Liam Joseph Allan Reid Rodgerson v. Procurator Fiscal, Alloa [2016] HCJAC 12

Note of appeal against sentence:- On 10 December 2014, at Alloa Sheriff Court, the appellant pled guilty on summary complaint to a contravention of section 127(1)(a) of the Communications Act 2003 by posting on Facebook messages which were grossly offensive or of an indecent or obscene or menacing character in that they did contain grossly offensive remarks about the death of a child and sexual remarks about children. On 20 August 2015 the appellant was made the subject of a community payback order with a supervision requirement for a period of six months. The sheriff also certified that the offence was a sexual offence to which Part 2 of the Sexual Offences Act 2003 applied resulting in him being subject to the notification requirements of the 2003 Act. The appellant appealed against the sentence imposed in so far as it related to him being made subject to the notification requirements. The circumstances of the offence were that various postings were exchanged between the appellant and his co-accused on their Facebook accounts which were in extreme bad taste in the form of sick jokes. The sheriff had raised the issue with parties as to whether, in terms of paragraph 60 of schedule 3 to the 2003 Act, there was a significant sexual aspect to the appellant and his co-accused’s behaviour in committing the offence. The solicitors for the appellant and the co-accused, and the procurator fiscal depute, all adopted the position that the requirements of paragraph 60 were not met. It appears that the issue was raised directly with the court by the police and the sheriff considered that there was a significant sexual aspect to the behaviour of the appellant and his co-accused in committing the offence. The sheriff took the view that the electronic communications all related to the sexual abuse of children and babies and making them into a number of sick jokes. The sheriff drew comparisons between the sharing of indecent images of children and the behaviour in this case. In the appeal it was submitted on behalf of the appellant that whilst the subject matter of some of the ‘jokes’ referred to paedophilia it was submitted that this behaviour did not have a sexual element and even if it did it was not significant. It was submitted that having regard to the purpose of registration and the effects of it the behaviour here ought to be viewed in the context of sick jokes being exchanged and there being no sexual danger to the public. It was further submitted that the conduct did not display any underlying sexual deviance and the appellant had not gained any sexual pleasure from his behaviour. The Crown agreed with the submissions made on behalf of the appellant. Here the court allowed the appeal and quashed the order certifying the appellant as being subject to the notification requirements. The court stated that the purpose of the notification requirements are protective and not punitive allowing the police to supervise a sex offender who may represent a continuing threat. The court observed that the issue of whether or not a sexual aspect of an accused’s behaviour is significant should be considered in light of the purpose and effects of registration as described in Hay v HMA 2014 JC 19 and in the present case it could not be said that the sick jokes had a sexual aspect significant enough to merit registration.