Man found guilty of having indecent images of children fails in appeal but has extended sentence quashed

The Criminal Appeal Court heard that Craig McMurdo was sentenced in June 2014 to an extended sentence of 60 months – 30 months being the custodial element – after being convicted of four charges following a trial at Edinburgh Sheriff Court.

The appellant was found guilty of: (charge 1) causing the 13-year-old girl to participate in sexual activity by inducing her to send him explicit images and videos of her, contrary to section 31 of the Sexual Offences (Scotland) Act 2009; (charge 2) causing the girl to look at naked images of himself, 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).

The Lord Justice Clerk, Lord Carloway (pictured), sitting with Lord Menzies and Lady Dorrian, heard that searches of the appellant’s home address and place of work by the police resulted in the recovery of various computers, which were found to contain indecent images and videos of the complainer and thousands of downloaded indecent images and videos of other children.

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, but they never met.

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.

The ground of appeal against conviction on charge 5, for which leave was granted, was 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 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.

However, the judges refused the appeal after observing that the sheriff’s directions to the jury favoured the appellant.

Delivering the opinion of the court, the Lord Justice Clerk said: “Under section 52A of the Civil Government (Scotland) Act 1982, the prosecution must establish not simply that the appellant had images on his computers or devices, but that he knew of the existence, and had control, of the images themselves. That knowledge and control requires proof beyond reasonable doubt.

“It is a proportionate response, to the need to deter the proliferation of child pornography, not to require the prosecution to prove that the appellant had looked at the images (that being a matter peculiarly within his own knowledge) but to provide a defence, sustainable on the balance of probabilities that he had not done so. In these circumstances, the clear intention of Parliament, upon a plain reading of the provision, that a legal (reverse) onus is thus created, must be endorsed.

“It follows that the sheriff erred in failing 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. The guidance in the Jury Manual to this effect is correct.

“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 awareness of their content. The appeal against conviction on charge 5 must accordingly fail.”

Prior to the hearing, the appellant abandoned that part of his appeal which challenged the length of the custodial sentences as excessive, thus the only contention advanced was that the extended nature of the sentence on charge 1 was “unnecessary and inappropriate”.

The judges allowed the appeal against sentence to the extent that the extended element was quashed, after noting that the sheriff provided “very little specific justification” for imposing an extended sentence.

Lord Carloway said: “Although the criminal justice social work report reported that the appellant was unlikely to offend generally, it did state that he was at ‘low/moderate’ likelihood of sexual re-offending due to his age, limited offending history and the nature of the offence.

“It is of course for the sheriff to assess whether a convicted person poses a ‘serious harm’ risk. The content of a CJSWR is only one factor, albeit that it will normally be a significant one, in the sheriff’s consideration. However, in the absence of a reasonable clear justification from the sheriff, the selection of an extended sentence must be regarded as excessive.”