APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Clarke Lord Maclean	[2012] HCJAC 94 Appeal No: XC288/11 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by HECTOR COLIN MacLENNAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead, Labaki; Drummond Miller LLP (for Bruce & Co, Forfar)

Respondent: A Stewart QC, Advocate depute; Crown Agent

10^th July 2012

Introduction

[1] The appellant was convicted of a series of assaults and rapes of three young women LS, MU, and SH, each of whom had been the appellant's partner at the relevant time. The appellant was also convicted by a majority of the following offences:

"(17) between 19 July 2009 and 13 August 2009, both dates inclusive, at 5 Brae Terrace, Munlochy, [you] did take or permit to be taken or make indecent photographs or pseudo-photographs of a child; contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(a) as amended; and

(18) on 15 August 2009, at 5 Brae Terrace, Munlochy, [you] did have in your possession indecent photographs or pseudo‑photographs of a child, contrary

to the Civic Government (Scotland) Act 1982, Section 52A(1)."

[2] When sentencing the appellant on 10 March 2011, the trial judge imposed a cumulo order for lifelong restriction in respect of the assaults and rapes, with a punishment part of 5 years. In relation to Charges 17 and 18, the judge imposed a cumulo sentence of 6 months, to run concurrently with the order for lifelong restriction.

[3] The appellant appeals against conviction in respect of Charges 17 and 18, contending in Ground of Appeal 7 that the trial judge misdirected the jury in relation to both charges, and in Ground of Appeal 8 that the judge erred in allowing Charge 18 to go to the jury as -

"[t]he evidence of indecent images on the computer recovered on 15 August 2009 related to images some of which had been deleted from the hard drive and, it is understood, were not accessible but for forensic examination. In these circumstances, it is not possible that the images could be within the appellant's control at the material time. Reference is made to R v Porter [2006] 2 Cr App R 359. Accordingly it is submitted that the appellant could not, as a matter of law, have been in possession of the images, and the jury ought to have been directed to acquit on Charge 18."

[4] Finally in Ground of Appeal 9, the appellant contended that the jury's verdict in respect of Charges 17 and 18 was unreasonable.

The evidence relating to Charges 17 and 18

[5] Information given by counsel: In the course of the appeal, counsel and the Advocate depute explained that a Windows operating system had been installed in the computer 5 days before the police seized it. The system was registered to Hector. There were 3 categories of images on the computer. (i) One set of images (11 temporary images which had remained on the hard disc) could be retrieved without any special equipment or expertise. (ii) and (iii) Two further categories of images (8 recovered images and 8 unallocated images) could be recovered only by using special equipment and techniques.

[6] The judge's supplementary report: In his supplementary report, the trial judge summarised the evidence relating to Charges 17 and 18. He noted that the principal findings in relation to the appellant's laptop computer included the following:

...(b) the current user account (created on 10 August 2009) was in the name of Hector and was password protected

(c) there was no other user account ...

(e) the laptop contained a series of family photos

(f) there was an online chat between Hector and "hotbabe" ...

(h) during [a session between those persons on 12 August 2009] Hector

1) visited many pornographic sites

2) mentioned the names of his children H and T

3) stated that his birthday was 27 August [the date of the appellant's birthday]

(i) between 5 am and 5.15 am on the same date, Hector visited many pornographic teen websites ...

[7] Mr Symon, the computer expert, stated that the appellant's laptop internal browser had repeatedly visited many pornographic teen websites. An examination of the cookie files on the computer disclosed images of extreme pornography, including bestiality and bondage. In his six years experience, Mr Symon had only found such sites being accessed by males. He had never come across a female downloading such images. A significant number of the 47 computer discs found at the appellant's home had pornographic material on them. Some had other types of documents authored by Hector, such as family albums with former partners. Mr Symon agreed that anyone who knew the laptop password could log on. It was not therefore possible to be certain who was actually using the computer at a particular time.

