HMA v BARRY MCCLUSKEY

At the High Court in Glasgow Judge Rae QC imposed an order for lifelong restriction on Barry McCluskey afte he pled guilty to a number of charges involving children. A punishment part of three years and four months was imposed, followed by a further consecutive sentence of three years and four months

On sentencing Judge Rae made the following statement in court:

“ You have pleaded guilty to a large number of very serious charges, particularly when one has regard to the nature and number of them, taken together with the large number of children involved.  Charges 2 to 45 involve lewd, indecent and libidinous practices, carried out by you towards 49 children, whose ages range from 9 to 15 years when the conduct complained of was carried out.

Charges 1, 48 and 49 involved the downloading and taking of indecent images and movies of children and their distribution, while charges 46 and 47 involved the surreptitious filming of females and schoolgirls within a large supermarket and changing rooms in public baths and a leisure centre.

It is submitted by your counsel that the offences libelled on this Indictment are all non-contact offences.  That on a strict interpretation of your conduct is correct.  There was no direct physical contact in this case.  However, in relation to charges 2 to 45, very cleverly, you manipulated and tricked your way into the homes, bedrooms and minds of these children, whom you specifically targeted.  You got them to perform what can only be described as sexual acts for you to video and you kept and distributed some of these videos.  You made various threats but, in particular, you threatened the children that you would distribute the videos if they did not continue to do what you wanted them to do and you ignored their repeated pleas for you to stop.  An example of that was the child who pleaded with you to leave her alone because her mother was dying of cancer.  She said that if her mother found out she, namely the child, would kill herself.  Your response was to demand that she continued to do what you wanted. 

 

At times, in the course of your dealings with these children, you used extreme levels of psychological coercion. The term blackmail was used in the course of submissions.  That term is, in my view, an appropriate one.  Your conduct was both extremely deviant and depraved and you had no regard whatsoever for the impact that you were obviously having on these children. 

It is clear too that the children did not fully understand what they were doing in response to your demands and, in viewing some of these videos, I was able to see for myself the obvious distress experienced by at least one young child. 

What this case shows in a most startling fashion is the danger of allowing children uncontrolled access to social networking sites on the Internet. The Internet is a very powerful and useful tool but it can be a dangerous weapon when misused by the unscrupulous. I trust therefore that this case will act as a warning to all parents whose children have unlimited access to computers.  Those same parents would not allow their children to speak to nor indeed accompany strangers in the street, however, it appears acceptable to allow children unrestricted access to the Internet and, as a result they can communicate, at times on a webcam, with complete strangers, some of whom are adept at hiding their true identity, with the risk that vulnerable young children may end up in a position where they are forced to carry out acts which, as in this case, bring them pain, both physical and psychological and which has the effect of heaping upon them feelings of guilt, shame, degradation and humiliation. 

I want to be absolutely clear.  I am not attempting to blame the parents of the children in this case.  It is obvious that they were wholly unaware of what was happening until one of the children, bravely, revealed to her mother her experiences, but, as I have said, I just hope this case acts as a warning to all parents in the future. 

I have been invited by the Crown in this case to make an Order for Lifelong Restriction on the basis that you meet the criteria set out in section 210E of the Criminal Procedure (Scotland) Act 1995, namely, that the nature of the offences to which you have pleaded guilty, either in themselves or as part of a pattern of behaviour are such “as to demonstrate that there is a likelihood that” you “if at liberty, will seriously endanger the lives, or physical or psychological well-being of members of the public at large”. 

In support of that motion the Crown rely upon the charges before me, your record of previous convictions, albeit very short, and the risk assessment report prepared by the accredited risk assessor appointed by the Court in this case.   That motion was opposed by the defence and a number of criticisms were raised about that report.  These criticisms were based on a so-called critique by a psychologist who had, apart from an incomplete copy of the agreed narrative, not seen any of the other detailed material placed before the Court, showing the extent of your offending and had not, until one the day before the last diet in this case, namely 21st November, seen you. In addition that same psychologist has not carried out any proper risk assessment on you.

As a result of the objections lodged I heard evidence both from the Court appointed risk assessor and the psychologist providing the critique.

On hearing all of this evidence, I am of the view that there is no merit whatsoever in the criticisms made of the Court appointed assessor.  I found that her report, enhanced by hearing evidence from her, clearly discloses that you are a high risk offender and that you meet the criteria set out in section 210E of the 1995 Act.  It is also clear that you do require long tern risk management and treatment.  That being the case, I am required to impose an Order for Lifelong Restriction, at least in relation to some of the charges in this case. 

