Craig McLeod McMurdo v. Her Majesty’s Advocate [2015] HCJAC 37

Note of appeal against conviction and sentence:- On 22 May 2014, following a trial on indictment at Edinburgh Sheriff Court, the appellant was convicted unanimously of the following charges:- (1) a contravention of section 31 of the Sexual Offences (Scotland) Act 2009, namely, 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 (charge 1) ; (2) a contravention of section 33 of the Sexual Offences (Scotland)Act 2009 , namely, causing the girl to look at naked images of himself and other unknown males( Charge 2); (3) a contravention of section 34 of the Sexual Offences (Scotland) Act 2009, namely, sending sexually explicit text messages to the girl (charge 3); and (4) a contravention of section 52A(1) of the Civic Government (Scotland) Act 1982, namely, having in his possession indecent photographs of children (charge 5). On 19 June 2014, the sheriff imposed an extended sentence of 60 months comprising 30 months being the custodial element for charge 1 and 18, 12 and 15 months imprisonment for charges 2, 3 and 5 all to run concurrently with each other. The appellant appealed against his conviction in relation to the possession of indecent images charge (charge 5). It was submitted 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 and that the sheriff failed to direct the jury specifically that, once the statutory defence had been raised, it was for the Crown to negative that defence beyond reasonable doubt and the stautory defence placed only an “evidential” burden on an accused and not a “legal” or “persuasive” burden. On behalf of the Crown it was submitted that the statutory defence raised imposed a legal burden on the accused to prove the defence on a balance of probabilities. Here the court refused the appeal against conviction in relation to charge 5. The court noted that whilst the sheriff had failed to direct the jury that, once possession and control of the images were established beyond reasonable doubt, the onus transferred to the appellant to prove, on a balance of probability, that he had not accessed the images and the sheriff’s directions were in favour of the appellant since they effectively kept the onus on the Crown throughout to prove not only knowledge and control of the images, but also his awareness of their content. In relation to the appeal against sentence the only ground of appeal advanced was that the extended sentence on charge 1 was “unnecessary and inappropriate” in that the test under section 210A of the Criminal Procedure (Scotland) Act 1995 had not been met. The test was that the sheriff had to be satisfied that the appellant would continue to pose a risk of “serious harm” upon release from a conventional custodial disposal and the ordinary licence conditions would not be adequate to afford protection to the public. Here the court allowed the appeal and quashed the extended sentence element of it. The court noted that the sheriff had failed to provide a clear justification of why the extended sentence was necessary as opposed to, for example, a period of post release supervision.