Sheriff Appeal Court upholds conviction of man who uploaded explicit images of partner to swingers’ website

About this case:

• Citation:
  [2023] SAC (Crim) 1
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Aisha Anwar

DF was sentenced to a community payback order with a supervision requirement of 12 months and 180 hours of unpaid work. He challenged the conviction on the grounds that the sheriff had erred in holding that there was sufficient evidence to convict him or find that the complainer had been caused fear, alarm, or distress.

The appeal was heard by Sheriff Principal Aisha Anwar along with Appeal Sheriffs Thomas McCartney and Fiona Tait. Templeton, advocate, appeared for the appellant and Meehan KC for the Crown.

Strict liability offence

The appellant and the complainer had been in a relationship that ended amiably in October 2020. During their relationship, they took explicit photographs of each other in intimate situations for their own private use. However, unknown to the complainer, between 2018 and 2020 the appellant had uploaded some of these photos to a website designed to facilitate sexual encounters between users.

A friend of the complainer’s discovered the images having accepted a friend request from the appellant’s account and contacted the complainer. Four of the images showed the complainer’s body, with her face appearing in one image with her eyes covered by a black horizontal band. The complainer was distressed and upset and reported the matter to the police.

At trial, the only evidence led was from the appellant, who explained that he had not wished the complainer to be identified from the images and that he did not know that the friend who discovered the images knew the complainer. He accepted that he had shared the images with anyone who was friends with his account, but did not intend to cause the complainer harm. The sheriff did not find his evidence convincing, noting that the fact he attempted to conceal her identity demonstrated that he knew the potential for distress was real but continued anyway.

It was submitted for the appellant that the 2016 Act was designed to criminalise the “revenge porn” behaviour of those who used intimate images to shame or humiliate their ex-partners, and MSPs had referred to section 2 as “criminalising revenge porn” during the passage of the Bill. Reference was made to the equivalent English legislation, which required an intent to cause distress, and it was argued that the Scottish legislation had not intended to introduce a strict liability offence.

Foreseeable effect

Sheriff Principal Anwar, delivering the opinion of the court, said of the comparison with English law: “We regard it as neither helpful nor appropriate to have regard to section 33 of the Criminal Justice and Courts Act 2015 when considering the scope or purpose of section 2(1)(b) of the 2016 Act. The latter is clear in its terms and was intended to be broader in scope than the former. Recklessness and intention are separate and distinct forms of mens rea. The legislature has chosen to define the mens rea requirement for an offence under section 2(1)(b) by reference to both recklessness and intention.”

On the purpose of the 2016 Act, she explained: “The language of section 2(1)(b) is clear and unambiguous. The mischief which the 2016 Act was designed to address is plain from its terms; it is not restricted to what might commonly be referred to as incidents of “revenge porn”. As such, there is no need for recourse to parliamentary materials to aid an understanding of legislative intent. Had such recourse been necessary, it would not have supported the appellant’s position.”

Turning to whether the sheriff was correct to describe the appellant as reckless, the Sheriff Principal said: “The appellant was not motivated by a desire to embarrass or humiliate the complainer. He is genuinely remorseful. He was however motivated by a desire to further his own ends; to gain popularity on the website by uploading what he considered to be images which would make him more attractive and appealing to other users. In so doing, he failed to give thought to, or was indifferent as to the foreseeable effect upon the complainer of such a disclosure.”

She continued: “Once the appellant chose to disclose the images on the website, the appellant was able to provide users with access to them. He had no control over what other users might have done with them. He ought to have been aware of the possibility that the images might also be shared more widely or that they might find a way back on other internet platforms or social media to the complainer or those she knew. The sheriff was correct to conclude that the appellant had acted recklessly and that there had been sufficient evidence to convict the appellant in terms of section 2(1) of the 2016 Act.”

Finally, Sheriff Principal Anwar said of the level of sentence: “The sheriff had considered the effect upon the appellant of a conviction and had attached due weight to his age and previous good character. In our judgment, she was correct to conclude that the nature of the offence was serious and significant and that an absolute discharge was not appropriate in the circumstances. The offence involved a breach of trust over a period of time, for personal gain. It was not a momentary lapse of judgement nor an ill-judged reaction to a situation or provocation.”

The appeal against conviction and sentence was therefore refused.