The most serious charges, and the ones, having regard to their nature and number, which, in my view, lead to the inevitable conclusion that you are a serious risk to the public, are charges 2 to 45.  I note that 40 of these charges are statutory charges while four are at common law, since they involve children as young as 9 when the behaviour commenced.  The statutory charges have, of course, maximum periods of imprisonment which can be imposed but it seems to be agreed by all of those involved in this case, including two separate senior counsel appearing for you, that an Order for Lifelong Restriction is indeed competent in respect of these charges, despite their statutory maxima.  That being the case and standing the mandatory requirement to impose an Order for Lifelong Restriction where you meet the criteria as set out in section 210 E, I intend to impose such an order, at least in relation to charges 2 to 45 and I so order.

The law demands that I set a minimum period of imprisonment which you require to serve to satisfy the requirements of retribution and deterrence.  I shall impose a cumulo period in respect of both the statutory charges and those under common law.

In setting that period I must first decide what would have been the appropriate determinate sentence, had I not been imposing an Order for Lifelong Restriction.  Thereafter the Court of Appeal has directed that I must make certain reductions to that period.  The first reduction I must make is to remove from that notional determinate sentence any element of the sentence applicable to protection of the public in the future.  Thereafter, I require to reduce the sentence by half to take account of the early release provisions.  Then I am required again to reduce the sentence to allow you a discount for your early plea.  This may seem a very complicated way of reaching an appropriate punishment part but I require to follow the directions of the Court of Appeal in this matter.

Accordingly, I would have imposed, in cumulo, a determinate sentence for all of these charges, namely charges 2 to 45 of 12 years.  I will reduce that by two years to remove the element of future risk.  Thereafter I require to half that sentence, namely, 5 years and thereafter to discount it by a third because you pleaded at the earliest date possible.  That leaves a figure for the punishment part of 3 years and 4 months which will be back dated to 1 November 2010 when you were first remanded in custody.

Now in relation to the other charges on the Indictment I am of the view that they are quite separate matters and should be sentenced separately by the imposition, except in relation to charge 49, of consecutive sentences to the punishment part that I have just imposed.  I will however, in imposing those sentences, have regard to the period I have just imposed as a punishment part and to the effect of that and I will discount each by one third because of the early plea.

Charge 1 involves the downloading of child pornography, some of which was of the worst kind, namely levels 4 and 5.  On this charge I would have imposed 3 years but I shall discount that by one year so the sentence on that charge will be 2 years to run consecutively to the punishment part. 

On charge 48, which involved the making of indecent images of children.  There were 135 movies of children, 96 of whom were traced, while in a further 39 they were not.  Once again the sentence will be 3 years reduced to 2 years and that period will run currently with charge number 1 but consecutive to the punishment part.

On charge 49, this involved the distribution of images to unidentified recipients.  Having considered the circumstances as disclosed to me, it appears that this charge relates, for the most part, to a limited number of images distributed in a similar manner to some of the images distributed in charges 2 to 45.  Accordingly I am of the view that the sentence on this charge should run concurrently with the punishment part I have just imposed.  The sentence would have been 18 months which I shall reduce to 12 months because of the early plea.

Charges 46 and 47 are charges of breach of the peace, although I have already certified that they contain a significant sexual element.  These too are entirely separate matters in my view and I note the period over which charge 46 occurred, in excess of 5 years.  I was informed that, on that charge, you targeted and followed schoolgirls in uniforms and filmed under their skirts surreptitiously.   What is particularly concerning is that you were not deterred by the fact that some of these children were accompanied by parents or other adults.  Charge 47 involved filming of women and children in changing rooms.

On these charges I would have imposed 2 years on each charge concurrently with each other, but, reduced by a third, that will be 1 year and 4 months.  This period will run consecutively to the sentences imposed on charge 1

Effectively that means a punishment part of 3 years and 4 months plus consecutive sentences totalling 3 years and 4 months.

Such a sentence means however that you will not be eligible for release from custody until you have served the full period of the punishment part and at least half of the consecutive sentences imposed.  Thereafter, you will not necessarily be released, unless and until you are deemed to be no longer a serious risk to the public.  The decision whether and when to release you will be made by the Parole Board for Scotland.  If and when released, you will remain subject to continuing risk assessments and close supervision for the rest of your life. 

The only other matter which I require to tell you about is that, having been convicted of sexual offences, a further notice will shortly be served on you under the Sexual Offences Act 2003, advising you of the notification requirements which you will be obliged to submit to on release”.