Computer expert loses appeal against conviction for possession of indecent images of children
A computer repair expert found guilty of being in possession of indecent images of children who claimed that he did not have knowledge of the photographs has had an appeal against his conviction dismissed.
The appellant argued that the sheriff erred in refusing to uphold a “no case to answer” submission, but the Appeal Court of the High Court of Justiciary ruled that the Crown only had to prove that the appellant was in possession of storage devices containing data and that there was “sufficient evidence” to infer that he had knowledge of the nature of the images.
The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Drummond Young, heard that the appellant Robert Redpath was sentenced to a 12-month restriction of liberty order after being convicted of a charge which libelled between December 2012 and March 2017 at his home address in Glasgow he was in possession of indecent photographs of children, contrary to section 52A of the Civic Government (Scotland) Act 1982.
‘No case to answer’
The court was told that the appellant, a 63-year-old electrician, had an interest in repairing computers and had considerable quantities of computer hardware in his house.
During a search of his home, where he lived alone despite having a partner for some 40 years, much of the hardware was seized, including CDs, DVDs, USB storage discs and cards and containing the material which ultimately resulted in his conviction.
The appellant testified that he had not known that there were any indecent images on the hardware seized.
He told the court that he often scavenged for computer parts and third parties often left parts with him, but he did not check all accessible material on such parts.
The sheriff directed the jury that “possession” required “knowledge and control”.
Knowledge involved “awareness; knowing of something’s existence”.
The sheriff described how the Crown had approached this by saying that they had invited the jury to infer that the appellant “had knowledge of all the accessible images” given: their accessibility; the appellant’s skills with computers; and that the images were found on a number of the discs or cards.
The sheriff explained that the defence position had been that no such inference could be drawn, especially in the absence of evidence that the items could be opened by the appellant’s computer.
He went on to state 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”.
The jury were told that absence of knowledge of the images was a defence.
If the appellant proved, on a balance of probabilities, that he “had no knowledge or suspicion of the nature of the … material”, that would be a defence.
In any event, continued the sheriff, knowledge was an essential ingredient of what the Crown required to establish “beyond reasonable doubt”.
The first ground of appeal was that the sheriff erred in failing to sustain a submission of no case to answer on the basis that there had been “insufficient evidence” to prove “knowledge” of the images.
It was argued that the appellant’s knowledge of computers was “irrelevant”, as was the fact that the images were found in different units, as there was “no evidence” that the devices could work on the computer in the appellant’s house.
The appellant maintained that possession required knowledge that the person had “custody or control” of the illegal item.
The second ground of appeal was that the reference to “suspicion” in the charge was a “misdirection”.
Section 52A provided that the defence was that the appellant had not seen the images nor knew, or had any cause to suspect, that they were indecent.
The advocate depute maintained that there was “sufficient evidence” of possession, and that what the Crown had to establish was that the appellant knew of the existence, and had control, of the images themselves.
Where the images were on an item or a device, and it was possible to access them, then whether the appellant had possession of them was a matter for the jury.
It was submitted that it was not necessary for the Crown to prove that he knew that the items contained indecent images of children - it was sufficient that he knew that he had the item or device which was in his custody or control, and thereafter, it was for the appellant to establish the statutory defence.
The items were owned by, and in the possession of, the appellant in terms of section 52A(1).
He had raised the statutory defence under section 52A(2), which had been met in the Crown case by there being 15 easily accessible indecent images, spread over three devices and found in the appellant’s house.
All the circumstances merited an “inference of knowledge”, the advocate depute submitted.
It was also argued that the sheriff’s directions, in so far as they appeared to suggest that the appellant required to have knowledge of the individual images, had been in favour of the appellant and placed a “greater burden” on the Crown than was necessary.
‘Inference of knowledge’
Refusing the appeal, the judges ruled that there was “sufficient evidence” to infer knowledge.
Delivering the opinion of the court, the Lord Justice General said: “The offence under section 52A of the Civic Government (Scotland) Act 1982 is one of a person having indecent photographs of children ‘in his possession’. Photographs include ‘data stored on a computer disc … which is capable of conversion into a photograph’.
“That being so, it is sufficient for the Crown to prove that the appellant was in possession of data stored on computer discs which could produce photographs of some kind. There is no need for the Crown to prove that the appellant had knowledge of the nature of the images to which the data would convert.”
In this respect the court agreed with the reasoning of the Court of Appeal in England and Wales in R v Okoro (No. 3)  1 WLR 1638, Irwin LJ at para 40 citing King J in R v Ping Chen Cheung  EWCA Crim 2965.
Lord Carloway continued: “The Crown have to prove knowledge of the existence of the ‘things’ that were in the appellant’s control (i.e. data convertible to images) but not his knowledge of the quality or content of the things. Knowledge of the content is addressed in the context of the statutory defence.
“There was sufficient evidence from which an inference could be drawn that the appellant was aware that he had a number of discs containing data. Some of the data related to the appellant’s personal life and its existence must have been known to him.
“The volume of such data over a series of discs, including those containing images, the possession of which was not criminal, would be sufficient for the inference to be drawn. In addition, a glance at some of the file titles on the disc would indicate the nature of their content.”
He added: “The requisite knowledge having been established, the only true issue in the case was whether the appellant’s defence under section 52A(2) had been made out. In that respect, the onus was on the appellant.
“It follows from this that the directions given by the trial judge were erroneous, but in favour of the appellant. The second ground of appeal falls to be rejected and the appeal refused.”
© Scottish Legal News Ltd 2019