APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Bonomy Lady Dorrian	[2012] HCJAC 5 Appeal Nos: XC520/10 OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL AGAINST CONVICTION by DOUGLAS MILLER HARRIS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead et Mason; Drummond Miller, Edinburgh

Respondent: Weir, QC, AD; Crown Agent

13 January 2012

The Background

[1] The appellant was convicted on 14 June 2010 at Aberdeen Sheriff Court by unanimous verdict of the jury, of two charges in the following terms:

"(001) between 1 July 2004 and 12 December 2006, both dates inclusive, at 25 Laburnum Walk, Aberdeen, you did take or permit to be taken or make 243 indecent photographs or pseudo-photographs of children;

CONTRARY to the Civic Government (Scotland) Act 1982 Section 52(1)(a) as amended;

(002) on 12 December 2006 at 25 Laburnum Walk, Aberdeen you did have in your possession 371 indecent photographs or pseudo-photographs of children;

CONTRARY to the Civic Government (Scotland) Act 1982 Section 52(A)(1);"

On 13 July 2010 the Sheriff made a probation order for a period of three years and confirmed the application to the appellant of the notification requirements of the Sex Offenders Act 2003.

[2] At the time of the offences the appellant was employed as a doctor at Aberdeen Royal Infirmary and Woodend Hospital. When officers of Grampian Police attended at his home to execute a search warrant on 12 December 2006 at 06.27 hours, the appellant and his girlfriend, Marie Carle, were present. The police removed a box containing floppy discs, a computer base unit, a digital camera, a "Wanadoo" broadband registration document, two laptops, a "Windows Washer" CD and a keyboard with various handwritten passwords and addresses on the underside.

[3] Miss Carle first met the appellant in May 2005. They had lived together at 25 Laburnum Walk since January 2006. The appellant had lived at that address since September 1999. The flat was then owned by a fellow medical student who later became his girlfriend and who sold the flat to the appellant when she moved from the area. The appellant incriminated Marie Carle "and other persons or person in the meantime to the Panel unknown" on both charges, and in respect of the first charge stated a detailed defence of alibi, essentially to the effect that he was not at home when any images were made and stating specifically where he was at various dates and times when images were downloaded, generally at work or travelling to or from work.

The Evidence

[4] The various items seized from the flat were subjected to examination by experts at the Forensic Computing Unit of Grampian Police. Their initial report formed Crown production 19. That and two subsequent reports, Crown productions 22 and 23, were spoken to in evidence. Evidence relating to some of the findings from the work done was the subject of joint minutes. The two Crown experts who carried out the examination and prepared the reports gave evidence. A defence expert also gave evidence. There was no significant disagreement among the experts. A number of files containing indecent images of children had been downloaded onto the hard drive of the computer base unit. The vast majority of the files had been "deleted" but had not been physically removed from the hard disk of the computer. A software programme known as "Windows Washer" had been installed. A feature of the Windows Washer software was that, when it deleted a file, it changed the file name to a scrambled 32 character name with three exclamation marks; the file then became invisible to the normal user but could still be recovered by forensic tools. That was the situation here in relation to the majority of the images. A total of 348 images were in "deleted" files. A further 2 images were found in different parts of the hard disk as a consequence of the use of certain computer programmes, and a further 15 were in miniature thumb-nail form. On the floppy disks recovered were found six indecent images of children, two of which had been accessed on 13 and 28 August 2004, and another of which was on a disk on which there was also a job application form which had been partially completed by the appellant. Since there was not satisfactory evidence of the dates on which 128 of the images appeared to have been created, charge 1 was restricted to 243 images.

[5] Examination of the computer had also disclosed chat logs containing apparent references to indecent images of children. The sites accessed included Picasa, MSN Messenger, Google and Yahoo sites. Someone operating the computer under the user name "doug 486933" had received indecent photographs. The number 486933 was the number of the telephone landline at the flat. Access had also been gained in that user name to sites where indecent photographs might be shared and created. The e-mail address [email protected] was shown to have been used to access sites containing indecent material. Comments from that e-mail address were posted by a user named "Dave"; these indicated an interest in indecent images of children. "Evie" was among the names referred to in files and used in communications relating to indecent images. Access to certain of the sites was not password protected and could have been gained by anyone using the computer. The results of checking the dates and times of the creation of images against the dates and times in the alibi were set out in a table attached to Crown production 22.

[6] Pauline Summers, a neighbour of the appellant in the same block of flats, had worked as a cleaner for his previous girlfriend and then for him. She had a spare key. She cleaned the flat once or twice a week. She gave some evidence of the appellant's shift patterns, a day-shift being between 07.45 or 08.00 and 17.00 or 18.00, and a night-shift meaning that he left home at approximately 20.00 to 20.30 and returned at 07.00 to 08.00, but the times would vary. Aberdeen Royal Infirmary was about eight minutes on foot from the flat and Woodend approximately ten minutes by car. The appellant generally took his car wherever he was working, but did not return home for lunch. She accepted that her children aged 16 and 13 could have gone into the room where the computer was, but was adamant that they had never used it and that she had never allowed anyone else access to the flat.

[7] Sharon McCulloch, the appellant's previous girlfriend, denied any knowledge of indecent images on either of the two desktop computers they had had or on any floppy disks.

[8] Marie Carle, who continues to live with the appellant, was not given immunity from prosecution but was warned that she might decline to answer questions where the answer might tend to incriminate her. She apparently answered all questions. Prior to 2006 she had worked shifts as a care assistant. These normally lasted five hours, either from 07.30 in the morning or for a five hour period in the afternoon. During 2006 she had worked as a document controller and administrative assistant, and tended to work normal office hours, 08.30 to 17.00 or 17.30. She used computers in her employment and had used the desktop and laptop computers in the flat. She denied ever using any computer to access indecent images of children. She had never seen anything on a computer which could be described as indecent images of children and the appellant had never discussed using the computer for these purposes. The floppy disks had been in the flat before she moved in. The appellant had explained to her the purpose of "Windows Washer" software and how it apparently worked. She denied any knowledge of the user ID "doug486933". She regarded the computers as the appellant's. On occasion she had used the computer at night or early morning when she was unable to sleep. She would play solitaire and check her e-mails. She had her own e-mail address and a user name and password to use hotmail or MSN Messenger. She had never used the e-mail address [email protected]. She identified the appellant's as the handwriting that had written out a list of passwords appended to the underside of the keyboard. She was familiar with "Picasa" and had used it for editing photographs and sharing them. She was not aware of "Google Hello", and never used "Yahoo" or "Google Groups".

[9] In relation to the appellant's hours of work, Miss Carle said that he was usually away from the flat before she left and would not return until after 18.00 hours. For a dayshift he would leave the flat about 07.30 and return after 18.00. An on-call weekend would be from Friday morning to Monday night after 18.00 hours. When on call, the appellant would stay at the hospital where he was working. If he worked nightshift, he would work the whole preceding day, the night period and then the whole of the next day. Usually he was off at the weekend. To the best of her knowledge he never finished early nor started late.

