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.