Adam Sutherland v. Her Majesty’s Advocate [2017] HCJAC 22

Appeal against sentence following upon a reference from the Scottish Criminal Cases Review Commission:- On 21 January 2016, at Kilmarnock Sheriff Court, the appellant pled guilty on summary complaint to a charge of sending by electronic means a message that was grossly offensive or of an indecent, obscene or menacing character, in that he posted a sexually explicit picture of CW contrary to section 127(1)(a) of the Communications Act 2003. The sheriff considered that in terms of paragraph 60 of Schedule 3 to the Sexual Offences Act 2003 “...there was a significant sexual aspect to the offender’s behaviour in committing the offence” as a consequence of which he was subject to the notification requirements provided for by Part 2 of the 2003 Act. 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 which was refused on 30 March 2016. A further application, supported by an opinion from a Solicitor Advocate, was refused on 25 April 2016 and the appellant applied to the SCCRC in June 2016. On 15 December 2016, the SCCRC made a reference to the High Court, stating that it did not believe that any sexual aspect of the offence was significant and that a miscarriage of justice may have occurred. The SCCRC stated:- “...the authorities are unambiguous that the motivation for the behaviour is an important factor and that the use of alcohol is, in turn, a significant consideration when assessing motivation.” The SCCRC considered that it seemed relatively clear that the appellant’s behaviour was the result of a serious lapse in judgement and it would not have occurred had it not been for the consumption of alcohol and the SCCRC considered that it was difficult to conclude that the behaviour was sexually motivated. On behalf of the appellant it was submitted that the appellant’s conduct in posting the image had been motivated by drunkenness and there was no sexual element to the appellant’s behaviour. In the event that the court did not accept that submission it was submitted that there was not a significant aspect to the appellant’s behaviour in committing the offence and reference was made to Hay v HMA 2012 SLT 569. It was submitted that it was not enough for there to be a sexual act and the court required to consider the whole background to the conduct in particular whether the conduct had been motivated by the consumption of alcohol. On behalf of the Crown it was submitted that the sheriff had been faced with a difficult decision but, in balancing the competing submissions of the Crown and the defence solicitor on the question of whether paragraph 60 of the 2003 Act applied, he had arrived at the correct conclusion. Here the court allowed the appeal. The court considered that, whilst the conduct was criminal and resulted in upset and embarrassment, the court did not consider that the sexual element could be described as ‘significant’. Previous cases made clear that drunken criminal conduct which appears to have certain sexual connotations do not always trigger the requirement for registration. In the present case the court considered that the background of the consensual exchange to the appellant’s possession of the image was important. The court considered the prevalence of “sexting” particularly amongst the young and the difficulties that result from the unauthorised public disclosure of images originally sent consensually. The court considered that someone who has previously entrusted a partner with an intimate image is entitled to be protected, however, that form of public protection is different from the protection provided by registration and, in the present case, a robust Community Payback order together with a requirement to carry out unpaid work was adequate. The appellant was a young man with no previous convictions who had a full work history. The conduct, whilst sexual, did not suggest any underlying sexual disorder or deviance and there was an absence of any deceitful or voyeuristic element which was present in the case of McHugh v Harvie 2015 HCJAC 86 and the sheriff’s finding under paragraph 60 of Schedule 3 to the 2003 was quashed.