[10] She recalled that 9 December 2006 was the Christmas night out for the appellant and his work colleagues. She had given him a lift to Elphinstone Hall, picking up a colleague, Dr McNair, en route. At the end of the evening the appellant had telephoned her to be collected and taken home between 01.00 and 02.00. The call had been recorded as having been made at 01.16.33 on 9 December from his mobile to the flat. The expert report recorded an indecent image having been downloaded at 23.50 on 8 December and another at 00.13. She stated that she was alone in the flat at those times. Later the appellant had risen at approximately 08.30 and gone to the gym. He was away from the flat until after 11.00. While he was out, she had not been on the computer. She had had a migraine. She denied downloading images between 09.45 and 11.14, the time at which a number of images had apparently been downloaded. She specifically remembered the Christmas party incident because she had been asleep when the appellant telephoned.

[11] On 23 November 2006 the appellant had arrived home at approximately 18.00 hours and had rushed to leave by 18.30 to go to Dr McNair's flat to watch a Rangers football match on TV. She had remembered the football match after the appellant had reminded her about it and they had checked back on the Rangers website. She did not know who had downloaded images between 17.30 and 18.30 that evening.

[12] A training course attended by the appellant in November 2005 had been before she moved in to the flat. In relation to 6 December 2006 she said that the appellant would not have been home between 17.00 and 18.23 and that she would have been home before him. If the appellant was working overnight he would telephone her, and that was what appeared to be shown by the phone records for 21-23 November.

[13] In one chat room exchange "Doug" gave his age as 25. Miss Carle agreed that that was not correct at the time, and that she would have been 25. She denied that she had used that chat room and said that she was at work all day until 17.00. When it was put to her that the floppy disks belonged to her and had been taken by her to the flat, she said that she did not use floppy disks at the time.

[14] David Rathban worked as a doctor in the Orthopaedic Trauma Team at Aberdeen Royal Infirmary as a colleague of the appellant. He had no recollection of the shifts which the appellant worked. He gave evidence about the night of 9 into 10 December 2006. He left the function the appellant attended that night at "the back of midnight". The appellant had left about 10 or 15 minutes before him.

[15] In his evidence, the appellant explained that the floppy disks had been in the flat during the period when he and his former girlfriend had shared the accommodation, and indeed when other flat mates had shared that accommodation with them. He denied responsibility for any indecent image whether on floppy disk or hard drive of the computer. The appellant accepted that the dates of material on the floppy disks meant that they had been downloaded before he had become involved in a relationship with Miss Carle. The bulk of his evidence consisted in a thorough and careful examination of hospital patient records and other defence productions relating to the dates and times on which it appeared indecent images had been downloaded to the computer, or chat room exchanges had taken place, with a view to demonstrating that he was not at home at the relevant time. He denied knowledge of the websites which were said to show indecent images, and denied ever entering any of the chat sites. He set out his working pattern in terms similar to those explained by Miss Carle.

[16] After attending a function on 8-9 December 2006 the appellant had returned to the flat at 01.15 and could not be responsible for the download recorded at 23.50 on 8 December. Thereafter on the morning of 9 December he had been away from home from before 09.00. Initially he went to the golf range until approximately 10.30 because the hire shop to which he had to return his kilt did not open until 10.00. He then went to Berryden (a shopping estate) and returned home at approximately 11.40 or 11.45. Miss Carle was in the flat but was feeling unwell.

[17] The e-mail account [email protected] had been set up by him in about August 2004 to be used for playing poker on line. He acknowledged installing the "Windows Washer" programme. He had no explanation for its use on 4, 6 or 9 December other than it was used by the same person who had accessed the computer, viz a hacker or Miss Carle. His understanding was that it could assist in speeding up the operation of the system. (The Crown experts had said that such programmes are marketed on the basis that they may assist in speeding up running systems). He also used it to protect the privacy of his system especially when checking bank statements. His personal opinion was that either he had been "hacked" or, given the reference to an age of 25 in the chat room exchange, that Miss Carle might have been responsible.

[18] In relation to a number of entries in hospital records, the appellant accepted that there could be errors. He had become aware of the chat groups and "Google Groups" shortly before the search warrant was executed. He had also seen mention of "Evie" and out of curiosity had accessed the site because he had previously gone out with a girlfriend called "Evie", a short form of Evelyn. He had also been shocked by seeing references to his "dmh2000" e-mail address in relation to chat sites. That was when he first thought his computer was being hacked. He thought that a third party might have entered the flat and used the computer. He believed that someone had taken over his identity as "doug486933". He acknowledged that that address did not appear on the list of identities under the keyboard, but explained that he would have updated that list and may have omitted it because it was no longer used.

[19] Four other witnesses were led for the defence. Anne Fyfe, course supervisor, dealt with a course which the appellant attended on 30 November. She confirmed the dates and times at which the appellant was required to attend and that he had received a completion certificate.

[20] Dr Colin McNair, former colleague at Aberdeen Royal Infirmary, confirmed that shifts for staff in the appellant's position tended to start at 08.00 and never ended before 17.00. There were no 56 hour shifts involved in the rotas he worked. He was not familiar with the position at Woodend Hospital, but in his experience a senior house officer coming off nightshift would be off-duty the following lunch time. He also described the ward rounds which took place first thing in the morning and also in the evening and were of extremely variable duration. He recalled the appellant being in his company for the majority of the match on 23 November 2006, if not all of it. He recalled the matter as a result of "what [he had] been told in the intervening period". He also recollected attending the unit Christmas party on 8 December. He did not know when the appellant left the party. He left before the appellant. He confirmed having received a phone call from the appellant at about 11.20 on the morning of 9 December. His impression was that the appellant had not returned his kilt by then.

[21] Alison Forrest gave evidence relating to the recovery of hospital patient records. She said that in the majority of cases it had not been possible to ascertain which shift the appellant had been working on a particular day, even when the records showed that he had been on duty, because it could not be said precisely when a ward round had taken place, when medication had been prescribed, or when it had been administered. The exception was the fracture clinic, the times of which did not vary. She confirmed that ward rounds took place morning and evening and added that they could take place during the day.

[22] The defence computer expert, Mr Freil-Myles, had first been instructed to consider the possibility of a Trojan virus. He discounted that as ludicrous. He had found the same number of indecent images stored on the computer as had been found by the Crown experts.

The Grounds of Appeal

[23] In the course of the appeal proceedings the appellant has submitted 15 grounds of appeal, the last two having been added by amendment shortly before the diet appointed for hearing the appeal. It was deemed unnecessary to order a further report from the Sheriff or to submit these grounds to the sifting process. The appellant has abandoned his first ground and was refused leave to appeal on ground 12. All the remaining grounds were addressed in the course of a two day hearing. There is also a devolution minute in very vague terms. It was not clear to what that is directed. Ground 2 relates to the way in which the Sheriff dealt with defence objections to the admissibility of evidence. In ground 11 the appellant claims that the Sheriff's "cross examination" of the appellant in relation to one of the patient records would have conveyed to the well informed observer that the Sheriff doubted the appellant's credibility. Grounds 3 to 10 and 15 assert various misdirection in the Sheriff's charge. In ground 13 it is claimed that the verdicts of the jury were unreasonable. In ground 14 it is claimed that the reasons for the jury's verdicts cannot be determined from reading the charge and their verdicts, and the appellant's entitlement to a reasoned judgment in terms of article 6 of the European Convention on Human Rights has been breached. The appellant maintains that in relation to each ground there has been a miscarriage of justice.

