The appellant was convicted under section 2(1) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. He was sentenced to a community payback order with a supervision requirement of 12 months and 180 unpaid work.
The appeal was on the basis that the sheriff had erred in deciding that there was sufficient evidence to convict him or find that the complainer had been in a state of fear, alarm or distress.
The court heard that the relationship between the appellant and the complainer came to an end in October 2020. Throughout the relationship they took explicit photos of one another. However, sometime between 2018 and 2020 the appellant uploaded some of the images onto a website.
The images were found on the website by a friend of the complainers. Four of the images showed the complainers body and one had her face in it with her eyes being covered by a black band. Upon discovering this information the complainer contacted police.
The court heard at trial that the appellant had not wanted anyone to be able to identify the complainer. He accepted in his evidence that the images had been shared with everyone he was friends with on his account. He explained that his intention was not to cause the complainer any harm. The sheriff did not accept this and statement that as he had tried to conceal her identity he know that this could cause her distress.
It was argued on behalf of the appellant that the 2016 act was implemented to criminalise the conduct of those who used intimate images to shame or humiliate. It was argued that the legislation was not intended to be a strict liability offence.
In providing the opinion of the court, Sheriff Principal Anwar stated: “Once the appellant chose to disclose the images on the website, the appellant was able to provide users with access to them. He had no control over what other users might have done with them. He ought to have been aware of the possibility that the images might also be shared more widely or that they might find a way back on other internet platforms or social media to the complainer or those she knew. The sheriff was correct to conclude that the appellant had acted recklessly and that there had been sufficient evidence to convict the appellant in terms of section 2(1) of the 2016 Act.”
The appeal against conviction was refused.