Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 120

HCA/2015/73/XC

Lord Justice Clerk

Lady Smith

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST CONVICTION AND SENTENCE

by

KEITH SIMPSON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Mackintosh; John Pryde & Co

Respondent: Edwards AD; the Crown Agent

24 November 2015

Introduction

[1]        On 24 September 2014, at Edinburgh Sheriff Court, the appellant was convicted of a charge which libelled that:

“between 10 October 2012 and 25 October 2012 … at ... Edinburgh, you did have in your possession indecent photographs or pseudo-photographs of children; contrary to the Civil Government (Scotland) Act 1982 Section 52A(1)”.

The dates of the libel had been restricted by the Crown from an initial period of some 6 years.  The appellant was acquitted of a second charge, which alleged a breach of section 52(1)(a) of the 1982 Act, in respect of the same period, by taking or making the same photographs or pseudo-photographs.

[2]        On 18 December 2014, the appellant was sentenced to 18 months imprisonment and made subject to a Sexual Offences Prevention Order in terms of the Sexual Offences Act 2003.

[3]        The appellant contends that the jury’s verdict was one which, in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, no reasonable jury, properly directed, could have returned.  He also appeals against sentence.

The evidence
[4]        The appellant’s computer had been seized by police, executing a search warrant for his rented flat, on 25 October 2012.   The appellant incriminated his then flat-mate, JC.  The Crown led Mr C.   Mr C said that he had his own computer, bought one month previously.  Prior to that, he had had access to the appellant’s computer with the appellant’s permission.  The computer was password protected.  He did not know the password.  Any access had to be achieved with the appellant’s co-operation.  Mr C had watched adult pornography on the appellant’s computer in the presence of the appellant.  He denied having seen any images of children or having downloaded any such images.  

[5]        The police questioned the appellant.  The terms of the interview were set out in a joint minute.  The appellant had stated that his computer was used by his mother, sister and Mr C.  It was password protected, but the password was his national insurance number, which was known to Mr C.

[6]        A Forensic Analyst had examined the computer.  Some 224 images, of which 95 were unique, had been recovered from the hard drive.  One video had also been recovered.  There were: 9 images categorised as at level 1 on the standard COPINE scale (HM Advocate v Graham 2010 JC 1, LJC (Gill) at paras [7] and [17]), 5 of which were unique; 171 category 2 images, of which 69 were unique; and 44 category 4 images, of which 21 were unique.  All of these images were inaccessible.  They had all been deleted.  There was, however, the video which was category 4 video.  It was accessible.  The 44 level 4 images were single frames taken from that video.  113 of the images had been created on 10 and 11 October 2012.  The video had been created on 11 October.  The single frames had been created using a Movie Maker application on that date.  Data erasure software was found on the computer.  It was available to download from the internet.  It had been used on 23 and 24 October 2012, in the early hours of both mornings.

Submissions

[7]        It was submitted by the appellant that the jury’s verdict of not proven, in respect of the making or the taking of the photographs on charge 2, was inconsistent with the verdict of guilty on charge 1.  The Crown had not differentiated, either in adducing the evidence or in their address to the jury, between the making or taking and the possession of the images in terms of the two statutory prohibitions.  A Joint Minute had been entered into and it too had made no differentiation.  The sheriff had given no detailed directions to the jury on the severability of the charges, or on how the jury might deal with the possibility that the appellant had possessed the images, but had not made them.  The forensic evidence had been that the images had been inaccessible.  No further relevant information could be obtained from that evidence.

[8]        In reply, the advocate depute maintained that there had been a cogent framework of evidence that the two offences were separate and distinct and that the jury were entitled to reach separate verdicts in respect of each charge. 

Decision

[9]        The sole question in the appeal against conviction is whether it was inconsistent for the jury to have acquitted the appellant of taking and making the photographs on the one hand, yet convicted him of possessing them on the other.  There is no inconsistency in these verdicts.  The jury may well, for example, have not been satisfied to the requisite standard that the appellant had downloaded the images himself, yet have been convinced that he possessed them in the period before deletion occurred, only hours before the execution of the warrant.  Possession was a legitimate inference for the jury to make from the circumstances of the appellant’s unique access to the computer, using a password, and the existence of recently deleted images using software installed on the hard drive (see Harris v HM Advocate 2012 SCCR 239, Lord Bonomy at para [47], distinguishing R v Porter [2006] 1 WLR 2633).

Sentence
[10]      The appellant had a previous conviction for lewd, indecent and libidinous behaviour in 2008.  He also had a record of breaching bail conditions and probation.  Nevertheless, it was maintained that the custodial term selected was excessive.  The appellant’s acquittal of making the images significantly reduced the seriousness of the offence.  There was, ultimately, only one accessible video file found, albeit that it was at level 4.

[11]      The sheriff, in selecting the period of custody, had regard to the guidance in HM Advocate v Graham (supra), which endorsed the England and Wales Sentencing Council’s Definitive Guideline of between 1 to 18 months for this type of offending.  The appellant was assessed as at high risk of re-offending in the CJSWR,  He had a significant previous conviction, as already noted.  He was not suitable for a Community Payback Order and was regarded by his supervising officer as being “very difficult to manage in the community”. 

[12]      In all the circumstances, the sheriff cannot be said to have erred in selecting imprisonment as the only appropriate disposal or in imposing a custodial term which was at the high end of the guideline range.  It was one which was justified by virtue of the appellant’s record. 

[13]      The appeal against conviction and sentence is accordingly refused.