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Friday, 16 November, 2001, 19:14 GMT
Police raid caused porn case collapse
By Alistair Bonnington, Professor of Glasgow University School of Law

Considerable controversy has been generated in the media following Sheriff Peter Gillam's decision to say a police raid on the home of Andrew Aspinall was illegal.

Much has been made of the decision being a "technicality", but it has more to do with the police handling of search.

The raid was part of the crackdown on the so-called Wonderland Club - an international group of men who traded in child pornography on the internet.


The jury will never have the opportunity of deciding if he was a member of the Wonderland Club

Mr Aspinall, of Livingston, West Lothian, was accused before Sheriff Gillam and a jury of being a member of the club and of having stored pornographic images of children on his computer.

Because of the close and regular contact between the members of the Wonderland Club, police forces across the world liaised.

Inadmissible evidence

Raids on the homes of those believed to be members took place simultaneously in 13 countries. More than 100 men were arrested.

But in the case of Mr Aspinall, the jury will never have the opportunity of deciding if he was indeed a member of the Wonderland Club and if he was engaged in criminal activity.

The consequence of Sheriff Gillam's decision is that the evidence obtained from Mr Aspinall's computer is in law inadmissible.

That evidence is, of course, the central element in the case.

Accordingly, the Crown case failed because of Sheriff Gillam's decision.

Search warrant

The Crown cannot appeal this decision. Mr Aspinall has been found not guilty.

Andrew Aspinall
The Crown cannot appeal this decision

There has been wide misinterpretation of Sheriff Gillam's decision in the Scottish press.

Firstly, it is stated in many newspapers that his decision is "on a technicality". The decision in fact relates to the law on search warrants.

In any democratic country, search warrants are interpreted very strictly against the Crown when a case comes to trial.

In this particular case, the police had obtained a warrant allowing police officers to search Mr Aspinall's house.

But when the police went to Mr Aspinall's house on 2 September 1998, they took with them a civilian who was a computer expert.

Misinformed comment

His task was to dismantle Mr Aspinall's computer. As the Sheriff rightly pointed out, there was absolutely no urgency in this part of the process being carried out there and then.

It would have been perfectly possible for this work to be done at the police station or elsewhere.

The computer evidence having been obtained by this unauthorised civilian becomes in law inadmissible in the trial court.

Mr Aspinall's lawyers presented their argument in part on the terms of the European Convention on Human Rights and in particular on Article 8, which deals with the privacy of the individual's home.

Again there has been much misinformed comment about the operation of the Convention in Scots law.


The police and the police alone made a mess of this case.

In fact, this particular decision by Sheriff Gillam would have been reached irrespective of whether the European Convention on Human Rights had been part of Scots domestic law.

It is perfectly clear from the authorities that a search warrant executed in such a grossly improper way as happened on this occasion, will result in all the evidence recovered being ruled to be inadmissible by the trial court.

The efforts by the public relations officers employed by Lothian and Borders Police to put the blame on the court are perhaps understandable but extremely unfair.

Outrage

The police and the police alone made a mess of this case.

The outrage of those involved in work to protect vulnerable children is entirely understandable.

But a court cannot possibly consider the merits of a case until it has determined what evidence is to be admissible before the jury.

The great American trial lawyer, Clarence Darrow, observed many years ago that the most important legal principles always seem to be enshrined in cases involving the most unworthy of people.

Those who believe Mr Aspinall to be a criminal will no doubt agree.

See also:

18 Oct 01 | Scotland
Judges under fire over guidance
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