Ground 2

[24] Ground 2 combined two broad issues under the heading of "Objections taken during the course of the trial". One related to material admitted in the face of objections which was said to be evidence of a prejudicial and irrelevant nature, being (i) evidence of undated access to websites, (ii) evidence falling outwith the period of the libel, and (iii) evidence led of a crime not charged, in particular distribution of images, a distinct offence under section 52(1)(b) of the Civic Government (Scotland) Act 1982 ("1982 Act "). The other point related to the Sheriff's approach in dealing with the numerous objections taken which, it was said, would have created an impression of judicial bias against the defence case, in particular the accused's counsel, in the mind of the informed objective observer.

[25] We deal with the second point first. Examples of the Sheriff's approach founded upon included conducting debate on objections with counsel in the presence of the jury, or at least partly in the presence of the jury, on other occasions not taking sufficient time to adjudicate thus causing anxiety in the mind of the informed observer, and on one occasion "advising" the procurator fiscal depute to avoid leading evidence of a particular sentence in a report. Reference was also made to a failure on one occasion to adjudicate on an objection.

[26] Having considered the transcript of the trial, we have been unable to identify any passage in which it can be said that the Sheriff acted so inappropriately in the manner in which she dealt with an objection as to create an impression of bias. Nor do we consider that, taken cumulatively, the Sheriff's conduct in dealing with objections could have created such an impression. It is entirely appropriate, and indeed good practice, for a judge to insist upon the clear articulation and explanation of an objection to the admission of evidence to enable the judge to decide whether debate thereon is necessary and whether that debate ought to be conducted outwith the presence of the jury. The Sheriff's actions in doing that on occasions did not result in the jury hearing any evidence that they ought not to have heard or give rise to the risk that an observer might think they had heard such evidence. One passage particularly relied upon involved the Sheriff intervening to suggest to the procurator fiscal depute that one sentence from a report should not be read. It was suggested that that would leave an impression in the mind of the jury that the content was very prejudicial. We are not persuaded by that submission. The procurator fiscal depute stood his ground, the matter was debated, and the passage was held to be admissible. It was also submitted that there was a material risk that the sheriff's conduct would be perceived to have an adverse impact on the jury. In discussion with Mr Shead, counsel for the appellant, in the course of his submission on this point, we endeavoured to identify what adverse impact he thought the informed observer might have considered the Sheriff's exchanges with counsel might have on the minds of jurors. Mr Shead was unable to articulate how the jury might be seen to be affected. Reliance was also placed on the Sheriff's indication to counsel that, even though an objection to a line of evidence had been repelled and the same decision might be expected when a similar question arose later, he should nevertheless state his objection. We do not consider that that exchange or any other in the schedule of transcript passages relating to the objections relied upon by counsel for the appellant, belatedly submitted to us half way through the hearing, would create an impression of judicial bias against the defence in the mind of an informed observer. We therefore reject this ground of appeal so far as founded upon the Sheriff's approach to dealing with defence objections.

[27] The genesis of the objections to the admission of evidence as irrelevant on the various bases indicated above in the first part of this ground was the outcome of two preliminary debates in which a different sheriff considered whether certain material should be ruled inadmissible. In the first debate he held reference to 128 images to be inadmissible in respect of charge 1. Following the second hearing, the sheriff ruled in favour of the Crown. An appeal to this Court was unsuccessful. However, in refusing the appeal the Court did say that the ruling should be taken "not to preclude any objection to any question, or line of evidence, or the admission of any documentary material that counsel for the defence may think fit to make at trial". It was noted that such objections might call for the application of the principle set out in Nelson v HM Advocate 1994 JC 94 at 104, 1994 SCCR 192 at 203. The issues raised at the two preliminary debates related to charge 1 only.

[28] We turn now to the three separate bases on which it was said that the evidence objected to was inadmissible as irrelevant and prejudicial. The libel covered the period from the date that the hard disk on the desktop computer was manufactured. On the face of it, therefore, all evidence from that computer related to the period of the libel; in particular undated material inevitably fell within the period of the libel. We note that the Sheriff states in her report that none of the evidence relating to what was found on the hard drive fell outwith the period of the libel in charge 1. In any event, undated material which was relevant to the question of possession of images by the appellant in terms of charge 2, on 12 December 2006 when his flat was searched, was not affected by either preliminary ruling and was therefore admissible. The submission that objections to the admission of evidence of crimes not charged were wrongly repelled is based upon evidence of the involvement of a user of the computer in websites such as chat rooms, by means of which images can be exchanged. That, it was submitted, amounted to evidence of distribution, a distinct offence. The Advocate depute explained that the Crown did not found upon any evidence indicating that the appellant had distributed any image. The Sheriff reports that there was no attempt to lead evidence of the appellant's sending or offering to send or otherwise making available to any third party any images.

[29] In our opinion evidence of involvement in computer-based communications relating to indecent images is evidence relevant to the question whether the appellant made any images and the question of his mens rea in relation to that activity. It is evidence that had a bearing on the receipt and downloading of images, both forms of "making" rather than distribution (Longmuir v HM Advocate 2000 SCCR 447). We are satisfied that, since no attempt was made by the Crown to rely upon activity which might be categorised as distribution by the appellant in support of the Crown case, the evidence of involvement, during the period of the libel, in sites where images might be exchanged was plainly relevant to the making of images sent to, and received on, the computer base unit. Mr Shead tendered a schedule of the objections which it was submitted were wrongly repelled. In none of these have we found any infringement of the principles set out in Nelson v HM Advocate. The evidence of fragments of e-mail discussions found on the computer requesting indecent pictures of children, and evidence of images being received, was plainly relevant to the actus reus of the offence libelled in charge 1 and also to show that the material received had not accidentally or inadvertently appeared on the appellant's computer and thus to the question of mens rea. The fact that the site through which the appellant received images might also be used by him to send them was not something requiring notice in the form of a separate charge of distribution where the Crown did not lead any evidence of the appellant sending images to others. Indeed to have included such a charge, where no evidence of actual distribution was led, would have been prejudicial to the appellant. There is no suggestion that any of the evidence to which this ground relates was not fully disclosed. We are satisfied that no evidence was wrongly admitted in face of the appellant's objections.

Ground 11

[30] Associated with the part of ground 2 relating to the Sheriff's manner of dealing with objections is ground 11. In that ground the appellant refers to one passage in which it is maintained that the Sheriff undermined the appellant's own evidence by intervening to question him about a date in a document in a way that went beyond mere clarification. It is stated in the ground, and was submitted to us by Mr Shead, that the intervention would have conveyed to the well informed observer that the Sheriff had doubts as to the appellant's credibility on the point.

