The perils of WhatsApp group chats
Daisy Jones discusses the law relating to possession of images that may have been acquired innocently
On the 24 May 2019, a school sports coach (MG) was sentenced for possession of extreme images. He was a member of a WhatsApp group for a rugby club that included 44 people. Upon his arrest for an unrelated and ultimately dropped matter, the defendant’s phone was seized and interrogated by the police. They found 10 videos and two photographs depicting videos of sadomasochism and bestiality involving a snake and a cow that had been sent by another person to the rugby club group chat. These images had been downloaded to his phone automatically by the WhatsApp application.
The defendant had not posted the images, he had not asked for them, but he was in possession of them as a matter of law, and therefore had committed an offence.
Following calls for the law in relation to extreme pornography to be tightened and toughened up, the Criminal Justice Act 2008 brought in a new offence of possession of extreme pornography. The maximum sentence available for this offence is 2 years’ imprisonment.
A person commits an offence if they are in possession of an image and:
The image is pornographic; and
The image is extreme namely grossly offensive, disgusting, or otherwise of an obscene character; and
The image portrays in an explicit and realistic way any of the following extreme acts: an act which threatens someone’s life, is likely to cause injury to a person’s anus, genitals or breasts, involves sexual interference with a human corpse or a person performing an act of intercourse or oral sex with an animal whether dead or alive.
In the recent case of R v Okoro (Cyprian),  1 W.L.R 1638 (2018), it was made clear that possession is proved if (i) the images are within the custody or control of the accused and (ii) the accused must have known that he possessed an image or group of images. Knowledge of the content of the images is not required. Nor is proof that the accused has opened or looked at the images.
The following defences are available if you are charged with this offence:
You had a legitimate reason for being in possession of an extreme image;
You had not seen the images and did not know or have any reason to suspect that the image was an extreme pornographic image; or
You were sent the image without requesting it and you did not keep it for an unreasonable amount of time.
The images shared to MG were not requested, however the images had been stored on his phone for approximately a year. He had kept them for an unreasonable amount of time and therefore the third defence as stated above was not available to him.
In sentencing, the Judge accepted that MG did not know that these images were illegal. Further the Judge questioned whether it was in the public interest to pursue the case and why the other 44 members in the group chat had not been put in the dock as well. MG received a conditional discharge however he had already lost his job coaching rugby at a school.
Many images, gifs and memes are shared on WhatsApp groups up and down the country and as the Judge pointed out when sentencing MG, “One suspects that images such as these are probably widely available and probably, quite wrongly and illegally, circulated through various WhatsApp groups throughout the country — perhaps through some misplaced bravado or attempt at humour.”
The case of MG highlights that if you are in a group chat where images such as these are circulated it is best to turn off the automatic download of a Whatsapp group chat to ensure that images do not stay on your phone without realising it. Moreover, you should delete any such image from your phone if you receive them, as well as any that may already be on your phone.
It is important to realise that possession of these images is illegal. Forwarding them to others is likely to be an aggravating factor should you be prosecuted.
Sonn Macmillan Walker has successfully defended a case involving possession of images received over WhatsApp. Please call us if you are facing an allegation of this nature.