James Wightman v. Her Majesty’s Advocate [2017] HCJAC 50

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of the following charges:- (1) a contravention of section 30 of the Sexual Offences (Scotland) Act 2009, namely, engaging in sexual activity with or towards a child (AB) aged 13 to 15 years by causing him to remove his upper clothing, film him undressing and topless and by touching him on the body in a sexual manner; (2) a contravention of section 52A(1) of the Civic Government (Scotland) Act 1982, namely, having in his possession a number of indecent photographs of children; (3) a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982, namely, taking/permitting to be taken/making indecent photographs of a child (AB); and (4) a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982, namely, taking/permitting to be taken/making indecent photographs of children (at a different address to charge 3). The circumstances were that the appellant was a tennis coach at a tennis club in Glasgow and the complainer AB was a junior member of the club. During the summer of 2014 the appellant gave AB tennis lessons, albeit he was not a coach accredited by the Lawn Tennis Association and as such did not require to satisfy the LTA disclosure requirements. During some of the lessons the appellant video recorded the complainer and during the course of the lessons would place his hands on the complainer guiding him on his tennis strokes. At one point the appellant placed his hands on the buttocks of the complainer and a still image of that part of the video recording was created. On another occasion the complainer stated that he had a sore elbow and the appellant suggested going into the club house to apply lotion which he did after requesting the complainer remove his shirt. This occurred on two occasions and included applications of lotion to parts of the complainer’s body which were not injured and the appellant visually recorded one of these occasions. On other occasions the appellant would touch the complainer for no obvious reason, for example, he would tell the complainer to tense his stomach muscles and then slapped the complainer’s stomach with the back of his hand. The complainer was confused and upset by the appellant’s conduct and spoke to his mother and thereafter the police. The police sought a search warrant for the appellant’s house and recovered various items of computer and camera equipment. Subsequent forensic examination by a police forensic examiner, Peter Benson, disclosed that various videos and still images relating to the complainer and other unrelated indecent images were present. In advance of the trial the defence lodged a minute objecting to the admissibility of the evidence relating to anything other than material relating to AB and charges 1 and 3. The search warrant that was craved and granted related to alleged offences under sections 30 and 36 of the Sexual Offences (Scotland) Act 2009 and section 38 of the Criminal Justice and Licensing (Scotland) Act 2010. At the hearing evidence was given by Mr Benson in relation to his interrogation of the items seized and he stated his instructions were to look at and examine the items in respect of an allegation that the appellant had indecently assaulted a child during tennis coaching. Mr Benson gave evidence that he was not looking for indecent images of children when he examined the images on the USB stick and came across those images in the course of his interrogation of the USB while looking for other images. It had been submitted on behalf of the appellant at the evidential hearing that the search carried out by Mr Benson went beyond the terms of the search warrant and was accordingly illegal. The sheriff at the evidential hearing repelled the objection. The sheriff considered that Mr Benson in performing his task of looking through the various images could not ‘unsee’ the images of other children and in light of the child protection issues that arose it was incumbent on him to report what he had discovered to the reporting officer. The first ground of appeal related to the decision of the sheriff to refuse the minute objecting to the admissibility of these other images which were unrelated to the complainer, AB. It was submitted that the warrant permitted the seizing and examination of electronic and video devices for the purpose of investigations into allegations that the appellant had filmed the complainer AB and what was subsequently found by Mr Benson beyond that was inadmissible. The second ground of appeal related to alleged misdirections by the trial sheriff to the jury in relation to charge 1 as to the requirement that they should apply an objective test to determine whether the conduct of the appellant libelled on that charge was sexual in terms of section 60(2) of the Sexual Offences (Scotland) Act 2009. In particular, he had failed to direct them specifically to make the assessment in the light of the evidence of Mr Benson, who had stated that in his opinion as a police forensic examiner the films of the actions of the appellant towards AB were not indecent. The third ground of appeal was that a miscarriage of justice had occurred by the sheriff repelling a submission made for the appellant that it was not open to the Crown to argue that the films of AB that formed the basis of charge 3 were indecent, in view of the fact that they had led opinion evidence to the effect that the films of the actions of the appellant towards AB were not indecent. As such, it was said that there was no longer a sufficiency of evidence in respect of charge 3. The fourth and fifth grounds of appeal related to charges 2 and 4. It was submitted that the sheriff had misdirected the jury as to the meaning of possession in respect of the indecent images of children that had been found, in that he failed to direct the jury that they had to assess whether the appellant had the necessary knowledge and control to amount to possession, and the sheriff gave the impression that a person can be in possession of a computer file on a USB memory stick even when that person has no knowledge of the existence of the file and done nothing with the memory stick other than place it in his pocket. The court refused the appeal. In relation to the first ground of appeal the court noted that, when an electronic search is conducted, to discover whether images relevant to the warrant are contained on a device, like a USB stick, it is necessary to examine all of the images on that stick. To that extent the search is significantly different from a traditional physical search, in that nothing can be seen without going through all of the images. Consequently, such a search cannot be described as random as it is the only way the search can be conducted. In relation to the second ground of appeal the court considered that the appeal proceeded upon a misunderstanding of the requirements of section 30 of the Sexual Offences (Scotland) Act 2009 and the test under that section is whether the appellant touched AB on the body in a “sexual” manner which is not necessarily the same as “indecent” which is the word used in sections 52(1)(a) and 52A(1) of the 1982 Act. The important aspect of the charge is whether an inference might properly be drawn that the person responsible for the touching obtained sexual gratification from the touching and that the touching was “sexual”. The third ground of appeal was closely related to the second ground of appeal and the court considered that the sheriff properly left the question of whether the images were indecent to the jury in that the opinion expressed by Mr Benson could not bind the jury as it was for the jury to decide whether the images of AB were indecent. In relation to the fourth and fifth grounds of appeal in relation to charges 2 and 4 and whether the jury were properly directed in relation to the question of possession and whether the appellant had the necessary knowledge and control to amount to possession the court considered that the directions given by the sheriff were adequate albeit the court observed that this particular issue was the most difficult aspect of the appeal. The court went on to say that even if there had been a misdirection by the sheriff in relation to what amounted to possession it would be difficult to hold that a miscarriage of justice had occurred in light of some of the other indecent material found on the other devices.