Case Report: Thomas Kirk v Procurator Fiscal, Kirkcaldy

June 30, 2001

Case Report: Thomas Kirk v Procurator Fiscal, Kirkcaldy High Court ofJusticiary; Opinion in the Court of Criminal Appeal,
Lords McCluskey and Weir
Note of Appeal against sentence. Appeal heard 16th November 2000.
Opinion delivered by Lord McCluskey

Whether downloading child pornography a “victimless” crime

[1] On 31st August 200 the appellant tendered a plea of guilty to a charge, asamended, containing the following terms: “between 11 September 1998 and 26September 1998 at Dalry House, Bar of Spottes Farm, Springholm, you Thomas Kirkdid make indecent photographs and pseudophotographs of children; contrary to theCivic Government (Scotland) Act 1982 section 52(1)(a) as amended” … theSheriff sentenced the appellant to a period of three months’ imprisonment; hewas also placed on the register of sex offenders for seven years. …

[3] The appellant appeared before the Sheriff as a man aged 32, married andworking as a dairyman. He was living in a tied house associated with thatemployment. The appellant’s only previous conviction was in July 1986, when hewas aged 17. He was then convicted on charges of theft at Dumfries Sheriffsummary court and, after sentence was deferred for about a year, he wasadmonished. He had never been in custody. It was submitted to the Sheriff thatthe appellant had had no interest in recording child pornography. He hadobtained via the Internet the material in question. When he learned that thepolice were enquiring into such matters he attempted to delete this materialfrom his computer where it was stored electronically. It was however,recoverable from the “Delete” facility, and the police were able torecover it and did so. The Sheriff narrates that none of the material had beendistributed to any others by the appellant. There is no finding that any hardcopy of the material had been made (until the case was being prepared for thepurpose of prosecution. …

[5] … It was submitted that the appellant’s understandable ignorance that whathe did constituted an offence, though not relevant to conviction, was relevantto the choice of disposal. Furthermore, the appellant had downloaded thematerial in “zip” format (i.e. in a compressed form) and did not knowwhat 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 theSheriff’s assertion that “if it were not for persons such as the appellant,who resorted to downloading child-pornography from the Internet, there would beno incentive for others to put it there for transmission in the firstplace.” He also drew attention to the Sheriff’s remark “[Theappellant] must have known, or strongly suspected, that this activity wasunlawful, otherwise he would not have attempted to delete the records prior tothe search. In any event, it was obvious that he was engaging in a disgustingand reprehensible activity. I took the view that there was no alternative but toimpose a custodial sentence.”

[7] We are not satisfied that the Sheriff was entitled to take the course whichhe did take in this case. It is, in our view, something of an exaggeration todescribe the offence committed by the appellant as “a very serious oneindeed”. What the appellant did was to use his computer to access materialalready available in digital electronic form on the Internet. Of course werecognise that the exploitation and degradation of children by creatingpornographic pictures of them victimises the children. But nothing that theappellant did had any direct or consequent effect upon any other person, adultor child. In that sense at least, the appellant’s behaviour, consisting ofoperating his computer in his own home, was a “victimless offence”. Inour view, the Sheriff had no sound basis for saying that there would be noincentive to put such material on the Internet were it not for “personssuch as the appellant”. By this observation he seems to have been drawing aparallel between this type of case and the common case in which a thief disposesof the stolen goods to a resetter. But the Sheriff had no knowledge (and neitherdo we) as to who put this material on the Internet, or when it was done, or inwhat part of the world it was done. There are many countries, including some inEurope, where it is not criminal to be in possession of such material or todownload it from the Internet. So there is no satisfactory basis for concludingthat if there were no breaches of section 52(1)(a), as amended in 1994, therewould be no incentive to put such material on the Internet. For all that isdisclosed in this case, this material could have been placed on the Internet, inwhole or in part, even before 1994, in a part of the world where it was notunlawful to do so. It is, in our view, a mistake to draw a parallel between theappellant and a resetter of stolen goods. The resetter receives the articlesstolen by the thief; he has a relationship with the thief; by accepting thestolen goods he encourages further thieving. There is nothing in the case tosuggest any analogous relationship between the persons who put such pornographicmaterial on a website and those persons who “visit” the website andexamine 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 alsosatisfied that the knowledge among those who use computers to access theInternet 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. Weare also satisfied that understandable ignorance of such a matter can berelevant to the choice of penalty. No doubt the studying of pornography can bedescribed as “disgusting and reprehensible”; but moral distaste for anactivity fairly recently declared unlawful by statute is not a reliable basisfor assessing the appropriate penalty. It also appears to us to be relevant thatwhen Longmuir was convicted on indictment he did not receive a custodialsentence. In our opinion, against this background, the imposition of a sentenceof three months’ imprisonment upon this man in the light of his record andpersonal circumstances was excessive. We shall therefore quash that sentence.

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

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

Counsel for the appellant: Jackson, Q.C., Shead; solicitors Messrs. BurnettChristie, Edinburgh. Counsel for the respondent: Murphy, A.D.; Crown Agent.

This abstract was prepared by Duncan Spiers.