John Leadbetter v. Her Majesty’s Advocate [2020] HCJAC 51

Note of appeal against conviction:- On 5 February 2020, following a trial on indictment at Hamilton Sheriff Court, the appellant was convicted of three charges:- (1) possession of indecent images of children contrary to section 52A(1) of the Civic Government (Scotland) Act 1982; (2) taking or permitting to be taken or making indecent photographs of children contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982; and (3) possession of extreme pornographic images depicting in an explicit and realistic way sexual intercourse between humans and animals contrary to section 52A(1) of the Civic Government (Scotland) Act 1982. Following the obtaining of a Criminal Justice Social Work Report the sheriff imposed an extended sentence of 3 years comprising of a custodial element of 6 months concurrent on charges 1 and 2 and a consecutive term of 18 months (discounted from 20 months following an earlier offer of a plea of guilty) in relation to charge 3. During the trial an objection was stated by the defence in relation to DC McGoldrick, a computer forensic analyst in the Cybercrime Unit in Glasgow, giving opinion evidence regarding the age of children depicted in the images. It was contended that DC McGoldrick lacked the necessary expertise to provide such evidence. On behalf of the Crown issue was taken with the lateness of the objection. The sheriff repelled the objection on the basis that there was no explanation why it could not reasonably have been raised in advance of trial. At the close of the Crown case there had been a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 it being contended that here was no evidential link between what had been taken from the appellant’s home and what had been subsequently forensically examined. It was also contended that the best evidence had been the images themselves and these had not been shown to the jury which was essential as it was a matter for the jury to determine the content of the images recovered. The sheriff repelled the submission and the appellant was subsequently convicted. The appellant appealed against his conviction on the grounds that the sheriff had erred in repelling the objection to the admissibility of the evidence and had erred in repelling the ‘no case to answer’ submission. It was submitted that DC McGoldrick lacked the expertise to provide opinion evidence in relation to the age of the individuals depicted in the images as he was not skilled in the identification of children. It was conceded that the relevant Crown productions had been received in advance of trial, however, neither production specified DC McGoldrick’s skills or experience in categorisation or child development and, as such, there was no basis for objecting to DC McGoldrick’s evidence until he provided information on his training and experience at the trial. It was submitted that the sheriff had erred in holding that the objection had not been made timeously. It was further submitted that DC McGoldrick lacked the expertise necessary to allow him to provide opinion evidence and, as such, the evidence was inadmissible. If the police did not have the necessary expertise to give evidence that the images showed children then their opinion evidence fell to be rejected. It was further submitted that the Crown had failed to establish a link between the items recovered and the subsequent forensic examination and before the Crown could rely upon the contents of the items the provenance of the items had to be established which was absent in the present case. It was further submitted that the images were real evidence which the jury could have assessed in determining whether to accept the testimony of the police. On behalf of the Crown it was submitted that the sheriff had been correct to hold that the objection could reasonably have been raised before the commencement of the trial and was therefore bound to refuse leave for it to be considered. In relation to the contention that there was no link between the items forensically examined and those seized from the appellant’s home it was submitted that no notice had been given in terms of section 68(4) of the 1995 Act that any issue was being taken with the productions which had been timeously lodged by the Crown in advance of the trial. It was submitted that there was sufficient circumstantial evidence to support that the items recovered from his home were those later examined including:- (1) the testimony of the police officers who found the items; (2) the appellant’s reaction to that; (3) the content of the labels attached to the items; and (4) the finding of material specific to the appellant on the items. It was further submitted on behalf of the Crown that proof that the age of the subject depicted being under the age of 18 did not require evidence from an expert witness with a wide range of types of evidence available to establish that. It was submitted that there was no requirement for a jury to see and assess the images recovered themselves and the police witnesses provided sufficient evidence of both the nature of the images and the age of the subjects and if any issue was being taken with that evidence then it had been open for the defence to instruct their own expert. Here the court refused the appeal. The court expressed surprise that it was considered necessary or desirable to lead oral evidence to prove that the items recovered depicted indecent images of children given it formed no part of the defence case to challenge that the images recovered depicted indecent mages of children. The court reiterated the duties on parties to identify and agree areas of evidence not in dispute in terms of section 257 of the 1995 Act. In relation to the defence objection to the admissibility of DC McGoldrick’s evidence the court stated that the defence had ample opportunity to state the objection in advance of trial and the sheriff had been correct to refuse it to be raised. Furthermore, the court considered that there was no merit in the objection because, generally, there is no need for a skilled witness to prove that a photograph depicts a child and, in any event, DC McGoldrick had special Home office training in identifying whether someone was a child. In relation to the issue of sufficiency the court considered that it was unfortunate that the procurator fiscal depute having forgotten to put the labels to the relevant witnesses had not sought permission to recall the witnesses which may have avoided the lengthy process undertaken by the depute during the trial of linking the various items recovered to the appellant during the course of the trial. The court was satisfied that there was sufficient evidence led linking the items recovered to the subsequent forensic examination. In addition, the court considered that there was no requirement for the jury to have sight of the recovered images and described the idea of indecent images of children being placed before members of the public as “faintly disturbing”.