Is knowledge an essential element in proving possession in the context of indecent images?

The Court of Appeal has recently defined the meaning of "possession" in relation to indecent digital images which are sent electronically by unsolicited means. The ruling establishes whether the accused can be convicted of being in possession of a digital file that was on their device if it had not been accessed, the material was unsolicited and the accused had no knowledge of the content of the file.

The ruling considers the fact that volumes of information can be stored in the memory of modern devices however proof that the user had knowledge that the material existed may be unknown and the material may be inaccessible to the user.

In R v Okoro (No 3) [2018] EWCA Crim 1929 the defendant was convicted of possession of indecent photographs) and possession of extreme pornographic images. The digital material in question was found in a password-protected vault application on the defendant's phone, except for one video which had been stored on the device. Although the digital material had been downloaded, it was difficult to determine if and when it had been viewed.

The defendant appealed on the grounds that the trial judge had failed to provide direction on the meaning of possession of the images and that the jury was misdirected which left the impression that the defendant admitted to viewing the material.

The prosecution argued that the defendant was in possession of these images when his phone was seized by the police. The defence, opposed this view, arguing that the images were uninvited and had not been viewed prior to the date of the offences. It was further argued that the defendant had not kept the videos for an unreasonable time and the presence of the videos in the vault did not mean that the material had been viewed.

The Jury's Decision

The key issues to be determined by the jury were whether the defendant had seen the videos in question and whether he had reason to believe that the videos were indecent. Considering the defendant had not requested the images, the jury also had to decide whether the videos had been kept for an unreasonable amount of time.

As there is no statutory definition for the concept of possession, there remained an element of uncertainty as to what amounts to possession and how it can be proved in the context of digital material. The definition has been considered in previous cases however it seems there was still a need for clarity. The court considered this issue in Atkins v Director for Public Prosecutions [2002] 2 Cr. App. R. 248 where the defendant had been convicted of viewing indecent images on his computer which had been automatically saved to the "cache".  He was successful on appeal as the court held that it had to be proved that the defendant knew of the existence of the "cache" of images.

Furthermore, in R v Porter [2006] EWCA Crim 560 the defendant deleted several indecent images from his computer which had remained on his hard drive. The images were accessible with specialist software although the defendant did not have this software. It was held that a person must have custody or control of an image requiring the individual to be able to retrieve them in order for possession to be established.

In Okoro the Court of Appeal confirmed that the defendant cannot be required by law to prove that he was aware of all content of a digital file on his device. As a result, the defendant cannot be convicted for material that he genuinely had no knowledge about. A defendant cannot be in possession of a digital file if it was impossible for him to access. The court concluded that possession is established if it is proved that a person knew he/she had received custody or control of the digital file(s) which he/she had the ability to access. This is so even if the person is unaware of the contents of each image.

Okoro's appeal was not successful, as although there was no evidence to prove he viewed any of the indecent images, the jury inferred that he had viewed the images by the fact that he had saved them to his personal vault and chosen not to delete them.

The Outcome

The effect of this ruling is that knowledge of the content of the indecent images is not necessary to establish the basic elements of the offence. The court makes clear that the issue of knowledge is dealt with by the statutory defences which the accused can rely on, for example, if the digital material was sent unsolicited and never viewed. This case establishes how the law should be applied in possession of indecent digital images and provides long-awaited clarity to a technical area of criminal law.

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