Posting ex-partner's photo not sexual offence: Appeal Court
A man who pled guilty to posting a photo of his former partner to Facebook had not committed an offence that required his entry on the sex offenders register, the Sheriff Appeal Court has ruled.
Sheriff Principal Mhairi Stephen QC and Appeal Sheriff Peter Braid allowed an appeal by Barry Sorrell against his registration following his conviction under s 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
The appellant and complainer had been in an intimate relationship, which had broken up. Some time afterwards the complainer was alerted by a friend to the presence on Facebook of an explicit photo of her. She was very distressed and sent a message to the appellant to remove it. He responded by laughing at her, but did remove the photo after it had been on the page for 25 minutes. The appellant, who had a previous conviction for serious assault on another partner, said he had been drunk at the time. He was sentenced to six months' imprisonment, reduced to four for an early plea, and a non-harassment order was made. The sexual offences certification was not opposed at the time it was made.
Sheriff Principal Stephen, delivering the opinion of the court, noted that the sheriff who had made the certification, at the time the guilty plea was recorded, had done so without considering the facts, but whether an accused's behaviour had a significant sexual aspect was a question to be decided on the facts and circumstances of each case.
Motivation was an important factor, and "The facts of this case appear to us to point to the appellant’s motivation being a determination to embarrass, humiliate and demean the complainer... A contravention of s 2 of the 2016 Act does not necessarily equate with a sexual purpose. Rather, the circumstances of this case indicate that the appellant’s conduct was a determination to cause significant upset, embarrassment and humiliation."
While this was "a particularly nasty and immature attempt to hurt his partner", there did not "appear to us to be any evidence that the appellant’s behaviour was driven by sexual purpose or deviance in respect of which not only the complainer but the general public require to be protected".