Pipe band tutor loses appeal against conviction for ‘sexting’ student but sex offence interim order quashed

John Moneagle, 59, was convicted of “behaving in a threatening or abusive manner likely to cause a reasonable person to suffer fear or alarm” by sending “sexually inappropriate” text messages to a 25-year-old drummer.

The Sheriff Appeal Court ruled that the sheriff did not err in repelling a defence submission of “no case to answer” and held that the sheriff was “entitled” to convict the accused, but also quashed a certificate issued by the sheriff making the offender subject to the notification requirements of the Sexual Offences Act 2003 on an interim basis.

‘Fear and alarm’

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Craig Turnbull and Appeal Sheriff Michael O’Grady QC, heard that the appellant was found guilty of a so-called “statutory breach of the peace” under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010, but appealed by stated case against his conviction.

The complainer had given evidence in support of the charge which related to an exchange of text messages between her and the appellant, her drumming tutor, during the evening prior to the European Pipe Band Championships.

The court was told that the conversation was largely about travelling arrangements for the following day until the appellant, a person of authority in the community and a well-known judge of pipe band competitions, mentioned “after I give you a medical”, before he used the word “munch”.

The sheriff considered these terms to be “insulting sexual expressions” which the appellant used with the intention of being offensive to the complainer and which would be likely to cause fear and alarm.

‘No case to answer’

But the solicitor advocate for the appellant, John Keenan, submitted that the no case to answer submission made under section 160 of the Criminal Procedure (Scotland) Act 1995 should have been upheld.

The appellant and complainer were both adults and even if the appellant’s language and behaviour could be viewed as insulting it was not such that was likely to cause fear or alarm to the “hypothetical reasonable person”.

It was also argued that the sheriff erred in certifying that there was a “significant sexual aspect” to the appellant’s behaviour in committing the offence.

However, the advocate depute William McVicar submitted that the sheriff did not err in repelling the section 160 submission and that the sheriff was entitled to convict.

The advocate depute also submitted that the question of whether there was significant sexual aspect was one for the court, but if the sheriff found that there was not a significant sexual aspect then no certificate should be issued under Part 2 of the 2003 Act, adding that there was “no statutory provision” which allowed a certificate to be made on an interim basis.

Sheriff ‘entitled to convict’

The appeal sheriffs refused the appeal on its merits after ruling that the sheriff’s reasoning for convicting was “beyond reproach”.

Delivering the opinion of the court Sheriff Principal Stephen said: “At the stage of the section 160 submission the sheriff, of course, had to take the Crown case at its highest and draw the inferences most favourable to the Crown. As we have said the sheriff was entitled to draw the inference that the appellant’s text messages involved both inappropriate sexual comment together with an offensive or abusive comment about the complainer’s sexuality.

“She was entitled to form the view that the accused clearly intended to send the text messages and the language is of his choosing. The sheriff is entitled to regard the appellant’s words and behaviour as sufficient to cause fear and alarm.”

However, the court held that the purported certification under section 92 of the 2003 Act should be quashed.

On conviction, the sheriff certified that the appellant was subject to the notification requirements for a “non-specific offence” where there required to be a “significant sexual aspect” to the offender’s behaviour.

At that stage the sheriff considered that there was “prima facie” a significant sexual aspect, but following preparation of a Criminal Justice Social Work Report and further submissions she was satisfied that the appellant posed a “low risk” of sexual harm to the public, which led her to conclude that the order previously made was “disproportionate”.

However, the sheriff could find no mechanism for recalling the order.

‘No significant sexual aspect’

Sheriff Principal Stephen explained: “It appears to us that there is no such mechanism because there is no power to make an order ad interim. There being no significant sexual aspect to the offender’s behaviour in committing the offence the purported interim order must be quashed.

“It is incompetent to make an order in respect of a non-specific offence under paragraph 60 of Schedule 3 without there, first of all, being a finding or determination by the court that there was a significant sexual aspect to the offender’s behaviour in committing the offence.”

She added: “It occurs to us that there may be a misconception that certification must be determined on conviction otherwise the moment is lost. That is not correct.

“The import of section 92(2)(b) of the 2003 Act is that the court may certify that the person’s conviction of the offence in question and that the offence is one listed in Schedule 3 may take place at the time (of conviction) or subsequently. There is no power and no requirement to make an order ad interim pending a proper determination of the issue.

“The question of whether there is a significant sexual aspect must be determined carefully on the facts and any certificate which follows will be a final order which may be remedied or challenged only on appeal.”