Tennis coach found with indecent images of children loses appeal against conviction

A tennis coach who was found guilty of making and being in possession of indecent images of children has failed in an appeal against his conviction.

The Appeal Court of the High Court of Justiciary rejected the appellant’s challenge to the admissibility of evidence seized from his personal devices and also dismissed claims that the sheriff misdirected the jury.

Lord Drummond Young, Lady Clark of Calton and Lord Turnbull heard that that appellant James Wightman was convicted after trial of four charges: (1) touching a teenager under the age of 16 in a “sexual manner” contrary to section 30 of the Sexual Offences (Scotland) Act 2009; (2) being in possession of indecent images of children contrary to section 52A(1) of the Civic Government (Scotland) Act 1982; (3) taking indecent images of a child contrary to section 52(1)(a) of the 1982 Act; and (4) a further charge under section 52(1)(a).

Tennis lessons

The appellant was a self-employed tennis coach who gave tennis lessons to junior members of a particular club, including AB, the complainer in charges (1) and (3).

The complainer told his mother about the appellant’s conduct and she contacted the police, who obtained a warrant to search the appellant’s home, where they found various items of computer and camera equipment.

Two handheld video cameras and a SanDisk USB stick were passed to police forensic examiner Peter Benson, who examined the data on the devices and found videos and still images relating to the complainer, and also other, unrelated, indecent images which formed the basis for charges (2) and (4) on the indictment.

The defence lodged a minute under section 79 of the Criminal Procedure (Scotland) Act 1995 challenging the admissibility of the indecent images to the extent that they related to children other than the complainer in charges (1) and (3).

An evidential hearing was held and for the appellant it had been submitted at the evidential hearing that the search carried out by Mr Benson went beyond the terms of the search warrant and was accordingly illegal, but the sheriff rejected that submission and the appellant was subsequently convicted.

Search warrant

The first ground of appeal was that the sheriff erred in law in repelling the objection to the admissibility of evidence from Mr Benson. It was said that the warrant permitted the seizing and examination of electronic and video devices for the purpose of investigations into allegations that the appellant had filmed the complainer AB. According to his evidence Mr Benson had been unaware of the terms of the warrant, and he found still images of children that formed a substantial part of the evidence in respect of charges (2) and (4).

Rejecting this ground of appeal, Lord Drummond Young said: “In looking through the images Mr Benson discovered a number of indecent images of children other than AB. As he explained to the sheriff, once he had seen those images he could not ‘unsee’ them. He had discovered evidence of serious criminal offences, and it was therefore his clear and obvious duty to draw that evidence to the attention of the police. Niceties about what might or might not be justified on strict construction of the warrant do not appear to us to be pertinent; Mr Benson in carrying out an authorised search had discovered evidence of criminal offences, and was bound to act on that information.”

Miscarriage of justice

The second ground of appeal was that, in respect of charge (1) the sheriff misdirected the jury as to the requirement that they should apply an “objective test” to determine whether the conduct of the appellant libelled was “sexual” in terms of section 60(2) of the 2009 Act. In particular, he failed to direct them specifically to make the assessment in the light of the evidence of Mr Benson, who said that in his opinion the films of the actions of the appellant towards AB were “not indecent”.

The third ground of appeal was that a miscarriage of justice had occurred through the sheriff’s repelling a defence submission that it was not open to the Crown to argue that the films of AB that formed the basis of charge (3) were indecent, in view of the fact that they had led opinion evidence of Mr Benson to the effect that the films of the actions of the appellant towards AB were not indecent. On that basis it was argued there was no longer a sufficiency of evidence in respect of charge (3).

However, the appeal judges refused both grounds. Lord Drummond Young said: “This ground is essentially a development of the second ground, as it proceeds on Mr Benson’s evidence to the effect that the images of AB were in his opinion not ‘indecent’…In this respect, the sheriff properly left the question of whether the images were indecent to the jury. In our opinion this is plainly correct; the opinion expressed by Mr Benson could not bind the jury. On that basis it was open to the jury to decide that the images of AB were indecent, notwithstanding Mr Benson’s opinion to the contrary. The jury were properly directed, and it is not suggested that the verdict was one that no reasonable jury could reach.”

Misdirection

The fourth and fifth grounds of appeal related to charges (2) and (4). It was submitted that the sheriff had misdirected the jury as to the meaning of possession in respect of the indecent images of children that had been found, in that he failed to direct the jury that they had to assess whether the appellant had the necessary knowledge and control to amount to possession, and gave the impression that a person can be in possession of a computer file on a USB memory stick even when that person has no knowledge of the existence of the file and has done nothing with the memory stick other than put it in his pocket.

Delivering the opinion of the court, Lord Drummond Young said: “We have found this to be the most difficult issue raised in this appeal. As we have indicated, the basic direction on possession quoted at paragraph of above is undoubtedly correct.

“The critical question is whether the appellant had knowledge and control of the indecent images found on the laptop computer and tower PC, and the further direction quoted at paragraph of above could have focused this issue more clearly. Nevertheless, this direction is correct that, so far as charge (2) was concerned, it did not matter whether the appellant had downloaded the images; all that mattered was whether he had them in his possession.

“In the last sentence of the quoted passage, the sheriff directs the jury that they had to be satisfied that the appellant had possession using the criteria that had already been given. Those criteria are clearly those in the passage quoted at paragraph above, where it is stated that possession requires both knowledge and control.

“The jury was therefore told that to have possession of the indecent images the appellant required to have knowledge and control of those images. In these circumstances we have concluded that the direction given is adequate.”

He added: “Moreover, even if there had been a misdirection in this respect, it would be difficult to hold that a miscarriage of justice had occurred. Images had been found on the laptop computer and the tower PC, although some of those on the tower PC were in another person’s account. It was accepted, however, that emails in the appellant’s name were found on both devices.

“Furthermore, the jury convicted the appellant of charge (4), which relates to taking or making indecent photographs or pseudo-photographs of children. In relation to that charge the sheriff told the jury that this would cover downloading material from the Internet to a storage device or printing a photograph from the Internet or opening an email attachment or downloading an image from a website.

“The sheriff then directed the jury that the Crown invited them to conclude by inference from facts and circumstances that the appellant was guilty of charge (4). Against that, he reminded the jury that the appellant denied knowledge of the existence of the downloaded materials, and denied that he possessed them.

“The sheriff then directed the jury that if they accepted that denial the appellant could not be convicted of charge (4) because that required a positive act. Those appear to us to be proper and clear directions. The jury nevertheless convicted the appellant of charge (4).

“That inevitably leads to the inference that the jury were satisfied that the appellant was aware of the indecent material found on the various devices. On that basis, we consider that it cannot be said that any miscarriage of justice has occurred.”