Robert Redpath v. Her Majesty’s Advocate [2019] HCJAC 38

Note of appeal against conviction:- On 11 June 2018, at Glasgow Sheriff Court, the appellant was convicted after trial of being in possession of indecent photographs of children contrary to section 52A of the Civic Government (Scotland) Act 1982. The appellant was acquitted of taking or permitting to be taken indecent photographs of children, contrary to section 52(1)(a) which related to photographs of his partner’s young niece. He was also acquitted of having extreme pornographic images in his possession contrary to section 51A(1) of the 1982 Act after the sheriff sustained a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 at the close of the Crown case. On 21 July 2018, the sheriff imposed a 12 month restriction of liberty order on the appellant. The appellant appealed against his conviction it being contended that there was insufficient evidence to prove possession of the indecent images the critical issue being an accused requires to have knowledge when the photographs are contained on discs admittedly owned by, and in the possession of, an accused. In his charge to the jury the sheriff directed that “possession” required “knowledge and control” which knowledge required “awareness; knowing of something’s existence” and that the Crown invited the jury to infer that the appellant “had knowledge of all the accessible images” on account of (a) the images accessibility; (b) the appellant’s skills with computers; and (c) that the images were found on a number of the discs or cards. The sheriff went on to direct the jury that the defence position was that no such inference could be drawn particularly given the absence of evidence that the items could be opened. The sheriff stated that the appellant’s position was that “he had not seen the ... material himself and did not know and did not have any cause to suspect that any material was indecent” and that absence of knowledge of the images amounted to a defence. It was contended that the sheriff erred in repelling a ‘no case to answer’ submission in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 at the close of the Crown case in relation to the possession charge on the basis that there had been insufficient evidence to prove knowledge of the images. It was submitted that his knowledge of computers was irrelevant, as was the fact that the images were found on different pieces of hardware. It was submitted there was no evidence that the devices could work on the computer in the appellant’s house. It was submitted that possession required knowledge that the person had custody or control of the illegal item and the word “knowingly” had to be read into the section and knowledge of the images themselves was necessary before the statutory defence became available. In the present case the mages were on items not linked to the appellant and there was no device proved capable of accessing the images, possession was more difficult to establish compared to situations where images were on the hard drive of a person’s computer when possession could be inferred. On behalf of the Crown it was submitted that there was sufficient evidence of possession that the Crown had to establish that the appellant knew of the existence, and had control, of the images themselves and when images were on an item, and it was possible to access them, then whether the appellant had possession of them was a matter for the jury. It was at that stage that it was for the appellant to seek to establish the statutory defence under section 52A(2)(b). It was further submitted by the Crown that in the particular circumstances of the case the items were owned and in the possession of the appellant and the appellant raised the statutory defence which had been met by the Crown by the leading of evidence of certain circumstances which allowed an inference of knowledge to be drawn, for example, that 15 of the indecent images were easily accessible on three separate devices within the appellant’s home along with other images on other devices which were indicative of an interest in indecent images of children. Here the court refused the appeal. The court stated that in terms of section 52A it was sufficient for the Crown to prove that the appellant was in possession of data stored on computer discs which could produce indecent images and there was no requirement on the Crown to prove that the appellant had knowledge of the nature of the images to which the data would convert – the court referred to paragraphs 15 and 16 of Mr Justice King’s judgement in R v Ping Chen Cheung [2009] EWCA Crim 2965. The court observed that some of the data on the discs related to the appellant’s personal life and their existence must have been known to him. In light of knowledge having been established, the question arose as to whether the appellant’s defence under section 52A(2) had been made out. The court considered that the directions given by the trial judge were erroneous as they appeared to suggest that the appellant required to have knowledge of the individual images, however, those misdirections were in favour of the appellant.