Court upholds viewing of all USB stick images on warrant search

A police forensic examiner acting under a search warrant relating to acts carried out against a particular child under 16 (AB), was bound to have to examine all images on a USB stick to see whether any conformed to the terms of the warrant, and if they thereby discovered evidence of other serious criminal offences, they were bound to draw that to the attention of the police.

Three judges in the Criminal Appeal Court gave this ruling in refusing the appeal against conviction of James Wightman on charges under ss 52 and 52A of the Civic Government (Scotland) Act 1982 concerning indecent photographs or pseudo-photographs of children.

The court further held that the sheriff had not misdirected the jury, either in relation to what constituted “possession” of the images in these charges, or in relation to a charge of sexual assault against AB.

The accused was a self employed tennis coach who gave lessons to junior members of a tennis club. He videoed some of these. AB, then aged 14, was one pupil. The accused would frequently lay hands on AB, apparently to help with his tennis strokes. On one occasion he laid a hand on AB's buttocks and then created a still image from the video. AB gave evidence that on one occasion when he had a sore elbow, the accused took him into the changing room and made him take his top off before applying gel to his elbow and shoulder. This was also videoed, and other shots were taken without AB's permission when he had his top off. These incidents were the subject charges of sexual assault under s 30 of the Sexual Offences (Scotland) Act 2009 and a further charge under s 52 of the 1982 Act, which the jury also found proved.

On appeal it was argued:

• that the sheriff erred in repelling an objection to admissibility of evidence relating to images of other children, found on the USB stick but not covered by the warrant;
• that the sheriff had misdirected the jury in relation to whether the conduct against AB was sexual, by failing to refer to the forensic examiner's evidence that the accused's actions were not indecent;
• that for similar reasons the sheriff should have held it not open to the Crown to argue that the films made of AB were indecent; and
• that the sheriff had misdirected the jury as to the meaning of possession in respect of the indecent images found, by giving the impression that a person could be in possession of a file on a USB stick even where they had no knowledge of the existence of the file.

Lord Drummond Young, who delivered the opinion of the court, Lady Clark of Calton and Lord Turnbull refused the appeal.

On the first point, Lord Drummond Young said, it was apparent that a search of a device such as a USB stick was likely to produce a very large number of images, “and these must obviously be examined in order to determine whether any conform to the terms of the search warrant”. Once the examiner had seen the images he could not “unsee” them; “in carrying out an authorised search [he] had discovered evidence of criminal offences, and was bound to act on that information”.

“Such a search cannot be described as 'random'; it is the only way in which the search can be conducted", the court commented.

The second ground proceeded on a misunderstanding of s 30. The test was whether AB was touched in a “sexual” manner; that was not necessarily the same as “indecent”. “Thus it might be obvious in the whole circumstances spoken to in evidence that conduct that merely involved touching another person, in a manner that could not reasonably be described as “indecent”, nevertheless had a sexual motivation, in that an inference might properly be drawn that the person responsible for the touching obtained sexual gratification from the touching.”

On the third ground, the sheriff was plainly correct in leaving the question to the jury, as the examiner's evidence could not bind the jury. It was open to them to decide that the images were indecent,and they had been properly directed.

The question of possession was the most difficult issue raised. The directions could have focused the issue of knowledge and control more clearly; but were adequate in that after telling the jury that it did not matter whether the accused had downloaded the images, but only whether he had them in his possession, the sheriff reminded them of the requirement for both knowledge and control. In any event it would be difficult to hold that a miscarriage of justice had occurred, where the sheriff also said that if they accepted the accused's denial of knowledge of the downloaded materials they could not convict him of making the images: the inevitable inference was that the jury were satisfied of his awareness.

Click here to view the opinion of the court.