In Scotland, the law relating to child pornography is governed by the Civic Government (Scotland) Act 1982

Section 52 – Indecent Child Photographs

(1) Any person who-

(a) takes, or permits to be taken or makes, any indecent photograph or pseudo-photograph of a child under 18 years of age; 

(b) distributes or shows such an indecent photograph or pseudo-photograph;

(c) has in his possession such an indecent photograph or pseudo-photograph with a view to its being distributed or shown by himself or others; or

(d) publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph or pseudo-photograph, or intends to do so,

shall be guilty of an offence under this section.

Section 52A – Possession of Photographs

(1)  It is an offence for a person to have any indecent photograph or pseudo-photograph of a child under the age of 18 years in his possession.

Section 52B – Exemptions for photographs of 16 and 17-year-olds

Concerning offences under Section 52(1)(a), 52(1)(b), 52(1)(c) and Section 52A the accused is not guilty of an offence if

(a)  either –

(i)                 the photograph was of the child aged 16 or over; or

(ii)                the accused reasonably believed that to be so;

(b)  at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were –

(i)                married to or civil partners of each other; or

(ii)               partners in an established relationship; and

(c)  either –

(i)                 the child consented to the photograph being taken or made; or

(ii)                the accused reasonably believed that to be so.

In addition to the above conditions, the exemption would only apply for an offence under Section 52(1)(b) if –

(d)  the showing or distributing of the photograph was only to the child.

The exemption would only apply for an offence under Section 52(1)(c) if conditions (a) through (c) were satisfied and –

(d) the accused had the photograph in his possession with a view to its being distributed or shown only to the child.

There is no statutory defence to an offence under Section 52(1)(d) of the Act.

The exemptions apply in circumstances where the photograph is shown to the child alone or with the accused, but not if it is shown to any other person.

Note (b) In Longmuir v. H.M.A. 2000 S.C.C.R. 447, it was upheld on appeal, that downloading images from the Internet was within Section 52(1)(a) (above). The word “make” covered an activity whereby a computer was used to bring into existence data stored on a computer disk. A person who downloads images is making photographs. What this means is that when a person downloads an indecent image on their computer, it is treated as if the person is taking a photograph themselves.

It is also important to be aware of the attitude of the Courts in Scotland towards this type of offence. These types of offences are not viewed as victimless crimes as Scottish Judges have often stressed that the demand for child pornography creates a market for the existence of these types of images to be able to be downloaded and therefore perpetuates the abuse of children. In other words, the downloading of such images leads to child abuse.

If you are suspected of downloading child abuse images, then you must consult our team of specialist lawyers without delay.

We have great experience in defending allegations of downloading indecent images. Cases such as this can be complex and may involve the instruction of computer experts by the defence. Often the issue will arise as to how the images appeared on the computer in the first place, and an accused person may not have been responsible for the downloading of the images themselves. There can arise situations where more than one person has or had access to the devices in question.