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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 50

HCA/2016/000200/XC

 

Lord Drummond Young

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in

APPEAL AGAINST CONVICTION

by

JAMES WIGHTMAN

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  Mackintosh;  McCusker McElroy & Gallanagh

Respondent:  Prentice (Sol Adv) QC, AD;  Crown Agent

7 July 2017

[1]        The appellant was convicted after trial of four charges, in the following terms: 

“(1) between 23 July 2014 and 8 August 2014… at the toilets and changing room area at [a specified tennis club] [the appellant], a person who had attained the age of 16 years, did engage in sexual activity with or towards [AB], a child who had attained the age of 13 years but had not attained the age of 16 years, in that [he] did cause him to remove his upper clothing, film him undressing and topless and touching on the body in a sexual manner: contrary to section 30 of the Sexual Offences (Scotland) Act 2009;

(2) on 14 August 2014, [at an address in Glasgow], [the appellant] did have in [his] possession a number of indecent photographs or pseudo-photographs of children: contrary to the Civic Government (Scotland) Act 1982, section 52A(1);

(3) on various occasions between 23 July 2014 and 8 August 2014… at [the specified tennis club] [the appellant] did take or permit to be taken or make indecent photographs or pseudo-photographs of a child, namely [AB]: contrary to the Civic Government (Scotland) Act 1982, section 52(1)(a) as amended;

(4) on various occasions between 6 December 2011 and 13 August 2014 [at the same address as in charge (2)] [the appellant] did take or permit to be taken or make indecent photographs or pseudo-photographs of children: contrary to the Civic Government (Scotland) Act 1982, section 52(1)(a) as amended”.

[2]        The appellant was a self-employed tennis coach who gave tennis lessons to junior members of a particular tennis club.  AB, the complainer in charges (1) and (3), was a junior member of the club.  In the summer of 2014 he was given tennis lessons by the appellant.  The appellant was not an accredited coach, and consequently did not require to go through the disclosure requirements of coaches accredited by the Lawn Tennis Association.  The secretary of the club gave evidence that he believed that the appellant was giving “free advice” to the complainer, AB.

[3]        In the course of lessons on an outside tennis court the appellant set up a video camera and filmed some of the tennis lessons that he gave to the complainer.  During the lessons the appellant frequently laid hands on the complainer, apparently to help him with his tennis strokes.  He often took the complainer’s arm or elbow to guide his tennis strokes in a particular way.  No objection had been taken to this.  On one occasion the appellant placed his hand on the complainer’s buttocks, and he subsequently created a still image of that part of the video.  The still image was available as a production. Evidence was available from the complainer that at one time while playing tennis he had suffered a sore elbow.  Initially he told his mother, and when the pain persisted he told the appellant, who suggested that they should go off court because he had gel and cream which would help it.  They went into the men’s changing room and lavatories in the clubhouse.  The complainer would have been happy to have the soothing lotion applied to his elbow on the courts, but the appellant had suggested that they should go inside.  Once inside the appellant told the complainer to remove his top, although the gel could have been applied if the complainer had simply pulled up his sleeve.  The appellant also applied gel to the complainer’s shoulder, although it was not sore. This “treatment” to the complainer’s elbow and shoulder occurred twice, and on one occasion the appellant filmed it on his video camera. 

[4]        On a separate occasion the complainer was in the men’s lavatory at the club, and for some reason had taken off his top.  Without permission the appellant used his video camera to film the complainer with his top off.  He told the complainer to tense his stomach muscles and then slapped the complainer’s stomach with the back of his hand.  He did not say why he was doing this but the complainer felt uncomfortable.  The complainer was 14 at the time.  Another part of the video film showed the appellant pummelling the complainer’s back, giving him “birthday bumps”.  The appellant was also seen to pinch the complainer’s skin and to tell him to “tense up” while he felt his chest, back and hips.  In addition the appellant created a still image of the complainer with his top off. 

[5]        The appellant’s conduct confused and upset the complainer.  Initially he tried to avoid the appellant, but after a day or two he told his mother and she contacted the police.  Based on the information given to them by the complainer the police obtained a warrant to search the appellant’s home.  They subsequently executed the warrant and removed various items of computer and camera equipment.  These were passed to Mr Peter Benson, a police forensic examiner, who examined the data on the various items that been seized.  Mr Benson found videos and still images relating to the complainer, and also other, unrelated, indecent images.  The latter images formed the basis for charges (2) and (4) on the indictment. 

