need for indecent images to be retrievable for the physical element of possession to be made out.
40. Finally, a helpful analogy on what is meant by possession of extreme pornography is found in R v Ding Chen Cheung [2009] EWCA Crim 2965. The defendant was prosecuted under s.63 CJIA 2008, rather than s.160 CJA 1988. In our view, the legal requirements for possession are the same under both provisions. In that case, the defendant had obtained a bag containing a number of DVDs. Eight of those DVDs contained extreme pornographic material. It was the defendant's case that he knew the bag contained DVDs but that he did not know the content of those DVDs. Thomas LJ, giving the judgment of the court, held that the prosecution had to establish to the criminal standard that the appellant had knowledge of the existence of the "things" that were in his custody or control, but did not have to prove the defendant's knowledge of the quality, or contents, of the thing. The defendant's knowledge of the contents could be addressed through the statutory defences.
41. In many cases, the digital file may be shown to have been downloaded on purpose by the accused and thus possession established, as long as such an item is within the individual's custody or control. There again, any question of ignorance of the critical contents may be resolved by examination of the statutory defences.
42. But what if an active download of the digital file by the accused cannot be established, or is not in question? As here, what if the accused claims that material was sent to him electronically, uninvited by one means or another, and by others? Such factual assertions may be contradicted by evidence: indeed it seems likely they often would be. However, that is a question of evidence. What is the requirement of the law of possession? In what way should a jury be directed if they face such a question?
43. It cannot be the law that a defendant must be shown to be aware of all the relevant content of a digital file on his device. If that were necessary, then the statutory defences in s.160(2) CJA 1988 would be redundant. The question is whether it is enough that the accused should know that digital files had been sent to him, say, as an attachment to an email, or perhaps more likely as an encrypted file by one of the many apps by which digital content may be transmitted. Can possession be established by demonstrating that material is contained in an attachment to an unopened email in an inbox? Or, as claimed here, where the information was transmitted through WhatsApp without any invitation from the accused, and without him viewing any or all of the material.
44. There is such a volume of information in the memory of modern devices that proof of knowledge of all transmitted content would be impossible. For commercial reasons, many of the great internet business corporations collect and store information on phone and computer memories, individual to the user, but quite unknown and indeed inaccessible to the user.
45. We are clear that the statute requires proof by the Crown of possession of the pornography or images of child abuse, as a preliminary step before the burden of proof shifts to the accused, to establish the statutory defences. An accused cannot be convicted in relation to material of which he was genuinely totally unaware. Nor could a defendant be said to be in possession of a digital file if it was in practical terms impossible for him to access that file. However, 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. That represents the closest possible parallel to the test laid down in the authorities set out above, and appears to us to be consistent with the criminal law of possession in other fields, such as unlawful possession of drugs.
46. It follows that in this case, two elements had to be made out in order for an individual to have possession: (1) the images must have been within the appellant's custody or control, i.e. so that he was capable of accessing them; and (2) he must have known that he possessed an image or a group of images. It is clear that knowledge of the content of those images is not required to make out the basic ingredients of the offence; instead that issue is dealt with by the statutory defences. Where unsolicited images are sent on WhatsApp, and automatically downloaded to the phone's memory, it is highly likely that the first element will be fulfilled. The second element will depend on whether the defendant knew that he received an image or images.
47. This case turns on whether the appellant had admitted those elements, so that the judge was not required to put them to the jury for determination.
48. The Crown submits that it is clear from the appellant's interviews pre-trial, evidence at trial, the defendant's case generally, and the initial agreement with the terms of the judge's summing up, that possession sufficient to fulfil the test set out above was admitted. We agree. The appellant had accepted that he knew he had received images, and that these were stored on his phone, whether in the photo section, or in the vault. There is no issue that he could have accessed them if he wished to.
49. It follows that Ground 1 fails.
50. Ground 2 and Ground 4 concern an alleged misdirection by the judge in relation to counts 1 and 2. It is submitted by the appellant that the judge's direction on each count inferred that the defendant knew he had each particular image, which he denied. For the reasons set out above, Ground 2 and Ground 4 must also fail. It was not necessary to establish that the appellant knew he had each distinct individual image, but simply that he had a group of images. As such, the judge was correct to direct that the appellant 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 those images.
51. It follows that this appeal must be dismissed, and the convictions upheld.