Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 12

HCA/2015/003248/XJ

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEAL AGAINST SENTENCE

by

LIAM JOSEPH ALLAN REID RODGERSON

Appellant;

against

PROCURATOR FISCAL, ALLOA

Respondent:

Appellant:  Fyffe, Solicitor Advocate;  Martin Johnston & Socha Ltd, Alloa

Respondent:  Rodger AD;  Crown Agent

8 December 2015

[1]        On 10 December 2014 the appellant pled guilty to a contravention of the Communications Act 2003 section 127(1)(a) by sending on Facebook communications network 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.  Because the co-accused did not plead guilty until a trial diet in June 2015 the case was not finally disposed of until 20 August 2015.  In respect of the appellant the sheriff made a community payback order with a supervision requirement for a period of six months.  In addition, he certified that the offence was a sexual offence to which Part 2 of the Sexual Offences Act 2003 (the 2003 Act) applied as a result of which the appellant was subject to the notification requirements of the Act.  The appellant was granted leave to appeal against the certification under the 2003 Act.  At a hearing before this court we allowed the appeal to the extent of quashing the order of the sheriff directing that the appellant be subject to the notification requirements contained in the 2003 Act and stated that we would give written reasons later, which we now do.

[2]        In an appendix to his report the sheriff reproduced a document which had been placed before him by the Crown recording various Facebook entries in the pages of the appellant and his co-accused:

“Accused Rodgerson Facebook status read:

‘After finding a five year old Scottish boy dead with his heart missing, a police spokesman said, that must have been one hell of a game of operation they played’

Accused Tallis has commented on the status saying:

‘Hahaha belter!!’

And

‘What’s the best part about sex with a 5 year old?  Make your dick look massive!!’

Accused Rodgerson has replied:

‘Better effect than a razor’

Accused Tallis then adds a comment saying:

‘What do you get when you kill a baby?  A hardon’

Accused Tallis Facebook status read:

‘Apparently 60% of kids are overweight and 72% of kids are having under age sex…so who is shagging all the fat kids?’

Accused Rodgerson replied to this saying:

‘Nah bro no heard any for a while a just hit the giggles’.

Accused Tallis replied:

‘A ken anger decent wan!’

And

‘Two persons on a bench, wee 11-year-old lassie walks past, they say to each er ya cunt she’s let herself go er the years’

Accused Rodgerson then commented:

‘Haha a just put a couple up’

Another Facebook status from accused Tallis read:

‘Went to the pub with my girlfriend last night.  Locals were shouting “pedophile” and other names at me, just because my girlfriend is 21 and I’m 50.  It completely spoiled our 10^th anniversary’”

[3]        It is immediately clear that this was an exchange of sick jokes in the worst possible taste.  The sheriff states that there was an aspect of local relevance in that the exchange of postings on Facebook by the appellant and the co-accused occurred soon after the brutal and ritualistic killing of a five-year-old boy by his mother at a location within the area of the court.

[4]        The offence to which the appellant pled guilty is not one of the offences specified in schedule 3 to the 2003 Act which result in automatic registration for notification under the Act.  A person convicted of this offence could only become subject to the notification requirements if in terms of para 60 of schedule 3 to the 2003 Act the court determined that there was a significant sexual aspect to the offender’s behaviour in committing the offence.  The question as to whether there was a significant sexual aspect to the behaviour of the appellant emerged before the sheriff in a curious way.  The Crown did not raise the issue.  Both initially before the sheriff and before us, the Crown accepted that there was no significant sexual aspect to the offender’s behaviour such as to meet the requirement of para 60.  The issue was raised in an e-mail sent by the police directly to the sheriff court.  As a result, the sheriff raised the matter with the parties.  The agents for the appellant and the co-accused, and the procurator fiscal depute, all submitted that the requirements of para 60 were not met.  We are bound to express surprise and some concern that the matter was raised by a direct approach from the police to the court rather than through the Crown.

