Man who exchanged ‘sick jokes’ on Facebook wins appeal against registration as sex offender

The Criminal Appeal Court quashed the order of a sheriff directing that the appellant be subject to the notification requirements contained in the Sexual Offences Act 2003, after ruling that while these were “sick jokes in the worst possible taste”, the appellant’s behaviour did not have a “significant sexual element”.

Lord Drummond Young and Lord Bracadale heard that on 10 December 2014 the appellant Liam Rodgerson pled guilty to a contravention of section 127(1)(a) of the Communications Act 2003 by sending on Facebook messages which were “grossly offensive or of an indecent or obscene or menacing character”.

Because the co-accused John Tallis did not plead guilty until a trial diet in June 2015 the case was not finally disposed of until August 2015, when the appellant was sentenced to a community payback order with a supervision requirement for a period of six months.

In addition, he certified that the offence was a sexual offence to which part 2 of the 2003 Act applied, as a result of which the appellant was subject to the notification requirements of the Act, but the appellant appealed against the certification.

Lord Bracadale said: “It is immediately clear that this was an exchange of sick jokes in the worst possible taste. The sheriff states that there was an aspect of local relevance in that the exchange of postings on Facebook by the appellant and the co-accused occurred soon after the brutal and ritualistic killing of a five-year-old boy by his mother at a location within the area of the court.”

But the judges explained that the offence to which the appellant pled guilty is not one of the offences specified in schedule 3 to the 2003 Act which result in automatic registration for notification.

A person convicted of this offence could only become subject to the notification requirements if in terms of para 60 of schedule 3 to the 2003 Act the court determined that there was a “significant sexual aspect” to the offender’s behaviour.

However, the Crown did not raise the issue - the question was raised in an e-mail sent by the police directly to the sheriff court, to which the judges expressed “surprise and some concern”.

In any event, despite the fact that the agents for the appellant and the co-accused, and the procurator fiscal depute all submitted that the requirements of para 60 were not met, the sheriff concluded that there was a sexual aspect to the behaviour.

He considered that any reasonable person seeing the comments and postings between the appellant and the co-accused would observe that they were “wholly associated with sexual abuse of children and babies, making light of it and turning it into a series of sick jokes”.

In relation to whether the sexual aspect could be described as significant the sheriff considered that the sharing of such material on the internet could be said to be “analogous to the sharing of indecent images of children” and that it was nothing to the point that the appellant derived no sexual pleasure from his actings.

It was accepted on behalf of the appellant that the subject matter of the jokes included paedophilia, but it was submitted that the sheriff was wrong to conclude that the appellant’s behaviour had a significant sexual element because the jokes contained sexual references, or if it did it could not be said to be significant.

Whether the sexual element was significant was a question which had to be addressed having regard to the purpose of registration and its effects, as set out in the 2014 case of Hay v HM Advocate.

The behaviour comprised two individuals exchanging messages which were sick jokes copied from other sites on the internet and it was clear from the content that they reflected a “warped sense of humour”, but when the behaviour was examined in the light of the purpose and effects of registration there was “no perceived sexual danger to the public”, as the appellant did not display an underlying sexual disorder or deviance and he derived “no sexual pleasure or satisfaction” from his actions.

It was argued that the sheriff was wrong to find the conduct analogous to the sharing of indecent images of children.

The advocate depute agreed with appellant’s submissions, stressing that in the Crown’s submission the comparison with the distribution of indecent images of children was “inappropriate”, as an offence of that type involved specific children and was directed at the sexual gratification of the offender.

The appeal judges were satisfied that the submissions advanced on behalf of the appellant and the Crown were “well founded”.

Delivering the opinion of the court, Lord Bracadale said: “When the appellant’s behaviour is examined in the light of the purpose and effects of registration it cannot be said that the behaviour contained a significant sexual element. In our opinion the sheriff erred in finding that it did.

“As we have already noted, the appellant and the co-accused exchanged sick jokes in the worst possible taste. They were, however, clearly jokes; they reflected the format of jokes. In our view it was not open to the sheriff to conclude that the appellant was a person who constituted a continuing danger to others such that registration was required to protect the public from him.

“If the matter is tested, as is suggested in para of Hay, by considering whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected, we consider that the behaviour of the appellant cannot be said to fall into that category.

“For these reasons we allowed the appeal and quashed the order of the sheriff certifying the appellant as being subject to the notification requirements of the 2003 Act.”