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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Abernethy
Lord Carloway
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[2006] HCJAC 12
Appeal No: XC841/04
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL AGAINST CONVICTION
by
RONALD BARBOUR SMART
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Appellant: Latif; John Henderson & Sons, Dumfries
Respondent: Ms. A. Grahame, A.D.; Crown Agent
3
February 2006
The background
[1] On
20 September 2004, at Kirkcudbright
Sheriff Court, the appellant was found guilty by
a jury unanimously of the following charge:
"(1) between 26 April 1999 and 9 December 2002,
both dates inclusive, at 5 Abercromby Road, Castle Douglas, you RONALD BARBOUR
SMART did take or permit to be taken or make 464 indecent photographs or
pseudo-photographs of children; CONTRARY
to the Civic Government (Scotland) Act 1982 section 52(1)(a) as amended."
[2] On
21 October 2004 the
sheriff sentenced the appellant to 4 months imprisonment and placed him on the
Sex Offenders Register for a period of 7 years from that date.
[3] The
appellant lodged a Note of Appeal against conviction and sentence on 10 January 2005. On 15 February 2005 leave to appeal against conviction
was granted on a restricted basis; leave to appeal was also granted
against sentence. The basis upon which
the sifting judge granted leave to appeal against conviction was that he
considered that the directions of the sheriff to the jury on mens rea suggested an arguable ground of
appeal. An application under section
107(8) of the Criminal Procedure (Scotland) Act 1995
was lodged on 30 March
2005. However, the court
allowed the application to be withdrawn and refused it on 7 June 2005. On 23 September 2005, the appellant lodged a Minute of
Abandonment of the appeal against sentence in terms of section 186(9) of the
1995 Act.
[4] Ground
4 of the appellant's grounds of appeal was in the following terms:
"Misdirection
1. The sheriff failed to adequately or
properly direct the jury in relation to the evidence. It was incumbent upon the sheriff to provide
the jury with proper legal directions on the meaning of and definition of the
crime specified on the indictment, and of the necessary elements to prove its
commission. This he omitted to do. That omission in the particular circumstances
of the case was fatal and resulted in a miscarriage of justice.
Whilst it is conceded that the
question of whether it is appropriate or necessary to direct the jury on the
facts is a matter within the discretion of the trial judge it is submitted in
the particular circumstances of this case standing the technical nature of the
evidence led at the trial, and the paucity of directly incriminating evidence,
it was incumbent upon the trial judge to direct the jury as to the evidential
foundation upon which they could conclude that the appellant 'made' the images
recovered from the computer. This he
failed to adequately do. No guidance was
given in respect of how or on what evidence the jury could infer that the
necessary mens rea was present to
establish beyond reasonable doubt that the appellant intentionally 'made' the
images. It is submitted that this case
was not one of the types of cases that could be categorised as 'simple' and so
relieved the sheriff from directing the jury on the evidence. Reference is made to the case of the References by the Scottish Criminal Cases
Review Commission in the cases of Campbell; Steele and Gray Appeal Nos. XC956/03 (para. 98).
2. The directions that the sheriff
provided to the jury in relation to 'makes' (sheriff's charge page 15 at lines
13 to 17, and page 20 at lines 10 and 11) were insufficient. It is submitted that the contravention of
section 52(1)(a) of the Civic Government (Scotland) Act 1982
is not an absolute offence, it is a crime of intention and requires the
necessary mens rea. The sheriff in his directions to the jury
omitted to direct the jury in specific terms that before it was possible to
convict they would require to be satisfied that the images were 'made' by the
appellant deliberately, that it was an intentional act on the part of the
appellant and with the knowledge that the image was or was likely to be an
indecent photograph of a child.
Reference is made to the cases of R.
v Smith and R. v Jayson [2003] 1 Cr.
App. R. 13, and R. v Bowden [2000] Cr. App. R. 438, and Atkins v Director of Public Prosecutions [2000] 2 Cr App R 248."
[5] The
circumstances of the case briefly were that the Crown led evidence that the appellant
had made indecent images of children by the use of his computer. The images had been recovered by the police
from the hard drive of the appellant's computer. The police had examined some 3,500 images
taken from that source, of which the vast majority were pornographic images of
adults. However, a small proportion of
the images were of children. In
addition, evidence had been led by the Crown that the appellant had used his
credit card to pay for access to internet sites which were recognisable as
sites devoted to child pornography.
