Appeal Against Sentence Following Upon A Reference From The Scottish Criminal Cases Review Commission By Adam Sutherland Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Clarke,Lord Justice Clerk |
| Judgment Date | 12 April 2017 |
| Neutral Citation | [2017] HCJAC 22 |
| Court | High Court of Justiciary |
| Date | 12 April 2017 |
| Published date | 12 April 2017 |
| Docket Number | HCA/2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 22
HCA/2017/000001/XJ
Lord Justice Clerk
Lord Turnbull
Lord Clarke
OPINION OF THE COURT
delivered by LORD TURNBULL
in
APPEAL AGAINST SENTENCE FOLLOWING UPON A REFERENCE FROM THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
by
ADAM SUTHERLAND
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: A Ogg, Sol Adv; Paterson Bell for Beltrami & Co, Glasgow
Respondent: A Prentice, QC, Sol Adv, AD; Crown Agent
12 April 2017
Introduction
[1] This is an appeal against sentence following upon a reference to the High Court from the Scottish Criminal Cases Review Commission (“the SCCRC”). On 21 January 2016, at the Sheriff Court in Kilmarnock, the appellant pled guilty to the following charge on summary complaint:
“On 31 May 2015 at School Road, Kilbirnie, you Adam Thomas Mark Sutherland did send, by means of a public electronic communications network a message or other matter onto Facebook a social media network, that was grossly offensive or of an indecent, obscene or menacing character, in that you did post a sexually explicit picture of [CW], c/o Police Service of Scotland on Facebook, a social media network;
Contrary to the Communications Act 2003 section 127(1)(a)”.
[2] The point which arises is whether the sentencing sheriff was correct in holding that there was a significant sexual aspect to the appellant’s conduct and in certifying that section 92(2) of the Sexual Offences Act 2003 (“the 2003 Act”) applied to the offence to which the appellant pled guilty, with the consequence that he was subject to the notification requirements provided for by Part 2 of that Act.
The statutory regime
[3] Section 80 of the 2003 Act provides that a person is subject to the notification requirements of Part 2 of that act if he is convicted of an offence listed in Schedule 3. Offences under the Communications Act are not listed within that schedule but paragraph 60 of the Schedule extends its ambit to include an offence other than is listed;
“…if the court, in imposing sentence or otherwise disposing of the case, determines for the purposes of this paragraph that there was a significant sexual aspect to the offender’s behaviour in committing the offence.”
[4] In the present case the sheriff 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. Having done so, he held that there was a significant sexual aspect to the offender’s behaviour. He therefore certified, in terms of section 92 (2) of the 2003 Act, 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.
[5] 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. Leave to appeal was refused on 30 March 2016 and a further application, supported by an opinion from Mr Paterson Solicitor Advocate, was in turn refused on 25 April 2016. The appellant then applied to the SCCRC in June 2016, 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. On 15 December 2016, the SCCRC decided to make a reference to the High Court, explaining that it did not believe that any sexual aspect of the offence was significant and that a miscarriage of justice may have occurred.
The Circumstances of the Offence
[6] At the time of the offence the appellant was 23 years old and the complainer was 20. They met each other around two months prior to the offence through a mutual friend. That was their only meeting but they remained in contact through social media platforms such as Facebook and Snapchat. On 16 May 2015, the appellant sent a fully naked image of himself to the complainer using Snapchat. In return the complainer sent a fully naked image of her vagina to him using the same medium. Although images sent using Snapchat only display for a few seconds before being deleted, the appellant took a screenshot of the image, meaning that it was saved and retained for him to view as and when he chose. The complainer received a notification on Snapchat that the appellant had saved a screenshot of the image. She took no action in response to this.
