Cyprian Okoro (No 3) v R, Court of Appeal - Criminal Division, August 22, 2018, [2018] EWCA Crim 1929

Resolution Date:August 22, 2018
Issuing Organization:Criminal Division
Actores:Cyprian Okoro (No 3) v R
 
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Case No: 201604613 C3

Neutral Citation Number: [2018] EWCA Crim 1929

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CENTRAL CRIMINAL COURT

HHJ Hone QC

T20160333

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 22/08/2018

Before :

LORD JUSTICE IRWIN

SIR KENNETH PARKER

and

HHJ AUBREY QC

(Sitting as a Judge of the Court of Appeal Criminal Division)

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Between :

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Alphege Bell (instructed by Judith Maurice Solicitors) for the Appellant

Nicola Devas (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 9 February 2018

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JudgmentLord Justice Irwin:

  1. On 1 September 2016 in the Central Criminal Court following a trial before HHJ Hone QC and a jury, the applicant was convicted of possession of indecent photographs of a child contrary to section 160(1) of the Criminal Justice Act 1988 (count 1) and possessing extreme pornographic images contrary to section 63(1) of the Criminal Justice and Immigration Act 2008 (counts 2, 5 and 6). He was acquitted of counts 3 and 4.

  2. On 30 September 2016 before the same Court and constitution, he was sentenced to 6 months imprisonment suspended for 12 months. He was ordered to pay a Victim Surcharge of £80. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, the applicant was required to comply with the provisions of Part 2 of the Act (Notification to the police) for a period of 7 years.

  3. This matter has a complex procedural history. The Appellant was previously tried at the Norwich Crown Court in October 2014 on the same evidence and was convicted of one count of possession of an indecent photograph of a child and all five counts of possessing extreme pornographic images. He appealed those convictions successfully. On 4 February 2016, his convictions were quashed and a constitution of this court ordered that he should be re-tried: see R v Cyprian Okoro (No 1) [2016] EWCA Crim 1076.

  4. Following his convictions on re-trial at the Central Criminal Court, the Appellant made application to a second constitution of this court for leave to appeal. He was granted limited leave on 30 June 2017: see R v Cyprian Okoro (no 2) [2017] EWCA Crim 1057. We set out below the grounds in respect of which leave was granted.

    The Facts

  5. On 28 August 2013, the police seized the applicant's smartphone. They took a download from the phone the same day and returned it to him. The data was examined by DC Appleton. He found thousands of images on the phone. Amongst them was a video of 1 minute 29 seconds in length of a young male child simulating sex with an adult female (count 1). That video was found in a vault application on the phone, in other words a storage area, protected by a password. It had been downloaded on 20 November 2012 but it was not possible to say if or when it had been viewed.

  6. The videos in relation to the other counts, depicting extreme pornographic images were as follows. Count 2, a dog having oral and penile sex with a woman and a woman performing oral sex on the dog. This was also stored in the vault application and had been downloaded on 9 March 2013. Count 5, a man penetrating a snake with his penis whilst the snake was positioned between a woman's legs. That was downloaded on 2 May 2013 and was stored on the device and not in the vault. Count 6, a woman having vaginal sexual intercourse with a horse. This was downloaded on 30 March 2013 and was stored in the vault.

  7. The appellant's phone was seized by police again on 6 February 2014 and further examined. The videos described in Counts 1 & 2 were still stored in ``NQ Mobile Vault''.

  8. In his police interview on 6 February 2014, the appellant provided a prepared statement in which he said that the images had been sent to him via WhatsApp. He had not requested or sourced any of the images and did not know what they contained until he downloaded or opened the videos. He believed that he had deleted the images and he had only accessed them once, as he found them disgusting. He maintained that he had never sent or forwarded any of these images and had not accessed such material via any other computers or mobile device. He admitted to having been sent videos of dogs having sex with humans and a video involving a man with a snake. He also said he had seen a video of a young boy in a nappy playing with an adult female. He maintained during the proceedings that this was not the video referred to in count 1.

  9. The prosecution case was that the appellant was in possession of all the images when his phone was initially seized by the police on 28 August 2013.

  10. The defence case was that he had not requested any of the images; that he had not seen any of the videos prior to the date of the offences and had not kept them for an unreasonable time. The appellant relied upon the statutory defence pursuant to s.160(2)(b) and(c) of the Criminal Justice Act 1988 and s.65(2)(b) and (c) of the Criminal Justice and Immigration Act 2008. It was argued on his behalf that it was not possible to determine if a video had been viewed or when it was viewed. There was no evidence that any of the videos had been viewed prior to the appellant's second interview. It was not possible to determine when the relevant videos had been deleted or moved to the vault and it was possible to move a video into the vault by error and en-masse. The presence of a video in the vault did not mean that it had been viewed. The appellant's phone vault app contained a variety of material and not just ``hidden'' pornographic video clips. He had deleted a number of the videos when his phone was re-examined and had ample time to delete the unlawful videos that remained on his phone between the interviews. The phone had been destroyed by the police and was not available for the trial.

  11. The central issues for the jury were whether the appellant had seen the videos that were the subject of the indictment and whether he had cause to suspect they were indecent. Further, since he had not requested the videos, whether he had kept them for an unreasonable length of time.

  12. There was agreed expert evidence in the case which was summarised by the judge in his written directions to the jury, as follow:

    ``Mr Akinsanya read to you the expert reports of Mark Rigby dated July and early August 2016 as agreed evidence...

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