Craig Mcleod Mcmurdo V Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lady Dorrian,Lord Menzies |
| Neutral Citation | [2015] HCJAC 37 |
| Year | 2015 |
| Docket Number | HCA/2014 |
| Published date | 24 April 2015 |
| Court | High Court of Justiciary |
| Date | 26 March 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 37
HCA/2014/2934/XC
Lord Justice Clerk
Lord Menzies
Lady Dorrian
OPINION OF THE COURT
delivered by the LORD CARLOWAY, the LORD JUSTICE CLERK,
in
APPEAL AGAINST CONVICTION AND SENTENCE
by
CRAIG McLEOD McMURDO
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: J Keenan, Solicitor Advocate; Capital Defence
Respondent: R Goddard AD; the Crown Agent
26 March 2015
General
[1] On 22 May 2014, after a trial lasting 8 days at the Sheriff Court in Edinburgh, the appellant was found guilty, by unanimous verdicts of the jury, of: (charge 1) causing a 13 year old girl to participate in sexual activity by inducing her to send him images and videos of her naked and masturbating, contrary to section 31 of the Sexual Offences (Scotland) Act 2009; (charge 2) causing the girl to look at naked images of himself and other unknown males, contrary to section 33 of that Act; (charge 3) sending sexually explicit text messages to the girl, contrary to section 34(1) of the Act; and (charge 5) having in his possession indecent photographs of children, contrary to the Civic Government (Scotland) Act 1982, section 52A(1).
[2] On 19 June 2014, the sheriff imposed an extended sentence (Criminal Procedure (Scotland) Act 1995, s 210A) of 60 months, 30 months being the custodial element, in respect of charge 1 and 18, 12 and 15 months imprisonment respectively on charges 2, 3 and 5. All the sentences were ordered to run concurrently.
Evidence
[3] The appellant’s home address and place of work were searched by the police under warrant on 23 October 2012. Various computers were recovered. These contained indecent images and videos of the complainer at levels 1 and 2 on the approved scale (see HM Advocate v Graham 2011 JC 1, LJC (Gill) at para [27]). Thousands of downloaded indecent images and videos of other children, ranging from level 1 to 5, were also discovered. The fact that the images were of children and indecent was a matter of agreement. The mobile phones of the appellant and the complainer revealed that they had sent each other sexually explicit messages, videos and texts throughout a period of about a year. The appellant and the complainer never met.
[4] The appellant gave evidence that he did not know, and could not reasonably have known, that there were indecent images of children (other than the complainer) contained on his devices. In that respect, he depended upon the statutory defence under section 52A(2)(b) of the 1982 Act (infra). The images, which were found on the appellant’s computers and a memory stick, had been deleted and were recoverable only by the use of specialist software. There was no evidence that the appellant had such software available to him, although it was accepted that the computers and stick did belong to him. There was evidence about the periods during which he had access to these devices, the password protection he used and the periods during which the images were downloaded.
Appeal against conviction
Directions
[5] The ground of appeal against conviction on charge 5, for which leave has been granted, is that the sheriff did not adequately direct the jury on the burden of proof applicable to the defence under section 52A(2)(b) of the 1982 Act. The section, so far as relevant, provides that:
“(1) It is an offence for a person to have any indecent photograph … of a child in his possession [emphasis added];
(2) … it shall be a defence for him to prove –
(a) that he had a legitimate reason for having the photograph … or
(b) that he had not himself seen the photograph … and did not know … it to be indecent; or
(c) that the photograph … was sent to him without any prior request … and that he did not keep it for an unreasonable time.”
[6] When it came to directing the jury, the sheriff gave the standard directions on the need to be satisfied of the appellant’s guilt beyond reasonable doubt. He went on to explain that there was no standard of proof to be met by the defence and that, if the jury believed any evidence which “cleared” the appellant, then they required to acquit. Even if they did not completely believe the defence, if it raised a reasonable doubt, they must also acquit. Specifically, in relation to the offence in charge 5, he told the jury that, for a conviction, they had to be satisfied that the appellant had “possession” of the images and that this involved proof of knowledge, that he had the images on his computer, and control, in the sense of being able to access them. The jury had to be satisfied that the appellant had been aware that he had images on his computer or memory stick. The sheriff advised the jury of the defence proffered by the appellant that he had not seen the photographs and had no reason to know that they were indecent. He concluded with a general direction that if the jury believed the appellant then they required to acquit. Even if they did not wholly believe him, if his evidence provided a reasonable doubt they must also acquit.
Submissions
[7] The contention for the appellant was that the sheriff had given inadequate directions because he did not tell the jury specifically that, once the statutory defence had been raised, it was for the Crown to negative that defence beyond reasonable doubt. The sub-section setting out the defence placed only an “evidential” burden on an accused and not a “legal” or “persuasive” burden (see Glancy v HM Advocate 2012 SCCR 52, Henvey v HM Advocate 2005 SCCR 282, following R v Lambert [2002] 2 AC 545).
[8] The advocate depute maintained that the sub-section imposed a legal burden on the accused to prove the defence on a balance of probabilities (Sheldrake v DPP [2005] 1 AC 264). In determining whether that were so, or whether only an evidential burden arose, each provision had to be looked at in its context having regard to the guarantees in Article 6 of the European Convention (McLean v Carnegie 2006 SLT 40 at para [7]). The wording used supported an interpretation that a...
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