[7] On 31 May 2015, the complainer received a notification on Facebook that she had been tagged in a post on the appellant’s own Facebook account. On checking she observed that the image which she had sent to the appellant 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. She was shocked and alarmed and immediately notified it to Facebook who removed it after around three hours. She also contacted the police to report the matter. When interviewed a few days later the appellant admitted responsibility and was remorseful. The sheriff was informed that the appellant did not remember posting the image but accepted that he must have done so. He was drunk at the time. The sheriff was also told that the appellant had been with a friend at the time the image was posted but that there had been no discussion between the two of them about the complainer.
The Sheriff’s Decision
[8] In the submissions presented to him the sheriff was referred to the cases of Clark v HM Advocate 2008 SLT 787, Wylie v M 2009 SLT (Sheriff Court) 18, Hay v HM Advocate 2012 SLT 569, Young v Brown 2014 JC 4, Heatherall v McGowan 2014 JC 8, and McHugh v Harvie 2015 HCJAC 86. The sheriff concluded that the guidance to be drawn from the case law was that he should consider whether there was an element of sexual disorder or deviance in the appellant’s conduct, that he should be alive to the need for public protection and to the need to keep a sense of proportion and common sense. With this guidance in mind, he concluded that there was a significant sexual element to the appellant’s behaviour. In explaining his reasons for coming to this conclusion he said he was influenced by the nature of the image and distinguished between a drunken situation in which someone exposed himself, in circumstances when they would normally be too embarrassed to do so, and displaying a private picture which had been sent with no intention that it would be displayed to others. The sheriff said that posting a picture in such a manner appeared to him to be deviant. It was a breach of trust causing embarrassment, consternation and upset and that there was a public protection issue, as it was unknown who would see the image. He therefore saw a risk that schoolchildren or relatives of the complainer might be exposed to the image.
The Decisions on Leave to Appeal
First Decision
[9] When leave to appeal was first refused the Appeal Sheriff who considered the papers said that, in his view, it was inevitable that the sentencing sheriff would reach the view that he did on a reasonable view of the facts and the law, particularly the case of McHugh. He observed that the posting was not accidental, that being under the influence of alcohol was not exculpatory and that no other motive had emerged.
Second Decision
[10] When the appellant applied again for leave to appeal the two Appeal Sheriffs who refused leave adopted the reasons given by the first Appeal Sheriff and stated that:
“Looking to both the facts of the instant case and the case law to (be) applied, it is clear that the purpose of the appellant was sexual humiliation and that the offence had a voyeuristic element to it. Accordingly, it is caught by the terms of the legislation.”
The SCCRC Statement of Reasons
[11] In its analysis of the appellant’s case the SCCRC began by observing that the sentencing process proceeded on the assumption that the appellant had been drunk when posting the image. It commented that, in its view, this was a matter of some significance and perhaps more so than the sentencing sheriff or the Appeal Sheriffs had realised. It acknowledged that voluntary intoxication was not exculpatory and could not serve as mitigation but observed that these were not the issues which arose. The question was whether or not as a matter of fact the appellant’s behaviour contained a significant sexual aspect and, on that point, 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.”
[12] The SCCRC considered what the appellant’s motivation might be but expressed doubts as to how his behaviour might be described as having a voyeuristic element to it. It found the suggestion that he was attempting to embarrass the complainer unpersuasive. The SCCRC concluded that the only thing that seemed relatively clear to it was that the appellant’s behaviour was the result of a serious lapse in judgement and that it almost certainly would not have occurred but for the influence of alcohol. Having viewed matters in this fashion, the SCCRC explained that it found it difficult to understand how one might conclude that the appellant’s behaviour was sexually motivated and expressed the conclusion that the appellant’s behaviour could not be said unambiguously to demonstrate the sort of underlying deviance or sexual disorder required to attract notification requirements. In the view of the SCCRC, any public protection issue which arose was adequately managed by the community payback order which was imposed. In conclusion, the SCCRC stated that the question was whether or not the public required protection from the appellant as a sex offender.
The submissions for the appellant
[13] Ms...
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