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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice Clerk
Lord Osborne
Lord Johnston
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[2007] HCJAC 6
Appeal No: XC48/06
OPINION OF THE COURT
delivered by THE LORD
JUSTICE CLERK
in the Appeal
by
GLEN JOHN ALEXANDER
PEEBLES
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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For the appellant:
Strachan; Steel Eldridge Stewart,
Cupar
For the Crown: Mackay, AD;
Crown Agent
25 January
2007
The conviction
[1] On
30 November 2005 the
appellant was convicted on indictment at Cupar Sheriff Court of the following
charges:
"(1) between
03 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High
Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did have in
your possession indecent photographs or pseudo-photographs of children;
Contrary to the Civic Government (Scotland) Act 1982 Section 52A(1)
(2) between
03 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High
Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did make
indecent photographs or pseudo-photographs of children;
Contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(a)
(3) between
03 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High
Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did have in
your possession indecent photographs or pseudo-photographs of children with a
view to their being distributed or shown by you or others;
Contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(c)
(4) between
02 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High
Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did
distribute or show indecent photographs or pseudo-photographs of children;
Contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(b)
as amended".
The statutory provisions
[2] Section 52(1) of the Civic Government (Scotland) Act 1982
provides inter alia that any person
who takes, or permits to be taken, or makes any indecent photograph or
pseudo-photograph of a child is guilty of an offence. The subsection, so far as relevant to this
appeal, further provides that an offence is committed by -
" Any person who -
(b) distributes or shows
such an indecent photograph or pseudo-photograph; [or]
(c) has in his possession
such an indecent photograph or pseudo-photograph with a view to its being
distributed or shown by himself or others ... "
Section 52(4) provides that -
"For the purposes of this
section, a person is to be regarded as distributing an indecent photograph or
pseudo-photograph if he parts with possession of it to, or exposes or offers it
for acquisition by, another person."
The arrest of the appellant and the recovery of his
computer
[3] In
the morning of 30
September 2003 police officers searched the appellant's home. They recovered a computer from his
bedroom. They labelled it as "found,
bedroom, 3 Heckler's Wynd, Strathmiglo on 3 (sic) September 2003" (Label 4).
They took the appellant to Cupar Police Station for interview. Meanwhile, DC Kevin McDade carried out a
preliminary examination of the computer.
The interview
[4] The appellant was 18 years old at the time. DC David McLaren, the officer leading the
enquiry, asked the appellant's father if the appellant had any learning
difficulties. His father said that he
did not, but that he had been an underperformer at school. DC McLaren arranged for an appropriate adult
to be present at the interview because he felt that he had to go over things
more than normally when he spoke to the appellant at his home.
[5] The appropriate adult appointed was Mr Kenneth Campbell, the
depute manager of a local day care centre.
He dealt with people who had learning difficulties. He was experienced in the role of appropriate
adult. He understood his function to be
that of helping the appellant to understand what was being said to him and
helping the police to understand what was being said to them by the appellant.
[6] The interview began at 2.30
pm. It lasted 28
minutes. The transcript shows that DC
McLaren went out of his way to inform the appellant of his right to silence and
to satisfy himself that the appellant understood the meaning of the
caution. We need not go into the detail
of the interview. It is sufficient to
say that the appellant, who had completed a computer course at Glenrothes
College, admitted that he had downloaded a computer music programme called
Kazaa and showed that he had an understanding of the techniques of downloading
and the significance of a shared folder.
He denied having indecent images of children under 16, but admitted to
having downloaded "bad files," by which, he said, he meant files containing
nudity involving girls of about his own age.
Mr Campbell did not intervene at any stage. The appellant was thereupon charged with the
offences libelled.
Dr Michie's assessment
[7] The
defence instructed Dr Amanda Michie, a consultant clinical psychologist at the Royal Edinburgh Hospital, to
examine the appellant and assess him. Dr
Michie submitted a Report dated 19 July
2005.
[8] Dr
Michie concluded that the appellant's full scale IQ score of 85 placed him in
the low average range of intellectual ability at the 16th percentile. This
suggested that his overall thinking and reasoning abilities exceeded those of
16% of adults of his age. He was
functioning in the low average range of intelligence. In Dr Michie's opinion, that would not
necessarily preclude someone from having the ability fully to use the Kazaa
computer programme. On Dr Michie's
findings the appellant did not suffer from learning disability.
[9] Dr
Michie's Report also set out the account given to her by the appellant of the
matters libelled. In this account the
appellant admitted to her that he had downloaded files containing pornographic
images of children. He said that he felt
sorry for the children. He described
what he viewed in these files as disgusting.
In Dr Michie's view, the appellant's behaviour suggested that when he
opened these files he was fully aware of what their content would be.
[10] The defence lodged this Report as a production and intimated Dr
Michie as a defence witness, apparently to establish that the appellant's
answers at his police interview were inadmissible. This was a surprising strategy.
