Cyprian Okoro (No 3) v R

For digital images, possession requires both custody or control, so that the accused can access the material, and knowledge that a relevant image or group of images has been received or is held. The prosecution need not prove that the accused knew the content of each individual image. Knowledge or suspicion of indecent or extreme content is instead addressed by the statutory defences in the Criminal Justice Act 1988 and the Criminal Justice and Immigration Act 2008. An accused cannot possess material of which he is genuinely wholly unaware, or which he cannot practically access. Where those basic elements are admitted, a jury need not decide them afresh.

The appellant was convicted after a re-trial at the Central Criminal Court of possessing an indecent photograph of a child and three extreme pornographic images found on his smartphone. The material had been sent through WhatsApp and some files were stored in a password-protected vault application.

He maintained that he had not requested the material, had not viewed some of it, and did not know its content. He relied on the statutory defences concerning unseen images and unsolicited images retained for no unreasonable time. His earlier convictions had been quashed and a re-trial ordered in R v Cyprian Okoro (No 1) [2016] EWCA Crim 1076. Limited leave was later granted in R v Cyprian Okoro (No 2) [2017] EWCA Crim 1057.

The appeal concerned whether the trial judge should have directed the jury separately on the mental element of possession, and whether the directions on counts 1 and 2 wrongly implied that the appellant had viewed the particular videos.

Disposition

1. The appeal was dismissed and the convictions were upheld.

2. Neither Criminal Justice Act 1988, section 160 nor Criminal Justice and Immigration Act 2008, section 63 defines possession. The court applied the established approach to digital images. Possession is not strict liability. It requires custody or control of the material, meaning a practical capacity to retrieve or access it, and knowledge of the relevant image or package of images.

3. The Crown need not prove that the accused knew the content of every individual image. An accused who knows that digital files or a group of images have been received and can access them may possess them even without opening or scrutinising each item. Conversely, a person cannot possess a file of which he is genuinely wholly unaware or which is practically inaccessible.

4. Knowledge of indecent or extreme content is dealt with through the statutory defences. It would make those defences redundant if proof of basic possession required knowledge of the material’s critical content. The same requirements for possession apply under both statutory provisions.

5. On the evidence and the appellant’s case, he had admitted that he knew images had been received and stored on his phone, and that he could access them. The judge was therefore entitled to treat possession as admitted and to leave the statutory defences to the jury. It was unnecessary to prove that he knew of each distinct video. The challenged directions did not misdirect the jury.

• Court of Appeal (Criminal Division): Dismissed the appeal and upheld the convictions in [2018] EWCA Crim 1929.
• Court of Appeal (Criminal Division): Granted limited leave to appeal in R v Cyprian Okoro (No 2) [2017] EWCA Crim 1057.
• Central Criminal Court: Following a re-trial, convicted the appellant on 1 September 2016 and sentenced him on 30 September 2016.
• Court of Appeal (Criminal Division): Quashed the earlier Norwich Crown Court convictions and ordered a re-trial in R v Cyprian Okoro (No 1) [2016] EWCA Crim 1076.
• Norwich Crown Court: Convicted the appellant in October 2014 on the same evidence.