APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

[2007] HCJAC 6

Appeal No: XC48/06

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

in the Appeal

GLEN JOHN ALEXANDER PEEBLES

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

______

For the appellant: Strachan; Steel Eldridge Stewart, Cupar

For the Crown: Mackay, AD; Crown Agent

25 January 2007

The conviction

[1] On 30 November 2005 the appellant was convicted on indictment at Cupar Sheriff Court of the following charges:

"(1) between 03 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did have in your possession indecent photographs or pseudo-photographs of children;

Contrary to the Civic Government (Scotland) Act 1982 Section 52A(1)

(2) between 03 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did make indecent photographs or pseudo-photographs of children;

Contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(a)

(3) between 03 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did have in your possession indecent photographs or pseudo-photographs of children with a view to their being distributed or shown by you or others;

Contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(c)

(4) between 02 July and 30 September 2003, both dates inclusive, at Hecklers Wynd, 3 High Street, Strathmiglo, Cupar, Fife, you Glen John Alexander Peebles did distribute or show indecent photographs or pseudo-photographs of children;

Contrary to the Civic Government (Scotland) Act 1982, Section 52(1)(b) as amended".

The statutory provisions

[2] Section 52(1) of the Civic Government (Scotland) Act 1982 provides inter alia that any person who takes, or permits to be taken, or makes any indecent photograph or pseudo-photograph of a child is guilty of an offence. The subsection, so far as relevant to this appeal, further provides that an offence is committed by -

" Any person who -

(b) distributes or shows such an indecent photograph or pseudo-photograph; [or]

(c) has in his possession such an indecent photograph or pseudo-photograph with a view to its being distributed or shown by himself or others ... "

Section 52(4) provides that -

"For the purposes of this section, a person is to be regarded as distributing an indecent photograph or pseudo-photograph if he parts with possession of it to, or exposes or offers it for acquisition by, another person."

The arrest of the appellant and the recovery of his computer

[3] In the morning of 30 September 2003 police officers searched the appellant's home. They recovered a computer from his bedroom. They labelled it as "found, bedroom, 3 Heckler's Wynd, Strathmiglo on 3 (sic) September 2003" (Label 4). They took the appellant to Cupar Police Station for interview. Meanwhile, DC Kevin McDade carried out a preliminary examination of the computer.

The interview

[4] The appellant was 18 years old at the time. DC David McLaren, the officer leading the enquiry, asked the appellant's father if the appellant had any learning difficulties. His father said that he did not, but that he had been an underperformer at school. DC McLaren arranged for an appropriate adult to be present at the interview because he felt that he had to go over things more than normally when he spoke to the appellant at his home.

[5] The appropriate adult appointed was Mr Kenneth Campbell, the depute manager of a local day care centre. He dealt with people who had learning difficulties. He was experienced in the role of appropriate adult. He understood his function to be that of helping the appellant to understand what was being said to him and helping the police to understand what was being said to them by the appellant.

[6] The interview began at 2.30 pm. It lasted 28 minutes. The transcript shows that DC McLaren went out of his way to inform the appellant of his right to silence and to satisfy himself that the appellant understood the meaning of the caution. We need not go into the detail of the interview. It is sufficient to say that the appellant, who had completed a computer course at Glenrothes College, admitted that he had downloaded a computer music programme called Kazaa and showed that he had an understanding of the techniques of downloading and the significance of a shared folder. He denied having indecent images of children under 16, but admitted to having downloaded "bad files," by which, he said, he meant files containing nudity involving girls of about his own age. Mr Campbell did not intervene at any stage. The appellant was thereupon charged with the offences libelled.

Dr Michie's assessment

[7] The defence instructed Dr Amanda Michie, a consultant clinical psychologist at the Royal Edinburgh Hospital, to examine the appellant and assess him. Dr Michie submitted a Report dated 19 July 2005.

[8] Dr Michie concluded that the appellant's full scale IQ score of 85 placed him in the low average range of intellectual ability at the 16th percentile. This suggested that his overall thinking and reasoning abilities exceeded those of 16% of adults of his age. He was functioning in the low average range of intelligence. In Dr Michie's opinion, that would not necessarily preclude someone from having the ability fully to use the Kazaa computer programme. On Dr Michie's findings the appellant did not suffer from learning disability.

[9] Dr Michie's Report also set out the account given to her by the appellant of the matters libelled. In this account the appellant admitted to her that he had downloaded files containing pornographic images of children. He said that he felt sorry for the children. He described what he viewed in these files as disgusting. In Dr Michie's view, the appellant's behaviour suggested that when he opened these files he was fully aware of what their content would be.

[10] The defence lodged this Report as a production and intimated Dr Michie as a defence witness, apparently to establish that the appellant's answers at his police interview were inadmissible. This was a surprising strategy.

