Presenting IIoC in Court
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!
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.
The ACPO guide may have some details regarding this.
My guess is there may be a provision for this in law. This web page may help
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."