Man charged with exposing himself to children on social media loses appeal against competency of charges

The appellant, MK, argued that the charges libelled by the Procurator Fiscal, Kilmarnock, were incompetent as they had originally failed to specify a locus. At a diet of debate before Sheriff Jamieson, the Crown was permitted to amend the libels following a preliminary plea to the relevancy and competency of the complaints.

The appeal was heard in the Sheriff Appeal Court (Criminal Division) by Appeal Sheriffs Norman McFadyen, Lorna Drummond QC, and Fiona Tait. The appellant was represented by Brown, solicitor advocate, and the Crown by Edwards QC.

“Address known to the Prosecutor” 

Two of the three charges as libelled were charges under Section 8 of the 2009 Act of sexual exposure in the course of a video call via online social media platform, with an alternative charge under Section 35 of sexual exposure to an older child in the course of a video call. The remaining charge was of communicating indecently via an online social media platform, with an alternative charge of communicating indecently with an older child via such a platform. 

As originally framed, each of the charges, including the alternative charges), stated that these offences took place between October and November 2019 “at an address known to the Prosecutor within the jurisdiction of Kilmarnock Sheriff Court”. The appellant submitted that these charges were incompetent as they contained no specific locus. 

At debate, Sheriff Jamieson allowed the Crown to add the words “in Irvine” to charges 1 and 3 and “in Saltcoats” in charge 2 following the words “at an address”. It was argued by the appellant that the complaints as originally libelled were fundamentally null and incapable of being cured by such amendments. 

The appellant further submitted that the sheriff had agreed that it was unsatisfactory that he had been deprived of information on the face of the complaint which would satisfy him there was jurisdiction. The sheriff had also been deprived of that information and had erred in failing to find the complaint fundamentally null and incapable of amendment. 

In the response for the Crown, it was submitted that the complaint as originally libelled was both competent and relevant. It was permitted to take exceptional latitude in regard to libelling the locus where the circumstances of the offence made this necessary. The locus was not the essence of the charges in this complaint, and thus disclosing the complainers’ addresses was unnecessary and potentially harmful. 

Unclear what the complaint was 

The opinion of the court was delivered by Sheriff Drummond, who began: “We acknowledge that failure to specify a locus may render a complaint fundamentally null and that cannot be cured by amendment. However, we take the view that the charges on this complaint did sufficiently specify the locus. As originally drafted, the complaint contained sufficient information to establish that the locus was within the court’s jurisdiction.” 

She continued: “The locus was specified as an address known to the prosecutor within the jurisdiction of Kilmarnock Sheriff Court. It is a district wide locus. It is open to the prosecutor, under Schedule 3, paragraph 4(3) [of the 1995 Act] to take exceptional latitude where the circumstances of the case make it necessary to do so. There is no need to specify the circumstances in the libel.” 

Addressing whether it was appropriate for the Crown to exercise its discretion when giving the address in this case, she said: “The loci of where the complainers reside is not the essence of the charges which are alleged offences committed via social media. Disclosure of the complainers’ addresses could be harmful to the complainers and may potentially breach their rights under Article 8 of the European Convention on Human Rights. We are unable to identify any prejudice to the appellant by not knowing the complainer’s addresses within the Sheriffdom.” 

Sheriff Drummond concluded: “We note that the appellant in the grounds of appeal states that ‘Neither the appellant nor those representing him have any desire to know the particular addresses of the complainers.’ If the appellant does not seek specification of the complainers’ addresses, it is unclear what the appellant’s complaint is in this appeal.” 

For these reasons, the appeal was refused.