[31] The specific passage of the transcript relied upon is in the volume for 9 June at page 136. The initial enquiry by the Sheriff was made in the course of examination-in-chief. The appellant's counsel was therefore in a position to ask whatever supplementary questions he wished in order to clarify or explain any matter arising. The Sheriff explains in her report that she did recall making enquiry of the appellant as to a date on one of the defence productions on which the handwriting was not good and could have been open to interpretation. Having considered the passage, we are entirely satisfied that no objective and informed observer could possibly have formed the view from the Sheriff's questions that she was expressing doubt as to the appellant's credibility on the point.

[32] Although the ground of appeal refers to only one occasion of intervention by the sheriff, in the course of the hearing a note referring to two others was presented to the Court. The passages in question can also be found in the transcript for 9 June at pages 108 line 22 to 109 line 3 and pages 186 line 17 to 187 line 6. We have reached the same conclusion on these passages.

[33] The suggestion that the Sheriff's interventions amounted to cross-examination was withdrawn in the course of submissions before us, as was the contention that her intervention actually undermined the appellant's evidence. The submission was confined to the impression an objective and informed observer would form that the trial was unfair because the jury would be affected by the Sheriff's intervention. How exactly that would be so, Mr Shead was unable to articulate.

Grounds 3 and 4

[34] In grounds 3 and 4 it is contended that the Sheriff's directions on the meaning and definition of charge 1 were materially defective. Two particular criticisms were advanced. In reliance upon Smart v HM Advocate [2006] HCJAC 12, 2006 SCCR 120 and English authority referred to therein and, in addition, Atkins v DPP [2000] 2 Crim App R 248, [2000] 1 WLR 1427, [2000] 2 All E R 425, it was submitted for the appellant that the Sheriff was bound, but had failed, to direct the jury on the requirement for mens rea in relation to charge 1. It was further submitted, under reference to Campbell v HM Advocate 2004 SCCR at para 98 and Liehne v HM Advocate [2011] HCJAC, 2011 SCCR 419 at para 47, that in the circumstances of this case, where there was little directly incriminating evidence, it was incumbent upon the Sheriff to direct the jury as to the evidential foundation upon which they could conclude that the appellant "made" the images.

[35] The Advocate depute acknowledged that the Sheriff had not directed the jury on the requirement of mens rea but maintained that, in accordance with Smart v HM Advocate, there were circumstances, and this was such a case, where a specific direction on mens rea was not necessary since it was not a live issue in the trial. That was the case here where the issue was whether the Crown had proved that the appellant was responsible for the various acts that were plainly deliberate acts amounting to the making of images. So far as the evidence was concerned, it was not incumbent upon the Sheriff to rehearse the evidence - Shepherd v HM Advocate 1996 SCCR 679.

[36] In response, it was countered for the appellant that Smart v HM Advocate could be distinguished since it was clear from the Sheriff's report, and was conceded by counsel for the appellant in that case, that mens rea was not an issue in the trial. In the present case the appellant had given evidence that he had come across a suspicious file accidentally, thus rendering mens rea a live issue.

[37] The appeal was conducted on the basis that the mens rea required for conviction on charge 1 was that the act of making was a deliberate and intentional act in the knowledge that the image was, or was likely to be, an indecent one. As was said in Smart v HM Advocate, such a fundamental requirement of the offence should normally be explained to the jury by the presiding judge. As was also explained in Smart, there will be circumstances in which the failure to do so will not amount to a miscarriage of justice. We would venture to suggest that there may even be circumstances in which the failure to do so would not amount to a misdirection, having regard to the extent to which evidence in the case is the subject of agreement. Having said all that, we are in no doubt that in the present case the appropriate course for the Sheriff to have followed was to give the jury specific directions on the mens rea requirement of charge 1. She failed to do so and to that extent misdirected the jury.

[38] Whether that misdirection occasioned a miscarriage of justice is a question which depends upon the nature of the evidence in the case, the way in which the case was conducted and the issues which were to be determined. Although the submissions for the appellant identified one possible example of accidental downloading of an image, that is not representative of the evidence in the case as a whole nor of the issues on which attention was concentrated in the conduct of the trial. Consideration of some of the significant evidence leaves little scope for the notion that accidental downloading was a real issue in the trial. There was evidence that someone using the computer and the e-mail address [email protected], an address accepted by the appellant as his, had entered the phrase "teensex" in the search facility and that images had been sent to, or been viewed using, that e-mail address. There was evidence that a user "doug486933" had downloaded a large number of files and then used a "Windows Washer" software programme to try to alter or delete the images. Some of these files had retained their original names, one example being "howschoolsexy". There was also evidence that "doug486933" was receiving photographs, having accessed "Google hello", and that there had been references to "teen" which were consistent with a request for indecent pictures of children. There was evidence that somebody with a user nickname "Dave" and e-mail address "[email protected]" had gone on to "Google Groups", and specifically a group called "evie model", being a group intended for those with an interest in child pornography. The appellant denied responsibility for any of this. The possibility that the culprit was Marie Carle was aired. The appellant's case was largely aimed at distancing himself from the acts of making the images on the basis that he was elsewhere when they were made. There was no indication given to the jury in speeches or charge that the person who did make these images did so accidentally. After all, that would have required a third party deliberately making use of an e-mail address and user name associated with the appellant and the appellant then doing things accidentally of which, standing his evidence, he was clearly unaware. It is clear from the charge as a whole that the jury had to be satisfied beyond reasonable doubt that the accused downloaded the images. One of the final matters addressed by the Sheriff was the deletion from the number of images in charge 1 of any they were not satisfied the accused had made, and if that got down to zero then they had to acquit. We therefore do not consider that the failure to deal specifically with mens rea on charge 1 resulted in a miscarriage of justice.

[39] Nor are we persuaded that it was necessary in this case for the Sheriff to depart from the usual practice of addressing the evidence only so far as is necessary to give adequate directions in law. The evidence before the jury included evidence about the use of the computer as illustrated above, denials by other potential users that they were responsible, the appellant's own evidence that he was not responsible, and evidence from a variety of sources from which it could be inferred that the appellant was elsewhere and not in the house at the computer at material times. A review of that evidence by the Sheriff was not, in our opinion, necessary to enable the jury to address adequately the live issues in the case including whether a person had "made" the images and whether that person was the appellant. We do not consider that this is a case where the absence of such a review was likely to have materially hindered the application by the jury of reason and common sense to drawing appropriate inferences and conclusions from the largely circumstantial evidence. In our opinion, no miscarriage of justice resulted from the misdirection identified.

Grounds 8 and 9

[40] We now address grounds 8 and 9. They relate exclusively to charge 2. In ground 8 the complaint is that the Sheriff effectively withdrew the defence of incrimination, in particular by directing the jury as to the possibility of possession by both the appellant and the incriminee. In ground 9 it is contended, under reference to R v Porter [2006] EWCA Crim 560, [2006] 2 Crim App R 359, that on the evidence the element of control necessary for possession could not be established, and that the jury ought to have been directed to acquit on that charge.