[6]        It was not in dispute that the search warrant was properly executed at the home of the appellant.  That warrant related to alleged offences under sections 30 and 36 of the Sexual Offences (Scotland) Act 2009 and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010.  The police officers seized three items, two handheld video cameras and a SanDisk USB.  The defence lodged a minute under section 79 of the Criminal Procedure (Scotland) Act 1995 challenging the admissibility of the indecent images found in the course of interrogation of the USB SanDisk to the extent that they related to children other than the complainer in charges (1) and (3). An evidential hearing was held on the section 79 minute before a sheriff other than the trial sheriff, who had been unavailable owing to a family bereavement.  At the hearing evidence was given by Mr Benson in relation to his interrogation of the items seized.  Mr Benson stated that he had been asked to preview the three items seized in the search, all of which had been lawfully seized and which had been delivered to him.  The instructions were to look at and examine the items in respect of an allegation that the appellant had indecently assaulted a child during tennis coaching.  Mr Benson was asked to look for any video evidence and still image evidence to support such an allegation. 

[7]        Mr Benson previewed the information recovered from the items that had been seized.  He described a preview as “a short examination that is performed with the same forensic equipment and techniques as a full examination, but as the subsequent search is abbreviated, the results are indicative rather than conclusive”.  Mr Benson analyzed all three of the items that had been recovered, starting with the USB SanDisk.  He described the process and methodology of the interrogation, which involved using specialist software known as ENCASE to undertake a complete search of the USB, initially to access and view all still images, viewed in gallery mode.  Mr Benson stated that there were several hundred thousand still images.  He scrolled down a gallery view of those images, and saw images of a young man with an older man who had his hand on the young man’s bottom.  That incident appeared to have taken place on a tennis court.  Mr Benson further gave evidence that in the course of scrolling down the gallery view he had also seen a small number of indecent images of children.  After viewing all of the still images in gallery mode he bookmarked a number of still images for further investigation. 

[8]        Mr Benson then filtered the interrogation process in order to identify any video file extensions of the appellant indecently assaulting a young man.  Mr Benson had been confident that there would be video file extensions as a number of the still images came from such extensions, and in his preview Mr Benson had found still images which had made up a video.  A video was in effect a series of still images chained together.  The preview led to the appellant’s being detained under section 14 of the Criminal Procedure (Scotland) Act 1995 and appearing on petition.  Mr Benson gave evidence that he was not looking for indecent images of children when he examined the images on the USB stick.  He came across those images in the course of his interrogation of the USB while looking for other images.  He reported what he had found to the reporting police officer. 

[9]        For the appellant it had been submitted at the evidential hearing that the search carried out by Mr Benson went beyond the terms of the search warrant and was accordingly illegal.  The sheriff who conducted the evidential hearing rejected that submission.  When Mr Benson carried out the search it was not certain whether any or all of the images found on the USB stick had come from the handheld video cameras.  In these circumstances it was not reasonable to restrict the interrogation to comply with the precise terms of the search warrant.  The sheriff noted that Mr Benson was undertaking a preview within a restricted period, and required to access several hundred thousand images.  The sheriff accepted Mr Benson’s evidence that it was preferable to scroll down all the images in gallery mode before filtering for video file extensions.  Any other procedure would have been very time consuming.  In the course of those procedures Mr Benson happened to come across indecent images of children, although he was not looking for such images.  Those images were found in the course of his preview search using specialized software equipment and specialized programmes that were not available to ordinary users.  The sheriff records that, “As Mr Benson put it, having seen the indecent images of children he could not have unseen them.  There were child protection issues and a procedure to refer the matter to the reporting police officer”.  On that basis the sheriff rejected the section 79 minute. 