[8] The complainer SH testified that she used the appellant's laptop to play games, but never used it to access the internet. She did not know how to download pornographic photography, and never did so. She did not know the password, and had lied at a children's hearing concerning her daughter when she said that she accessed internet porn sites, looking for ways to spice up her sex life with the appellant.

[9] The complainer MU gave evidence that she was only allowed to use the appellant's laptop under his supervision. She did not know the password.

[10] Defence counsel made the following points to the jury:

(i) Someone in the house was accessing child pornography, but it could not be said beyond reasonable doubt that it was the appellant. The complainer SH had admitted telling lies, and the jury were invited to disbelieve her statement that she did not know the password for the laptop.

(ii) The timings given by SH about when she left the appellant's house did not fit with the timings in the computer expert's report.

(iii) The appellant might have left the laptop "logged on".

The judge's directions relating to Charges 17 and 18

[11] The trial judge gave the jury directions in relation to Charges 17 and 18 as follows:

"I turn now to the two charges at the end of the indictment which relate to the indecent photographs. It is agreed in paragraph 17 of the joint minute that 32 indecent photographs were found on the laptop and disc found in the course of the search of 5 Brae Terrace, Munlochy. You also heard evidence from Mr Symon the forensic computer consultant about this. The 1982 Act that's the Civic Government (Scotland) Act makes it an offence for a person to take or permit to be taken or make or have in possession such photographs. A person who downloads indecent photographs makes the photographs for the purposes of section 52(1)(a) and that is charge 17. Charge 18 is about possession. Accordingly you must decide whether the Crown has proved beyond reasonable doubt that it was the accused who deliberately and intentionally downloaded the photographs and had them in his possession. That is all I am going to say to you about chapter 3 of my directions..."

Submissions for the appellant

[12] In his directions to the jury in relation to Charge 17, the trial judge made reference to "deliberately and intentionally" downloading images: but he should have gone further and directed the jury that the Crown had to prove that the appellant understood what the nature of the images were. As for Charge 18, possession required knowledge and control: cf Harris v HM Advocate [2012] HCJAC 5; R v Porter [2006] 1 WLR 2633. Instruction on those matters was required (cf Harris). Images which required special expertise and/or equipment to recover might fall into a different category from easily-accessible images, and the jury might require guidance on these matters: cf Porter. In the present case, there had been evidence about the degree of recoverability of the images. The jury might have concluded that not all of the images were necessarily recoverable. They might further have concluded that several people had access to the computer. Those factors strongly suggested that some guidance about the concept of possession was required: cf Harris, paragraphs [34], [38]-[47]. On any view, the trial judge's directions had been so limited that there had been a miscarriage of justice, irrespective of the evidence about recoverability.

[13] Counsel accepted that, in view of the differing degrees of recoverability of the images, if the appellant was unsuccessful in relation to Ground of Appeal 7, then in the context of Ground of Appeal 8, not all of the material there referred to would necessarily be tainted by the lack of direction.

[14] In relation to Ground of Appeal 9, counsel accepted that the contention that there had been an unreasonable verdict had in effect been rejected at the sift in respect of all charges other than Charges 17 and 18. In relation to those latter charges, the essence of the appellant's position was that the jury had not been properly instructed in law.

Submissions for the Crown

[15] Charge 17: The Advocate depute submitted that there had been no misdirection. In Smart v HM Advocate 2006 SCCR 120, the issue was whether the downloading of indecent images had been accidental (i.e. lacking the essential mens rea). However the focus in the present case was different: the question was not whether the person who made the images had the necessary mens rea, but rather the identity of the person who had made the images (cf the judge's supplementary report at paragraph 20 et seq.) The trial defence counsel had accepted that what had been downloaded was child pornography, and the only question in issue was whether it was the appellant who had downloaded the images. There were in fact many strands of evidence available to assist the jury with that question: paragraphs 5 and 6 of the judge's supplementary report, including the findings of the computer expert Mr Symon. Esto there had been a misdirection by omitting words such as "in the knowledge that the images being downloaded were, or were likely to be, indecent", there had been no miscarriage of justice standing the nature of the evidence, the way in which the case had been conducted, and the issues to be determined: cf Harris, paragraphs [37] to [38].