[41] In her directions the Sheriff accurately explained that the special defence of incrimination was, in relation to charge 1, a statement that Marie Carle had committed the offence. She then stressed that the accused did not have to prove it and the Crown still had to satisfy the jury that the appellant was responsible for the commission of the crime. The Sheriff then directed the jury that they would have to consider whether there was any evidence that Miss Carle downloaded any of the images or whether at best there was evidence of opportunity. In relation to charge 2, however, the Sheriff explained that, even if the jury had a reasonable doubt that Miss Carle was in possession of the images because she had knowledge and control, they still had to assess whether the accused also had that knowledge and control, because incrimination in relation to possession did not necessarily lead to an acquittal if the jury were nevertheless satisfied beyond reasonable doubt that knowledge and control by the appellant of the images concerned had been proved.

[42] It was accepted that in relation to charge 1 the issue of incrimination was plainly before the jury. In relation to charge 2 particular reliance was placed by Mr Shead on the fact that the case was conducted on the basis that whoever downloaded (charge 1) was also in possession (charge 2). While that is no doubt an accurate statement of the position, it was in our opinion entirely appropriate for the Sheriff, having regard to the circumstances of this case, including the relationship between the appellant and the incriminee, to make it clear to the jury that as a matter of law possession by the incriminee did not necessarily exclude the appellant. The Sheriff simply identified the distinctive feature of possession that did not apply to downloading in this case, namely that, where material held on a computer is involved, more than one person might have access to it and therefore knowledge and control. She therefore quite properly made the point that, even if the jury were satisfied that Miss Carle might have had possession, that was not necessarily a complete answer to the charge against the appellant since they might also be satisfied that the appellant also had possession. That did not amount to a direction that they were acting together in a way quite inconsistent with the presentation of the evidence in the case. It was simply a recognition of the reality of the domestic situation of the appellant and Miss Carle that gave rise to the possibility of both possessing the images.

[43] Ground 9 relates to the requirements for "possession" in charge 2. The vast majority of the images had been "deleted" before the police seized the computer and other media storage equipment on 12 December 2006. Charge 2 relates only to 12 December 2006, the day of seizure. In defining "possession" as requiring both knowledge and control, the Sheriff defined "control" as follows:

"You have got to be able to do something with it. There is no point in my knowing that you have got a waistcoat on. I cannot do anything about it. It is yours; it is in your control; I do not have possession of it. It is wider than just being readily within reach, as it were. You have got to be able to do something with it; control. Know it is there and have it under your control."

The question posed by this ground is whether, on the evidence in this case, it could be said that the appellant had control over the deleted images in the sense of being able to do something with them.

[44] The Court of Appeal in England addressed the issue in R v Porter. There the court, in interpreting the identical English statutory provision, section 160(1) of the Criminal Justice Act 1988, said this:

"It can be argued that possession is an ordinary English word which should be given its normal meaning. Parliament has mitigated the harshness that would result from giving the word its normal meaning by expressly providing three defences in section 162 and impliedly providing that knowledge is an essential element of the offence. On this interpretation ... the fact that the images may be difficult or even impossible to retrieve is irrelevant.

But this interpretation could give rise to consequences so unreasonable that we are not willing to accept it ... It is accepted by the Crown that in reality the appellant could not have retrieved these images. In our judgment, it offends common sense to say that they were in the possession of the appellant ...

...........................

It seems to us that both counsel in the present case were, in substance, adopting a test of custody or control, although they described it in terms of accessibility. The only difference between the formulations advanced by counsel is that Mr Milne argues for the less stringent test of reasonable accessibility whereas Mr Korda contends for a simple test of accessibility... If at the alleged time of possession the image is beyond his control, then for the reasons given earlier he will not possess it. If, however, at that time the image is within his control, for example, because he has the ability to produce it on his screen to, to make a hard copy of it, or to send it to someone else, then he will possess it. It will be a matter for the jury to decide whether images are beyond the control of the defendant having regard to all the factors in the case including his knowledge and particular circumstances. Thus, images which have been emptied from the recycle bin may be considered to be within the control of the defendant who is skilled in the use of computers and in fact owns the software necessary to retrieve such images; whereas such images may be considered not to be within the control of a defendant who does not possess these skills and does not own such software".

[45] It is clear from the judgment in R v Porter and from the evidence in the present case, particularly the Crown expert report, that a person may think he has deleted material from his computer but that material nevertheless remains on the hard disk and will still be accessible to someone. The analysis methodology used by the experts was stated in their joint report to be as follows:

"Using specialist hardware and software, we copied the contents of all of the computer hard disk drives and other storage media onto the Forensic Computing Unit's central storage system. Thereafter we used the copies, known as 'mirror images', to examine the contents ...".

The question of how difficult it was to recover the images and, in particular, how difficult it might be for the user without specialist computer knowledge to do so was explored to some extent at the trial. Evidence was led from the Crown expert, Robert Findlay, that software to recover lost files which has the same effect as the forensic recovery software employed by the experts in this case was commercially available for purchase. In light of that the Advocate depute invited the Court to distinguish R v Porter on the facts and submitted that, applying the principles to be derived from it to the present case, the evidence demonstrated that the appellant had control of the images. He founded on section 52(8)(c) of the 1982 Act where "photograph" is defined as including "data stored on a computer disk or some other electronic means that is capable of conversion into a photograph". The same definition appears in the equivalent English legislation.

[46] We are in effect invited to express a view on the application in Scotland of provisions of legislation which applies to the United Kingdom and has already been interpreted by the Court of Appeal in England. We are persuaded by the analysis and approach adopted by the Court in R v Porter that the question of possession in relation to images held on a computer may raise particular problems in relation to proof of control. We are content to adopt the analysis. However, little practical assistance can be derived from that case which involved images which could only be retrieved by use of specialist techniques and equipment, the supply of which required the authorisation of the US Federal Government and which were not available to the general public. It was accepted by the Crown that in reality the appellant in that case could not have retrieved these images. The facts in the present case were quite different. The necessary software was commercially available and there was evidence that the appellant had bought and installed software which could be used to alter images.

[47] Standing that evidence it is not surprising that no submission of no case to answer was made in relation to charge 2. It was for the jury to decide whether the deleted items were within the appellant's control. They had evidence of his acquisition of the Windows Washer software and its use to delete files. At the close of the defence case they were also aware of his purchase and use of a "file scrubber". The element of "control" that is essential to possession would encompass being able to delete an image. If the image satisfies the definition in section 52(8)(c) of the 1982 Act, then deleting it demonstrates control in the sense of being able to do something with it. The case of R v Porter is a rather extreme case on its facts. In addition the particular example postulated by the court of a person receiving unsolicited images, deleting them, knowing that they are retrievable from the hard disk, but believing that they can only be retrieved and removed by specialists with software and equipment which it does not occur to him to seek to engage or acquire, does not appear to us to be very realistic and seems to leave out of account that the knowledge required for possession is knowledge associated with control, which association is missing from that example. In her charge the Sheriff emphasised that knowledge of something under the control of another was of no significance as a way of emphasising the need for knowledge in association with control. A person can hardly be said to have control over something if he is unaware of his capacity to do anything with it. If, on the other hand, he is aware of his capacity to do something with it but chooses not to, simply because it is too much trouble, then there are good public policy reasons why he should be held to be criminally responsible if he also knew of the existence of the images. In any event, even applying the analysis in R v Porter, it was clearly a matter for the jury whether the appellant had knowledge and control.

