Fevos Georgiou v. Her Majesty’s Advocate [2020] HCJAC 38

Note of appeal against conviction:- In November 2019 the appellant was convicted after trial on indictment at the sheriff court of two contraventions of the Civic Government (Scotland) Act 1982:- (1) the taking or permitting to be taken of indecent photographs of children contrary to section 52(1)(a); and (2) the possession of indecent photographs of children contrary to section 52A(1). The appellant was sentenced to a community payback order which incorporated a 2 year supervision order and an unpaid work requirement of 250 hours together with a requirement to participate in a sex offenders programme. At the close of the Crown case a ‘no case to answer’ submission was made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 which was repelled by the trial sheriff. The appellant appealed against his conviction it being contended that the sheriff erred in repelling the submission. Here it was submitted on behalf of the appellant that the Crown expert witness had been unable to attribute the creation of the indecent images to any specific user and the Crown had failed to exclude the appellant’s partner who also had access to the computer as being responsible. It was further submitted that there was no evidential link between the appellant and the relevant Yahoo Messenger account and there was no evidence that the images were created from any positive action by the appellant and Ms X had indicated in evidence that she may have downloaded the material inadvertently. It was submitted that there was an absence of any of the usual features one often sees in such cases, for example, search terms, deleted searches or an organised file structure which which would allow an inference to be drawn that the appellant had knowledge of the presence of the indecent images. On behalf of the Crown it was submitted that the sheriff was correct to repel the ‘no case to answer’ submission and there was sufficient evidence against the appellant. It was submitted that the laptop belonged to the appellant and he was the main user of it and his partner Ms X gave evidence that she had no knowledge of the existence of the indecent images. It was further submitted that the relevant activity was associated with an account linked to “Fevos”. Here the court refused the appeal. The court noted that the laptop was not a shared laptop and was generally used by the appellant and there was nothing in Ms X’s evidence which rebutted the inference that the material was on the laptop due to the actions of the appellant. The court considered that taking the Crown case at its highest the trial sheriff was entitled to repel the ‘no case to answer’ submission. The court stated that it is not for the Crown to exclude every possibility which might exculpate an accused person. The court was satisfied that the Crown led sufficient evidence that the appellant had knowledge of the images in his possession, particularly having regard to the evidence of the appellant making a significant number of deletions shortly before the police seized his laptop.