[10]      The first ground of appeal was that the sheriff who conducted the evidential hearing on the section 79 Minute erred in law in repelling the objection to the admissibility of evidence from Mr Benson relating to indecent still images of children.  It is said that the warrant permitted the seizing and examination of electronic and video devices for the purpose of investigations into allegations that the appellant had filmed the complainer AB.  According to his evidence Mr Benson had been unaware of the terms of the warrant, and he found still images of children that formed a substantial part of the evidence in respect of charges (2) and (4). 

[11]      The terms of the warrant that was issued were relatively wide; it permitted police officers to seize a range of electronic devices found within the appellant’s house in so far as they were pertinent to the investigation of the offences relating to AB involving inter alia removing his clothing, rubbing cream on to his body, placing his hands on AB’s hips and bottom, and instructing AB to pose in a variety of different positions.  It is apparent from the evidence of Mr Benson that a search of a device such as a USB stick is likely to produce a very large number of images, and these must obviously be examined in order to determine whether any conform to the terms of the search warrant.  That seems to us to be elementary.  In looking through the images Mr Benson discovered a number of indecent images of children other than AB.  As he explained to the sheriff, once he had seen those images he could not “unsee” them.  He had discovered evidence of serious criminal offences, and it was therefore his clear and obvious duty to draw that evidence to the attention of the police.  Niceties about what might or might not be justified on strict construction of the warrant do not appear to us to be pertinent;  Mr Benson in carrying out an authorized search had discovered evidence of criminal offences, and was bound to act on that information.  On this basis we are of opinion that the first ground of appeal must be rejected. 

[12]      Mr Benson gave evidence that he did not know the terms of the search warrant that had been granted, but had been told about the broad nature of the inquiry.  He had been informed that the inquiry was about an adult male who had been coaching a 15 year old boy and had made video recordings of the boy, and that there might be video images of an indecent nature showing contact between the adult male and the child.  Mr Benson found images of that nature, but he had reported images that went beyond that description.  Counsel for the appellant attached some importance to Mr Benson’s ignorance of the precise terms of the warrant;  he had not sought to understand the limits of the powers that he had to search this data.  In our opinion this argument is misconceived.  Mr Benson was searching for a particular category of images that fell within the terms of the warrant, of which he had been given general notice.  In doing so, he came across other images of an indecent nature.  What he did cannot be described as a random search, akin to the search carried out in Leckie v Miln, 1981 SCCR 261.  In the latter case the warrant related to articles connected with a particular charge.  When the warrant was executed, the police officers carried out a general search of the house named in the warrant, in the course of which they discovered evidence of other offences.  That could truly be described as a random search.  When an electronic search is conducted, however, in order to discover whether images conform to the warrant are contained on a device such as a USB stick, it is necessary to examine all of the images on that stick.  In this respect the search is fundamentally different from traditional physical search, because nothing can be seen without going through the totality of the images.  Such a search cannot be described as “random”;  it is the only way in which the search can be conducted.  

[13]      The second ground of appeal was that, in respect of charge (1) the sheriff misdirected the jury as to the requirement that they should apply an objective test to determine whether the conduct of the appellant libelled on that charge was sexual in terms of section 60(2) of the Sexual Offences (Scotland) Act 2009.  In particular, he had failed to direct them specifically to make the assessment in the light of the evidence of Mr Benson, who had stated that in his opinion as a police forensic examiner the films of the actions of the appellant towards AB were not indecent. 

[14]      In our opinion this ground of appeal proceeds on a misunderstanding of the requirements of section 30 of the Sexual Offences (Scotland) Act 2009.  The test under that section as libelled in charge (1) is whether the appellant touched AB on the body in a “sexual” manner.  That is not necessarily the same as “indecent”, which is the word used in sections 52(1)(a) and 52A(1) of the Civic Government (Scotland) Act 1982;  those are the statutory provisions founded on in charges (2), (3) and (4).  No doubt in many cases there might be an overlap between the two concepts, but this is not inevitable.  Thus it might be obvious in the whole circumstances spoken to in evidence that conduct that merely involved touching another person, in a manner that could not reasonably be described as “indecent”, nevertheless had a sexual motivation, in that an inference might properly be drawn that the person responsible for the touching obtained sexual gratification from the touching.  That is, we think, a reasonable description of what happened in relation to charge (1). 

