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peterms
(@peterms)
New Member

I saw an interesting article in my local paper yesterday regarding a dispute between a Procurator Fiscal (Public prosecutor) and Sheriff (Judge) over the presentation of hard copies of indecent images to assist the Sheriff in sentencing after the defendant entered a guilty plea.

Murray admitted being in possession of the images at his Dyce home between July 1 and September 9, 2008, when he appeared in court in October. Sheriff Cowan asked to see a hard copy of the indecent images – as often happens in such cases – to help her decide on an appropriate sentence.

Mr Richardson offered to let her view the files on a laptop, but the sheriff insisted on seeing a hard copy.

But the fiscal refused her request – in case he committed a crime. Mr Richardson told Sheriff Cowan “I can’t comply with that because that would create an offence.”

I've just finished my MSc and so think I have a fairly good theoretical understanding of the law as it applies here in Scotland, but I am just beginning my career and have no experience in law enforcement so don't have a great understanding of how the law actually applies in practice. That being said, I tend to agree with the fiscal in that making a new, hard copy could fall foul of the letter of the law, but at the same time I would be shocked if it was deemed in the public interest to prosecute the fiscal under such circumstances.

I would be interested to know the thoughts of other members of the community as this has kicked up a bit of a fuss in the local paper!

Thanks,

Peter

Quote
Posted : 06/11/2010 5:27 pm
Patrick4n6
(@patrick4n6)
Senior Member

I have no specific knowledge of the practice of law in Scotland, but as a general principle, if there's an issue with the request from the judge, one objects, explains the reason for the objection, and then if the judge wants to produce a formal order instructing the prosecution to produce the images, then the prosecutor is covered .

The simple fact of the matter is that one is producing the copy that's on the laptop, so if one could be found guilty of production for producing a copy for court, one would already have committed the crime. It doesn't matter if the contraband is replicated digitally, or printed, one has still produced a copy.

At this point, it's really just an argument about form over substance.

Disclaimer Not legal advice, not a lawyer.

ReplyQuote
Posted : 06/11/2010 6:08 pm
dan0841
(@dan0841)
Member

The ACPO guide may have some details regarding this.

http//www.7safe.com/electronic_evidence/ACPO_guidelines_computer_evidence.pdf

My guess is there may be a provision for this in law. This web page may help

http//www.cps.gov.uk/legal/h_to_k/indecent_photographs_of_children/#a04

Particularly the section regarding defences under Protection of Children Act 1978. I've not studied how this may applt to Scotland.

"The s1B defence is available where a person 'making' an indecent photograph or pseudo-photograph can prove that it was necessary to do so for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings. Archbold 31 - 107a and 107b."

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Posted : 06/11/2010 6:20 pm
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