“Possession” in the Digital Age: The Same Old Story Applied in the Modern Day: R v Cyprian Okoro (No. 3) [2018] EWCA Crim 1929; [2019] 1 Cr App R 2
| Author | Mark Thomas,Samantha Pegg |
| Published date | 01 June 2019 |
| Date | 01 June 2019 |
| DOI | http://doi.org/10.1177/0022018319847286 |
| Subject Matter | Case Notes |
Case Note
“Possession” in the Digital
Age: The Same Old Story
Applied in the Modern Day
R v Cyprian Okoro (No. 3) [2018] EWCA Crim 1929; [2019] 1 Cr App
R2
Keywords
Possession, custody or control, indecent photographs, extreme images
Cyprian Okoro (no. 3) was an appeal concerned with the correct interpretation of the phrase
“possession” in relation to the offences of possession of indecent photographs of a child and extreme
pornographic images, contrary to s 160 of the Criminal Justice Act (CJA) 1988 and s 63 of the Criminal
Justice and Immigration Act (CJIA) 2008, respectively. Whilst both statutory provisions contain explicit
reference to “possession”, the phrase is defined in neither. Both offences contain within them defences to
such possession. For instance, s 160(2) of the CJA 1988 provides that:
Where a person is charged with an offence under subsection (1) above, it shall be a defence for him to prove—
(a) that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or
(b) that he had not himself seen the photograph or pseudo-photograph and did not know, nor had any cause to
suspect, it to be indecent; or
(c) that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his
behalf and that he did not keep it for an unreasonable time.
Section 65(2) of the CJIA 2008 provides a strikingly similar provision regarding defences in respect
of possession of extreme pornographic images.
Okoro (O) had been tried and convicted of one count of possession of indecent images and convicted
of three counts of possession of extreme pornography in the Crown Court. O was acquitted of three
further counts of possession of extreme pornography.
Having seized O’s smartphone on 28 August 2013, the police examined the data therein having
downloaded it the same day. Officers uncovered a video of a young boy simulating sex with an adult
female. The video was 1 minute and 29 seconds in duration and formed the basis for Count 1. The video
had been downloaded on 20 November 2012 and stored in a vault application (a storage space) on O’s
smartphone, protected by a password. There was no evidence to suggest whether the appellant had
viewed it or not. The remaining counts upon which the appellant were convicted, those depicting
extreme pornographic images, involved videos of a dog having oral and penile sex with a woman and
a woman performing oral sex on the dog (Count 2); a man penetrating a snake with his penis (Count 5);
and a woman having vaginal sexual intercourse with a horse (Count 6). The videos were downloaded
between March and May 2013 with some stored on the smartphone and others stored in the vault. Having
been returned to him on the same day in August 2013, the appellant’s smartphone was seized once more
on 6 February 2014 for further examination. O was interviewed on the same day.
The Journal of Criminal Law
2019, Vol. 83(3) 175–181
ªThe Author(s) 2019
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DOI: 10.1177/0022018319847286
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