An Inverness man convicted of sending indecent communications to children has successfully had his conviction on four charges quashed on appeal to the High Court of Justiciary after it found that there was insufficient evidence to allow a finding that he had sent the messages in question.

Lady Dorrian

The appellant, AX, was sentenced to 16 months’ imprisonment on four charges relating to three complainers who said they had received indecent messages from a Facebook account operated by him. Charges 5 and 6, which involved sending sexual communications to an individual who was in fact a paedophile hunter, were withdrawn at the close of the Crown case. The appellant was admonished on a further charge of breaching section 52(1) of the Civic Government (Scotland) Act 1982.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Matthews and Lady Wise. The appellant appeared as a party litigant while the Crown was represented by G Anderson KC.

More elaborate directions

Each of the respective complainers gave evidence that they had received indecent messages from a Facebook Account with the name “Andy Gordon”. It was acknowledged that the appellant had a profile bearing this name, but he submitted that there was no evidence linking his account to the one from which the communications had been sent rather than one of the many other accounts bearing that name.

Proof of identification at trial depended on inferences to be drawn from circumstantial evidence. Complainer KD spoke of receiving messages from 5 or 6 different accounts, including one in the appellant’s real name, while complainers LR and FE were sent photographs of “Andy Gordon” which were the same as the image on the appellant’s student matriculation card. In connection with the withdrawn charges, the decoy for the paedophile hunter group said they received a message from a profile with the same image.

During her speech to the jury, the fiscal depute recognised that none of the complainers could identify the sender of the communications, but said there were various strands of evidence that pointed to him being the perpetrator. The sheriff addressed at some length the issue of mutual corroboration and directed the jury to convict if they were satisfied the appellant had used the alias.

The appellant submitted that, in relation to charges 1 to 4, the trial sheriff erred in directing the jury to convict if he had used the name Andrew Gordon without further qualification. More elaborate directions on mutual corroboration were required due to the complexity of the case. Further, his submission of no case to answer ought to have been upheld in the absence of any positive identification.

No route to verdict

Lady Dorrian, delivering the opinion of the court, began: 

“Circumstantial evidence may by its very nature be ambiguous and open to more than one possible interpretation. Even if each element on its own is individually of weak evidential value, taken together it may provide a strong basis for establishing proof of the identity of an offender.”

She continued: 

“The evidence relied upon in this case was capable of doing so: the task of assessing the weight to be given to the various elements, and whether to accept any qualification offered with potentially incriminating evidence, was one for the jury.”

Turning to the issue of mutual corroboration, Lady Dorrian said: 

“The focus should have been on the true issue in dispute, namely whether the Crown had proved that the appellant was the person who sent the messages and was thus guilty of the offences libelled. This was the only dispute for the jury to resolve. Instead the sheriff rehearsed at length the issues of mutual corroboration; the credibility and reliability of the complainers; and the ingredients of the offences, in directions that extended over 15 pages, without addressing how any of this impacted on the issue in dispute.”

She went on to say:

“In the absence of clear directions to the contrary indicating where proof of identity could be found, there was a risk that the jury might be misled into thinking that if the evidence of the complainers was sufficiently similar in character, time and circumstances nothing more was needed for proof of the case. In reality there can only be a course of conduct if the same person is involved in each incident, and the critical issue was whether the jury could be satisfied on the evidence as a whole that this person was the accused.”

Lady Dorrian concluded: 

“The sheriff did not provide the jury with a route to verdict insofar as proof of identification was concerned. He left it open to the jury to conclude that they could be satisfied of the appellant’s guilt if the respective testimonies of the complainers had conventional similarities in time, place and circumstances, despite the fact this did not establish who was the sender of the communications.”

The appeal against conviction was therefore allowed.