The Joint Report of DS Alastair Blair and DC McDade
[11] The Joint Report (Pro 4)
relates to the examination by these officers on 30 January 2004 of "a computer and storage
media seized from the dwelling at No. 3 Heeklers (sic) Wynd, Strathmiglo on 5 August 2004." There is no
mention in the report of 30
September 2003, the date on which the appellant's computer was
seized.
[12] The computer examined by these officers had the password "GlenPeebles." It contained music fields of the type that
the appellant had described at his interview.
It was set one year and 58 minutes fast.
It had the Kazaa file sharing programme.
When the Kazaa programme was installed in it, it had been possible for
the installer to disable the file-sharing function; but that had not been
done. Instead, the file-sharing function
had been enabled. In this way,
pornographic files, movies and photographs were accessible to other users of
the Kazaa network on the "My Shared Folder."
Furthermore, the files had been accessed by other users of the Kazaa
network.
[13] The contents of the computer included seven obscene movie
files, together with 78 indecent images of children, 15 of them in the My
Shared Folder file and 63 in the "Temporary Internet Cache." Within unallocated space there were 86 other
indecent images of female children. The
movie files had creation dates between 4 July 2004 and 16
September 2004, dates which fell to be backdated by one year and 58
minutes in each case. With this
adjustment made, it was established that the My Shared Folder and the Temporary
Internet Cache were created between 3 July 2003 and 21
September 2003. Search terms
had been used such as kids nude, child porn, child sex, and so on. In the favourites folder there had been
bookmarking of indecent sites such as Little nude Asian girls, Youngest most
erotic girls, and so on.
[14] The officers noted that the computer also had a software called
PcPal which took a screen shot or "photograph" of the computer screen at
various times while the user was operating the system. It was possible from an examination of the
screen shots to establish that files had been taken from the computer by other
users of the Kazaa network.
[15] The following is one of the key conclusions of the Joint Report
-
"One of the main issues in
relation to this is the screen shots which have been recovered which show
without doubt other members of the Kazaa network taking files from the use of
this computer. This clearly illustrates
without question the distribution aspect of this case."
The evidence at the trial
The trial within a trial
[16] The first witness was DC McLaren. Early in his evidence, counsel for the
appellant objected to the admissibility of the evidence of the police
interview. It was agreed that the
sheriff should conduct a trial within a trial to determine that question. The Crown led evidence from DC McLaren, Mr
Campbell, Dr Michie and DS Blair. The
defence led evidence from the appellant and his father.
Mr Campbell
said inter alia
"I felt he was much more able than the persons who
attended the Day Centre, who are people with multiple difficulties, going
through the whole range and with low IQs ... I did wonder why I was there and it
occurred to me that he might have reading difficulties or dyslexia (this was in
response to a question he was seen asking him on tape). I did not think that he really required
someone to be there ... he seemed to be very knowledgeable about computers, more
so than I am."
In cross-examination he said:
"It was his ability to talk about computers that made
me wonder 'Why am I here?'"
[17] Dr Michie said that she personally would have taken further
time to check the appellant's understanding in order to make sure that he
understood. For many people, such an
interview would be confusing. She had
not assessed the appellant for suggestibility.
She said that she was not 100% sure that he understood the question of
the caution.
[18] The appellant said that he could not really remember what the
caution meant to him. He felt that he
had to answer questions after being asked them.
He did not think not to answer them.
When he was asked if he knew that his answers might be used as evidence,
he replied that he kind of knew what that meant. He said that he knew that he did not have to
answer from what was said to him, but he felt that he did have to answer from
the way they put the questions. The
appellant's father said that he would say that the appellant had learning
difficulties. He admitted that the
appellant had learned to drive and had passed the written test.
[19] The sheriff concluded that the police had not extracted
evidence by unfair or improper means.
Such evidence as he heard tended to suggest that the appellant had an
intellectual appreciation of his right to silence. From his viewing of the video of the
interview, the sheriff was satisfied that the appellant knew well that he was
not obliged to say anything to police questioning.
The evidence at the trial
[20] The Crown case consisted of the evidence relating to the
recovery of the appellant's computer, the appellant's statements at the police
interview and his admissions to Dr Michie regarding the offences libelled;
the Joint Report on the contents of the computer, and a sample of indecent
images said to have been recovered from the computer.
[21] It was agreed by joint minute that Label 4 was the computer
recovered from the appellant's home on 30 September 2003.
DC McLaren and DC McDade confirmed that it was the computer of which DC
McDade made a preliminary examination before the appellant's interview on that
date. Both DS Blair and DC McDade
identified Label 4 as the computer that they had been given for examination. Both officers signed the label (Charge, pp
17-18). According to the sheriff's
charge, these officers described a feature of the computer, which the sheriff
does not specify, which the appellant's father confirmed was to be found on it
(ibid, p 18).
