April 2015

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

A man found guilty of exchanging sexually explicit mobile phone messages with a 13-year-old girl and having in his possession thousands of indecent images of children on his computers has failed in an appeal against conviction but successfully challenged the sentence imposed.

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, 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.”

June 2014

49 year old Singer sent sex texts to girl, 13 – Jailed

A JAZZ singer who repeatedly ‘sexted’ a 13-year-old girl before he was caught with a large stash of child abuse images on his computer has been jailed for two and a half years.

Despicable former BBC and Smooth radio show host Craig McMurdo, 49, bombarded the schoolgirl with explicit text messages containing naked images of himself and other males performing sex acts on themselves.

Edinburgh Sheriff Court heard how the pervert also forced his victim to send him photographs of herself performing a sex act.

McMurdo – who has sung for the likes of Prince Charles and Hollywood actor Paul Newman – was rumbled after the girl’s mother discovered what was going on.

The horrified woman contacted police who arrested the former BBC radio show host at his home in Midlothian.

Detectives then discovered that he was storing a number of sickening child abuse images on computers that he owned.

On Thursday, Sheriff Gordon Liddle sentenced McMurdo to 30 months in jail. He also ordered that he be supervised by the authorities for another 30 months following his release from custody.

Passing sentence Sheriff Liddle said that McMurdo posed potentially “serious” harm to public safety.

He added: “Nothing other than a custodial disposal is appropriate in this particular case.”

The story emerged following the conclusion of an eight day long trial at Edinburgh Sheriff Court last month. Sentence had been deferred until Thursday for the court to obtain reports about McMurdo’s character.

McMurdo, of Gorebridge, Midlothian, had denied committing any crimes and had claimed he thought his young victim was a “very physically mature looking” woman of 19.

The court heard how McMurdo targeted the girl between December 2011 and August 2012.

He initially made contract with the teenager through a dating web site called R U interested.

McMurdo then started exchanging messages with her through Facebook and their mobile phones

The court heard how these messages contained photos displaying sex acts.

He also got the young woman to send him images of her naked.

However, the young woman’s mother discovered what was going on and she contacted police who arrested McMurdo.

They confiscated his computers and found that he had been downloading child porn.

During the case, McMurdo gave evidence in which he claimed he thought the girl was 19 because that was the age she had on her Facebook profile.

He told defence solicitor advocate John Keenan that he entered into a “sexting” relationship with the young woman.

He said: “It was very convenient. I was under a lot of stress at work.”

McMurdo told the court that if he had known she was 13, he wouldn’t have been in contact with her.

Saying that his actions weren’t the ones of a predatory sex offender, McMurdo added: “It’s suicidal. It’s madness. It’s just madness. It’s like putting a shotgun into your mouth.”

McMurdo also told the court that his career as a jazz singer was now in ruins as a consequence of being arrested by officers.

He added: “It has completely destroyed it.”

McMurdo also told the jury that a number of people had the ability to access the computer and that they could have downloaded the child porn.

However, a jury refused to accept his claims and decided that he was guilty of criminal behaviour.

On Thursday, defence solicitor advocate John Keenan told the court that his client had a problem with Internet pornography and had spent the 17 months receiving psychological help.

Mr Keenan urged Sheriff Liddle not to jail McMurdo saying that social workers thought that he was at low risk of re-offending.

Mr Keenan added: “He has lost his career – it was a career which he had for 30 years. He has lost his reputation – both personal and professional.

“His business has effectively collapsed and he has had to declare himself bankrupt.

“I would urge your lordship to consider a non custodial disposal.”

However, Sheriff Liddle said that he had to send McMurdo – who has also been placed on the Sex Offenders Register – to prison.

May 2014

Jazz star faces jail over cyber sex with schoolgirl, 13

A JAZZ singer who once performed for Prince Charles is facing a lengthy prison sentence after being convicted of repeatedly “sexting” a 13-year-old girl and possessing child abuse images.

Former BBC and Smooth radio show host Craig McMurdo, 49, bombarded the teenager with explicit text messages containing naked images of himself and other males performing sex acts on themselves.

Edinburgh Sheriff Court heard the pervert forced his victim to send him photographs of herself performing a sex act.

Singapore-born McMurdo, who also once entertained Hollywood legend Paul Newman, was caught after the victim’s mother discovered what was going on.

Police searched his Midlothian home and discovered a stash of child abuse images on computers that he owned.

Following an eight-day trial, McMurdo, of Gorebridge, was found guilty of four charges of child abuse and possession of child pornography.

McMurdo, who once had his own “big band”, had denied committing any crimes 

He also told a jury that he didn’t download the child abuse images and that somebody who had access to his computers must have been responsible.

Sheriff Gordon Liddle deferred sentence on McMurdo until next month so that the court can obtain reports about his character.

But he warned him to expect a prison sentence.

Sheriff Liddle added: “It is very likely and it is almost inevitable result of the verdict that this will result in a custodial order. You may very well want to spend your time between now and sentencing putting your affairs in order.”

The court heard that McMurdo targeted the girl between December 2011 and August 2012 after making contact with her through a dating website called R U Interested.

McMurdo then started exchanging messages with her through Facebook and their mobile phones, including photographs of sex acts.

He also got the girl to send him images of her naked and performing sex acts.

During the case, McMurdo gave evidence in which he claimed he thought the girl was 19

He told defence solicitor advocate John Keenan that he entered into a “sexting” relationship with the girl in which they indulged in “naughty schoolgirl” fantasies.

He said: “She was a very well developed girl, a very physically mature girl.

“It was a fantasy cyber encounter. It was sexting.”

McMurdo went on to insist that he would not have contacted the girl if he knew she was just 13.

He added: “It’s suicidal. It’s madness. It’s just madness. It’s like putting a shotgun into your mouth.”