Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 94

HCA/2015/002396/XJ

Lady Smith

Lord Bracadale

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY SMITH

in

APPEAL AGAINST CONVICTION

by

DEAN PRESTON

Appellant ;

against

PROCURATOR FISCAL, DUNDEE

Respondent :

Appellant: Findlater; Faculty Appeals Service

Respondent: A Brown QC, AD, Solicitor Advocate; Crown Agent

28 October 2015

Introduction
[1]       On 19 February 2015, the appellant was convicted on summary complaint, at Dundee Sheriff Court of the following charge:

“Between 27 ^th May 2012 and 22 ^nd August 2012 at Flat 3, 4 Strathmartine Road, Dundee you DEAN PRESTON did behave in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm in that you did you made ( sic) statements on a chatline in which you swore and promoted and encouraged the rape and other sexual abuse of children; CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.”

The appellant did not dispute that he had, in the course of his use of a chatline, sworn and made statements which, in appallingly graphic terms, promoted and encouraged rape and sexual abuse of children. We were referred, for a typical example of the content of statements made by the appellant on the chatline, to a passage on the first of the 47 page transcript in Crown production 1.

The appellant did not dispute that his making of these statements met the tripartite requirements of section 38(1) of the 2010 Act in respect that they were abusive, would be likely to cause a reasonable person to be alarmed and he was reckless as to whether they would cause alarm. However, he sought to rely on the defence in section 38(2) of the 2010 Act. It provides:

“(2) It is a defence for a person charged with an offence under subsection (1) to show that the behaviour was, in the particular circumstances, reasonable.”

His appeal has been restricted, following sift, to the issue raised by the sheriff in question 4 of the stated case: “4. Was I entitled to convict the appellant on the basis of the facts as stated?”

Relevant facts
[2]       The appellant was a subscriber to a chatline provided by 4D Interactive Media. The chatline enables access to social interactive media services which include adult content; one of the services is called “Mantalk”. 4D is subject to an industry regulator and, accordingly, guidelines are in place for the use of the service. Content will be regarded as illicit if, for example, it includes any aspect of child abuse.

[3]       When accessing 4D’s chatlines, users require, initially, to leave an introductory message specifying their particular interests. The introductory messages are recorded and moderated by 4D employees. They reject any such message if it breaches the guidelines. Also, where the introductory message is not rejected, all subsequent calls are recorded. The caller is warned that introductory messages and conversations are being recorded, by way of an automated message played at the start of each call. If a complaint is made, 4D employees listen to the call and decide whether or not they require to report it to the Child Protection Online Service who may then pass the report to the police. The sheriff concluded that the appellant was aware or ought to have been aware that calls and messages were being recorded (finding in fact 33).

[4]       There was a technical fault in the 4D system as a result of which, on occasion, a caller might come across a wrong message or find himself participating in a conversation he had not intended to join (finding in fact 37). The appellant volunteered, in evidence, that mistakes could be made and a user could stumble into somebody else’s conversation. This fault evidently meant that a person whose interests – as set out in their introductory message - were limited to one type of adult content could find themselves exposed to a wider range, possibly taking them into the realms of content which they would find alarming.

[5]       On Sunday 27 May 2012, the appellant telephoned “Mantalk” from his landline and left the message quoted in paragraph ….above. It was subsequent to the appellant having placed an introductory message. A caller complained to 4D about the message, it was then listened to by a 4D employee and she passed it on to the Child Online Protection Service. They, in turn, passed it on to the police in Dundee.

The section 38(2) defence and the sheriff’s decision
[6]       At trial, the appellant’s agent contended that the appellant’s behaviour could be construed as reasonable because it was private and anonymous; the defence in section 38(2) was, accordingly, made out. The sheriff rejected the submission that the appellant’s behaviour was private; the chatline was the property of 4D and did not belong to him, it was accessible to the public, 4D employees might listen to the content and, given the technical fault, callers could mistakenly stumble into conversations they had not intended to join. On no view could the appellant’s conduct be described as reasonable.

The appeal
[7]       For the appellant, Mr Findlater submitted that the sheriff had erred in rejecting the submission that the section 38(2) defence was made out. He took no issue with the findings in fact made by the sheriff. However, the calls were essentially private and, in the circumstances, the provisions of the subsection applied.

[8]       For the Crown, the advocate depute submitted that the sheriff had not erred; the calls had a wider actual and potential audience and it was clear that the content relied on would be alarming to a reasonable person.

Discussion and decision
[9]       The messages and statements to which this charge related referred to appalling sexual abuse of children and babies. The content was disgusting, abhorrent and shocking. It was bound to alarm any reasonable person. On the sheriff’s findings, there were three categories of person who could be exposed to their content. First, there were those who chose to engage in conversations with the appellant. Secondly, there were those callers who did not choose to do so but, because of the technical fault in the 4D system, found themselves exposed to his statements. Thirdly, there were the 4D employees tasked with moderating introductory messages and/or listening to recordings when a complaint was received. The appellant‘s knowledge of the fault, the moderation of introductory messages and the recording of calls undermined his approach to use of the chatline as being an entirely private matter. We note that, at one point in his evidence, he said that 4D employees should not be listening to his conversations but that of itself shows that he was aware that they could do so and the sheriff records, in his stated case, that the appellant accepted that the content would cause fear and alarm to the general public. There is nothing in the particular circumstances of this offending to show that 4D employees would not be likely to react in the same way. We agree with the sheriff that it was not open to the appellant to pray privacy in aid and can find nothing in the particular circumstances of this case which might show that the appellant’s conduct, as described in the charge, was reasonable. On the contrary, as we have already observed, the statements were made in circumstances where the appellants’ actual and potential audience was not, as he knew, restricted to the caller that had chosen to talk to him. Further, the content referred to in the charge was disgusting, abhorrent and shocking. Any reasonable person would have been bound to be alarmed by it.

[10]     We will, accordingly, answer question 4 in the affirmative.