Sex offender loses appeal against conviction following evidence of Facebook messages

The appellant claimed that the Facebook messages were “irrelevant” to the proof of the alleged assaults, but the Appeal Court of the High Court of Justiciary ruled that the messages showed a “flirtatious interest”.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the appellant Ivan Maxwell was convicted of a charge (charge 1) which libelled that he did sexually assaulted 15-year-old “AW” by pushing her onto a bed and lying on top of her, although he was acquitted of a further sexual assault on AW (charge 2) occurring around the same time as charge 1 by pressing and rubbing her thigh.

The appellant was also convicted of a second charge (charge 4) of communicating with and intending to meet with a 15-year-old girl, “KJ”, with the intention of engaging in unlawful sexual activity with her, but was acquitted of a further charge (charge 5) of having sex with the same girl on several occasions at a bank where he worked as a cleaner.

Facebook messages

The evidence at the trial was that AW, a friend of the appellant’s daughter who was 15 at the time of the incident in charge 1, was sitting on the appellant’s daughter’s bed when he came in and sat beside her, before pinning her down and producing a condom and saying words to the effect “You’ll be needing this tonight”.

The Crown attempted to lead evidence of Facebook messages received by AW from the appellant, who was 44 at the time of the trial.

The first message was sent one night after midnight, which read “U should be sleeping lol xx”, and the second message read “Is that u just getting home tut tut lol”.

The appellant objected to the evidence on the basis that the messages: were not the subject of any charge; were “irrelevant” to the proof of the sexual assaults; and amounted to an “attack on the appellant’s character” which was not permissible without an application under s.270 of the Criminal Procedure (Scotland) Act 1995.

But the sheriff repelled the objection on the basis that the messages, whilst not per se of a sexual nature, were capable of demonstrating the appellant’s interest in AW and shedding light on the appellant’s interaction with her at the relevant time, which could be relevant to the determination of whether any assault had been sexual.

The second complainer, KJ, who was 14 years old at the relevant time, was also a friend of the appellant’s daughter and went to school with her.

The appellant had first contacted her by text they then began to exchange messages and Facebook communications, and according to KJ a sexual relationship commenced within a few weeks of the initial message – the first occasion at the appellant’s home and thereafter the appellant drove the complainer to various banks where they would have sex.

The relationship lasted for about two years and ended when KJ was 16-and-a-half and began a relationship with someone else.

The Crown again relied upon messages to KJ from the appellant’s Facebook account, many of which were intimate and contained terms such as “babes” and “sexy”, while another depicted an image of a snake followed by the word “missing” and an image of pebbles, which appeared to have been sent after the break-up.

A limited number were specific as to date, at which time KJ was 15, but she could not say if the remainder of the messages were sent before or after she had attained the age of 16, but the defence position was simply that any sexual intimacy took place after the complainer was 16.

The jury found the appellant guilty of sexual “grooming” at various unspecified locations while she was under 16, yet acquitted him, by the verdict of not proven, of unlawful sexual intercourse in the various banks where he worked.

‘Unreasonable verdict’

On behalf of the appellant – who was sentenced to four months imprisonment in respect of charge 1 and 12 months consecutive in respect of charge 4 – it was submitted that although charges 4 and 5 were separate they both required the conduct to take place when the complainer was a child. The only live issue was the age of the complainer and “no reasonable jury” could have acquitted of one charge and convicted of the other.

However, the appeal judges observed that the “obvious explanation” for the jury’s verdicts was not irrationality, but that the evidence of the Facebook messages was not sufficient to support the complainer’s initial testimony that sexual intercourse had occurred before the complainer had reached the age of 16.

The judges noted that there was, on the other hand, “ample evidence” from the complainer KJ and the surrounding facts and circumstances that the appellant had travelled to the various banks with the intention of engaging in sexual activity with the complainer when she was under 16.

It was also argued that the evidence of the inappropriate or indecent communication between the appellant and AW, other than as libelled in charges 1 and 2, was either irrelevant, relating to character under section 270 of the 1995 Act, or “unfair” as evidence of a crime not charged.

Evidence met test of relevancy

Delivering the opinion of the court, the Lord Justice General said: “Section 270, upon which the original objection was based, relates to defence evidence or defence questions, and has no application. It is going too far to categorise the messages as evidence of bad character, such as material demonstrating criminality.

“The question is whether the evidence was relevant to the establishment of one or other of the charges; that is whether it made the commission of the offences, or one or other of them, more or less likely. In the sense that they demonstrated a flirtatious interest on the part of the appellant, and thus that any action on his part involving the complainer, may have had a deliberate sexual element, the test of relevancy is met.”

However, the sentence was reduced from 16 months to 12 months.

Lord Carloway added: “Had charge 1 stood alone, a custodial sentence could not have been regarded as appropriate. On the other hand, as distinct from Kilgallon (supra), the appellant was not a first offender and the conduct in charge (4) was repeated and the offences involved two complainers.

“In these circumstances, it is not possible to fault the sheriff’s reasoning that only a custodial sentence was appropriate to reflect the gravity of the combined offending, especially that in charge 4. Having regard to the court’s view that, had charge 1 stood alone it would not have attracted a custodial sentence, a consecutive disposal cannot be regarded as appropriate. The sentences will be quashed and a cumulative sentence of 12 months substituted.”