[48] We agree with the Advocate depute that the directions given by the Sheriff could have been significantly fuller in relation to this matter. However, it was not a matter explored in great detail in the evidence, and the evidence available to the jury plainly entitled them to conclude that, by following the practice he had followed in relation to other software, the appellant did have control over the images on his computer. Most importantly, the Sheriff repeatedly stressed that for the appellant to have control of something he had to be able to do something with it. For these reasons we reject the submission that the jury should have been directed to acquit the appellant on charge 2.

Grounds 5, 6 and 7

[49] Grounds 5, 6 and 7 each asserts a misdirection on a specific matter. We were invited by Mr Shead to take these into account along with any other misdirections identified and to determine their cumulative impact on the case.

[50] In ground 5 it is contended that inadequate directions on the meaning of credibility and reliability were given to the jury, and that they should have been given greater assistance as to the meaning of, and difference between, the two concepts. Reference was made specifically to page 5, lines 3 to 8, of the Sheriff's charge. There the Sheriff said:

"If you decide that a witness is not credible or is not reliable in whole, that is to say you do not believe any of their evidence, you simply put it on one side. It does not mean that the opposite of what the witness said is true."

However, that was not the only point in the charge at which reference was made to these concepts. The Sheriff had already said at page 3, lines 3 to 9:

"When it comes to assessing witnesses, deciding which you believe and which you do not believe, you judge the quality of the evidence of each one of them and you decide if their evidence is truthful, or untruthful; if it is accurate or mistaken; if it is reliable or not reliable."

The language used there is ordinary everyday English language familiar to the jury. They would be able to understand a later reference on page 4 to "credibility or reliability" with that in mind. In relation to this matter we are satisfied that there was no misdirection.

[51] In ground 6 the contention is that the Sheriff wrongly referred to there being a certain amount of eye witness evidence in the case when in fact there was none. At page 6 of her charge the Sheriff defined direct or eye witness evidence as "a witness speaking to what he or she saw or said or did and saw happening, that sort of thing". It was submitted that the significant evidence in the case was not of that nature. In our opinion that criticism is unfounded. While there was no eye witness evidence in the sense of witnesses speaking to the appellant actually downloading any images, there was clearly evidence of witnesses stating that they were not responsible and what they were doing at certain times, evidence of witnesses who were in the company of the appellant at times relevant to his alibi, and evidence of the police who carried out a search of the appellant's home and removed material therefrom. The Sheriff's reference to such evidence followed by reference to circumstantial evidence would not in the circumstances of this case mislead the jury into thinking that the appellant had actually been seen doing what was alleged against him.

[52] In ground 7 it is contended that the Sheriff conflated the Crown burden of proof with the presumption of innocence in a highly confusing manner, when at page 9 when she directed the jury that proof beyond reasonable doubt was required before they could "acquit" but meant to say "convict", and at page 12 when she directed them that if they entertained a reasonable doubt they should give the benefit of that doubt to the accused and "convict" but meant to say "acquit". For the appellant it was further contended that the Sheriff compounded the confusion by failing to direct the jury that, even if they disbelieved the defence evidence, they must acquit unless the Crown evidence satisfied them of guilt beyond reasonable doubt. It was submitted that the directions desiderated in Lyttle v HM Advocate 2003 SCCR 713 at paragraph 21 were necessary because the accused had given evidence and had led evidence including expert evidence.

[53] We are satisfied that each of the two specific mis-statements were slips of the tongue which, when read in the context of the directions given immediately before and after, would not have misled the jury to whom it must have been obvious that these were indeed slips of the tongue.

[54] So far as the more substantial criticism based on Lyttle v HM Advocate is concerned, we are satisfied that the charge when read as a whole contained all the necessary elements for adequate determination of the issues presented by the evidence led by Crown and defence. In particular at pages 8 line 13 to 9 line 2 the jury were directed on the presumption of innocence and the burden of proof and specifically directed that the appellant was not required to prove anything. They were then directed on the standard of proof and corroboration. The directions on corroboration were followed at page 10, lines 13 to 25, by a clear statement that the rules about burden of proof, standard of proof and corroboration applied only to the Crown case and did not apply to the defence case. They were further advised that the accused was not required to establish anything and that, if any of the evidence led by or for the accused raised a doubt or left a doubt, a reasonable doubt in their mind, that they were bound to acquit. At page 11 they were directed to give equal consideration to the prosecution and defence cases and that, if they believed the accused on any exculpatory part of what he said, or any evidence supporting either special defence or any other evidence exculpating the accused, then they must give him the benefit of the doubt and acquit. At pages 16 to 20 there were directions about the special defences in which it was made clear that the Crown had to exclude each beyond reasonable doubt. Finally, also on page 20, the jury were directed that in charge 1 they should delete from the number of images any in relation to which they were not satisfied that the accused downloaded them. The jury were also directed that if they decided that a witness was not credible or reliable in whole, that is to say they did not believe any of that witness's evidence, they should simply put it on one side, because that did not mean that the opposite of what the witness said was true. Against that background it was not in our opinion a misdirection not to also say that, even if the jury rejected the whole of the defence evidence, there would remain the fundamental question whether the Crown had discharged the onus of proof beyond reasonable doubt. That was the plain implication of this charge read as a whole.

Ground 10

[55] In ground 10 the appellant identified as a misdirection the Sheriff's failure to give specific directions about which images fell under charge 1 and which fell only within charge 2. Charge 2 related to 371 images, whereas charge 1 was confined to 243, all of which fell within the 371. It was contended that the Sheriff should have given the particular direction that any evidence relating to undated images or undated fragments would be relevant only to charge 2. That was a consequence of the decisions made following the preliminary debates.

[56] The Crown accepted that undated images were only relevant to charge 2. However, it was submitted for the Crown that that specific direction was not necessary, standing the other directions given and in light of the evidence that was before the jury. It was acknowledged for the Crown that there were five images derived from floppy disks in Crown label numbers 3 and 5 which fell outwith the libel in charge 1 as having been made prior to 1 July 2004. The conviction on that charge should therefore have been confined to 238 images at most. However, that had no impact on the vast majority of the images which were on the computer hard drive.

[57] In defining the offence in charge 1 the Sheriff referred specifically to the number of images in the charge - 243. That was at page 13 line 16. She then said:

"When I come towards the end of my directions to you, I will deal with how you may want to approach that number if you are not satisfied in respect of particular images."

