Scottish High Court of Justiciary Decisons

THOMAS KIRK v. THE PROCURATOR FISCAL, KIRKCUDBRIGHT [2000] ScotHC 104 (16th November, 2000)

[1] On 31 August 2000 the appellant tendered a plea of guilty to a charge, as amended, containing the following terms:

The diet was adjourned to 21 September 2000 for the purpose of obtaining Social Enquiry and Community Service Reports. It was certified in terms of the Sex Offenders Act 1997, section 5(2), that the offence was a sexual offence to which Part I of that Act applied, and the appropriate certificate was issued. After hearing a plea in mitigation the Sheriff sentenced the appellant to a period of three months imprisonment; he was also placed on the sex offenders register for seven years.

[2] The facts are fully stated in the Sheriff's Report. For present purposes it is sufficient to note that officers of the Dumfries & Galloway force obtained a warrant to search a house in Kirkpatrick Durham, near Castle Douglas. During the course of that search they discovered material suggesting that the appellant might have used the Internet to obtain and download pornographic images of children. They sought and obtained a warrant to search the appellant's house. There the appellant's computer was found. It was connectable to the Internet. The Sheriff narrates

The Sheriff's report, to which reference may be made, describes the general character of these images. They are also reproduced in the Note of Appeal.

[3] The appellant appeared before the Sheriff as a man aged 32, married and working as a dairyman. He was living in a tied house associated with that employment. The appellant's only previous conviction was in July 1986, when he was aged 17. He was then convicted on charges of theft at Dumfries Sheriff summary court and, after sentence was deferred for about a year, he was admonished. He had never been in custody. It was submitted to the Sheriff that the appellant had had no interest in recording child pornography. He had obtained via the Internet the material in question. When he learned that the police were enquiring into such matters he attempted to delete this material from his computer where it was stored electronically. It was, however, recoverable from the "Delete" facility, and the police were able to recover it and did so. The Sheriff narrates that none of the material had been distributed to any others by the appellant. There is no finding that any hard copy of the material had been made (until the case was being prepared for the purpose of a prosecution).

[4] The Sheriff was reminded that in the case of Longmuir v. H.M. Advocate 2000 S.C.C.R. 447 the court had held that where a person used a computer to store pornographic images of children from the Internet (such images being "pseudo-photographs" within the meaning of the Act, as amended), that activity was criminal under the Civic Government (Scotland) Act 1982, section 52(1)(a), as amended by the Criminal Justice and Public Order Act, 1994.

[5] Mr. Brown, who appeared for the appellant, informed the court that the appellant has spent six days in custody and had then been liberated pending the appeal. As a result of his conviction he had lost his job as a dairyman. As a result of losing his job he had also lost his tied house. Mr. Brown submitted that the appellant was wholly unaware when he downloaded the material from the Internet that he was committing an offence. He presented this submission in the context of the circumstance that the case of Longmuir v. H.M. Advocate (explaining the meaning and application of section 52(1)(a) as amended in 1994) had not been decided until 25 February 2000. He drew attention to the fact that the period covered by the complaint was in September 1998. That suggested that the Crown had not initially considered that the matter should be prosecuted, but revised that approach in the light of the High Court decision in Longmuir, some 18 months after the execution of the search warrant at the appellant's home. It was submitted that the appellant's understandable ignorance that what he did constituted an offence, though not relevant to conviction, was relevant to the choice of disposal. Furthermore, the appellant had downloaded the material in "zip" format (i.e. in a compressed form) and did not know what its contents were until he opened the downloaded file.

[6] Mr. Brown submitted that the Sheriff had erred in describing the offence as "a very serious one indeed". He also challenged as misleading the Sheriff's assertion that

He also drew attention to the Sheriff's remark

It was submitted that there was no proper basis for sending the appellant to prison in the light of his satisfactory record as an adult. Given the circumstance that Longmuir v. H.M. Advocate was not decided until February 2000, it was, he argued, hardly surprising that the appellant had not in fact known that the activity was unlawful. Mr. Brown was also able to inform this court what had happened to Derek Longmuir, the appellant in the case of Longmuir v. H.M. Advocate. He had been brought to trial on indictment and convicted of the charge he faced; yet, despite the fact that he had made copies of the indecent photographs, he did not receive a custodial sentence.

