The Court of Appeal considered whether images automatically downloaded from What’s App on to a mobile phone constituted ‘images within the accused’s custody or control so that he was capable of accessing them’.
Mr Okoro was sent indecent images of children and extreme pornography via What’s App messages. Mr Okoro saved some of the messages to a password protected ‘vault’ app. One image was not saved in the vault but was automatically downloaded and saved in the images gallery of his phone. Mr Okoro’s position was that the messages were unsolicited, that he only found out what they contained when he opened them (thereby downloading them) and that he believed that he had deleted them but had saved them by mistake.
To establish possession, two elements were necessary: (a) the images must have been within the accused’s custody or control so that he was capable of accessing them, and (b) the accused must have known that he possessed an image or group of images. Whether the defendant knew the content of the images was a separate matter and dealt with by the statutory defences.
The court held that where unsolicited images were sent on WhatsApp and automatically downloaded to the phone’s memory, it was highly likely that the first element would be made out. Whether the second element was made out would depend on whether the accused knew that he had received images and in this case he had. It was also held that knowledge of each individual image was not necessary, knowledge of a group of images was sufficient.
This case may ring alarm bells for youth justice practitioners. Children are unwittingly potentially committing criminal offences by receiving ‘indecent’ images via Whats App. Sixteen and seventeen-year-olds will be committing an offence if they receive such a message despite being over the age of consent. Younger adolescents living in the digital age may also experiment with sexting in a developmentally appropriate way as part of normal sexually explorative behaviour. Ironically, the legislation which criminalises them was enacted to protect them.