That followed immediately after her definition of "making" and "photographs or pseudo-photographs". She then at page 14 introduced the subject of charge 2 as follows:

"Charge 2 relates to the particular date when the police arrived: '12 December'; then the place, '25 Laburnum Walk'; 'have in your possession', and the number there is the total number that the Crown experts found with the base unit".

That also was inaccurate to the extent that 5 of the 371 were on floppy disks. At page 20 she dealt, as promised, with the number of images in charge 1. She made the point that the question of deletions or potential deletions did not arise in relation to charge 2. In relation to charge 1 she said:

"I am now going to talk to you about the number of images in charge 1. It is 243 as the charge stands at the moment. If, as far as the images spoken to are said to have been created before 7 October 2005, if in respect of (inaudible) you are not satisfied that the person in that image was under 16, you will require to delete it simply because of the change of the law from that date.

If in respect of any other images you are not satisfied that it was the accused who downloaded them, who made them, then you will delete that number from the overall number here. If that then gets down to zero, then you must acquit. But if there are images in respect of which you are satisfied that the essential elements are proved against the accused, then you can convict."

While the reference at the beginning of the second paragraph above to "any other images" is unfortunate, since that direction would also apply to those referred to in the preceding paragraph, in our opinion the overall effect of the directions which we have quoted is clear. When it came to the question of "making" individual images, the jury were required to delete any image created before 7 October 2005 in which the person in the image was under 16, and that from those remaining they were bound to delete any in respect of which they were not satisfied that it was the accused who downloaded it or made it. We consider that the jury were adequately directed as to the distinction between the evidence about the conduct that related to images falling within the reduced total in charge 1 as distinct from the total number which fell within the libel of charge 2.

Ground 15

[58] Ground 15 is the final ground relating to misdirection. It is related to grounds 13 and 14, but can be addressed in isolation from them. In it the appellant contends that the Sheriff failed to direct the jury adequately on the significance of the alibi evidence led on his behalf, and maintains that the jury should have been directed on the approach they should take to the charges in the event that they accepted at least some of the alibi evidence, or in the event that it created a reasonable doubt. The alibi referred to charge 1, but obviously, if any evidence relevant to the alibi had an impact on the verdict on charge 1, then it could also have a bearing on the jury's decision on charge 2. In addressing us in support of this ground, Mr Shead submitted that simply giving standard directions when the alibi was so detailed and related to so many different occasions was inadequate. The jury should have been directed specifically that, if they were not satisfied that a particular image had been made by the appellant, on the basis of the evidence relevant to the alibi, they should delete that image from the total. The jury should have been directed to look at the evidence relating to each of the occasions.

[59] In reply the Advocate depute maintained that the directions were adequate and sufficient. The jury had been directed that there was no onus on the accused to prove the alibi and that, if any evidence led in support of it raised a reasonable doubt in their minds, they should acquit. The jury had also been specifically directed in relation to charge 1 as detailed above that, if they were not satisfied that it was the accused who had downloaded any indecent images, then they should delete them from the overall number in the charge. They were also directed that, if there were images in respect of which they were satisfied that the essential elements were proved against the accused, then they could convict.

[60] In our opinion the directions as to deletions delivered near to the end of the charge, when taken in conjunction with the other directions given about the special defence of alibi, provided an appropriate framework for the jury to consider the evidence in relation to individual images or groups of images downloaded together. The jury had the terms of the special defence before them as well as the Crown Forensic Computer Examination Reports. The fact that they did not make any deletions from the number of images, subject of course to the five to which we referred earlier, was not the result of inadequate direction. They were clearly persuaded by the evidence of the appellant's culpability.

Grounds 13 and 14

[61] Grounds 14 and 13 are very closely related. In ground 14 the appellant maintains that, against the background of the complexity of the case and the absence of detailed directions as regards the evidence, particularly that relating to the special defence of alibi, it is not possible to deduce from the verdict what was the basis on which the appellant was convicted. The combination of charge and verdict do not amount to a reasoned judgment in terms of article 6(1) of the European Convention on Human Rights. It is further contended that for the Lord Advocate to seek to maintain the conviction in these circumstances is incompatible with article 6(1) and ultra vires in terms of section 57(2) of the Scotland Act 1998.

[62] In support of this ground Mr Shead invited us to measure the complexities in the evidence against the directions given by the Sheriff and to conclude that the charge was seriously deficient in its reference to the evidence. In the context of the question of what is sufficient to amount to a reasoned judgment where the issues in the case are complex, this case fell somewhere between the case of Beggs v HM Advocate [2010] HCJAC 27, 2010 SCCR 681, which was not particularly complex, and Liehne v HM Advocate [2011] HCJAC 51 which was a case of significant complexity. The contrasting speeches, in which defence counsel had made reference to specific dates and evidence, and the Procurator Fiscal depute had invited the jury to take a broad brush approach to the effect that if the appellant was responsible for one download then he must have been responsible for them all, underscored the need for the Sheriff to deal with the evidence in some detail. There had been eight and a half days of evidence, at the end of which speeches were delayed to enable adequate preparation. The Sheriff had been wrong to maintain that the case was not complicated, even though the fiscal, defence counsel and Sheriff each addressed the jury for only about half an hour. The real question in determining whether a judge should address the evidence in detail when directing the jury was whether it was necessary to ensure a fair trial. Mr Shead referred to paragraphs 44 to 47 and paragraph 56 of the Opinion of the Court delivered by the Lord Justice General in Liehne and in particular to paragraph 47 where he said:

"The overarching responsibility of the judge is to ensure that there is a fair trial. A fair trial imports that any verdict, and in particular a verdict of guilty, is not arbitrary but proceeds upon a reasoned basis. The nature of jury trial is such that there is not imposed upon the jury the discipline of disclosing the reasons which have led to their verdict. But that makes it all the more important that they should be provided by the trial judge with a framework which allows them to proceed to a verdict by a reasoned process."

[63] The short answer to these submissions is our determination of the point raised in ground 15. It is essentially the same. It was for the jury to decide which evidence to accept and reject and they had, in our opinion, adequate directions in those we have identified in our decision on ground 15. It is plain that the jury accepted the evidence of the Crown experts about the downloading of indecent images of children and the other relevant activity on the computer; the evidence of the use of the e-mail address and user name of the appellant as indicative of his responsibility therefore; the evidence that others were not responsible; and the evidence of surrounding circumstances, viz that the computer and floppy disks were the appellant's, some images were created before he had any relationship with Marie Carle, and he was a frequent user of the computer. It is also plain from the verdict that the jury rejected the evidence that was supportive of the alibi and found that it did not leave them in reasonable doubt as to the culpability of the appellant. The basic issue for the jury was not complex. They had to decide in relation to charge 1 whether the accused was proved to be responsible for downloading and in relation to charge 2 whether he possessed the images. They had to consider the evidence of alibi, some of it from individuals' recollections and other elements based largely on details in hospital records. The fact that evidence depended to some extent on records did not mean in this case that any specific, additional directions were necessary. The circumstances in Liehne were far more complex, involving very disparate issues on which there was extensive expert evidence and in relation to which defence experts' evidence was significantly at variance with that of the Crown experts. In the present case the Crown and defence experts were in fundamental agreement as to how things had been done and could be done. There was in the end no serious issue over penetration of the computer by an external user virus. In our opinion the directions given by the Sheriff adequately identified the issues for determination by the jury and were part of a framework, including the speeches of the procurator fiscal depute and counsel, the Sheriff's charge and the verdict, the interpretation of which provides a reasoned determination.

