The sentencing of a woman on Tuesday for possessing child abuse material sent to her against her wishes raises several questions about the responsibilities of the public when they see illegal material.
Omo Delpin Omorouyi (28) was handed a four month suspended sentence after pleading guilty to possessing a two minute video depicting the rape of a child.
The court heard, and the judge agreed, that she received the video “innocently” from a man she knew only by his first name.
Omorouyi deleted it as soon as she realised it showed the rape of a child. She asked its sender why he was sending her child pornography and instructed him not to text her again.
Because she had started playing the video it had automatically been downloaded into her phone's memory where it remained until gardaí examined the device. This, according to the Director of Public Prosecutions (DPP), was enough to make her guilty of possession.
When gardaí uncovered the video on Omorouyi’s phone during an unrelated fraud investigation they were obliged to send a file to the DPP. But the DPP was not necessarily obliged to prosecute.
The director has wide discretion not to bring cases if they would not be in the public interest. In 2018 it chose to do so in 81 cases, or two per cent of all cases where no prosecution was directed.
For example, several years ago it received a criminal complaint that a garda was in possession of child abuse material.
The garda had used a potentially illegal image while delivering a lecture on how to spot such material and a colleague had reported him. After assessing the facts, the director decided not to prosecute.
This raises the question of why Omorouyi found herself before the courts. “Any of us could find ourselves the recipient of this kind of awful material,” her barrister submitted.
“On the one hand, she didn’t look for [the video]. On the other hand, she did not report it and apart from her reported shock did not react in a proper manner,” said a garda who works in child protection. “The law is there and she breached it as she knowingly possessed it.”
Ireland has some of the strictest child pornography law in Europe and the DPP and Garda are typically eager to see it enforced to the fullest extent. Cases like Omorouyi's are "not bad" as a way of warning people about this, the garda said.
The prosecution will be devastating for Omorouyi, who was granted asylum in Ireland a decade ago after being trafficked into Dublin .
With her conviction she will not be allowed to work in her chosen field of childcare.
Omorouyi’s case bears some striking similarities to the UK prosecution of Novlett Robyn Williams. She was the London Metropolitan Police’s most senior black female officer before being dismissed last year following a child pornography conviction.
Williams had received a disturbing video on WhatsApp from her sister. The jury accepted she had not viewed the video but found she was aware of its presence on her phone and never alerted the police.
So what should the ordinary member of the public do if sent child abuse imagery through no fault of their own? Asked on Tuesday, Garda Headquarters was not overly helpful.
A spokeswoman pointed to a frequently asked questions (FAQ) section on the Garda website which directs the public to report suspected online child abuse imagery to the Hotline.ie service. However Hotline is designed to assess images and videos found on the internet, not material shared in private messaging services like WhatsApp.
Individual gardaí contacted by The Irish Times said the best approach for people to protect themselves and, more importantly, help at risk children is to notify gardaí as soon as possible if they receive illegal material, something not done by Omorouyi.
“What if it’s a local child or a child at risk? It might be the missing puzzle piece for an officer somewhere to rescue a child. How are you to know?” one said.
As this week’s case illustrates, deleting the material and keeping quiet will not be a defence if gardaí coming knocking at a later date.