The Scottish High Court of Justiciary has clarified the legal
position in Scotland on the downloading of illegal material from
the internet in a case reported this week. In overturning a Sheriff
Court’s ruling, the High Court sentenced Alan Ogilvie to 6 months
in prison for downloading 22,000 obscene photographs of children
from the internet.
The question for the High Court was whether downloading a
photograph from the web can constitute the making of a photograph
under Scottish legislation, namely the Civic Government (Scotland)
Act of 1982 and the Criminal Justice Act of 1988. The Court decided
that actually downloading a photograph does constitute making
photograph and that the continued retention of the photographs on a
computer constitutes possession.
The court also suggested that the following should be taken into
account when considering sentencing in Scotland for such
offences:
- The downloading of a pre-existing image is less serious than
personally taking the photograph.
- If there is no distribution involved then the offence is less
serious.
- A prison sentence in excess of nine to twelve months should
only be considered in exceptional circumstances.
- If only a limited number of images were downloaded on a few
occasions by a person who was of otherwise good character, then
this would make a custodial sentence less likely.
The earlier Sheriff Court decision had initially sentenced the
man to six years in prison.
