Scottish High Court of Justiciary Decisons

ALAN JOSEPH OGILVIE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 69 (27th July, 2001)

[1] The appellant was sentenced to two years imprisonment in respect of each of two contraventions of section 52(1)(a), as amended, of the Civic Government (Scotland) Act 1982 and one contravention of section 52A(1) of that Act. He was also sentenced to three months in connection with a charge of attempted fraud, but as that sentence has now been served, that appeal is no longer live. He now appeals against the three two year sentences.

[2] The circumstances of the offences were that they involve the downloading from the Internet onto the appellant's computer of some 22,000 obscene photographs of young boys at or below the age of puberty. These images involve the boys either naked or performing a wide variety of sexual acts, some of them extremely degrading. It is not necessary, for the purposes of this opinion, to describe these matters any further. The first charge relates to events between October 1997 and April 1999. At that stage the appellant came to the notice of the police and his computer was taken from him. There were found on the computer some 12,000 images of the type previously referred to. The appellant told the police that the photos in question were his and that they had been sent to him automatically on his computer. He maintained that he had no sexual interest in children. His computer at that stage was retained. Through further monitoring of the Internet the appellant again came to the notice of the police who found that he was receiving material through a different name. Police officers saw him on 9 December 1999 and asked him if he had any additional images to which he replied "No, I've not got anything like that". His computer, which was of course a new one, was seized and on examination a further 10,000 photographs of the sort previously described were discovered. In considering what sentence to impose the sheriff makes it clear that in his view the involvement of the appellant in matters of this nature on this scale makes him part of the necessary audience if child abuse of this sort is to be carried out. He says that it is clear that the children involved have been exploited in a horrible fashion and, in his opinion, anyone who becomes involved in the way that the appellant did, particularly after the clearest of warnings, must expect a substantial sentence of imprisonment for what, in the sheriff's opinion, amounted to complicity in child abuse.

[3] This appeal originally came before two judges who decided to remit the matter to a larger court in order that some guidelines may be given as to the appropriate level of sentences for offences of this kind. It appears that there is a wide divergence of view among different sheriffs as to what is the appropriate level of sentence. Furthermore, the case of Kirk v. Kennedy 2001 S.C.C.R. 31, which was not reported at the time of sentence in this case, indicates that offences of this kind should not be described as very serious ones and might, on one view, be regarded as victimless offences. If that view is correct it follows that the whole basis for the sheriff's decision in the present case is unsound.

[4] The legislation in respect of this matter shows a somewhat piecemeal approach. The original provision in the Civic Government (Scotland) Act 1982 was section 52(1) which provided:

The penalty provided in section 52(3) on summary conviction was imprisonment for a period not exceeding three months or a fine, or on conviction on indictment imprisonment for a period not exceeding two years, or a fine, or both. It was provided that it should be a defence to a person charged with an offence under subsections 1(b) or (c) to prove that he had a legitimate reason for distributing or showing the photograph or having it in his possession or that he had not himself seen the photograph and did not know nor had any cause to suspect it to be indecent. Under section 161 of the Criminal Justice Act 1988 the provision relating to possession of indecent photographs was widened and a new section 52A was inserted into the 1982 Act. The new section provided:

The penalty imposed for an offence under this new section was a fine not exceeding level 5 on the standard scale. Further amendments to section 52 of the 1982 Act were made by section 84(6) and (7) of the Criminal Justice and Public Order Act 1994. The principal purpose of this provision was to penalise the making of pseudo-photographs of children, and section 52(1)(a) was amended to read "takes, or permits to be taken or makes, an indecent photograph or pseudo-photograph of a child". Other parts of section 52 which refer to photographs were amended to include pseudo-photographs. The penalty for a contravention of section 52 was increased from three months to six months on summary complaint and from two years to three years on indictment. It was further provided that references to a photograph include data stored on a computer disk or by other electronic means which is capable of conversion into a photograph. The penalty in relation to section 52A was increased to include up to six months imprisonment.

[5] There originally was some doubt as to whether the downloading of pornographic material from the Internet could constitute the making of a photograph in terms of the amended section 52(1)(a). In Longmuir v. H.M. Advocate 2000 S.C.C.R. 447 it was held that the word "make" was apt to cover the activity by which a person using a computer brings into existence the data stored on a computer disk, that activity being one which enables child pornography to proliferate and thus being within the mischief struck at by the 1994 amendments, and for that very reason to be distinguished from simple possession of such indecent material when the possessor has not himself been responsible for bringing it into existence. That decision followed the decision in R. v. Bowden [2000] 1 Cr. App. R. (S) 26 which, in respect of the corresponding English legislation, decided that the downloading of such images from the Internet constituted an offence of making a photograph. This interpretation does lead to certain problems for sentencing purposes, particularly the interrelation between section 52(1)(a) and section 52A. However, this is an appeal against sentence only, and we were not invited to consider a review of Longmuir.