[5]        In any event, the sheriff concluded that in terms of para 60 there was a significant sexual aspect to the behaviour of the appellant and his co-accused in committing the offence.  He considered that any reasonable person seeing the comments and postings between the appellant and the co-accused would observe that they were wholly associated with sexual abuse of children and babies, making light of it and turning it into a series of sick jokes.  The whole essence of the communications in which the appellant engaged with his co-accused was that they were sexual in nature and the sheriff formed the view that there was a sexual aspect to the behaviour of the appellant.  In relation to whether the sexual aspect could be described as significant the sheriff distinguished the case from the drunken, boorish and spontaneous behaviour which had characterised some of the cases in which it had been held that the requirement of para 60 had not been met.  The sheriff considered that the sharing of such material on the internet could be said to be analogous to the sort of conduct that is involved in the sharing of indecent images of children.  The appellant and the co-accused were perpetuating the circulation of remarks from the internet potentially harmful to children and to the public.  The sheriff considered that it was nothing to the point that the appellant derived no sexual pleasure or satisfaction from his actings.

[6]        In written and oral submissions on behalf of the appellant before us it was accepted that the subject matter of the jokes included paedophilia.  It was, however, submitted that the “behaviour" of the appellant did not have a sexual element and if it did it could not be said to be significant.  The sheriff was wrong to conclude that the appellant's behaviour had a significant sexual element because the jokes contained sexual references.  Whether the sexual element was significant was a question which had to be addressed having regard to the purpose of registration and its effects (Hay v HM Advocate 2104 JC 19 LJC (Gill) at para [52]).  The behaviour comprised two individuals exchanging messages which were categorised as sick jokes copied from other sites on the internet.  It was clear from the content that they were in the form of jokes reflecting a warped sense of humour.  When the behaviour of the appellant was examined in the light of the purpose and effects of registration there was no perceived sexual danger to the public.  The behaviour did not display an underlying sexual disorder or deviance.  The appellant had derived no sexual pleasure or satisfaction from his actions.  The sheriff was wrong to find the conduct analogous to the sharing of indecent images of children.

[7]        The advocate depute agreed with these submissions, stressing that in the Crown’s submission the comparison with the distribution of indecent images of children was inappropriate.  An offence of that type involved specific children and was directed at the sexual gratification of the offender.

[8]        We are satisfied that the submissions advanced on behalf of the appellant and the Crown are well founded.  The purpose and effects of registration as a sex offender are set out in paras [34] and [35] of Hay:

“[34]  It will be apparent from the legislation that I have quoted that registration as a sex offender is not a sentence.  The purpose of registration is not punitive.  It is protective.  It enables the police to keep tabs on a sex offender who is, or who may be, a continuing danger to others, and particularly to women and young people.

[35]  However, although registration does not constitute a sentence, it is nonetheless a grave stigma and one which, designedly, places onerous restrictions and requirements on the registered offender's life.  In particular, the offender has the public status of sex offender.  He is under a continuing obligation throughout the registration period to inform the police of his whereabouts and to notify them whenever he changes his address.”

The question whether a sexual aspect of the accused's behaviour is significant should be assessed in the light of the purpose and effects of registration.  At para [52] in Hay guidance is given as to how sentencers should approach the issue:

“[52]  In my opinion it would be futile to attempt to define the word ‘significant’ as it is used in para 60 of sch 3.  That is a question best left to the judgment of the sentencer.  Since the purpose of registration is to protect the public against a perceived danger, the question whether a sexual aspect of the accused's behaviour was significant should be assessed in that light.  One way to approach that is to consider whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected (Wylie v M [2009 SLT (Sh Court) 18], Sheriff Pyle, para 13).  In this difficult exercise, in my view, sentencers should consider the accused's behaviour in the context of the purpose and the effects of registration, keep a sense of proportion and use their commonsense.”

When the appellant’s behaviour is examined in the light of the purpose and effects of registration it cannot be said that the behaviour contained a significant sexual element.  In our opinion the sheriff erred in finding that it did.  As we have already noted, the appellant and the co-accused exchanged sick jokes in the worst possible taste.  They were, however, clearly jokes; they reflected the format of jokes.  In our view it was not open to the sheriff to conclude that the appellant was a person who constituted a continuing danger to others such that registration was required to protect the public from him.  If the matter is tested, as is suggested in para [52] of Hay, by considering whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected, we consider that the behaviour of the appellant cannot be said to fall into that category.

[9]        For these reasons we allowed the appeal and quashed the order of the sheriff certifying the appellant as being subject the the notification requirements of the 2003 Act.