Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 86

HCA/2015/2117/XJ

Lord Justice Clerk

Lord Bracadale

Lord Matthews

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

AIDAN McHUGH

Appellant;

against

PROCURATOR FISCAL, AIRDRIE

Respondent:

Appellant: CM Mitchell; Faculty Services Limited (for Dunipace Brown, Cumbernauld)

Respondent: Niven-Smith AD; the Crown Agent

9 October 2015

General
[1]        On 10 April 2015, at the Sheriff Court in Airdrie, the appellant pled guilty to a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.  The precise terms of the libel were that:

“between 2 … and 4 October 2014 … at [address] and elsewhere you … 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 take a screenshot of an image of [the complainer] … from her mobile telephone, said image displaying her in a state of undress and with her private parts exposed, exhibit said image to another person and place said [complainer] in a state of fear and alarm”.

[2]        The sheriff raised with the appellant’s agent the issue of whether the conduct included a “significant sexual aspect” in terms of paragraph 60 of schedule 3 of the Sexual Offences Act 2003.  Having heard the agent, he determined that it did.  The appellant accordingly became subject to the notification requirements in the Act.  Otherwise, on 4 June 2015, he was sentenced to a Community Payback Order with a supervision requirement of one year and 80 hours of unpaid work.  The Note of Appeal raises only the issue of whether the sheriff was entitled to find that there was a “significant sexual aspect” to the offence.

[3]        In the written submissions lodged and at the hearing of the appeal, the appellant advanced an argument based upon the sheriff, having raised the matter ex proprio motu, not having afforded the appellant an adequate opportunity to address the issue.  This was based on the dictum concerning fair notice in Hay v HM Advocate 2014 JC 13 (LJC (Gill) at para [46] et seq).  Since the issue is not a matter which was raised in the ground of appeal, the court does not consider it necessary to address it specifically.  However, it does take the view that there was sufficient notice in this case from the terms of the libel (see Halcrow v Shanks 2014 JC 1) and that, in any event, the sheriff specifically asked the appellant’s agent to deal with it at the time.  The agent did deal with it, albeit that he did ask to revisit the matter at the sentencing diet, when another agent appeared but added little to what had been said earlier.

Facts
 [4]       The complainer was visiting the appellant’s sister.  The appellant, who was aged 21, arrived at the house and asked her if he could use her mobile to access his Facebook account.  She allowed him to do this.  Later that night she received a Facebook message from a third party, stating that he was disgusted by her.  It transpired that the appellant had taken a screenshot of a photograph, being a close up of the complainer’s naked vagina, which the complainer had stored on her mobile.  He had then shared it electronically with the third party.  The episode caused the complainer considerable distress. 

[5]        When the sheriff asked the appellant’s agent what the explanation was for his taking the screenshot, the agent replied, after some hesitation:

“I know why he took it.  She is an attractive lady and all his friends think that as well.”

The sheriff then found that there was a significant sexual aspect to the offence.   The sheriff reports that, having considered the authorities, notably Hay and related cases, the appellant’s motivation had been almost entirely of a sexual nature.  At the time of the plea in mitigation there had been no submission to the effect that the conduct was borne out of youthful stupidity, mischief-making, or any other basis.  The nature of the conduct, in the sheriff’s view, was deliberate and inherently voyeuristic.  The sheriff accepted that the purpose of the notification requirements was protective.  He took the view that this properly applied to the appellant.  In that regard, the social enquiry report, which had been obtained by the sentencing diet, recorded that the appellant presented a risk of inappropriate sexual behaviour towards adult females and was in a high risk category relative to other adult male sex offenders.  The appellant’s actions involved the clandestine viewing of another person’s intimate photograph and then sharing it electronically.  This was a deliberate act, distinguishable from the common practice prevalent among young persons of “sexting”. 

Submissions
[6]        It was submitted that the offence was not one involving a significant sexual aspect.  First, the crime to which the appellant had pled guilty was not a sexual one, but one of threatening or abusive behaviour.  In the absence of sexual motivation, there was no sexual aspect (Heatherall v McGowan 2014 JC 8).  The motivation, it was said, was borne out of immaturity (cf Akdeniz v Cameron 2014 JC 13; Halcrow v Shanks 2014 JC 1 and Young v Brown 2014 JC 4).  Even if there were a sexual element, it was not significant in the sense of being important enough to merit attention as indicating an underlying sexual disorder or deviance from which society was entitled to be protected (Hay v HM Advocate (supra) LJC (Gill) at para [52], approving Wylie v M 2009 SLT (Sh Ct) 18, Sheriff Pyle at para 13). 

[7]        The respondent submitted that the offence did have a sexual aspect on account of the nature of the photograph.  Whether it was significant was a matter primarily for the judgment of the court of first instance.  Since the purpose of registration was to protect the public against a perceived danger, the question of whether a sexual aspect of the appellant’s behaviour was significant should be assessed in that light.  The sheriff having carried out this assessment, having regard to Hay v HM Advocate (supra), in contrast to Wylie v M (supra), found that there was an underlying element of sexual disorder or deviance.  The nature of the conduct was deliberate and voyeuristic. 

Decision
[8]        Whether an offence contains a significant sexual aspect is a matter of fact, primarily for the determination of the court at first instance, having heard the facts as disclosed in the evidence or the narrative (Hay (supra), LJC (Gill) at paras [49]-[52]).  The issue of whether any sexual element is significant requires to be decided against a background of the purpose of the notification requirements as a mode of public protection.  Sentencers must “keep a sense of proportion and use their common sense” (ibid).  Motivation is a factor of importance (Heatherall (supra) and Thompson v Dunn 2012 JC 16, LJC (Gill) at para [12]).

[9]        This offence involved obtaining clandestine access to an intimate photograph on the complainer’s mobile, showing her naked private parts and then transmitting it electronically to a third party.  There is a sexual aspect to that conduct.  As the sheriff notes, there are both deliberate and voyeuristic elements to the appellant’s conduct.  In such circumstances, the sheriff was entitled to regard that aspect as significance.  In these circumstances, this appeal must be refused.