Man who posted naked image of woman on Facebook wins appeal against ‘sex offender’ registration

A man who posted a sexually explicit image of a woman on Facebook after they exchanged naked pictures of each other on Snapchat has successfully challenged a sheriff’s decision to place him on the sex offenders register.

The High Court of Justiciary Appeal Court allowed the appeal against sentence by Adam Sutherland, which followed a reference from the Scottish Criminal Cases Review Commission, after ruling that the appellant’s conduct could not be described as having a “significant” sexual element, meaning it was not necessary to make him subject to the notification requirements of the Sexual Offences Act 2003.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Turnbull and Lord Clarke, heard that the appellant pled guilty in January 2016 at Kilmarnock Sheriff Court to sending by means of a public electronic communications network a message onto Facebook that was “grossly offensive or of an indecent, obscene or menacing character”, contrary to section 127(1)(a) of the Communications Act 2003.

The court was told that the complainer received a notification on Facebook that she had been tagged in a post on the appellant’s page.

On checking she observed that the image which she had sent to him had been posted, with the result that it was visible to anyone on her own friends list as well as anyone on the appellant’s friends list.

Shocked and alarmed, she contacted the police to report the matter and immediately notified it to Facebook, who removed it after around three hours.

When interviewed the appellant admitted responsibility and was remorseful.

The sheriff was informed that the appellant was drunk at the time and did not remember posting the image, but he accepted that he must have done so.

Offences under the Communications Act are not among those listed in Schedule 3 of the Sexual Offences Act for which registration is automatic, but having heard submissions from the appellant’s agent and from the procurator fiscal depute on the question of whether paragraph 60 of the 2003 Act applied to the offence to which the appellant had pled guilty, the sheriff held that there was a “significant sexual aspect” to the offender’s behaviour.

He therefore certified that the appellant had been convicted of an offence which was listed in schedule 3. He also imposed a community payback order with a supervision requirement to last for two years and required the appellant to perform 140 hours of unpaid work.

The appellant’s agents lodged a Note of Appeal to the Sheriff Appeal Court seeking to challenge the sheriff’s decision to make the appellant subject to the notification requirements of the 2003 Act, but leave to appeal was refused.

After a further application was refused the appellant then applied to the SCCRC, maintaining that he had suffered a “miscarriage of justice” as a result of the sheriff’s certification of the offence as having a significant sexual aspect.

The SCCRC decided to make a reference to the High Court, explaining that it did not believe that the appellant’s behaviour was sexually motivated.

It expressed the view that the appellant’s behaviour was the result of a serious lapse in judgement which almost certainly would not have occurred but for the influence of alcohol, and that it could not be said unambiguously to demonstrate the sort of underlying deviance or sexual disorder required to attract notification requirements.

On behalf of the appellant it was submitted that his conduct in posting the image had been “motivated by drunkenness” and that there was “no sexual component” to the appellant’s behaviour at all.

The secondary position was that there could not be said to have been a significant sexual aspect to the appellant’s behaviour in committing the offence.

On either basis the sheriff had been wrong to order that the appellant should be subject to the notification provisions of Part 2 of the 2003 Act, and reference was made to the opinion of the Lord Justice Clerk (Gill) in Hay v HM Advocate 2012 SLT 569, which was one of seven conjoined appeals on the circumstances in which the procedure of notification of a convicted offender was necessary or appropriate.

Delivering the opinion of the court, Lord Turnbull said: “In our opinion there was nothing in the appellant’s conduct in committing the present offence which indicated any ongoing perceived danger from which the public required protection.

“Whilst it is difficult to accept that there was no sexual content at all to his behaviour, given the nature of the image concerned, we can see no basis for the view that any sexual aspect which might have been present indicated an underlying sexual disorder or deviance and we conclude that the sheriff was wrong in arriving at the view which he did.

“We also consider that the sheriff failed to separate out the protection of the complainer’s privacy and dignity, to which she was entitled, from the wider issues of whether any public protection from the appellant as a sex offender was necessary.

“In the whole circumstances we are satisfied that the appellant’s conduct was properly described as criminal and that the upset and embarrassment which he caused merited punishment.

“If his conduct is considered in the context of the purposes and effects of registration, we are satisfied that any sexual element which there may have been cannot properly be described as ‘significant’.”