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Cite as: 2005 GWD 15-255, [2005] ScotHC HCJAC_51, 2005 1 JC 313, 2005 SLT 495, 2005 SCCR 392, [2005] HCJAC 51

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Procurator Fiscal v. Neil Hart [2005] ScotHC HCJAC_51 (21 April 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Hamilton

Lord Emslie

[2005HCJAC51]

Appeal No: XJ1703/04

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL

STATED CASE

in the cause

PROCURATOR FISCAL, Perth

Appellant;

against

NEIL MACDONALD HART

Respondent:

_______

Appellant: B. McConnachie, A.D.; Crown Agent

Respondent: J. Gilchrist; Drummond Miller, Edinburgh

21 April 2005

The background circumstances
[1] The respondent faced a complaint in Perth Sheriff Court libelling six charges of contravention of the Misuse of Drugs Act 1971 and one charge of contravention of section 52A(1) of the Civic Government (Scotland) Act 1982, to which we refer hereafter as "the 1982 Act". The case was called for trial on 8 and 27 January and 3 February 2004. At the close of the Crown case, a submission of no case to answer was made on behalf of the respondent in respect of charges (1), (2) and (7) on the complaint, which libelled contraventions of sections 4(3)(b) and 5(3) of the Misuse of Drugs Act 1971 and a contravention of section 52A(1) of the 1982 Act respectively. The submission was opposed by the appellant only in respect of charge (7). The sheriff upheld the submission in respect of charges (1), (2) and (7). The appellant has now appealed against the sheriff's decision to uphold that submission in respect of charge (7).

[2] Charge (7) on the complaint was in the following terms:

"On 11 November 2002 at 2a Garry Place, Perth you NEIL MACDONALD HART did have in your possession indecent photographs or pseudo photographs of children; CONTRARY to the Civic Government (Scotland) Act 1982 section 52A(1)."

In the stated case, the sheriff, in accordance with the normal practice in a context such as this, narrates the material evidence led by the Crown relating to charge (7), which was brought following upon police investigations into the distribution of indecent images on the Internet. These investigations demonstrated that a computer used within the house at 2a Garry Place, Perth had been used for the reception of such images. A search warrant had been obtained for that house by the police, in pursuance of which a search was conducted on 11 November 2002. The respondent was present within the house at the time of the search. A computer was also found in the house. The respondent, after caution and in response to questions from the police, accepted that the computer belonged to him and was used by no one else.

[3] Detective Sergeant David Black and Detective Constable James Aitken gave evidence that they worked in the Computer Examination Unit of Tayside Police and had some expertise in this field. On 7 January 2003 they conducted an examination of the computer and associated equipment. Their joint report, which was Crown production 3, detailed the results of their examination. They had examined label No. 13, the computer and its hard drive. Folder D within the hard drive was entitled "Private" and within this folder were found 2,206 image files. These were all pictures. These police officers examined every image. They concluded that 2,203 were images of adult females and pornographic in nature. They considered that three of the images were suspect and thought that they might be of girls under the age of 16 in sexual poses. It was agreed by a Joint Minute in the proceedings that Crown Label 36 was a compact disc containing three images copied from the computer operated by the respondent. These were the three images which Sergeant Black and Constable Aitken suspected were of girls under the age of 16. The images had been saved respectively under the titles: image (1) "Redheadatcarwash.jpg"; image (2) "UUI.jpg"; and image (3) "Underagegirlwithnopantieson.jpg". These images had last been viewed on the computer on 15 October 2002. Detective Sergeant Black and Detective Constable Aitken proceeded to seek the opinion of Dr. Stephen Green, a consultant paediatric endocrinologist employed by Tayside University Hospitals Trust at Ninewells Hospital, Dundee, regarding the ages of the girls in the three suspect images.

[4] Sergeant Black and Constable Aitken also gave evidence to the effect that all the image files were named. Either the names had already been attached when the images were saved from their original source, or the user could have elected to change the names; it was not possible to say in which way the titles originated. Appendix 1 to the report compiled by these police officers, Crown Production No. 3, was a selection made by the officers of some of the image file names, a number of which included the term "Lolita". In the officers' experience, the use of "Lolita" in titles was almost generic, referring to underage sexual images of pre-pubescent girls. The officers checked all the images with titles which included the word "Lolita" in the "Private" file and none of them, in the event, contained images of children. Image No. 712 in Appendix 1 to the report, entitled "Child Porn - 13 year old girl.jpg" was also of an adult.