These sites included "Underage Club", "Lolita", and "Elite Underage
Club". The advertising material for some
of these sites made it clear, not only that the images they contained were of
children, but that they were indecent in substance. Evidence was also led that these sites
targeted persons whose interests lay in child pornography and that the
appellant had made payments to enable him to make the images subsequently found
in the hard drive of his computer. In an
interview with the police following upon his detention, the appellant stated,
quoting the words used in the sheriff's Report to this court, that "he had the images with the intention of
complaining to the firm that had acted as his 'server' regarding their
existence". The appellant himself did
not give evidence at the trial, but a Minute of Agreement was lodged relating
to the transcript of the appellant's police interview, which was, of course, a
production in the case. It should be
recorded that the transcript of that interview was not made available to this
court, either by the appellant or the Crown, despite our invitation that it
should be.
Submissions for the appellant
[6] At
the outset, counsel for the appellant stated that leave to appeal had been
granted only in relation to ground 4 of the grounds of appeal; an application had been made under
section 107(8) of the 1995 Act, but had been withdrawn. Accordingly, the appeal would proceed in
relation to the matter of misdirection of the jury by the presiding sheriff. It was submitted that, looking at the
sheriff's charge as a whole, it was deficient in material respects. There were important omissions and parts of
what was said were erroneous. As a
whole, the charge was flawed, which had led to a miscarriage of justice. In particular, there were no proper legal
directions relating to the essential ingredients of the offence created by
section 52(1)(a) of the 1982 Act. This offence possessed essential ingredients
on which the jury should have been given specific directions. In particular, the following questions arose
and should have been dealt with: (1) Were the images
made deliberately and intentionally?
(2) If they were, were they
indecent? As regards the second
question, the sheriff had given no guidance on the matter of the definition of
"indecent"; he
had left that to the jury.
[7] At
this point in the submissions the court reached the tentative view that the
submissions were going beyond the scope of the leave to appeal that had been
granted. That concern was raised with
counsel for the appellant and a discussion of it ensued. It was quite clear that the sifting judge had
considered that "the directions on mens rea
suggest an arguable ground of appeal".
It was on that basis only that he had granted leave to appeal against
conviction. In the light of that, the
court indicated that it would entertain submissions only in relation to
possible misdirection in relation to the matter of mens rea, but would not entertain submissions on alleged
misdirection in relation to any other aspects of the case on which directions
might have been appropriate. That
decision having been announced, counsel for the appellant proceeded in relation
to the matter in relation to which leave to appeal had been granted.
[8] Counsel
next referred us to the provisions of section 52 of the 1982 Act. He drew our attention to the fact that the
present prosecution had been brought under section 52(1)(a). Associated offences were created by section
52(1)(b) and (c).
It was of significance to note that under section 52(5) a statutory
defence was created in relation to the offences created by section 52(1)(b) and
(c), but not (a). In these
circumstances, it was of particular importance that appropriate directions
should have been given to the jury as to criminal intent in relation to that
latter offence, which was not an absolute one.
[9] Counsel
for the appellant next embarked upon a consideration of the sheriff's charge to
the jury. At page 10, lines 11 to 18,
during the course of a passage which was concerned with the need for
corroboration in general, the sheriff had posed the question of whether the
circumstances in the case pointed to the fact that the appellant had "activated
images of children". That itself was a
misdirection, since the statutory provisions creating the offence did not use
that expression; they
used the expression " ... makes any indecent photograph ... of a child". At page 11, lines 3 to 10 of the charge, the
sheriff dealt further with the crime alleged; he said:
"...has a
crime been committed, is Mr. Smart identified as the person who carried out the
acts which are alleged and, in regard to the downloading or the activating on
the computer, did he know that he was doing it or did these matters just come
without him having any active part in the process? These are the essential matters from which
evidence from more than one source is required ... ".
[10] Counsel for the appellant went on to explain, in greater detail
than could be gleaned from the sheriff's charge or Report, certain features of
the background of the case; in
particular, the form and location in the computer information in which the
images of children had been found. These
were (1) the temporary internet files; and (2) the lost files, the contents
of which, in use, might be discarded. He
explained that when a computer user browsed an internet site, material from
that site would be stored in a temporary internet file; it might subsequently be transposed to
a lost file when downloaded material was deleted. The Crown's case here was that some of the
allegedly offending images were in a temporary internet file and some were in
lost files. In particular 164 images
were found in the former and 250 in the latter.
At this point counsel made reference to section 52(8)(c)(i)
and (ii) which defined the word "photograph" for the purposes of section
52. It was plain that data stored on a
computer disc, or by other electronic means, which was capable of conversion
into a photograph fell within the definition.
