William & Ors v R.

A defendant relying on the statutory defence to possession of an indecent image must prove, on the balance of probabilities, both that they did not see the image and that they neither knew nor had cause to suspect that it was indecent. The visibility of an image is distinct from what the defendant actually saw, but the issue may properly be left to the jury on the evidence.

Whether there was a legitimate reason for distributing an indecent image requires consideration of the defendant’s genuine reason and an objective assessment of its legitimacy. An appeal against conviction will fail where the jury received accurate and fair directions and there was evidence supporting its verdict.

Williams, Hodge and Massivi were convicted after a jury trial at the Central Criminal Court of offences concerning the possession or distribution of indecent images of children and, in Mr Massivi’s case, an extreme pornographic image. They relied on statutory defences under the Protection of Children Act 1978, the Criminal Justice and Immigration Act 2008 and the Criminal Justice Act 1988.

They sought extensions of time to renew applications for permission to appeal against conviction. Ms Williams challenged the safety of her conviction and evidential rulings. Ms Hodge and Mr Massivi contended that they had legitimate reasons for distributing the material. The central issue was whether the trial directions and evidence disclosed any arguable basis for finding the convictions unsafe.

1. All applications were refused. The court would have granted the requested extensions of time had any proposed appeal possessed merit. Since none did, there was no purpose in extending time.

2. Ms Williams’s conviction for possession was safe. The judge accurately directed the jury that possession was established where she knew of the accessible digital file, even if she had not scrutinised its content. The statutory defence under section 160(2)(b) required her to prove that she had not seen the image and neither knew nor had cause to suspect that it was indecent. The fact that the thumbnail was visible did not conclusively determine what she actually saw, but the jury was entitled to reject her account on the evidence.

3. The court noted that, on one view, Ms Williams’s admission that she had seen the thumbnail could itself have prevented reliance on that defence: see R v Collier [2004] EWCA 1411. It was unnecessary finally to decide that point because the summing-up was conspicuously fair and the evidence supported the verdict.

4. The convictions of Ms Hodge and Mr Massivi were also safe. The jury had not convicted them for mere distribution. It was properly directed to assess the claimed legitimate reason through both the genuineness of the defendant’s reason and its objective legitimacy. The jury was entitled to assess the wider distribution of the material and all the evidence. The agreed directions were accurate and fair, and the grounds raised no arguable challenge to the convictions.

• Court of Appeal (Criminal Division): In William & Ors v R., [2021] EWCA Crim 327, the court refused the applicants’ requests for extensions of time and their renewed applications for permission to appeal against conviction.
• Court of Appeal (Criminal Division): On 22 January 2020, a differently constituted court refused the Attorney General permission to refer the sentences of Mr Massivi and Ms Hodge as unduly lenient.
• Central Criminal Court: The applicants were convicted by a jury on 17 November 2019 and sentenced on 26 November 2019.