[16] Charge 18: The Advocate depute conceded that there had been a misdirection, not concerning mens rea, but concerning the lack of any explanation of the potentially complicated issue of what in law would amount to "possession" in the circumstances of the case. But there was nevertheless no miscarriage of justice. On the basis of the evidence, the jury were entitled to take the view that there were at least some images on the computer which could be recovered by a user without the need for special equipment and techniques. The evidence also established that the computer discs had been found on 15 August 2009 in a house occupied by the appellant (although other persons had access to both the house and the computer). Various items on the computer, such as family photographs, were linked to the appellant. The expert witness Mr Symon gave evidence that in his experience such pornographic sites were invariably accessed by males: paragraph 8 of the judge's supplementary report. While accepting that the thrust of the defence jury speech was that someone other than the appellant - impliedly the complainer SH - had possession of the images, the Advocate depute argued that there had been no miscarriage of justice. If the jury accepted that it was the appellant who was the person called "Hector" on the items on the computer (including the photographs of the appellant's family), and that the appellant was therefore the user who had accessed the relevant sites and carried out the various manoeuvres described by Mr Symon, then the jury could draw the inference that the disc in question was owned by the appellant, because of the similarity of material.

Discussion

[17] Charge 17: The trial judge directed the jury inter alia as follows:

" ... you must decide whether the Crown has proved beyond reasonable doubt that it was the accused who deliberately and intentionally downloaded the photographs..."

In our view, that was an adequate direction in this particular trial, where the disputed issue was whether it was indeed the appellant who downloaded the indecent images, and where there had been no defence based on the possibility of accidental downloading such that it might be necessary for the judge to add words such as "in the knowledge that the images being downloaded were, or were likely to be, indecent images of children" (cf paragraph [37] of Harris; Smart v HM Advocate 2006 SCCR 120). That is not to say that the absence of those words would not matter in other cases. Much will depend on the "nature of the evidence in the case, the way in which the case was conducted, and the issues which were to be determined": Harris, paragraph [38]. But in the present case, it was accepted that there was downloading of child pornography, and the only question in issue was whether it was the appellant who had downloaded the images. Accordingly we agree with the Advocate depute that there was no misdirection in respect of Charge 17.

[18] Charge 18: The indictment contains the self-standing Charge 18, which libels possession of indecent photographs of a child on one date, 15 August 2009 (a different time from that in Charge 17). The evidence established that on 15 August 2009, the appellant was not the only occupant of the house in question, as the complainer SH was still an occupant at that stage (page 12 of the trial judge's first report). The defence position, as outlined in paragraphs 22 to 24 of the judge's supplementary report, was that the appellant was not, on that date, the person responsible: someone else was.

[19] Even if there had been no other occupant of the house who might have had access to the computer, we consider that the jury required guidance on the legal concept of possession, including basic directions about the elements of knowledge and control: cf the observations of Dyson LJ in R v Porter [2006] 1 WLR 2633. Such directions were required a fortiori in this case, where there were several people who might have had access to the computer, and where the accused disclaimed responsibility and raised questions about the responsibility of another. Accordingly we agree with the Advocate depute that there was a misdirection by omission.

[20] We now have to consider whether that misdirection was material, resulting in a miscarriage of justice so far as Charge 18 is concerned. In our view, it was. When we take into account the fact that the jury were carrying out their task without any basic instruction about what would, in law, constitute "possession" of the indecent images on the computer, a fortiori in circumstances where there was more than one occupant of the house who might have access to the computer, we are unable to conclude that there cannot have been a miscarriage of justice. While the Advocate depute was right to emphasise certain adminicles of evidence available to the jury, the jury still required directions in law to enable them properly to weigh up and assess those adminicles, and to draw appropriate inferences. In all the circumstances therefore we agree with counsel for the appellant that there has been a miscarriage of justice in respect of Charge 18.

Decision

[21] For the reasons given above, we allow the appeal in part, and quash the conviction in respect of Charge 18. Quoad ultra we refuse the appeal.