[11] Counsel went on to explain that the appellant had been
interviewed by the police on 2 May 2003 at a
police station in Dumfries. His position, as explained at that interview,
was that he had not been aware at any time of the offending images being in his
computer and that he did not intentionally download any indecent photographs of
children. He had stated that he had been
using the internet for the purposes of viewing adult pornographic material on
several websites. He had accepted that
he had downloaded some material, but had not intentionally downloaded indecent
images of children. At this point the
court raised the issue of what had in fact been said at the interview, since
counsel's explanation of the position of the appellant did not appear to be
consistent with what had been said by the sheriff in his Report to the court,
where he had stated that, in his interview with the police, the appellant had
said that he had the images with the intention of complaining to the firm that
acted as his server regarding their existence;
that seemed to suggest that the downloading had been deliberate and in
the knowledge of the nature of the images.
When this point was put to counsel for the appellant we understood him
to agree that the sheriff's account of the contents of the interview was
correct.
[12] Counsel continued his submissions with a reference to page 15
of the sheriff's charge. He submitted
that what was said there was as close as the sheriff had got to attempting a definition of the crime involved. Counsel also drew our attention to a passage
on page 20 of the charge which was pertinent to the issue raised. However, there the sheriff had used the word
"activate", which did not appear in the statutory provisions.
[13] Counsel went on to examine relevant authorities. The first of these was Longmuir v H.M. Advocate
2000 S.C.C.R. 447, a case concerned with a conviction under section 52 of the
1982 Act. In that case the court had
defined what was meant by the word "makes" in that context. It was said to be apt to cover the activity
by which a person, using a computer, brought into existence the data stored on
a computer disc. The term was an apt
description of the way in which data stored on a disc was produced, namely by
the use of a computer extracting electronic signals from the internet and
converting them into that data for storage.
[14] Counsel next referred to R.
v Smith and R. v Jayson [2003] 1 Cr. App. R. 212. These cases dealt with offences which were
the counterparts of those created by section 52 of the 1982 Act. Their significance in the present context was
that mens rea was fully
discussed. In paragraph 34 of the report
the court had dealt with the issue of mens
rea saying:
"In our
judgment, that mens rea is that the
act of making should be a deliberate and intentional act with knowledge that
the image made is, or is likely to be an indecent photograph or pseudo
photograph of a child".
In paragraph 36 it was made clear
that the requisite mens rea did not
require an intention on the part of the maker to store the images with a view
to future retrieval. Thus it had been
made clear by the Court of Appeal that the offence involved was not an absolute
offence and it was submitted that it was imperative that the sheriff should
have charged the jury in explicit terms regarding the mens rea involved. Nowhere
in his charge, it was submitted, did he do that. The significance of mens rea had been appreciated by the court in Bruce v McLeod 1998
S.C.C.R. 733 at pages 734 to 735.
Deliberate action was necessary before mens rea could be established, although, in that case, on the facts,
the issue of mens rea turned out not
to be of importance.
[15] Counsel then turned to the consequences of what he contended
had been a flawed charge. In short, he
submitted that there had been a failure to direct the jury on an essential
ingredient of the offence. In the
context, that amounted to a miscarriage of justice. In that connection he referred to a number of
cases including Docherty v H.M. Advocate 1945 J.C. 89, Tobin v H.M. Advocate 1934 J.C. 60, and Mills
v H.M. Advocate 1935 J.C.
77. The appellant's position was that
none of the directions given by the sheriff amounted to a sufficient direction
on the issue of mens rea.
[16] In view of the continuing concern which the court had in
relation to exactly what had been the nature of the appellant's defence to the
case against him, we adjourned the hearing for a short period to enable the
appellant and his advisers to consider what material should be the basis of our
decision in that regard. Our concern was
that the account given of the contents of the appellant's interview with the
police, which was the only material emanating from him
put before the jury, differed from the sheriff's account of it given to us in
his Report. We were informed that the
matter was complicated by the fact that parts of the transcript of that interview
had been excised before the tape of it had been played to the jury. Following this adjournment counsel for the
appellant stated that what the sheriff had recorded in his Report was accurate
and could therefore be relied upon.
Submissions of the Crown
[17] In order to establish an offence under section 52 of the 1982
Act, the Advocate depute submitted that three things had to be proved
initially. These were (1) photographs or
pseudo photographs; (2)
which were of a child; and (3) which
were indecent. Those facts might be
proved, or agreed. No mental element was
involved in that. However, it was
accepted that the Crown would also require to prove a
fourth element, which was that the photographs were "made". That involved proof of an action and the mens rea involved in it. The latter embraced the mindset of the
accused. That was something which would
exclude accidental making of such photographs.
