Justin Yang’s client acquitted of possession of child pornography and extreme pornography.

Justin’s client was arrested following the discovery of child pornography (formally referred to as indecent images of children) as well as extreme pornography (bestiality) on his phone. Following forensic analysis, it could not be disputed that the files were on the phone. They were located within the Telegram application.

Justin’s case was that the Defendant was not aware of the files and had never seen them before. The Defendant had joined Telegram to learn more about cryptocurrency, notably emerging altcoins / shitcoins. It was in this context that a particular user had sent him around 200 pornographic videos. Amongst these were the most serious category A files of child pornography as well as extreme pornography involving dogs, fishes, and snakes.

Of note, the Defendant had never replied to that user. It was accepted at trial that Telegram automatically downloaded the files via synchronisation from the server. However, there was no expert evidence on what triggered the synchronisation, whether it was opening of the app itself or rather specific chat threads. There was also no evidence to suggest that the Defendant had suspected the files to be unlawful at the time he knew the automatic downloads could have occurred.

Indecent images of children and extreme pornography are covered by two separate legislations - section 1(1)(a) of the Protection of Children Act 1978 and section 63(1) of the Criminal Justice and Immigration Act 2008 respectively. This is relevant as they have different legal tests and defences.

Relying on case authorities on a critical point, Justin made a submission of no case to answer at the close of the Crown’s case with respect to the child pornography count. He submitted that the Crown could not prove the mental element (i.e. knowledge) required of the offence at the time the act (i.e. the downloads) took place. The Crown’s position was that the requisite mental element could be inferred on the basis that the files had not been deleted for months. Justin successfully argued that the mental element needed to have been contemporaneous with the act of downloading the files, automatic or otherwise. Consequently, the allegations regarding child pornography were stopped at that stage, and the Judge directed the jury to return not guilty verdicts.

The trial continued with the extreme pornography count due to the different legislative test. Here, once it was established that the Defendant was generally aware Telegram saved files on his phone, the burden of proof shifted to the Defendant to persuade the jury that he did not know the extreme pornography was there, and had no cause to suspect the files might have been extremely pornographic.

Upon conviction, the Defendant would have been placed on the sex offenders register, and almost certainly been subjected to a very onerous Sexual Harm Prevention Order.

After a fully contested trial at Snaresbrook Crown Court, the jury acquitted the Defendant of all counts on the indictment.

Justin was instructed by Shahid Khan and Muhini Choudhury of Advice Wise Solicitors.