EWCA Crim 1929 | England and Wales Court of Appeal (Criminal Division)
This case involved the elements of the law required to be proven for an individual to be in legal possession of a digital file.
These proceeding arose as a result of an appeal against conviction for the possession of indecent images of a child, contrary to section 160(1) of the Criminal Justice Act 1988 and for the possession of extreme pornography, contrary to section 63(1) of the Criminal Justice and Immigration Act 2008.
A smartphone belonging to the Defendant had been seized by Police and was found by them to contain an indecent moving image of a child as well as several images containing extreme pornography.
The Defendant’s Trial was held at Norwich Crown Court, where he was convicted on all counts. After successful appeal, the case was heard at the Central Criminal Court where he was found guilty on all counts.
The Defendant’s case was that he has not sought or requested the indecent images of a child or the extreme pornography and was not aware of the content of the images until he had downloaded and opened them.
He stated that he found them disgusting and had deleted them following access.
The appeal related to the Judge’s direction in regards the the meaning of possession, whereby, the Jury had directed that the Defendant had admitted possession.
The Defence for the possession of images in relation to the Criminal Justice Act 1988 and the Criminal Justice and Immigration Act 2008 is the same, which is that there was no knowledge or suspicion as to the content of them and that they had been received without request and deleted quickly following identification.
If the Prosecution are able to prove that the image is in possession of the Defendant, by it being proven that it was within their custody or control and was capable of accessing them, then that individual is required to prove that they were not aware of the presence of them.
However, possession of an image is demonstrated if the individual is aware of the presence of the file even if there is no evidence of the access of it.
The knowledge of the content of the image is not required in order to prove the basis of the offence as that issue is dealt with by the statutory Defences.
The appeal was dismissed and the convictions upheld.
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