[5] Dr. Stephen Green gave evidence that he had been a consultant paediatrician since 1983. He had seen the three images on Crown Label 36, the compact disc, at Bell Street Police Office, Dundee. He gave his view of the ages of the girls to Detective Sergeant Black and Detective Constable Aitken. He had viewed the images again in court. Dr. Green could not be sure that the girl in image (1), entitled "Redheadatcarwash.jpg" was under 16 years, as she appeared to have more mature adult breasts. The girl in image (2), entitled "UUI.jpg" was aged between 9 and 14 years; this opinion was based on breast stage growth and growth and distribution of pubic hair. In Dr. Green's opinion the girl in image (3), entitled "Underagegirlwithnopantieson.jpg", was aged 14 or under; this opinion was based on the distribution of pubic hair. Dr. Green said that there were five stages of development in girls. Stage 1 was pre-pubescent, stage 5 adult and in stages 2, 3 and 4 changes took place in genitalia and breast growth over a period of 3 to 3.5 years. He would expect 90% of girls to have adult pubic hair by the age of 16.

[6] At the conclusion of the Crown case, the solicitor for the respondent made a submission of no case to answer in respect of inter alia charge (7). He argued that the Crown had not established by corroborated evidence that the photographs in issue were of children. In his submissions he made reference to Arnott v. McFadyen 2002 S.C.C.R. 96, where the Crown had led evidence from two doctors to corroborate the fact that a photograph showed a child of at most 15.5 years old. It was submitted that there was no presumption in the statute that photographs produced were children. This was an essential fact which required proof by corroborated evidence. Reference was also made to section 52(2) and (2B) of the 1982 Act. It was submitted that there was insufficient evidence to establish charge (7). In response, the appellant argued that the photographs had been corroborated as being of children. The evidence of Dr. Green had been led. Two paediatricians might have re-enforced the Crown case, but corroboration was derived from the images of the children themselves and the opinions of the two police officers who gave evidence. The facts of nature were within judicial knowledge. The court had been entitled to consider the evidence as a whole, including judicial knowledge.

[7] Following upon the sheriff's decision to uphold the defence submission of no case to answer, the appellant sought the present case to be stated, for the purpose of bringing under review the following matter:

"The sheriff erred in law in holding that the Crown had led insufficient evidence that the children in question were under the age of 16, and in acquitting the respondent on charge (7)".

The submissions of the appellant
[8] In introducing his submissions the Advocate depute accepted that an essential ingredient of the crime charged under charge (7) on the complaint was that the indecent photograph or photographs should be of a "child", within the meaning of section 52(2) of the 1982 Act, that is to say "a person under the age of 16". The starting point for the Crown case in this regard was the evidence of Dr. Stephen Green, an expert paediatrician. What was then required was evidence from some other source or sources to "confirm" or "support" Dr. Green's conclusions.

[9] In the submission of the appellant, there were two sources of corroboration. The first of these was the title adhibited to image (3), "Underagegirlwithnopantieson". That title would provide support for Dr. Green's evidence that the subject of that image was a child. It was of no concern, in the context of a submission of no case to answer, that, in the end, such corroborating evidence might not be accepted. The issue at the stage of the submission was whether the evidence was available and whether it was capable of affording corroboration. In that connection reference was made to Williamson v. Wither 1981 S.C.C.R. 214. Reliance was also placed on Gonshaw v. Bamber 2004 S.C.C.R. 482 at page 490. The second source of corroboration relied upon by the Crown was the report compiled by Detective Sergeant Black and Detective Constable Aitken of the results of their examination of the respondent's computer for the presence of paedophilic images. In that report they had stated that among the 2,206 image files previously mentioned, there were three image files which caused them particular concern. They stated that: "These depict totally naked or partially dressed female children in obvious sexual poses". In the Joint Minute entered into in this case it was stated that "The following is agreed and should be admitted in evidence". Included among the matters which followed was the statement:

"The computer equipment which was seized was thereafter forwarded for Forensic Examination, which was carried out by Detective Sergeant David Black and Detective Constable James Aitken. The results of this examination are contained within Crown Production No. 3."

