Sheriff Appeal Court allows appeal against breach of the peace conviction by man in possession of images of children wrestling

About this case:

• Citation:
  [2023] SAC (Crim) 5
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Andrew Cubie

Appellant AB argued that the evidence obtained by police officers from devices owned by him was obtained unlawfully, and the summary sheriff erred in repelling a submission of no case to answer. It was further argued there was no public element of the alleged offence sufficient to establish breach of the peace.

The appeal was heard by Sheriffs Principal Derek Pyle and Gillian Wade, with Appeal Sheriff Andrew Cubie. Culross, advocate, appeared for the appellant and Glancy KC, advocate depute, for the Crown.

Tried and failed

In early 2021 the police received a Suspicious Activity Report showing that the appellant had sent money to a South African website flagged as a website of interest due to concerns about child exploitation, albeit with no established illegality. Thereafter the police submitted a search warrant to the Procurator Fiscal in Hamilton, which was refused on the basis that there was no reasonable cause to suspect criminality on the part of the appellant.

Nonetheless, on 17 February 2021 the police attended the appellant’s property and asked if it was “okay to come in and have a word”. The appellant allowed them entry and advised them he had purchased videos and photos from the website. He showed the police on request a video depicting two boys of around 12 or 13 wearing only shorts engaging in what appeared to be staged wrestling.

One of the officers, TPI Watson, asked the appellant if he would be willing to give the police his devices for examination. The appellant repeatedly stated there was nothing illicit on them but agreed to hand them over. The police also took a statement in which he said that he had videos of a similar nature of “kids from my school from gym lessons” but that the school were aware that lessons had been recorded. He also said he had a “fetish” for children performing fireman’s lifts but had never acted upon it.

Following examination of the devices, which contained 3,275 images of children mostly performing wrestling manoeuvres, the appellant was charged. In deciding that there was a case to answer, the sheriff found that the police had lawfully obtained his devices and his conduct would have presented as genuinely alarming and disturbing were it to be discovered.

On appeal it was submitted that the police were acting in the knowledge of having tried and failed to obtain a search warrant, and seeking co-operation from him in the way they had was incompatible with his right against self-incrimination. He was not properly informed that he did not need to comply with the request to hand over his devices and had he declined there would have been no further action against him.

Line was crossed

Appeal Sheriff Cubie, delivering the opinion of the court, said of the legality of the police’s conduct: “We consider that the police officers were entitled to attend, to ask questions about the interaction with the website, and even view the footage. The introductory phase when the police visited and asked about the involvement was not unfair. But by the time the police had determined that they wanted to recover items: items which they knew had not been recoverable by way of a search warrant, we consider that the line was crossed into unfairness.”

He continued: “The appellant in this case was, on the evidence, attempting to cooperate as much as he could and believed he had done nothing of a criminal nature. The police on the other hand clearly had suspicions about his activities as evidenced by their attempt to obtain a warrant. In the circumstances of this case, the prejudice to the accused in admitting the evidence which ultimately formed the basis of his conviction outweighs the public interest in allowing it to be admitted.”

Addressing the public element of the charge, the Appeal Sheriff said: “If admissible, the recovered material would have caused legitimate alarm and distress if in the public domain. The sheriff indicates the likely reaction of a parent on learning of or seeing the images and we agree with her assessment.”

He concluded: “There are no features in the instant case which allowed the sheriff to find or infer that that was a ‘realistic risk’ of discovery. In the absence of such realistic risk, however flagrant or potentially disturbing the conduct, the charge of breach of the peace cannot stand, irrespective of whether the crime arises from the taking or the storing or some combination. The sheriff should have sustained the submission of no case to answer in relation to charge.”

The appeal against conviction was therefore allowed.