[64] Many of the submissions and much of what we have said in dealing with grounds 14 and 15 have a bearing on ground 13, which is to the effect that the verdict of the jury was unreasonable. That is said to be the case for broadly two reasons. The first is that, under reference to the case of R v Porter discussed above in relation to ground of appeal 9, the jury could not reasonably have concluded that the appellant had control of the images. No additional submission was made on that point under this ground. There is therefore nothing more to be said on that matter.

[65] The other basis on which ground 13 is stated is broadly that, in the face of the evidence in support of the alibi, the jury could not reasonably conclude that the appellant had the opportunity to download the images, let alone that he actually did so. It was submitted that the Crown had led evidence of approximately 28 instances of downloading or web browsing over the period of the libel and that on a number of these occasions the evidence of the whereabouts of the appellant was such that he could not have been responsible. In relation to some the argument depended upon hospital records. There was also evidence from colleagues that the appellant was working or was at an office party which was not, it was submitted, undermined in any material way. In addition Marie Carle acknowledged, in evidence that was not challenged by the Crown, that she was alone in the house at times at which it was indicated that a substantial number of the images were downloaded. Mr Shead referred in particular to evidence, recounted in paragraph [10] above, of a telephone call made to his home land-line from his mobile telephone when he was at a function, which was then followed by Marie Carle collecting him. On that occasion the download apparently took place prior to the phone call while Miss Carle was alone in the flat. A large number of images were downloaded on that occasion. It was, in counsel's submission, a watertight example. The evidence of the appellant's colleague also tended to confirm his presence at the function at a time significantly after the download. There were other examples where the hospital records tended to demonstrate the appellant's presence at work when other downloads were made.

[66] The Advocate depute countered by submitting that this ground of appeal could succeed in only the most exceptional of circumstances and that these were not present in this case. He submitted that the appellant's contentions must fail in the face of the Crown case based on a compelling set of circumstances pointing to the culpability of the appellant. The particular features of that case to which he referred were as follows. An indecent image was downloaded to a floppy disk in September 2004 before the appellant had any relationship with Marie Carle. There was evidence of websites being accessed in March 2005, also before the start of that relationship. Floppy disks with indecent images were brought by the appellant from Inverness to Aberdeen before the end of 2004. The appellant set up the Yahoo address "Doug486933" as demonstrated by Crown production 23, Appendix 3 at pages 313 and 314 and Appendix 4 at page 317. The account had the name "Dave" whereas the incriminee was female and had her own e-mail address. The computer was in the appellant's home and that is where the images were found. Marie Carle denied responsibility for any images and the jury had the opportunity to assess her denial. They also had evidence from Pauline Summers that she and her children were not responsible, and evidence from the appellant's former girlfriend that she was not responsible. There were essentially only two realistic possibilities, that either the appellant or Marie Carle downloaded the images on the computer; it was inherently unlikely that a stranger was responsible. The Advocate depute acknowledged that, against that, there existed evidence in support of the alibi, particularly on the occasion of the function, which was inconsistent with the appellant being responsible for the downloads on that occasion. However, much of the evidence supporting the alibi, particularly that about the appellant's working hours and that derived from hospital patients' records, left room for the appellant to have been responsible for the images. The appellant's colleague Colin McNair acknowledged that on a good day the appellant could be finished by 4.00pm. He also stated that a doctor was entitled after a nightshift to finish at noon the following day and that doctors regularly swapped shifts.

[67] It is clear from the opinion of the court delivered by the Lord Justice General in King v HM Advocate 1999 SCCR 330 and the opinions of each of the judges in E v HM Advocate 2002 SCCR 341 that it will be in only the most exceptional circumstances that an appeal on this ground will succeed. King involved two bodies of evidence which were quite irreconcilable, one pointing to murder being committed at a time when another body of evidence, comprising four witnesses whose credibility or reliability was not directly challenged by the Crown, pointed to the deceased having been seen alive. In delivering the Opinion of the Court, at page 342 D-E, the Lord Justice General said this:

"But it is by no means unusual to find that there is a body of evidence in a case which is quite inconsistent with the accused's guilt. Evidence supporting an alibi defence is necessarily of that nature and, while it is often possible for the Crown to undermine alibi witnesses on the ground perhaps that they are partial or untrustworthy, that is by no means always the case. In such a situation juries may none the less be satisfied of the accused's guilt beyond reasonable doubt on the basis of the Crown evidence and come to the view that they must reject the alibi evidence as wrong. The jury must consider all the evidence but, having done that, can reasonably reject the alibi evidence precisely because it is inconsistent with the Crown evidence which they have decided to accept."

Since it is entirely within the province of the jury to decide which evidence to accept and reject, including by picking and choosing their way through the evidence of individual witnesses, and since there was nothing apparently unusual or troubling about the way in which evidence was presented in the case, we do not consider that there is any basis for the Court to conclude that it was not reasonable for the jury in this case to pick and choose their way through the evidence and to be satisfied in the end of the guilt of the appellant.

[68] The situation in this case is not directly comparable to that in E v HM Advocate where the evidence of the witness A was of such an unsatisfactorily vague and confused quality as to warrant the Court concluding that it was inherently unreliable and such that it could be said that no reasonable jury could have accepted it as having probative value. In explaining the role of the court in such circumstances the Lord Justice Clerk expressed the view that it was for judges to bring all of their considerable experience of criminal trials to bear on an objective assessment of the reasonableness of a jury's verdict with confidence rather than shy away from the task by excessive deference to the judgment of the jury. However, it was only because that led to the conclusion that the complainers were unsatisfactory witnesses by any objective standard, and the complainer A particularly so, that he was able to conclude that a conviction based on A's evidence was unreasonable. No such feature was present in the evidence in this case. The most that can be said is that there was evidence of the whereabouts of the appellant that is inconsistent with him being the person responsible for downloading material at certain times identified by the computer analyst evidence as the times at which the material was downloaded. Deciding what evidence to accept and what evidence to reject is as much the function of a jury in that situation as in any other where there is a clear explanation for the inconsistency. The offence of making images could only be committed by someone who had access to the computer. The jury were entitled to accept the denials of all others that they made the images and to reject the appellant's denial that he did. They were also entitled, having considered the evidence in support of the alibi, to reject it and to decide that they were left in no reasonable doubt about the responsibility of the appellant. For these reasons we reject the argument that the verdict was unreasonable.

[69] Since each of the grounds presented has been rejected, the appeal falls to be refused.