In the recent appeal of Rodgerson v Procurator Fiscal, Alloa  HCJAC 12, the question of whether the circumstances of the offence contained a “significant sexual element” was considered. That phrase is important. The Sexual Offences Act 2003 provides for the registration of offenders who have committed sexual offences. Schedule 3 to the Act specifies offences which are subject to automatic registration on the “Sex Offenders Register.” However, the Act also contains a “catch-all” provision where the offence is not one specified in the Schedule. In those circumstances the sentencing court can order that the offender be made subject to the registration requirements if it is satisfied the offence contained “a significant sexual element.”
In this case, the appellant, along with a co-accused, pleaded guilty to sending messages on a social media site contrary to Section 127(1) of the Communications Act 2003. The messages, which are narrated in the body of the opinion of the Court, amounted to sick jokes associated with inter alia child abuse. It is entirely accurate to say that the messages were in the worst possible taste.
However, the test in determining whether a non-specified offence contains a “significant sexual element” requires to be considered in the context of the purpose the registration of sex offenders. In short, it is to protect the public form those individuals whose offending gives rise to the inference that there is an underlying sexual deviance. The court was referred to the case of Hay v HM Advocate 2014 JC 19;  HCJAC 28 in which the Lord Justice-Clerk said this at paragraph :
“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.”
Accordingly, the Court concluded that the Sheriff erred in determining that there was a significant sexual element. These were sick jokes, obtained from other websites and of the worst possible taste, but clearly in the form of jokes. There was no underlying sexual deviance present, from which the public required to be protected.
There is further matter of interest arising from the factual circumstances of this case. This was not a case where the Crown libelled or gave any notice that this offence was to be considered as containing a sexual element. Indeed, the PF Depute who dealt with he case at first instance made no motion to the court to that effect, not did he, initially at any rate, argue that the offence fell into that category. Furthermore, the issue was not raised by the learned Sheriff until he received a memo sent directly from the police to the court. At paragraph  of the judgement, the Appeal Court expressed surprise and some concern regarding this sort of direct approach.
As to the issue of notice, the case of Hay, supra, is informative: –
“ In my opinion, if the Crown chooses to libel an offence that is not on the specific list, for example by libelling breach of the peace in either of the instances that I have canvassed, and libels it without further narrative, the accused is entitled to infer that the Crown makes no suggestion that there is a significant sexual aspect in the accused’s behaviour. If however in libelling an offence that is not on the specific list the Crown proposes, in the event of conviction, to contend that there is a significant sexual aspect, fair notice requires, in my opinion, that that should be narrated in the libel itself together with the alleged facts and circumstances from which that aspect is to be inferred “
Seperately, if the sentencer considers that the question of whether a non-specified offence contains a significant sexual element during the course of a trial or having received background reports, then the matter can be raised ex proprio motu. In those circumstances the defence should be given the opportunity to make representations or, if need be, lead evidence in rebuttal. (Hay, supra, paragraph .)