Adam Sutherland v HMA 2017 HCJAC 22

In early 2016 at Kilmarnock Sheriff Court, Mr Sutherland (the appellant) pled guilty to a charge of sending by electronic means a message that was grossly offensive or of an indecent, obscene or menacing character. The sheriff considered that in terms of paragraph 60, Schedule 3 to the Sexual Offences Act 2003, “there was a significant sexual aspect to the offender’s behaviour in committing the offence,” and as a result the appellant was made subject to a Notification Requirement.

A Note of Appeal was lodged as it was felt this this Notification Requirement was unnecessary. This was refused but the appellant applied to the SCCRC. The SCCRC argued that the appellant’s behaviour was the result of a simple lapse in judgement fuelled by alcohol and it could not be concluded it was sexually motivated.

The appeal was allowed in this regard. The Court considered on appeal that the sexual element could not be considered as ‘significant’. The court differentiated from someone who entrusted a partner with an intimate image being protected and the protection provided by registration.

It was made clear by this case that there is a threshold that has to be met in order for a Notification Requirement to be imposed. The conduct in the present case did not suggest sexual deviance therefore the Notification Requirement was quashed and the appellant was given a Community Payback Order for his crime.