Aaron Lind, aged 20, appeared at Glasgow Sheriff Court for an offence under s52A(1) of the Civic Government (Scotland) Act 1982 -the possession of indecent images of children.
At the trial, the trial sheriff decided that images recovered from a New Zealand Cloud Storage Site could be used as evidence. The cloud site was accessed when Police attended the appellant’s home address on the 5th of March 2021. When conducting their search, under the authority of the search warrant, the Police recovered two devices and the appellant provided the passwords to both.
Upon Cybercrime professional undertaking an examination of the devices, over 100 images of child sexual exploitation were found. In addition, a closer examination of Mr Lind’s mobile device revealed log in details for a cloud storage website in New Zealand. Officers used there details to log into the site where an account belonging to the appellant was found. This account was home to 123 indecent still images of children and 119 indecent moving imaged of children.
The defence counsel, on behalf of Mr Lind, raised at the evidential hearing that the recovery of the images from the cloud site was not within the scope of the warrant. The basis of this objection was that there was no evidence the credentials found on the phone had been used to log into that site and also that they image were not found on any device found within the premises as they were on an external cloud site.
The crown maintained that the discovery was within the scope of the initial warrant and that they were accessed in good faith. The supported their submission with the argument that the law had to adapt to capture more modern storage vehicles.
The trial sheriff found in favour of the crown stating that the initial warrant did authorise such recovery of the photographs from the cloud storage.
When considering the appeal, Lord Docherty, stated that “We agree with the sheriff that the law requires to have regard to advances in information and electronic communications technology and to changes in the ways that data is commonly stored by the users of such technology. We also agree with him that the court should be cautious about drawing analogies with physical items or data stored in premises not specified in a search warrant.”
However, the appeal judges did disagree with the initial decision in regards the scope of the warrant. It was stated that “Giving those terms their natural and ordinary meaning, we are satisfied that they did not authorise the police to use the log in credentials to log in to Mega.NZ or to search the account to which the credentials gave access. The Mega.UK website was not peripheral equipment such as ‘data’ or a ‘data storage device’ on the premises, nor was it ‘other articles’ or ‘other things whatsoever’ found in the premises which the police had authority to examine. It follows that we disagree with the sheriff as to the warrant’s scope.”
Despite this, when considered on balance the nature of the offence and the importance of the evidence it was held that the appeal would be refused. The court were convinced that the [prosecution proved this was an irregular case and that the officer conducting the search acted in good faith.
The appeal was accordingly refused.