Leadbetter v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General (Carloway),Lord Glennie,Lord Turnbull |
| Judgment Date | 10 November 2020 |
| Neutral Citation | [2020] HCJAC 51 |
| Court | High Court of Justiciary |
| Docket Number | No 14 |
[2020] HCJAC 51
Lord Justice General (Carloway), Lord Glennie and Lord Turnbull
Anderson v Laverock 1976 JC 9; 1976 SLT 62; 1976 SLT (Notes) 14
Arnott v McFadyen 2002 SCCR 96; 2001 GWD 40-1508
Bhowmick v HM Advocate [2018] HCJAC 6; 2018 SLT 95; 2018 SCCR 35
Carmichael v HM Advocate [2020] HCJAC 4; 2020 GWD 4-58
Forrester v HM Advocate 1952 JC 28; 1952 SLT 188
Griffiths v Hart [2005] HCJAC 51; 2005 1 JC 313; 2005 SLT 495; 2005 SCCR 392
Gubinas v HM Advocate [2017] HCJAC 59; 2018 JC 45; 2017 SLT 1017; 2017 SCCR 463; 2017 SCL 828
Hainey v HM Advocate [2013] HCJAC 47; 2014 JC 33; 2013 SLT 525; 2013 SCCR 309; 2013 SCL 499
Hughes v Skeen 1980 SLT (Notes) 13
Kennedy v Cordia (Services) LLP [2016] UKSC 6; 2016 SC (UKSC) 59; 2016 SLT 209; 2016 SCLR 203; [2016] 1 WLR 597; 149 BMLR 17; [2016] ICR 325; [2016] PIQR P9
R v Land [1999] QB 65; [1998] 3 WLR 322; [1998] 1 All ER 403; [1998] 1 Cr App R 301; 162 JP 29; [1998] 1 FLR 438; [1998] Crim LR 70; [1998] Fam Law 133
Shuttleton v Orr sub nom Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12; 2019 JC 98; 2019 SLT 719; 2019 SCCR 185
Todd v MacDonald 1960 JC 93; 1960 SLT (Notes) 53
Wade v HM Advocate [2014] HCJAC 88; 2014 SCL 680; 2014 GWD 25-481
Bonomy (Lord), Improving Practice: The 2002 review of the practices and procedure of the High Court of Justiciary (B27651) (TSO, Edinburgh, November 2002), paras 8.8, 8.9 (Online: https://www2.gov.scot/Publications/2002/12/15847/14122 (3 December 2020))
Davidson, F, Evidence (W Green, Edinburgh, 2007), para 11.13
Justiciary — Evidence — Witnesses — Expert witnesses — Whether computer forensic analyst who had examined indecent images of children was sufficiently skilled in identification of children to give evidence as to their ages — Whether late objection to admissibility of relevant testimony ought to have been allowed at trial — Civic Government (Scotland) Act 1982 (cap 45), sec 52(2) — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 79A(4)
Justiciary — Evidence — Productions — Whether sufficient evidential link between devices recovered from appellant's home and those examined later — Whether necessary to lead evidence from police officers who had taken possession of devices in order to establish provenance — Whether late objection to admissibility of testimony in respect of examination of devices ought to have been allowed at trial — Criminal Procedure (Scotland) Act 1995 (cap 46), secs 68(3)(b), 79A(4)
Justiciary — Evidence — Best evidence — Nature of indecent images described by computer forensic analyst at trial in terms of joint forensic report — Whether necessary to show images to jury in order to determine their content — Whether late objection to admissibility of testimony ought to have been allowed at trial — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 79A(4)
John Leadbetter was charged on indictment in the sheriff court at Hamilton at the instance of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with offences in respect of the possession and taking of indecent images of children and the possession of extreme pornographic images of bestiality. On 5 February 2020, he was found guilty of three charges and, on 3 March 2020, the sheriff (D Kelly) imposed an extended sentence of three years with concurrent custodial terms of six months on the first two charges, and a consecutive term of 18 months on the third charge. The appellant appealed against his conviction to their Lordships in the High Court of Justiciary.
Section 52(2) of the Civic Government (Scotland) Act 1982 (cap 45) provides, for the purposes of offences under that section and sec 52A of the same Act, that “child” means a person under the age of 18 and, in proceedings under that section, “a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of 18”.
Section 68(3) of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides, “Where a person who has examined a production is adduced to give evidence with regard to it and the production has been lodged … it shall not be necessary to prove– … (b) that the production examined by him is that taken possession of by … the police, unless the accused … gives … written notice that he does not admit that the production … is that taken possession of as aforesaid.” Section 79A applies where a party seeks to raise an objection to the admissibility of any evidence after the first diet in proceedings on indictment in the sheriff court. Section 79A(4) provides, where a party seeks to raise such an objection after the commencement of the trial, the court shall not grant leave unless it considers that it could not reasonably have been raised before that time.
The appellant was found guilty of the possession and taking of indecent images of children and possession of extreme pornographic images contrary to secs 52A(1), 52(1)(a) and 51A(1) of the Civic Government (Scotland) Act 1982. The relevant images were recovered from devices found by the police in the possession of the appellant at his home, including two laptop computers, a mobile phone, USB memory stick and hard drive. The devices were seized by the police and later examined by a computer forensic analyst who had been trained in this task and in the categorisation of indecent images of children. A joint forensic report describing the items was duly lodged and provided to the appellant in advance of trial.
The appellant objected at trial to the leading of testimony in respect of the joint forensic report on the basis that the witness was not qualified to identify children, which objection was repelled. A no case to answer submission based on the absence of an evidential link between the devices taken from the appellant's home and those examined later, and the best evidence of the images themselves not having been shown to the jury, was also repelled.
Held that: (1) there had been ample opportunity for the appellant to object to testimony in relation to the ages of the children where the witness' expertise and the nature of his evidence had been disclosed in advance of trial, and the sheriff had been correct to repel the objection at trial on the ground of its lateness as an entirely opportunistic objection about facts which were not in dispute (para 24); (2) identifying a person as a child was within common knowledge and experience as a part of everyday life, and there was no need to have ‘expert’ technical or scientific evidence to prove that a photograph depicted a child, albeit that there may be cases on the margins where such evidence may be advisable; in the present case, in any event, it had been confirmed in evidence that the witness in question had special training in the identification of children (paras 24–26); (3) while the procurator fiscal-depute had apparently forgotten to put the labels to the police officers who had visited the appellant's home, the descriptions given by those officers of the items recovered had coincided with the items spoken to by the officers who had examined them thereafter, which had resulted in a sufficiency of evidence to link the items recovered to the appellant; sec 68(3)(b) of the 1995 Act created a presumption which obviated the need for a chain of evidence vouching transmission of the items from the officers who took possession of them to the witness who carried out the examination, though it did not impact upon the need for the recovering witness to identify the item of which he took possession in the first place (paras 28, 31); (4) the officers had been entitled to describe the images they had recovered, and any objection could have required the officer to identify the images themselves but would not have required that the images be shown to the jury; although in the case of an objection it would have been open to the defence to request that the images be placed before the jury, in the present case it could have served no useful purpose as there was no dispute about what the images depicted (paras 29, 30); and appeal refused.
Observed that where it did not form part of the defence that images were not indecent or images of children, or that they were not recovered from the appellant's home, these facts ought to...
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