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Sex Offender Register Appeal Refused

HMA v Paul McFayden 2019

Mr McFadyen has had his appeal against a Sheriff’s decision to place him on the sex offender register refused. The appellant was found guilty of a statutory breach of the peace against two teenage girls but argued that the offence did not have a “significant sexual aspect” therefore he should not have been placed on the Sex Offenders Register. The appeal was placed before the High Court in Edinburgh where it was heard that the charge including enticing and following teenage girls. The appellant was acquitted of a charged of assault on one of the teenagers.

The Sheriff after the trial asked both agents for the Crown and defence to give submissions on whether there was a significant sexual element to see if this case would fit the test for the notification requirements of the Sexual Offences Act 2003. The Sheriff agreed with the Crown that there was a significant sexual element to the offences that the appellant was convicted of. The matter firstly went before the Sheriff Appeal court and was dismissed before being remitted to the High Court. Leave to appeal to the High Court was granted on the basis that there was not enough notice in the libel that the crown considered there to be a significant sexual element to the offence and therefore there was “no adequate notice” of this.

However, the High Court Judges did not agree and the appeal was refused. When concluding the appeal, referring to the case of Hay v HM Advocate 2014, it was stated by the Lord Dorrian: “The only issue which arises is whether there has been a failure to give the notice required by Hay and whether there had as a consequence been a miscarriage of justice. The first point of significance is that this is not a case where the libel contained only non-scheduled offences. The first charge on the complaint related to a scheduled offence and in our view it cannot be said that the complaint did not give adequate notice that notification may be an issue in respect of any of the charges.” It was also made clear that the defence agents were given an opportunity to address the court on the issue and did not dispute that one of the charges at least has some sexual element. The appeal was therefore refused and the appellants’ name will remain on the register.

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