Neil Strachan v. Her Majesty's Advocate [2011] HCJAC 3

Criminal Note of Appeal Against Conviction and Sentence:- The appellant went to trial with seven others on an indictment which contained 54 charges alleging various pedophiliac offences. The appellant was not indicted on all of the charges. The appellant was found guilty of charges (1), (2), (3) and (4) as amended and guilty of charges (10) and (54) as libelled. He was found guilty of charge (43) but restricted to a single day and of charge (9) but restricted to attempted penetration. The court made an Order for Lifelong Restriction and specified a punishment part of sixteen years imprisonment. The appellant sought to appeal against conviction on charges (3), (4), (10), (43) and (54). Leave to appeal was refused in relation to charges (3) and (4). Leave was granted in relation to charges (10), (43) and (54). The appellant also appealed against his sentence. The ground of appeal in relation to charge (10) contended that there was insufficient evidence in law to entitle the jury to return a verdict of guilty on that charge and there was no evidence that the appellant "did repeatedly touch" the child in an indecent manner. The court considered here whether e-mails sent by the appellant to his co-accused 'Rennie' amounted to admissions and whether they were sufficiently corroborated. In relation to charge 43, it was contended that there was insufficient evidence in relation to the appellant and Rennie meeting at Rennie's home and showing indecent photographs or pseudo-photographs of children to each other. The court considered the evidence in relation to this issue, in particular, the nature and timing of e-mails sent by them both to each other, the inference being, on the evidence, that the appellant had on the Saturday in question brought his hard drive to Rennie's house where the two of them had accessed paedophilic images with the assistance of the portable hard drive. In relation to charge 54, the conspiracy charge, the appellant, Rennie and four other accused were alleged at various addresses to have conspired together with others "to meet whether by means of web cameras or other means including by telephone to participate in the commission of sexual offences". It was contended on behalf of the appellant that there was no evidence that the appellant had any contact with any of his co-accused other than Rennie or even knew of their existence and there was nothing to suggest that the relevant e-mail traffic went beyond the appellant and Rennie.  The jury returned, in respect of the appellant, a unanimous verdict of guilty on this charge without any deletion or amendment. It was submitted on behalf of the Crown that in her address to the jury the Advocate Depute had made it clear that in relation to the appellant, the conspiracy upon which she sought a conviction was restricted to one between the appellant and Rennie albeit the jury returned the verdict against the appellant as libelled. Here the court considered whether e-mail traffic between the appellant and Rennie amounted to a conspiracy and, if so, whether the court should exercise its power under section 118(1)(b) of the Criminal Procedure (Scotland) Act 1995 and set aside the verdict of the jury and substitute an amended verdict of guilty in line with the evidence, there being no evidential link between the appellant and any of the other individuals indicted on charge 54 other than Rennie.