The Joint Report of DS Alastair Blair and DC McDade

[11] The Joint Report (Pro 4) relates to the examination by these officers on 30 January 2004 of "a computer and storage media seized from the dwelling at No. 3 Heeklers (sic) Wynd, Strathmiglo on 5 August 2004." There is no mention in the report of 30 September 2003, the date on which the appellant's computer was seized.

[12] The computer examined by these officers had the password "GlenPeebles." It contained music fields of the type that the appellant had described at his interview. It was set one year and 58 minutes fast. It had the Kazaa file sharing programme. When the Kazaa programme was installed in it, it had been possible for the installer to disable the file-sharing function; but that had not been done. Instead, the file-sharing function had been enabled. In this way, pornographic files, movies and photographs were accessible to other users of the Kazaa network on the "My Shared Folder." Furthermore, the files had been accessed by other users of the Kazaa network.

[13] The contents of the computer included seven obscene movie files, together with 78 indecent images of children, 15 of them in the My Shared Folder file and 63 in the "Temporary Internet Cache." Within unallocated space there were 86 other indecent images of female children. The movie files had creation dates between 4 July 2004 and 16 September 2004, dates which fell to be backdated by one year and 58 minutes in each case. With this adjustment made, it was established that the My Shared Folder and the Temporary Internet Cache were created between 3 July 2003 and 21 September 2003. Search terms had been used such as kids nude, child porn, child sex, and so on. In the favourites folder there had been bookmarking of indecent sites such as Little nude Asian girls, Youngest most erotic girls, and so on.

[14] The officers noted that the computer also had a software called PcPal which took a screen shot or "photograph" of the computer screen at various times while the user was operating the system. It was possible from an examination of the screen shots to establish that files had been taken from the computer by other users of the Kazaa network.

[15] The following is one of the key conclusions of the Joint Report -

"One of the main issues in relation to this is the screen shots which have been recovered which show without doubt other members of the Kazaa network taking files from the use of this computer. This clearly illustrates without question the distribution aspect of this case."

The evidence at the trial

The trial within a trial

[16] The first witness was DC McLaren. Early in his evidence, counsel for the appellant objected to the admissibility of the evidence of the police interview. It was agreed that the sheriff should conduct a trial within a trial to determine that question. The Crown led evidence from DC McLaren, Mr Campbell, Dr Michie and DS Blair. The defence led evidence from the appellant and his father.

Mr Campbell said inter alia

"I felt he was much more able than the persons who attended the Day Centre, who are people with multiple difficulties, going through the whole range and with low IQs ... I did wonder why I was there and it occurred to me that he might have reading difficulties or dyslexia (this was in response to a question he was seen asking him on tape). I did not think that he really required someone to be there ... he seemed to be very knowledgeable about computers, more so than I am."

In cross-examination he said:

"It was his ability to talk about computers that made me wonder 'Why am I here?'"

[17] Dr Michie said that she personally would have taken further time to check the appellant's understanding in order to make sure that he understood. For many people, such an interview would be confusing. She had not assessed the appellant for suggestibility. She said that she was not 100% sure that he understood the question of the caution.

[18] The appellant said that he could not really remember what the caution meant to him. He felt that he had to answer questions after being asked them. He did not think not to answer them. When he was asked if he knew that his answers might be used as evidence, he replied that he kind of knew what that meant. He said that he knew that he did not have to answer from what was said to him, but he felt that he did have to answer from the way they put the questions. The appellant's father said that he would say that the appellant had learning difficulties. He admitted that the appellant had learned to drive and had passed the written test.

[19] The sheriff concluded that the police had not extracted evidence by unfair or improper means. Such evidence as he heard tended to suggest that the appellant had an intellectual appreciation of his right to silence. From his viewing of the video of the interview, the sheriff was satisfied that the appellant knew well that he was not obliged to say anything to police questioning.

The evidence at the trial

[20] The Crown case consisted of the evidence relating to the recovery of the appellant's computer, the appellant's statements at the police interview and his admissions to Dr Michie regarding the offences libelled; the Joint Report on the contents of the computer, and a sample of indecent images said to have been recovered from the computer.

[21] It was agreed by joint minute that Label 4 was the computer recovered from the appellant's home on 30 September 2003. DC McLaren and DC McDade confirmed that it was the computer of which DC McDade made a preliminary examination before the appellant's interview on that date. Both DS Blair and DC McDade identified Label 4 as the computer that they had been given for examination. Both officers signed the label (Charge, pp 17-18). According to the sheriff's charge, these officers described a feature of the computer, which the sheriff does not specify, which the appellant's father confirmed was to be found on it (ibid, p 18).