The Crown did not accept the soundness of the dicta relied upon by the appellant in R. v Smith and R. v Jayson. As regards the word "makes" in section 52(1)(a) of the 1982 Act the Crown supported the view taken in R. v Bowden
[2000] 1 Cr App R 438. In that case
it was said that the words "to make" had to be given their natural and ordinary
meaning; in the
context that was "to cause to exist; to
produce by action, to bring about". The
act of making a photograph did involve mens
rea to a limited degree.
[18] The Advocate depute went on to draw attention to certain
passages in the sheriff's charge. At
pages 12 to 13 the sheriff had given the customary directions relating to the
statements made by the accused during the course of his interview with the
police. At page 15 he had explained to
the jury the significance of the word "makes" in section 52(1)(a) of the 1982
Act. The transfer of information from a
server or large scale storage system to a smaller system would involve downloading
and the making of a photograph within the definition contained in the
statute. On the whole matter, there was
no substance in the appellant's submissions.
Looking at the charge of the sheriff as a whole and at the particular
passages to which the court's attention had been drawn, there were adequate
directions given to the jury relating to the mens rea of making an indecent photograph of a child. In any event, no miscarriage of justice had
occurred.
The decision
[19] Section 52(1) provides:
"Any person
who -
(a) ... makes any indecent photograph or
pseudo photograph of a child;
...
shall be guilty of an offence under this section."
Section 52(8) of the same Act
provides:
"In this
section - references to a photograph include -
...
(ii) data stored on
a computer disc or by other electronic means which is
capable of conversion into a photograph."
In the discussion before us there
was little or no dispute regarding the meaning of the word "makes" in section
52(1)(a) of the 1982 Act. Plainly the word must be given its natural
and ordinary meaning. The meaning
favoured in R. v Bowden at page 444 was "to cause to exist; to produce by action, to bring
about". We see no difficulty attached to
the adoption of such a meaning. In Longmuir v H.M. Advocate, at page 451, the court found that it had
"...no
difficulty with the proposition that the word 'make' is apt to cover the
activity by which a person using a computer brings into existence the data
stored on a computer disc. ... In the note of appeal the appellant sets out a
meaning of the word 'make' taken from the New
Shorter Oxford Dictionary as 'produced by ... extraction'. That is an apt description of the way in
which data stored on disc is produced, namely by use of a computer extracting
electronic signals from the internet and converting them into that data for
storage".
That is, in our opinion, an
approach wholly consistent with the provisions of section 52(8)(c) which provides that
"references to a photograph include -
(ii) data stored on
a computer disc or by other electronic means which is
capable of conversion into a photograph."
[20] The focus of the discussion before us was, of course, on the
matter of mens rea in relation to the
offence under consideration. Counsel for
the appellant commended to us the view expressed by Dyson L.J. in R. v Smith
and R. v Jayson at page 222, paragraph 34.
There he said of the parallel English statutory provisions:
"In our
judgment, that mens rea is that the
act of making should be a deliberate and intentional act with knowledge that
the image made is, or is likely to be, an indecent photograph or pseudo
photograph of a child".
While no attempt was made in Bruce v McLeod by Lord Prosser to define the mens rea involved in the offence, what emerged from his observations
at page 734 was the assumption that mens
rea was an essential ingredient in the offence.
[21] The Crown took up a somewhat surprising position in the present
case, contending that we should not follow the definition set forth in R. v Smith
and R. v Jayson. That position was
not elaborated to any extent. In our
view, however, it would be appropriate to give weight to an interpretation by
the Court of Appeal in England of
statutory provisions which are the counterpart of the provisions with which we
are currently dealing. The Crown's
position appeared to be that some mens
rea was necessarily involved in the offence, but did not elaborate fully
the nature and extent of that element for which it contended. As we understood it, the contention appeared
to be that the Crown would have to show that the accused person was aware of
making something but that it would not require to show
that the awareness extended to the making of an indecent photograph of a
child. If that was indeed the contention
of the Crown, it is one which we cannot accept.
In that connection it is noteworthy that section 52 of the 1982 Act,
subsection (5) provides for certain statutory defences related to the knowledge
of the accused person, but that subsection has no application in a case brought
under section 52(1)(a) of the Act.
[22] In our view, there is a strong presumption in favour of a
requirement of mens rea in the
commission of an offence created by statute, so that a statute will not be read
as abrogating this fundamental requirement, in the absence of clear words
excluding mens rea. As Lord Reid said in the House of Lords in Sweet v Parsley [1970] AC 132 at 148:
" ... there has for centuries been a presumption that Parliament
did not intend to make criminals of persons who were in no way blameworthy in
what they did."
