Scottish court clarifies offence of downloading child porn

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.