This case concerned the elements that had to be made out for an individual to be proved to have had possession of a digital file. This arose in the context of an appeal against convictions for possession of indecent photographs of a child, contrary to section 160(1) of the Criminal Justice Act 1988, and possession of extreme pornographic images, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008.
The accused's smartphone was seized and an indecent video of a child (count 1) and several videos depicting bestiality (counts 2 to 6) were found. The accused was tried in October 2014 at Norwich Crown Court and convicted on all counts. He appealed those convictions successfully and was retried at the Central Criminal Court. He was again found guilty on all counts.
The accused's defence was that he had not requested or sourced any of the videos and that he did not know what they contained until he downloaded or opened them. He stated that he had deleted them, after accessing them only once, as he found them disgusting.
This appeal concerned the learned trial judge's directions as to the meaning of ‘possession'. On all the counts the jury were directed that the defendant had admitted possession. In neither the CJA 1988 nor the CJIA 2008 is the word ‘possession' defined. Both statutes contain materially the same defences (s.160 and s.63 respectively) to possession of such material, namely: legitimate reason, not seeing the image and having no knowledge or cause to suspect it to be indecent, and receipt without prior request and not keeping it for an unreasonable time.
Held: Both statutes require the prosecution to prove possession first, before the burden shifts to the defendant to establish the statutory defences. An accused cannot be convicted for possession of material of which he was genuinely unaware. Nor could he be said to be in possession of a digital file if it was practically impossible for him to access. However, possession is established if the accused is aware of a file which he can access, even if he cannot be shown to have opened it.
Two elements have to be proved in order for an individual to have possession: first, the images must have been within the defendant's custody or control, so that he was capable of accessing them; and secondly, he must have known that he possessed an image. Knowledge of the content of those images is not required to make out the basic ingredients of the offence since that issue is dealt with by the statutory defences. Where unrequested images are sent via 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.
The appeal was dismissed and the convictions upheld.
20 November 2018