[22] Dr Michie was cited as a defence witness but was led by the
Crown. Before she gave evidence, counsel
for the appellant objected to the admissibility of parts of her Report, but
having heard the prosecutor in reply and having reconsidered his position, he
withdrew the objection. Dr Michie then
spoke to the admissions made to her by the appellant.
[23] At the conclusion of the Crown case the sheriff repelled a
submission by counsel for the appellant that there was no case to answer on all
four charges.
Grounds of appeal
[24] Counsel for the appellant gave up a number of forlorn grounds
of appeal along the way. Those that
remain are (1) that the sheriff ought not to have admitted the evidence of the
police interview since the appellant had not understood the meaning of the
caution and his right to silence and since the appropriate adult had failed
properly to protect his interests; (2) that
the sheriff erred in repelling the submission of no case to answer on all four
charges since there was no evidential link between the appellant's computer and
the Joint Report; and (3) that there was insufficient evidence of mens rea on charge (4).
Conclusions
Ground of appeal (1)
[25] Counsel for the appellant submitted that the appellant did not
understand the caution and that Mr Campbell failed to protect his interests by
intervening on the question of his right to silence. This submission is unfounded in both of its
branches. Whether the interview was
conducted fairly was a question for the sheriff to decide on the evidence in
the trial within a trial (Thompson v Crowe,
2000 JC 173; B v HM Adv, 2003 JC 94).
Whatever the appellant's own evidence on the point, the evidence of the
police officers and of Mr Campbell, the transcript of the interview and the
video of it justified the sheriff in the conclusion that he reached. It is significant, in our view, that there
was no suggestion that the appellant suffered from any mental disorder or
disability. Although assessed with a low
IQ, he showed a clear understanding of the operation of a computer and of the
procedure of downloading, and in particular of the nature of the Kazaa
programme and its manner of operation.
[26] Moreover, in this case the appropriate adult had no function to
fulfil. The non-statutory role of the
appropriate adult at a police interview is to protect a person who suffers from
mental disorder (cf McManus and Thomson, Mental
Health and Scots Law in Practice, paras 5-14 - 5-17). The evidence of Dr Michie excluded the
possibility of mental disorder in this case.
In any event, in light of the appellant's demeanour at the interview,
his answers to DC McLaren's careful questions as to whether he understood the
caution and as to his right to silence, and his answers to questions about
computers and their use, Mr Campbell was justified in concluding that he had no
reason to intervene at any stage of the interview.
[27] Even if this ground of appeal had been sound, it would not have
been determinative. It is based on the
erroneous assumption that without the evidence of the interview, there was
insufficient evidence against the appellant.
That in turn rests on the basic misconception that the evidence of Dr
Michie was admissible in relation to the appellant's mental capacity but was
inadmissible in relation to his incriminating admissions. That misconception underlay the objection
that counsel made and withdrew at the trial.
It also underlay one of counsel's abandoned grounds of appeal. The evidence of the admissions made by the
appellant to Dr Michie was plainly relevant and admissible.
Ground of
appeal (2)
[28] Counsel for the appellant submitted that because the Joint
Report referred to an examination of a computer said to have been seized from
the appellant's home on 5 August
2004, no link had been established between the appellant's
computer and the computer referred to in the Joint Report. Therefore there was no case to answer. In our opinion, it was proved that the
computer referred to in the Joint Report was the appellant's. Although the Joint Report gave the wrong date
for the seizure of the computer, it is plain that it referred to the computer
seized at the appellant's home. Both of
the reporting officers identified Label 4 as being the computer that they
examined and both of them signed the label.
In any event, the identification of the computer was confirmed by the
admissions disclosing special knowledge that the appellant made to Dr
Michie. There is nothing in this ground
of appeal.
Ground of appeal (3)
[29] In its original form, this ground of appeal was to the effect
that there was no evidence of mens rea
in relation to charges (3) and (4).
[30] Counsel abandoned this ground in relation to charge (3). On the evidence that the appellant had
positively enabled the file-sharing function in the Kazaa programme, the jury
were entitled to infer that one of his reasons for doing so was to allow others
to have access to the files and therefore to conclude that he held the files
with a view to their being distributed or shown by himself. The jury were therefore entitled to hold that
he had the necessary mens rea for the
contravention of section 52(1)(c) libelled in charge (3) (cf R v Dooley, [2006] 1 WLR 775). That offence was committed whether or not any
users of the network accessed the files.
[31] Counsel for the appellant submitted that on charge (4) there
was no evidence that the appellant distributed any of the images libelled. That submission is based on a
misunderstanding of the legislation. On
the extended concept of distribution in section 52(4), we consider that a
person who holds an indecent computer image in a shared folder "with a view to
its being distributed or shown by himself," and therefore commits an offence
under section 52(1)(c), commits the further offence of distributing it, under section
52(1)(b), when another person accesses it.
The evidence that other users of the Kazaa network had accessed the
images stored in the appellant's computer entitled the jury in the
circumstances of this case to convict the appellant on charge (4).
Disposal
[32] We shall refuse the
appeal.
