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Last Updated: Friday, 3 February 2006, 15:25 GMT
Child porn legal challenge fails
Appeal court
The Court of Appeal, where Smart's case was heard
A man who claimed he had child porn images on his computer because he was planning to complain about them has been jailed by appeal court judges.

Ronald Smart, 36, of Castle Douglas, was sent to prison in October 2004 for four months for making indecent photos.

He was released after three weeks pending a legal challenge over the way the sheriff had directed the jury.

But judges at the Court of Criminal Appeal in Edinburgh have now ruled there was no miscarriage of justice.

After Smart's appeal was refused advocate depute Brian McConnachie asked for a warrant to return him to prison to serve the remainder of his sentence, which was granted by the court.

Smart was caught with 464 indecent images of children on a computer at his home in Kirkcudbrightshire after police acted on intelligence.

Police examined 3,500 images taken from the hard drive and found that the vast majority were pornographic images of adults, but among them were pictures of children.

We were informed that the appellant had stated in his interview with the police that he had the offending images with the intention of complaining to the firm that acted as his server regarding their existence
Lord Osborne

The Crown maintained at his trial at Kirkcudbright Sheriff Court that he had used his credit card to pay for access to internet sites, which could be recognised as being devoted to child porn.

Evidence was led that these sites targeted those interested in child pornography and that Smart paid to allow him to make the images found on his computer.

The appeal judges heard that he claimed to police during an interview that he had them with "the intention of complaining to the firm that acted as his server regarding their existence".

Defence counsel Shahid Latif told the court that Smart said he had been using the web for looking at adult pornography on several sites.

Smart's lawyers claimed that he had suffered a miscarriage of justice because the sheriff at his trial failed properly to direct the jury, which returned a unanimous guilty verdict.

Judges' decision

But Lord Osborne, who heard the appeal with Lord Abernethy and Lord Carloway, said: "We were informed that the appellant had stated in his interview with the police that he had the offending images with the intention of complaining to the firm that acted as his server regarding their existence."

"It appears to us to be inherent in that statement that he possessed the necessary mens rea (intention) in making the images concerned," he said.

The judges said they considered that the sheriff had indicated to the jury the need for a mental element in the commission of the crime.

Smart had worked in a family book and toy shop while awaiting the outcome of appeal proceedings.




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