Man who posted intimate picture of ex on Facebook wins appeal against sex offender registration

The Sheriff Appeal Court ruled that while the offence was motivated by a desire to cause “embarrassment” there was “no underlying sexual disorder or deviance” from which the public needed to be protected.

‘Intimate picture’

Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Peter Braid, heard that the appellant Barry Sorrel pled guilty at Greenock Sheriff Court on 25 October 2019 to a contravention of section 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, an offence aggravated by involving abuse of his ex-partner, after posting an image of the complainer in an intimate situation, without her consent, on Facebook, with the intent to cause her “fear, alarm or distress”.

The sheriff adjourned the case for a criminal justice social work report and a restriction of liberty assessment before hearing from the respondent as to the facts and circumstances of the offence.

At that stage the sheriff considered that the appellant should be placed on the sex offenders register, which was accepted by both the procurator fiscal and the appellant’s agent, and certified in terms of section 92(2) of the Sexual Offences Act 2003 that the offence was a sexual offence to which part 2 of the 2003 Act applied.

Having been released on bail with special conditions relating to the complainer and her address, the appellant appeared when the case called again on 27 November before another sheriff who, after hearing from the prosecutor as to the circumstances of the offence and from the defence in mitigation, imposed a custodial sentence of six months which was reduced to four months due to the early plea.

The sheriff also made a non-harassment order in respect of the complainer for two years, and having regard to the certification already made on 25 October, concluded that he had no locus in relation to the notification requirement other than to determine its duration having regard to the sentence imposed.

‘No significant sexual aspect’

But the appellant lodged a note of appeal challenging the notification requirement made on 25 October.

In support of the appeal it was stated that there was “no significant sexual aspect” to the appellant’s behaviour in committing the offence, such as to justify the conclusion that there was an “underlying sexual disorder or deviance” from which the public required protection.

The court was told that the appellant and the complainer had been in a relationship for two years, but separated in the summer of 2019 “not on the best of terms”.

It was submitted that the photograph was taken with the complainer’s consent whilst they were in a relationship, and that the appellant posted the photograph on Facebook while he was drunk and trying to get a “reaction” from the complainer in the aftermath of their separation, but he removed it after about 25 minutes.

There was “no deviance or voyeurism” on the part of the appellant – the offence was one of abuse and “not specifically sexual or sexually deviant behaviour”.

It was argued that the sheriff therefore “erred” in certifying in terms of section 92(2) of the 2003 Act that the offence was one to which the notification requirements of that Act applied.

‘Nasty offence, but no sexual deviance’

Allowing the appeal, the court observed that while this was a “nasty” offence it was not driven by a “sexual purpose”.

Delivering the opinion of the court, Sheriff Principal Stephen said: “Simply because the offence involves a contravention of legislation entitled the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 does not necessarily mean that the true nature of the offending is sexual. A contravention of section 2 of the 2016 Act does not necessarily equate with a sexual purpose. Rather, the circumstances of this case indicate that the appellant’s conduct was a determination to cause significant upset, embarrassment and humiliation.

“In this case the appellant’s conduct towards the complainer is criminal behaviour and he has been punished for that. However, we do not consider the offence nor the motivation for the offending involves a significant sexual element even though there was a sexual element to the method chosen by the appellant to inflict harm and distress on his ex-partner. It appears to us that this was a particularly nasty and immature attempt to hurt his partner, which, of course, he succeeded in doing.

“Although the assessment is one for the sheriff to make, nevertheless, we notice that the author of the criminal justice social work report also reaches the conclusion that the appellant’s behaviour was driven by malice. There does not appear to us to be any evidence that the appellant’s behaviour was driven by sexual purpose or deviance in respect of which not only the complainer but the general public require to be protected.”

She added: “Accordingly, we conclude that although this offence is undoubtedly nasty and must have been extremely distressing for the complainer, the question whether there is a significant sexual aspect ought to be answered in the negative.

“The appellant’s behaviour was motivated by a number of factors but none of these disclose sexual deviance or a focus for public protection. Accordingly, we allow the appeal against registration and recall the certificate and notices issued on 25 October and 27 November 2019.”