Inverness sheriff overrules admissibility objection to screenshots sent to paedophile hunter’s decoy phone

About this case:

• Citation:
  [2026] SC INV 71
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff Ian Cruickshank

James Alexander Barton was accused of having attempted to send indecent communications to a child and was tried for an alleged contravention of section 34(1) of the Sexual Offences (Scotland) Act 2009. An objection was made to the admissibility of the screenshots on the basis that they were not the best evidence of the written communications, with the defence maintaining that it should have an opportunity to forensically examine the complainer’s device.

The trial was conducted by Sheriff Ian Cruickshank at Inverness Sheriff Court, with Miss Coakley, procurator fiscal depute, appearing for the Crown and Mr Kennedy, advocate, for the accused.

Routinely used

The alleged indecent written communications were sent to Miss P, a member of a paedophile hunter group acting as a decoy. Miss P gave evidence that she entered into a conversation online with someone using the profile “Alex Barton” and that she captured the communications as screenshots on her phone. These screenshots were forwarded to a police officer, who also gave evidence at trial, and had been spoken to by the Crown as a production. At the time that the objection was made to the admissibility of the screenshots, all Crown evidence had been led.

It was confirmed in evidence that, during the lifetime of the prosecution, Miss P had been requested by the police to provide her telephone for examination following a request from the defence for access. According to Miss P, this request was made a considerable period of time after she had initially handed the information to the police, and she was not prepared to have the device examined by the defence as it was a decoy device that had been used in a number of cases.

For the defence it was submitted that what the court had were unverified screenshots of what was in fact the primary source of evidence, namely Miss P’s device. As that primary evidence was available, or should be available, the secondary evidence should be regarded as inadmissible. Forensic examination of the evidence would allow for the making of expert findings connecting the messaging to the accused’s device, and it would not be reasonable to accept the screenshots simply on the basis that a witness had spoken to them.

In response, the Crown submitted that the parole evidence of Miss P was the primary evidence of the alleged exchanges, for which the screenshots provided corroboration. Screenshots were routinely used in prosecutions and nothing inherent in these ones would render them subject to different rules. If the defence submission was accepted, mobile devices of all complainers would require to be seized and made subject to forensic analysis, contrary to the workings of the justice system. There was no prejudice to the defence, who had the opportunity to cross-examine Miss P.

Chain of provenance

In his decision, Sheriff Cruickshank said of the best evidence rule: “Objection to reliance on secondary evidence will be upheld where it would be prejudicial or unfair to allow that in lieu of the primary source. There are many cases where secondary evidence is led when it is not reasonably practicable to produce the primary source at trial. In such circumstances the defence should be given a reasonable opportunity to examine the primary source of evidence if its condition is relevant to proof of guilt or essential to the accused’s defence. Failure to allow that opportunity may render secondary evidence incompetent.”

He further quoted the observations of Lord Justice Clerk Wheatley in Anderson v Laverock (1976), who said: “It seems almost unnecessary to propound that in the interests of justice and fair play the defence, whenever possible, should have the same opportunity as the prosecution to examine a material and possibly contentious production. The fact that such opportunity has not been afforded to the defence is not per se a ground for quashing a conviction. There may be a variety of reasons, some good some bad, why the opportunity was not provided. The question then arises: was there prejudice, and if so, was it of such materiality as to cause such an injustice that the ensuing conviction falls to be quashed?”

Considering these two questions in the context of the present case, Sheriff Cruickshank noted: “I am not convinced that the inability to examine Miss P’s telephone has resulted in material prejudice. From the nature and extent of the cross-examination undertaken of Miss P I did not note any particular line of questioning which sought to challenge any of these listed material issues to any specific extent. I cannot see how any of the matters raised regarding being deprived of the opportunity to examine the telephone affects the central issues of first, where the written communications were sent from and, second, whether certain of the messages contained in the screenshots qualify as being indecent in nature.”

He concluded: “In the digital age, where the written communication is received electronically on a device it would be impractical to produce the electronic device in court and have the witness activate the device and read the communications from that device. Common sense would dictate that the electronic written communication should be captured in a form that can be best produced and referred to whilst evidence is being given in regard to it. In that respect, I cannot see any inherent unfairness in relying on a screenshot which is reproduced and copied as a paper production. On the above basis, the screenshots as a production, with the chain of provenance having been established, are admissible as such.”

The sheriff therefore overruled the defence’s objection as to admissibility.