[15]      It follows that Mr Benson’s statement that he did not consider the images to be “indecent” was of limited relevance to charge (1).  The sheriff did refer to Mr Benson’s evidence on this matter, in giving directions on charge (3).  He referred to the terms of the charge and the appellant’s acceptance that he had taken several photographs of AB.  He then stated explicitly that Mr Benson in his evidence had said that he did not consider any of the photographs of AB to be indecent.  The sheriff then referred to the lack of any definition of “indecent” in the Civic Government (Scotland) Act 1982, and suggested that the jury should use their common sense and experience in life.  He gave the Oxford English Dictionary definition of “indecent”:  “unbecoming; unsuitable; offending against decency”.  He then stated to the jury “Basically, does it affront your sensibilities?  If it does, then it’s indecent”.  In our opinion those directions are entirely proper in relation to charge (3).  For the reasons that we have already stated, they were not relevant to charge (1), which related to a differently worded statutory provision.  For that reason this ground of appeal must be rejected. 

[16]      The third ground of appeal was that a miscarriage of justice had occurred through the sheriff’s repelling a submission made for the appellant that it was not open to the Crown to argue that the films of AB that formed the basis of charge (3) were indecent, in view of the fact that they had led opinion evidence of Mr Benson to the effect that the films of the actions of the appellant towards AB were not indecent.  On that basis it is said that there was no longer a sufficiency of evidence in respect of charge (3).

[17]      This ground is essentially a development of the second ground, as it proceeds on Mr Benson’s evidence to the effect that the images of AB were in his opinion not “indecent”.  The directions referred to in paragraph [15] above related directly to charge (3).  In this respect, the sheriff properly left the question of whether the images were indecent to the jury.  In our opinion this is plainly correct; the opinion expressed by Mr Benson could not bind the jury.  On that basis it was open to the jury to decide that the images of AB were indecent, notwithstanding Mr Benson’s opinion to the contrary.  The jury were properly directed, and it is not suggested that the verdict was one that no reasonable jury could reach.  In the appellant’s case and argument, a further point is made that the Crown’s position on charge (3) was inconsistent because they relied on Mr Benson’s evidence that the images in charges (2) and (4) were indecent but invited the jury to ignore his evidence that the images in charge (3) were not indecent.  It is true that Mr Benson’s evidence differed in relation to charges (2) and (4) on one hand and charge (3) on the other.  Nevertheless, the images were very different;  it was agreed between Crown and defence that the images in charges (2) and (4) were indecent, and consequently the question of indecency only arose as a live issue in relation to charge (3).  It is, moreover, apparent from the sheriff’s charge that the defence relied on Mr Benson’s evidence in relation to charge (3) in arguing that the images were not indecent.  Ultimately, however, the question was one for the jury, and the jury were entitled to disregard Mr Benson’s evidence on charge (3).

[18]      The fourth and fifth Grounds of Appeal related to charges (2) and (4).  It was submitted that the sheriff had misdirected the jury as to the meaning of possession in respect of the indecent images of children that had been found, in that he failed to direct the jury that they had to assess whether the appellant had the necessary knowledge and control to amount to possession, and gave the impression that a person can be in possession of a computer file on a USB memory stick even when that person has no knowledge of the existence of the file and has done nothing with the memory stick other than put it in his pocket.  Furthermore, if a misdirection occurred in relation to charge (2) that would necessarily affect the conviction on charge (4), in that the directions relating to the latter charge did not include an instruction that the jury should assess whether the appellant had the necessary knowledge and control to amount to possession of the images in question. 

[19]      On this matter, the sheriff’s directions to the jury were as follows.  He directed them that it was not challenged that the various items of equipment from which images had been taken (a hard drive, which was on a tower PC, a laptop computer and various SanDisks) were found in the appellant’s home, but that was not enough by itself.  There was evidence, which the jury must accept, that other people had access to some or all of these items.  The appellant had said that “some of his pals from the pub” had access;  that was a matter for the jury to assess.  In addition, the Crown evidence was that someone called AM had access to the computer at some time.  The sheriff then continued: 

“To convict the accused of charge 2, you have to be satisfied that he had possession of some or all of the images. Now, in law, possession does not necessarily mean ownership. Possession requires knowledge and control. Knowledge involves awareness, knowing of something’s existence. Control does not just mean being handily placed within reach. It’s wider than that. It’s having a say in what happens to it”.