[10] The Advocate depute pointed out that the sheriff appeared to have rejected the evidence of these two police officers for reasons she gave at page 5D of the stated case in these terms:

"No evidence was led from these officers as to them possessing any qualifications or experience which equipped them to determine the age of the girls; no evidence was given in their Report or by them in court as to what age they thought the girls were. I took the view that they had not provided corroboration of Dr. Green."

[11] The Advocate depute said that it was of interest to compare the approach of the sheriff to that of the Court of Appeal in England in relation to similar legislation in force there, as demonstrated in Regina v. Land [1997] EWCA Crim 2409. In that case the Court of Appeal had decided that a jury was entitled to use its own experience and judgment in reaching a conclusion as to whether an image was that of a child. Indeed, the court had gone so far as to say that, if expert evidence were to be tendered in relation to that issue, it would be inadmissible.

[12] In the event of this court accepting the submissions of the appellant, there were two ways in which the matter might be handled. In the first place, the court could remit the cause to the sheriff with its opinion and any necessary directions, in terms of section 183(1)(a) of the Criminal Procedure (Scotland) Act 1995. Alternatively, the court could set aside the verdict of the sheriff, which was an acquittal, and grant authority to the appellant to bring a new prosecution in accordance with section 185 of the 1995 Act, all in terms of section 183(1)(d) of that Act.

Submissions of the respondent
[13] Counsel for the respondent moved the court to refuse the appeal. The sheriff's decision was soundly based upon the evidence in the case and was correct. It was common ground between the parties that evidence showing that the subjects of the images were children had to come from more than one source. In Arnott v. McFadyen, the Crown had led evidence from two appropriate doctors. He referred to section 52(2) and (2B) of the 1982 Act, which were concerned with proof of what he described as "underage". Unfortunately the facts in the present case had not been particularly well described. In certain cases, it might be very easy for the Crown to show that the subjects of images were children, for example, if they were of very tender years. However, at a later stage in their development, there might be considerable difficulty in reaching a conclusion on the matter. In general, it was accepted that corroboration might be found in facts and circumstances, but, having regard to the particular evidence in this case, the sheriff's conclusion was correct. The police evidence had not been capable of corroborating that of Dr. Green. In paragraph 6 of the stated case the sheriff had narrated the evidence of Detective Sergeant Black and Detective Constable Aitken. What it amounted to was no more than that those police officers suspected that the girls were under the age of 16 years. That was not enough. As regards the statement made in the police report, Crown Production 3, to the effect that the three image files depicted "children" in obvious sexual poses, it was submitted that that statement had not been incorporated into the evidence. The Crown could not derive assistance in seeking corroboration from the titles adhibited to the images concerned. It was quite plain that titles suggesting a child subject had been indiscriminately applied to images which were plainly not of children. In that connection it was obvious from Fox v. H.M. Advocate 1998 S.C.C.R. 115 that there might be evidence so ambiguous that it could not constitute corroboration, as appeared from the observations of Lord Justice Clerk Cullen (as he then was) at pages 133 to 136. The observations of the Lord Justice General at page 126 were also pertinent in that connection. The evidence regarding the titles was of that character.

[14] If the appeal was well-founded, it was accepted that the two courses outlined by the Advocate depute were available to the court. The respondent would prefer the adoption of the first, that is to say the case being remitted to the sheriff with directions to proceed as accords.

The decision
[15] Before we come to consider the evidence available at the time of the submission of no case to answer, we consider it appropriate to draw attention to the terms of section 52(2) of the 1982 Act. That subsection contains the following provision defining the word "child" for the purposes of section 52 and also, by virtue of section 52A(4), for the purposes of section 52A(1) the provision under which charge (7) on the complaint was brought. In section 52(2) it is provided:

"In subsection (1) above 'child' means, subject to subsection (2B) below, a person under the age of 16; and in proceedings under this section a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 16"

It appears to us that, in that provision, Parliament contemplated that a wide range of types of evidence might be available to demonstrate, for the purposes of the legislation, that a person was under the age of 16 years. As was observed by Judge, L.J. in Regina v. Land, the English counterpart of this provision was

" ... plainly concerned with the obvious difficulty of making any positive identification of an unknown person depicted in a photograph, hence his or her age, and therefore underlines that the question whether such a person was a child for the purposes of the [Criminal Justice Act 1978] is one of fact based on inference without any need for formal proof. We can see no basis for concluding that in the absence of paediatric or other expert evidence the jury is prevented from concluding that the indecent photograph depicts a boy or a girl under the age of 16."

