Aidan McHugh v. Procurator Fiscal, Airdrie [2015] HCJAC 86

Appeal against sentence:- On 10 April 2015, at Airdrie Sheriff Court, the appellant pled guilty on summary complaint to a contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 in that he 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...”. The sentencing sheriff considered that, in terms of paragraph 60 of schedule 3 of the Sexual Offences Act 2003, the conduct included a “significant sexual aspect”. As such the appellant became subject to the notification requirements in the 2003 Act. In addition, the sheriff imposed a Community Payback Order with a supervision requirement of one year and 80 hours of unpaid work. The appellant appealed against the sheriff’s finding that there was a “significant sexual aspect”. It was submitted on behalf of the appellant that the sheriff had not afforded the appellant’s agent an adequate opportunity to address the issue before the appellant was sentenced. In addition, in relation to the substantive issue of the appeal, namely, whether the conduct involved a “significant sexual aspect”, it was submitted that the crime to which the appellant had pled guilty was not a sexual one, but involved threatening or abusive behavior and without any sexual motivation there was no sexual aspect. It was further contended that, even if the court was satisfied there was a sexual aspect, it was not significant to the extent that society required to be protected. On behalf of the Crown it was submitted that given the nature of the photograph and the voyeuristic and deliberate nature of the conduct it had a sexual aspect to it and it was a matter for the sheriff at first instance to decide whether it was significant or not. Here the court refused the appeal. The court noted that the issue of whether or not an offence contains a “significant sexual aspect” is generally a matter of fact best assessed by the court at first instance. The purpose of the notification requirements is the issue of public protection and courts should apply common sense and proportionality in deciding when conduct contains a “significant sexual aspect”. The court considered that, having regard to the facts of the present case, the sheriff was entitled to hold that there was a “significant sexual aspect” to the conduct.