High Court refuses appeal by man convicted of possessing child abuse imagery



Lord Carloway
Lord Carloway

A man who was imprisoned for three charges relating to indecent photographs of children and images depicting bestiality has lost his appeal against conviction. 

John Leadbetter argued that a medical professional was required to confirm that images recovered from devices he owned were images of children, and that an objection lodged to Crown evidence had been erroneously dismissed as out of time. 

The appeal was heard in the Appeal Court of the High Court of Justiciary by the Lord Justice General, Lord Carloway, sitting with Lord Glennie and Lord Turnbull

Qualified to identify children 

The images described in the charges were found when the police called unannounced at the appellant’s home on 10 September 2019 as a routine check on his activities. The two officers who attended found a laptop containing images that gave them cause for concern and arrested the appellant. 

The images were examined by another officer, DC McGoldrick, who had been trained in categorising indecent images of children. During the appellant’s trial, his agent tendered an objection to DC McGoldrick’s evidence on the basis that there had been no evidence that he was qualified to identify children. This was said to require a doctor or other trained medical professional. 

The procurator fiscal depute took issue with the objection on the ground of lateness, as an interim version of the report had been disclosed to the appellant in October 2019. The trial sheriff repelled the objection, noting that it could have reasonably been raised in advance of trial and insufficient justification was given for excluding the evidence. 

Later, the appellant made a no case to answer submission, arguing that there was no evidential link between what was taken from the appellant’s home and what was examined later. The sheriff repelled the submission, as the examination of the items had uncovered material relating specifically to the appellant and the dates of recovery and the content of the labels was sufficient proof. 

On appeal, the submissions for the appellant essentially mirrored those presented to the sheriff. He maintained that DC McGoldrick was not skilled in the identification of children and had admitted in cross-examination that he had received no training on the developmental stages of children. Further, the sheriff had erred in holding that the objection was not timeous, as DC McGoldrick only provided information on his training and experience during the trial. 

In submitting that the Crown had failed to establish an evidential link, the appellant also argued that the Crown had not used the best evidence available as it had failed to show the images to the jury. 

Entirely opportunistic objection 

The opinion of the court was given by Lord Carloway. He began: “It is worth commenting in limine that it is surprising that it was thought either necessary or desirable to lead oral testimony to prove that the images contained in the items which were recovered were either indecent or that they depicted children. It was not part of the defence that they were not indecent nor was it contended that they were not images of children.” 

Addressing the evidence of DC McGoldrick, he said: “If the appellant wished to object to the testimony of DC McGoldrick in relation to the ages of the children, there was ample opportunity to do so prior to trial. DC McGoldrick’s expertise, or the lack of it, was disclosed in advance. The appellant was aware of the nature of his evidence.” 

He continued: “In these circumstances, the sheriff was entirely correct in his approach to the lateness of what was an entirely opportunistic objection to evidence about facts which were not even in dispute.” 

Explaining the reasoning for this decision further, Lord Carloway said: “Whether a person appears to be a child is not a matter which requires technical or scientific evidence. Identifying a person as a child is part of everyday life. It is something within common knowledge and experience. A person is entitled to give evidence of his or her impression of whether someone is a child and, if so, within what age range.” 

No merit in the point 

Regarding the appellant’s sufficiency of evidence arguments, Lord Carloway said: “The descriptions of the items recovered, which were given without objection, by the officers who visited the appellant coincided with the items spoken to by the officers who examined them not long thereafter. The appellant’s statement was consistent with what was found on the items. Items relating specifically to the appellant, notably the driving licence application form, the contacts list and the phone bill, all pointed to the items which were examined being those which had been recovered from the appellant’s home. There is simply no merit in this point.” 

On the suggestion that the jury should have been shown the indecent images, he said: “There is something faintly disturbing in the idea that, in a matter which cannot have seriously have been disputed, the court should permit the unnecessary display of pornographic images involving children to members of the public who are serving on a jury.” 

He continued: “In the absence of an objection, the officers were entitled to provide a description of the images. That testimony became evidence in causa and was available for the jury’s consideration. It transpired to be unchallenged evidence. If a best evidence objection had been taken, that would not have required the images to be shown to the jury.” 

For these reasons, the appeal was refused. 

© Scottish Legal News Ltd 2020



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