In the same case, at page 153, Lord
Morris of Borth-y-Gest said:
" ... it would not be reasonable lightly to impute to Parliament
an intention to create an offence in such a way that someone could be convicted
of it who by all reasonable and sensible standards is without fault."
Lord Diplock, in the same case, at
page 163 said that the mere fact that Parliament had made certain conduct a
criminal offence gave rise to some implication about the mental element of the
conduct proscribed. He added:
"This
implication stems from the principle that it is contrary to a rational and
civilised criminal code, such as Parliament must be presumed to have intended,
to penalise one who has performed his duty as a citizen to ascertain what acts
are prohibited by law (ignorantia iuris
non excusat) and has taken all proper care to inform himself of any facts
which would make his conduct lawful."
What was said in R. v Smith
and R. v Jayson appears to us to be wholly consistent with these
principles. As we see it, however, the
position of the Crown would not be consistent with those principles. Under its approach, the making of an indecent
photograph of a child would amount to a criminal offence even though the person
responsible for the making of the photograph was unaware that it was a
photograph of a child, or that it was indecent, against a background of there
being no statutory defence available under section 52(5) of the Act
related to the knowledge of the accused person.
In our view, that would be making "criminals of persons who were in no
way blameworthy in what they did". In
these circumstances, for present purposes, we are prepared to proceed upon the
basis that the offence with which we are dealing is one involving mens rea, as described in R. v Smith
and R. v Jayson. On the basis that that mens rea is an essential ingredient of the offence created by
section 52(1)(a) of the 1982 Act it would normally be
appropriate for any presiding judge charging a jury to make some reference to
it. However, exactly what it would be
appropriate to say would depend upon the circumstances of the case, since there
might be cases where the issue of mens
rea was crucial to the decision which the jury required to take whereas, in
other cases, the focus of controversy might lie elsewhere.
[23] Coming to the specifics of the present appeal, we have to
observe that we encountered very considerable difficulty during the hearing in
identifying exactly what defence had been advanced on behalf of the appellant. The appellant himself did not give evidence
but the contents of his tape recorded interview with the police were apparently
relied upon. At one stage in the hearing
it appeared to be said on the appellant's behalf that he had suggested in that
interview that he had been unaware that he had downloaded any child pornography
and that this had happened as an incidental consequence of his viewing adult
pornography on various websites. However,
that suggestion did not appear to be consistent with the account of the
evidence given by the sheriff in his Report under the heading "Collateral
Consequence of Browsing", where he said that evidence had been led that the
appellant had used his credit card to pay for access to sites which were
recognisable as sites devoted to child pornography. These sites included those named, to which we
have already referred. The titles of
these websites plainly indicate a likelihood that
child pornography will be available in them.
Furthermore, the sheriff drew attention to the fact that the advertising
material for these sites made it clear, not only that the images available were
of children, but that they were also indecent.
In the same part of his Report, the sheriff states that, in his
interview with the police, the appellant had said that he had the images under
consideration with the intention of complaining to the firm that acted as his
server regarding their existence. That
is a position which seems to us to be wholly inconsistent with the idea that
the images were downloaded innocently, as a collateral consequence of browsing
among adult pornography. Faced with this
serious level of uncertainty as to exactly what the position of the appellant in
fact was at his trial, counsel was pressed to indicate on what factual basis
the court should proceed. The alternatives appeared to be the
furnishing of the transcript of the interview, so far as it was before the
jury, to this court, or reliance upon what was said by the sheriff in his
Report. However, after having had an
opportunity for consideration, the former course was not taken. What was indicated was that we should proceed
on the basis of the contents of the sheriff's Report as regards the evidence in
the case.
[24] Proceeding then upon that basis, we were informed that the
appellant had stated in his interview with the police that he had the offending
images with the intention of complaining to the firm that acted as his server
regarding their existence. It appears to
us to be inherent in that statement that the appellant possessed the necessary mens rea in the making of the images
concerned. Standing that position, we
find it impossible to discern what relevant defence was in fact advanced at the
trial in relation to the issue of mens
rea. That being so, the conclusion
which we have reached is that mens rea
was not in reality a live issue at the trial.
In those circumstances, we conclude that the alleged failure of the
sheriff as regards directions on that matter could not be productive of a
miscarriage of justice.
[25] In any event, we consider that the passages at pages 10, lines
11 to 18 and 11, lines 3 to 10, did indicate to the jury the need for the
mental element in the commission of the crime.
The passage at page 20, lines 1 to 16, appears
to us to be to a similar effect. For
these reasons also we consider that no miscarriage of justice has
occurred. In these circumstances the
appeal is refused.