That direction was not criticized, and it is clearly correct.  The sheriff stated that the Crown claimed that various inferences could be drawn to the effect that the appellant had possession of those images.  He then dealt with the defence submission.  He stated that the defence solicitor had made reference to the evidence of Mr Benson, who had been asked who was sitting in front of the computer when the images were downloaded;  Mr Benson had replied that he did not know.  The sheriff indicated that that did not matter in relation to charge (2) because it was merely a charge of possession of indecent images. 

[20]      The sheriff then directed the jury on the meaning of possession.  The defence solicitor had referred to a hypothetical example whereby he downloaded a recording by a popular singer on to a computer and then transferred it onto a USB stick.  The sheriff developed this by suggesting that the stick was given to the sheriff clerk who later gave it to the sheriff;  in that event: 

“I would be in possession of that USB stick if I had it in my pocket, irrespective of whether or not I knew that [the solicitor] had downloaded the record in the first place. So it doesn’t matter whether or not the accused… or Mr Benson could say if the accused had downloaded it so far as charge 2 is concerned. All you have to be satisfied is whether or not he had possession of the images, applying the criteria which I’ve given to you”.

It is that part of the direction that was criticized by counsel for the appellant, essentially on the ground that it was inadequate to deal with possession of the indecent images of children that had been found as against possession of the USB stick itself.  It was said that the direction implied that a person could be in possession of a computer file on a USB memory stick even when the person had no knowledge of the existence of the computer file and had done nothing with the memory stick other than put it in his pocket.  That was said to amount to a miscarriage of justice. 

[21]      The transcript of Mr Benson’s evidence made it clear that one indecent image was found in the Internet cache for the Microsoft Explorer browser on the laptop computer and 15 still images and 11 moving images were found on the tower PC, although the latter were either in an unallocated cluster or in the use account of an earlier user of the computer.  There were, however, emails in the appellant’s name on both the laptop computer and the tower PC. 

[22]      We have found this to be the most difficult issue raised in this appeal.  As we have indicated, the basic direction on possession quoted at paragraph of [19] above is undoubtedly correct.  The critical question is whether the appellant had knowledge and control of the indecent images found on the laptop computer and tower PC, and the further direction quoted at paragraph of [20] above could have focused this issue more clearly.  Nevertheless, this direction is correct that, so far as charge (2) was concerned, it did not matter whether the appellant had downloaded the images;  all that mattered was whether he had them in his possession.  In the last sentence of the quoted passage, the sheriff directs the jury that they had to be satisfied that the appellant had possession using the criteria that had already been given.  Those criteria are clearly those in the passage quoted at paragraph [18] above, where it is stated that possession requires both knowledge and control.  The jury was therefore told that to have possession of the indecent images the appellant required to have knowledge and control of those images.  In these circumstances we have concluded that the direction given is adequate. 

[23]      Moreover, even if there had been a misdirection in this respect, it would be difficult to hold that a miscarriage of justice had occurred.  Images had been found on the laptop computer and the tower PC, although some of those on the tower PC were in another person’s account.  It was accepted, however, that emails in the appellant’s name were found on both devices.  Furthermore, the jury convicted the appellant of charge (4), which relates to taking or making indecent photographs or pseudo-photographs of children.  In relation to that charge the sheriff told the jury that this would cover downloading material from the Internet to a storage device or printing a photograph from the Internet or opening an email attachment or downloading an image from a website.  The sheriff then directed the jury that the Crown invited them to conclude by inference from facts and circumstances that the appellant was guilty of charge (4).  Against that, he reminded the jury that the appellant denied knowledge of the existence of the downloaded materials, and denied that he possessed them.  The sheriff then directed the jury that if they accepted that denial the appellant could not be convicted of charge (4) because that required a positive act.  Those appear to us to be proper and clear directions.  The jury nevertheless convicted the appellant of charge (4).  That inevitably leads to the inference that the jury were satisfied that the appellant was aware of the indecent material found on the various devices.  On that basis, we consider that it cannot be said that any miscarriage of justice has occurred. 

[24]      For the foregoing reasons we refuse the appeal.