Scotland: Revitalising Justice – Proposals To Modernise And Improve The Criminal Justice System

Good old Scotland introduces its own version of the possession of extreme violent pornography provisions. I noticed this thanks to ever so the brilliant www.melonfarmers.co.uk

The below information has been taken from a document that summarises the proposals that will be included in the Criminal Justice and Licensing Bill (to be introduced into the Scottish Parliament in early 2009).

Revitalising Justice – Proposals To Modernise And Improve The Criminal Justice System

POSSESSION OF EXTREME PORNOGRAPHIC MATERIAL

The Scottish Executive issued a joint consultation in 2005 with the Home Office on issues relating to the possession of extreme pornography. This consultation ran until December 2005 and 93 Scottish responses were received.

We have decided to introduce a new offence for the possession of extreme pornographic material. We propose that this offence will criminalise the possession of pornographic images which realistically depict:

* Life-threatening acts and violence that would appear likely to cause severe injury;
* Rape and other non- consensual penetrative sexual activity, whether violent or otherwise; and
* Bestiality or necrophilia.

The maximum penalty for the proposed new offence will be 3 years imprisonment.

We intend that the new offence will be similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which will apply in England, Wales and Northern Ireland. The Scottish offence will go further than that offence, however, in that it will cover all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.

Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing the material that would be covered by this new offence. We propose to increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from 3 to 5 years.

Relevant weblinks

Consultation on the possession of extreme pornographic material – August 2005

http://www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/

Analysis of Scottish responses received to the consultation

http://www.scotland.gov.uk/Topics/Justice/criminal/17543/ExtremePornograhicMateria/AnalysisReport

BENEFIT OF MAKING THE PROPOSED CHANGE

Will help ensure society is protected from exposure to pornography that depicts horrific images of violence.

OFFENCE PROVISIONS IN THE PROTECTION OF CHILDREN AND PREVENTION OF SEXUAL OFFENCES (SCOTLAND) ACT 2005

Sections 9 to 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 established a number of offences relating to the sexual services of children and child pornography. The offences relate to:

* paying for sexual services of a child (section 9);
* causing or inciting provision by child of sexual services or child pornography (section 10);
* controlling a child providing sexual services or involved in pornography (section 11); and
* arranging or facilitating provision by child of sexual services or child pornography (section 12).

A minor difficulty has been identified with penalties for the offences under sections 9 to 12 of the Act when prosecuted on indictment. The penalty provisions provide that a person is liable on conviction on indictment to imprisonment for a term not exceeding 14 years, except for section 9 offences when involving the sexual services of a child over 16 in which case the maximum term is 7 years. There is no mention of a fine, in contrast to the position in summary procedure, and to most other penalty provisions which generally refer to the imposition of imprisonment, or a fine, or both. In the absence of a reference to a fine, there is no inherent power for the solemn courts in Scotland to impose a fine in place of imprisonment.

We propose to bring forward provisions so that it will be competent for the court to impose an unlimited fine following successful prosecution on indictment, instead of or as well as, imprisonment. While custodial sentences are likely to be appropriate for most offenders, the availability of a fine in solemn procedure will allow the courts to deal with corporate offenders such as companies. This will better meet our international obligations on the criminalisation of the sexual exploitation of children.

BENEFIT OF MAKING THE PROPOSED CHANGE

Regularisation of penalty provisions in sections 9 to 12 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 ensuring a robust law to deal with sexual offences.

INDECENT IMAGES OF CHILDREN

Under the provisions of sections 52 and 52A of the Civic Government (Scotland) 1982 it is an offence to make, take, distribute, publish or possess indecent photographs or pseudo-photographs of children. A pseudo-photograph is an image which, though not a photograph itself, appears to be one.

The definition of pseudo-photograph does not extend to cover images derived from actual photographs but which do not appear to be photographs themselves. Such images are increasingly easy to make using readily available image manipulation software.

We propose to extend the provisions of sections 52 and 52A of the 1982 Act to cover derivatives of indecent photographs or pseudo-photographs to include, for example, line traced and computer traced images. These derivatives will fall under the scope of sections 52 and 52A of the Act and it will therefore become an offence to make, take, distribute, publish or possess such images.

We also intend to bring forward technical amendments that will clarify certain provisions concerning indecent images of children as they apply for the purposes of Schedule 3 to the Sexual Offences Act 2003. That Schedule lists offences which trigger the notification requirements in Part 2 of that Act. The amendments will remove any doubt that the provisions contained within paragraph 44 of Schedule 3, which refers to Customs legislation about prohibited goods, covers both photographs and pseudo-photographs. Changes are also intended to be made to Schedule 3 to ensure clarity in respect of age thresholds.

BENEFIT OF MAKING THE PROPOSED CHANGE

Will help clarify the law and closes a gap in existing legislation which has developed as technology advances to circumvent the controls already in place.”

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