Man found with indecent images of children loses appeal against conviction

Lord Malcolm
Lord Malcolm

A man who was found in possession of indecent images of children and convicted of offences under the Civic Government (Scotland) Act 1982 has had his appeal against conviction refused.

Fevos Georgiou was given a community payback order which incorporated a 2 year supervision order and 250 hours of unpaid work, as well as being required to participate in a sex offenders programme. He argued that the trial sheriff had erred in refusing a no case to answer submission on his behalf.

The appeal was heard in the Appeal Court of the High Court of Justiciary by Lord MalcolmLord Glennie and Lord Pentland.

Illegitimate speculation

The appellant was convicted of taking indecent photographs of children, or allowing them to be taken, as well as possession of such photographs. The images were found on a laptop computer that was seized from his home by the police. The images had been downloaded to the device between May 2010 and March 2017, and had been viewed by the user of the laptop in that time.

The laptop was said to be used by both the appellant and his partner, although only the appellant had a named user account on it. At trial, counsel for the appellant argued that the expert witness led by the Crown could not attribute the actions creating the images to a specific user.

It was asserted that the appellant’s partner, who had an interest in pornography, could have downloaded the images inadvertently, as there was no evidence that the appellant had knowledge of the images. Further, no signs of deleted searches or an organised file structure had been found, as were typical for this kind of case.

In her evidence, the appellant’s partner said there was a possibility she had used the appellant’s laptop to view pornography and to interact with like-minded people, but did not say she definitely did so.

The sheriff noted that other evidence suggested that the appellant was attracted to the young female form. He took the view that there was sufficient evidence for the jury to draw the necessary inferences for each charge, and therefore repelled the no case to answer submission.

On appeal, counsel for the appellant argued that the Crown had not excluded the appellant’s partner as being the responsible party or connected the appellant to a Yahoo Messenger account that was used from that laptop and was essential to the first charge.

It was further submitted that the sheriff had indulged in illegitimate speculation in viewing the email correspondence suggesting the appellant was attracted to young females. In response, the Crown submitted that the appellant’s partner could be excluded as the party responsible for the images. The scenarios proposed to her in cross examination were no more than propositions, and there was no evidence any of them had occurred.

Not a shared laptop

The opinion of the court was delivered by Lord Malcolm. He began by addressing the status of the laptop, saying: “The sheriff states that this was not a ‘shared laptop’. The evidence indicated that it was the appellant’s property which his partner was ‘sure she must have’ used occasionally.”

He continued: “Ms X did not say that she used it to view pornography, merely that there was a possibility that she did so. She did not give evidence that she downloaded the material. She did not say that she viewed it, or knew about it. The sheriff considered that there was nothing in Ms X’s evidence which removed the available inference that it was on the laptop because of the actions of its owner.”

On whether the evidence was capable of supporting a guilty verdict, he said: “Much of the submission for the appellant concentrated on matters not forming part of the evidence, or on possibilities which had not been ‘ruled out’ by the Crown. However the focus should be on the evidence before the jury, and it is not necessary for the prosecution to exclude every possibility which might exculpate an accused person.”

He continued: “The appellant’s case glosses over the wealth of circumstantial evidence pointing to his guilt, all narrated in detail by the sheriff, and which would allow the jury to reach reasonable inferences as to his responsibility in respect of both charges. We reject the submission that when refusing the no case to answer application the sheriff indulged in illegitimate speculation.”

On submissions by the appellant that the Crown had not proved he had knowledge of the relevant files, he said: “In our view there was ample evidence in this regard, including that relating to the significant amount of deletions made by the appellant shortly before the police took his laptop.”

For these reasons, the appeal was refused.

© Scottish Legal News Ltd 2020

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