[22] Dr Michie was cited as a defence witness but was led by the Crown. Before she gave evidence, counsel for the appellant objected to the admissibility of parts of her Report, but having heard the prosecutor in reply and having reconsidered his position, he withdrew the objection. Dr Michie then spoke to the admissions made to her by the appellant.

[23] At the conclusion of the Crown case the sheriff repelled a submission by counsel for the appellant that there was no case to answer on all four charges.

Grounds of appeal

[24] Counsel for the appellant gave up a number of forlorn grounds of appeal along the way. Those that remain are (1) that the sheriff ought not to have admitted the evidence of the police interview since the appellant had not understood the meaning of the caution and his right to silence and since the appropriate adult had failed properly to protect his interests; (2) that the sheriff erred in repelling the submission of no case to answer on all four charges since there was no evidential link between the appellant's computer and the Joint Report; and (3) that there was insufficient evidence of mens rea on charge (4).

Conclusions

Ground of appeal (1)

[25] Counsel for the appellant submitted that the appellant did not understand the caution and that Mr Campbell failed to protect his interests by intervening on the question of his right to silence. This submission is unfounded in both of its branches. Whether the interview was conducted fairly was a question for the sheriff to decide on the evidence in the trial within a trial (Thompson v Crowe, 2000 JC 173; B v HM Adv, 2003 JC 94). Whatever the appellant's own evidence on the point, the evidence of the police officers and of Mr Campbell, the transcript of the interview and the video of it justified the sheriff in the conclusion that he reached. It is significant, in our view, that there was no suggestion that the appellant suffered from any mental disorder or disability. Although assessed with a low IQ, he showed a clear understanding of the operation of a computer and of the procedure of downloading, and in particular of the nature of the Kazaa programme and its manner of operation.

[26] Moreover, in this case the appropriate adult had no function to fulfil. The non-statutory role of the appropriate adult at a police interview is to protect a person who suffers from mental disorder (cf McManus and Thomson, Mental Health and Scots Law in Practice, paras 5-14 - 5-17). The evidence of Dr Michie excluded the possibility of mental disorder in this case. In any event, in light of the appellant's demeanour at the interview, his answers to DC McLaren's careful questions as to whether he understood the caution and as to his right to silence, and his answers to questions about computers and their use, Mr Campbell was justified in concluding that he had no reason to intervene at any stage of the interview.

[27] Even if this ground of appeal had been sound, it would not have been determinative. It is based on the erroneous assumption that without the evidence of the interview, there was insufficient evidence against the appellant. That in turn rests on the basic misconception that the evidence of Dr Michie was admissible in relation to the appellant's mental capacity but was inadmissible in relation to his incriminating admissions. That misconception underlay the objection that counsel made and withdrew at the trial. It also underlay one of counsel's abandoned grounds of appeal. The evidence of the admissions made by the appellant to Dr Michie was plainly relevant and admissible.

Ground of appeal (2)

[28] Counsel for the appellant submitted that because the Joint Report referred to an examination of a computer said to have been seized from the appellant's home on 5 August 2004, no link had been established between the appellant's computer and the computer referred to in the Joint Report. Therefore there was no case to answer. In our opinion, it was proved that the computer referred to in the Joint Report was the appellant's. Although the Joint Report gave the wrong date for the seizure of the computer, it is plain that it referred to the computer seized at the appellant's home. Both of the reporting officers identified Label 4 as being the computer that they examined and both of them signed the label. In any event, the identification of the computer was confirmed by the admissions disclosing special knowledge that the appellant made to Dr Michie. There is nothing in this ground of appeal.

Ground of appeal (3)

[29] In its original form, this ground of appeal was to the effect that there was no evidence of mens rea in relation to charges (3) and (4).

[30] Counsel abandoned this ground in relation to charge (3). On the evidence that the appellant had positively enabled the file-sharing function in the Kazaa programme, the jury were entitled to infer that one of his reasons for doing so was to allow others to have access to the files and therefore to conclude that he held the files with a view to their being distributed or shown by himself. The jury were therefore entitled to hold that he had the necessary mens rea for the contravention of section 52(1)(c) libelled in charge (3) (cf R v Dooley, [2006] 1 WLR 775). That offence was committed whether or not any users of the network accessed the files.

[31] Counsel for the appellant submitted that on charge (4) there was no evidence that the appellant distributed any of the images libelled. That submission is based on a misunderstanding of the legislation. On the extended concept of distribution in section 52(4), we consider that a person who holds an indecent computer image in a shared folder "with a view to its being distributed or shown by himself," and therefore commits an offence under section 52(1)(c), commits the further offence of distributing it, under section 52(1)(b), when another person accesses it. The evidence that other users of the Kazaa network had accessed the images stored in the appellant's computer entitled the jury in the circumstances of this case to convict the appellant on charge (4).

Disposal

[32] We shall refuse the appeal.