[6] On the basis of these decisions, which for present purposes we must assume are correct, the pattern of the legislation would appear to be that section 52(1)(a) deals with the making of a photographic image either through means of a conventional camera or by means of downloading computer data, while subsections (b), (c) and (d) are concerned with the dissemination of such images to others. Section 52A provides the additional offence of simply being in possession of an indecent photograph of a child without any reference to distribution or it being shown to others. The maximum penalty of three years for a contravention of section 52(1)(a) shows that Parliament intended that the making of a photographic image or the distribution of such an image was to be regarded as a more serious matter than the simple possession of a photographic image which only attracted a penalty of six months maximum. Within section 52(1)(a) there is a further distinction to be made. This subsection would cover all cases in the range between the person who takes photographs of children indulging in grossly indecent activities with other children or with adults down to the person who simply makes a copy of existing photographs, whether actual photographs or downloaded from the Internet for his own personal use without any intention of distributing them. Quite clearly a person who takes a large number of grossly indecent photographs with the intention of distributing them for commercial gain will attract a sentence at the top level of the range, whereas a person who makes a single copy of a mildly indecent photograph for his own use would be most unlikely to attract a custodial sentence. To that extent we agree with what was said in Kirk, namely that a person downloading an image from the Internet will have no direct or consequent effect upon any other person, adult or child. The use of the phrase "victimless offence" is in our view unfortunate, and we do not agree that there is no sound basis for saying that there is no incentive to put such material on the Internet were it not for persons who download such material. We note that in Longmuir the court said that the activity of downloading from the Internet, just as the taking of an indecent photograph of a child with a camera does, enables child pornography to proliferate and is thus within the mischief which the amendments in the 1994 Act were clearly intended to extend to and strike at. In R. v. Wild, Court of Appeal Criminal Division 14 May 2001, Rose L.J. said that the degree of obscenity involved in the image may well bear upon the gravity of the offence because it necessarily reflects a degree of corruption to which the unfortunate child was in the first place exposed. He goes on to say:

Where the sheriff in the present case says that his approach to sentencing was that each of the photographs represented the serious abuse of a child and were it not for the existence of consumers such as the appellant these children would not be photographed committing the acts in question, in our view he cannot be faulted. In our opinion this is indeed the correct approach and any suggestion to the contrary in Kirk must be disapproved.

[7] We now turn to consider what is the appropriate range of sentences for an offence of the kind committed by the present appellant, namely the downloading from the Internet of indecent photographs of children for the personal gratification of the person concerned. Factors which could be regarded as aggravations and thus leading towards custodial disposal would be the number of images concerned, the nature of the images and the period over which the images were downloaded. Previous convictions for any offence of a sexual nature would also be highly relevant. As far as the length of any custodial sentence is concerned, we bear in mind that the downloading of a pre-existing image is of a less serious character than the activity of personally taking photographs, and also we bear in mind that we are dealing specifically with a situation where there is no distribution which would require a charge under heads (b), (c) or (d). That being so, we consider that it would only be in the most exceptional circumstances that any sentence in excess of 9 to 12 months would be imposed for an offence of this nature. Factors which would militate against a custodial disposal would be that only a limited number of images were downloaded on a few occasions by a person of otherwise good character. We were referred to R. v. Toomer and Others, Court of Appeal 6 November 2000, where a substantial number of English cases were considered and certain principles were extracted dealing with the appropriate sentence for a case of this nature. Kennedy L.J. said that sentences up to the statutory maximum should be imposed where there is a contested case, where there is evidence of commercial or large scale exploitation, and the amount of material is significant. Non-custodial disposals should normally be reserved for isolated offences where the amount of material is very small and it is for personal use or use within a very restricted circle as, for example, by passing it to one other recipient, where there is no commercial element, and the defendant has pleaded guilty and is a first offender. Where between these two extremes a particular case falls will depend on the circumstances, such as the quality and nature of the material and the quantity thereof, whether there is any element of exploitation or commercial gain, to what extent there has been distribution, the character of the defendant and whether there has been a plea of guilty coupled with co-operation in the investigation. We find ourselves in complete agreement with the principles set out in that case, both in relation to the specific type of case with which we are concerned and to the more general considerations in cases of a wider range under section 52(1).

[8] Turning to the present case, the factors which were urged upon us on behalf of the appellant were that he was virtually a first offender with a somewhat sad background and he was somewhat dysfunctional and obsessive. He was, however, a weight lifter of considerable distinction, having represented both Scotland at the Commonwealth Games and the United Kingdom at Olympic level. He pled guilty to these offences and the downloading was for personal use only with no question of the images being shown to anybody else. On the other hand the sheer quantity of the images downloaded is extremely substantial and took place over a considerable period. Although the appellant is a first offender, in that he has no previous convictions for offences of a sexual nature, the fact remains that after his first computer had been confiscated he immediately bought a second one and proceeded to download a further 10,000 images. Because of the quantity of images, in our view this is a case of a fairly serious nature. In relation to the first charge we consider that the appropriate sentence would be one of 3 months imprisonment. In relation to the second charge under section 52(1)(a), bearing in mind that he had already been made aware that he was committing an offence by downloading these images and immediately proceeded to obtain another computer and download a further 10,000 images, we consider that the appropriate sentence is one of 6 months imprisonment. In relation to the possession under section 52A we are of the view that the appropriate sentence is one of 4 months imprisonment. We note that there could be on one view a certain element of double jeopardy in that that possession charge relates to the same images as the downloading charge. However, there is a technical distinction between the two in that the actual downloading constituted the making of a photograph and thus fell within section 52(1)(a), whereas the continued retention thereafter of the photographs on computer constituted possession under section 52A. It would, however, be inappropriate to make such sentences anything other than concurrent. In the circumstances we shall quash the sentences imposed by the sheriff and impose concurrent sentences of imprisonment totalling 6 months.