[16] Turning now to the evidence relied upon by the appellant in this case, in our opinion, no assistance as regards finding corroboration can be got from the titles adhibited to the images concerned, in particular the title "Underagegirlwithnopantieson" given to image (3). It is quite evident from the material described by Detective Sergeant Black and Detective Constable Aitken in their report that titles suggesting that the subjects of images were children were indiscriminately adhibited to images of persons who were plainly adults. Accordingly we consider that a title, in that context, could not provide support or confirmation of the evidence of Dr. Green regarding images (2) and (3),

[17] As regards the evidence of the police officers mentioned, while it is true that it is narrated in paragraph 6 of the stated case that these officers suspected that the three images in question were of girls under the age of 16 and therefore sought the opinion of Dr. Green, it is clear to us that there was further material in evidence emanating from those police officers on the matter. In the stated case at page 5D the sheriff makes it clear that the contents of their report, Crown Production 3, was part of the evidence and was considered by her in dealing with the submission. In that report, the police officers state that the three image files in question "depict totally naked or partially dressed female children in obvious sexual poses". In the context of a police investigation into the issue of whether an offence had been committed under section 52A(1), we consider that the use of the word "children" in that passage necessarily refers to a person under 16 years of age. If that were not so, the observation would have no relevance. The sheriff took the view that these police officers had not provided corroboration of the evidence of Dr. Green for this reason:

In rejecting the evidence of these police officers for that reason, we consider that the sheriff has erred. It was, no doubt, the case that no evidence was led from these police officers as to their possessing any particular qualifications or experience which equipped them to determine the age of the girls. However, having regard to the terms of section 52(2) and to the observations in Regina v. Land, we do not consider that any such qualifications or experience were necessary in the particular circumstances of this case, where there was a principal source of evidence from an expert in the assessment of the ages of adolescent girls. Furthermore, it appears from the sheriff's stated reason that in her view, for these witnesses to be able to corroborate the evidence of Dr. Green, it would have been necessary for them, in their report, or in evidence in court, to say what particular age they thought the girls were. In our opinion the legislation contains no such requirement. The essential fact which requires to be proved is that the subject of an image was a "child" at any material time. That means that there must be proof of the subject being then under the age of 16, not any particular age under 16. In terms of the Joint Minute there was evidence before the court that these officers had concluded that three images depicted female "children". We are not persuaded that, for the purposes of testing the sufficiency of evidence, that material must be disregarded because, in oral testimony, the officers' stated merely that they "suspected" that the girls were under the age of 16.

[18] In all these circumstances our conclusion is that the sheriff erred in holding that the Crown had led insufficient evidence that the images depicted persons under the age of 16 and in acquitting the respondent on charge (7). Accordingly, we shall allow the appeal and remit the cause to the sheriff with the direction that she should proceed as accords. In practical terms that means that the trial should proceed upon the basis that the submission of no case to answer in relation to charge (7)has been repelled.

[19] Before parting with this case we would wish to make our position clear in relation to certain other observations by Judge, L.J. in Regina v. Land. There the court suggested that, in a case such as this, expert paediatric or other expert evidence as to age would be inadmissible. The reason given for that position was this:

"The purpose of expert evidence is to assist the court with information which is outside the normal experience and knowledge of the judge or jury. Perhaps the only certainty which applies to the problem in this case is that each individual reaches puberty in his or her own time. For each the process is unique and the jury is as well placed as an expert to assess any argument addressed to the question whether the prosecution has established, as it must before there can be a conviction, that the person depicted in the photograph is under 16 years."

We must respectfully disagree with that view. In our opinion, while there may be cases in which proof of the essential facts in question may be achieved without reference to an expert witness or witnesses, in other kinds of case, where the subject of the image may be approaching the age of 16, there may be very considerable difficulty for the fact-finding tribunal in that regard. In such cases, the evidence of one or more expert witnesses may well be necessary in practice to enable the Crown to prove that the subject of an image is under 16 years of age.