Cheung, R. v

For possession of an extreme pornographic image under Criminal Justice and Immigration Act 2008, the prosecution must prove both physical custody or control and the defendant’s knowledge of the existence of the item. It need not prove that the defendant knew the item had the prohibited quality, unless the defendant believed it to be something wholly different in nature.

Once knowing possession is established, the defendant must prove the statutory defence on the balance of probabilities. A jury direction must keep distinct the prosecution’s burden on possession and the defendant’s burden on that defence. A direction which makes knowledge that the items were present a matter for the defendant to prove risks rendering a conviction unsafe.

The applicant pleaded guilty to unauthorised use of trade marks and was convicted after trial on seven counts of possessing extreme pornographic images. The images were DVDs found at the bottom of a bag that he was carrying. He accepted that he knew the bag contained DVDs, but said that he did not know that it contained the particular extreme DVDs.

He received concurrent sentences of 14 months’ imprisonment on the trial counts and 12 months on the count to which he pleaded guilty. His application for leave to appeal conviction and sentence was referred to the Full Court. The issue on conviction was whether the jury had been adequately directed on possession and the statutory defence under Criminal Justice and Immigration Act 2008.

1. The appeal against conviction was allowed. The convictions on counts 2 to 8 were quashed. There was no retrial. The conviction and sentence on count 1, entered on the applicant’s guilty plea, remained in force.

2. Possession under section 63 required a physical and a mental element. The Crown had to prove that the relevant DVDs were in the applicant’s custody or control and that he knew of the existence of the DVDs in the bag. It did not have to prove that he knew their exact pornographic character. Knowledge of a collection of DVDs ordinarily extended to its contents, unless the defendant believed the item to be of a wholly different nature.

3. On the applicant’s own evidence, the issue of possession was effectively resolved. He knew before his arrest that the bag contained DVDs. It was therefore unnecessary for the Crown to prove that he knew the specific nature of the eight DVDs found at its bottom.

4. The real issue was the defence in section 65(2)(b). The applicant had to establish, on the balance of probabilities, that he had not seen the images and neither knew nor had cause to suspect that they were extreme pornographic images.

5. The trial judge’s final answer to the jury wrongly required them, after finding possession, to decide on the balance of probabilities whether the applicant knew that he had the DVDs. That direction conflated the Crown’s burden concerning possession with the defendant’s statutory defence. Given the jury’s expressed confusion and the speed of the verdicts, there was a real risk that the defence had been wrongly approached. The convictions were unsafe.

6. A retrial was not in the interests of justice. It was unlikely to produce a greater sentence than the custody already served, and would require two days of constrained court time without a proper corresponding purpose.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction and quashed the convictions on counts 2 to 8: [2009] EWCA Crim 2965. The court declined to order a retrial.
• Trial court The applicant pleaded guilty to count 1 and was convicted after trial on counts 2 to 8. Concurrent sentences of 12 months on count 1 and 14 months on counts 2 to 8 were imposed.