Ronald Barbour Smart V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Carloway,Lord Abernethy |
| Neutral Citation | [2006] HCJAC 12 |
| Published date | 03 February 2006 |
| Year | 2006 |
| Docket Number | XC841/04 |
| Date | 03 February 2006 |
| Court | High Court of Justiciary |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Abernethy Lord Carloway | [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: _______ |
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 However, the court allowed the application to be withdrawn and refused it on 7 June 2005.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...
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Douglas Miller Harris V. Her Majesty's Advocate
...and definition of charge 1 were materially defective. Two particular criticisms were advanced. In reliance upon Smart v HM Advocate [2006] HCJAC 12, 2006 SCCR 120 and English authority referred to therein and, in addition, Atkins v DPP [2000] 2 Crim App R 248, [2000] 1 WLR 1427, [2000] 2 Al......