Man who secretly shared intimate photograph of woman fails in appeal against registration as ‘sex offender’

Aidan McHugh, 21, who pled guilty to a statutory breach of the peace charge, became subject to the notification requirements of the Sexual Offences Act 2003 after a sheriff ruled that the conduct included a “significant sexual aspect”.

The appellant challenge that ruling, claiming that the offence was no one involving a significant sexual aspect, but the Criminal Appeal Court refused his appeal.

The Lord Justice Clerk, Lord Carloway sitting with Lord Bracadale and Lord Matthews, heard that in October 2014 the complainer was visiting the appellant’s sister when the appellant arrived at the house and asked the complainer if he could use her mobile phone to access his Facebook account.

Having allowed him to do so, she later received a Facebook message from a third party, stating that he was “disgusted” by her.

It transpired that the appellant had taken a screenshot of a close-up image of the complainer in a state of undress with her private parts exposed – which she had stored on her phone – and then shared it electronically with the third party.

On 10 April 2015 at Airdrie Sheriff Court, the appellant pled guilty to contravention of section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, the libel stating that he behaved in a “threatening or abusive manner” which was likely to cause a reasonable person, and indeed did cause the complainer, to suffer “fear or alarm”.

He was sentenced to a community payback order and placed on the sex offenders register after the sheriff found that there was a significant sexual aspect to the offence, as the appellant’s motivation had been “almost entirely of a sexual nature”.

The nature of the conduct, in the sheriff’s view, was “deliberate and inherently voyeuristic”.

Having regard to a social enquiry report which stated that the appellant presented a “high risk” of inappropriate sexual behaviour towards women, the sheriff considered that he should be made subject to the notification requirements.

However, before the appeal court it was submitted on behalf of the appellant that the offence was not one involving a significant sexual aspect.

The crime to which he pled guilty was not a sexual one, but one of threatening or abusive behaviour and in the absence of sexual motivation, there was “no sexual aspect”, it was argued.

The motivation, it was said, was borne out of “immaturity”, but even if there was a sexual element it was not significant enough to indicate an underlying sexual disorder or deviance from which the public need to be protected, it was submitted.

Refusing the appeal against sentence, the judges observed that the question of whether an offence included a significant sexual aspect was one of fact, primarily for the determination of the trial judge, having heard the particular facts of the case.

Delivering the opinion of the court, the Lord Justice Clerk said: “The issue of whether any sexual element is significant requires to be decided against a background of the purpose of the notification requirements as a mode of public protection.

“This offence involved obtaining clandestine access to an intimate photograph on the complainer’s mobile, showing her naked private parts and then transmitting it electronically to a third party. There is a sexual aspect to that conduct.

“As the sheriff notes, there are both deliberate and voyeuristic elements to the appellant’s conduct. In such circumstances, the sheriff was entitled to regard that aspect as significance. In these circumstances, this appeal must be refused.”