[7] We are not satisfied that the Sheriff was entitled to take the course which he did take in this case. It is, in our view, something of an exaggeration to describe the offence committed by the appellant as "a very serious one indeed". What the appellant did was to use his computer to access material already available in digital electronic form on the Internet. Of course we recognise that the exploitation and degradation of children by creating pornographic pictures of them victimises the children. But nothing that the appellant did had any direct or consequent effect upon any other person, adult or child. In that sense at least, the appellant's behaviour, consisting of operating his computer in his own home, was a "victimless offence". In our view, the Sheriff had no sound basis for saying that there would be no incentive to put such material on the Internet were it not for "persons such as the appellant". By this observation he seems to have been drawing a parallel between this type of case and the common case in which a thief disposes of the stolen goods to a resetter. But the Sheriff had no knowledge (and neither do we) as to who put this material on the Internet, or when it was done, or in what part of the world it was done. There are many countries, including some in Europe, where it is not criminal to be in possession of such material or to download it from the Internet. So there is no satisfactory basis for concluding that if there were no breaches of section 52(1)(a), as amended in 1994, there would be no incentive to put such material on the Internet. For all that is disclosed in this case, this material could have been placed on the Internet, in whole or in part, even before 1994, in a part of the world where it was not unlawful to do so. It is, in our view, a mistake to draw a parallel between the appellant and a re-setter of stolen goods. The resetter receives the articles stolen by the thief; he has a relationship with the thief; by accepting the stolen goods he encourages further thieving. There is nothing in the case to suggest any analogous relationship between the persons who put such pornographic material on a website and those persons who "visit" the website and examine the material on screen and/or download it onto the computer hard disc. There is no material to suggest that downloading such material provides an "incentive" to those who put the material on a website. We are also satisfied that the knowledge among those who use computers to access the Internet that it was a criminal offence under the Civil Government (Scotland) Act 1982, as amended in 1988 and 1994, was not widespread in September 1998. We are also satisfied that understandable ignorance of such a matter can be relevant to the choice of penalty. No doubt the studying of pornography can be described as "disgusting and reprehensible"; but moral distaste for an activity fairly recently declared unlawful by statute is not a reliable basis for assessing the appropriate penalty. It also appears to us to be relevant that when Longmiur was convicted on indictment he did not receive a custodial sentence. In our opinion, against this background, the imposition of a sentence of three months imprisonment upon this man in the light of his record and personal circumstances was excessive. We shall therefore quash that sentence.

[8] We have considered what alternative sentence should be imposed. Before turning to address that, we should make it plain, and we hope that this will be more widely understood, that such activity is indeed criminal and that the court must punish those who engage in and are convicted of such activities. Following the determination of the case of Longmuir v. H.M. Advocate and of the present case, the court will be unlikely to attach great weight to a submission that the convicted person did not know that the activity of downloading obscene material of this character from the Internet was unlawful.

[9] As we have narrated, the appellant has lost his employment and his house. He has no income at the present time and is not in a financial position to pay any substantial fine. He has also been put on the register of sex offenders. He has spent six days in prison and his whole life has been seriously affected by the conviction and its consequences. We do not regard this as a case which should attract a custodial sentence for a person in his 30s, who has no previous record of analogous offending or other criminal conduct warranting imprisonment. It follows that Community Service would not be an appropriate disposal for this particular appellant. He has already suffered severely as a result of his being convicted. In our view, the public interest has been sufficiently served by the bringing of the prosecution and the consequences that have followed for the appellant upon his conviction. For these reasons we decided that the appropriate course is to admonish the appellant.