Appeal Against Sentence By Aiden Mchugh Against Procurator Fiscal, Airdrie
| Jurisdiction | Scotland |
| Judge | Lord Matthews,Lord Bracadale,Lord Justice Clerk |
| Neutral Citation | [2015] HCJAC 86 |
| Published date | 16 October 2015 |
| Date | 09 October 2015 |
| Year | 2015 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
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...
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