DEREK LONGMUIR v. HER MAJESTY'S ADVOCATE

Factual and Procedural Background

The Appellant was indicted on multiple charges in the Sheriff Court in The City. The appeal arose from a decision by the sheriff rejecting a plea to relevancy against part of a charge alleging a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982 as amended. The charge alleged that between certain dates in a house occupied by the Appellant, he "did make indecent photographs and pseudo-photographs of children". The central legal issue concerned the interpretation of the word "make" in relation to indecent photographs, specifically whether the act of downloading electronic data from the Internet, stored on computer disks and capable of conversion into photographs, constituted "making" a photograph under the statute. The sheriff rejected the Appellant's submission that downloading was not "making" and granted leave to appeal due to the public importance of the question.

Legal Issues Presented

1. Whether the act of downloading data from electronic signals on the Internet, which is capable of conversion into indecent photographs of children, constitutes "making" a photograph within the meaning of section 52(1)(a) of the Civic Government (Scotland) Act 1982 as amended.
2. Whether the interpretation of "make" should be limited to the manufacture or production of pseudo-photographs by computer graphics, excluding downloading of existing images.

Arguments of the Parties

Appellant's Arguments

• The appeal focused solely on photographs, not pseudo-photographs.
• The amendments to section 52(1)(a) were primarily intended to address computer-generated simulated child pornography, not downloading of existing images.
• The word "make" in the statute should be understood in its primary sense as manufacture or production by combining parts, not as downloading data.
• The reasoning of the English Court of Appeal in R v. Bowden was unsound because it relied on a secondary dictionary definition of "make" meaning "to cause to exist" rather than manufacture.
• The difference in penalties between section 52(1)(a) and section 52A suggested Parliament did not intend downloading to be encompassed within "making" photographs.
• Parliament may have acted per incuriam by inserting "makes" without intending it to apply to photographs obtained by downloading.

Respondent's Arguments

• The defence did not construe the statute as amended properly and accepted the technological advances that necessitated amendment.
• The amendments aimed to regulate the process by which electronic signals from the Internet are downloaded and stored as data capable of conversion into indecent photographs.
• The operation of a computer to download and store such data is analogous to operating a camera to take a photograph, thus constituting "making" a photograph.
• Downloading enables proliferation of indecent images and is thus within the mischief the legislation seeks to address.
• The English Court of Appeal's reasoning in R v. Bowden was sound and applicable.
• The difference in penalties between sections 52(1)(a) and 52A does not undermine the interpretation that downloading constitutes making photographs.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the statutory language of section 52(1)(a) and its amendments, noting that Parliament expanded the definition of "photograph" to include data stored electronically capable of conversion into photographs. The court emphasized that the word "make" was introduced to address new forms of child pornography created by computer graphics, but it was not limited to manufacture alone. The court rejected the Appellant's narrow interpretation, finding that the downloading of electronic signals from the Internet into a computer, thereby producing data capable of conversion into indecent photographs, falls within the meaning of "make". The court distinguished between mere possession and the act of bringing the images into existence by downloading, which facilitates proliferation. It found the reasoning of the English Court of Appeal in R v. Bowden persuasive and consistent with the statutory purpose. Parliamentary materials, including Hansard, were deemed not determinative given the clarity of the statutory language and the absence of ambiguity. The court thus upheld the sheriff's decision, affirming that downloading constitutes making photographs under the statute.

Holding and Implications

The court refused the note of appeal.

The direct effect of this decision is that the Appellant's contention that downloading indecent images does not amount to "making" photographs under section 52(1)(a) of the Civic Government (Scotland) Act 1982 as amended was rejected. The case was remitted to the sheriff to proceed accordingly. No new precedent beyond affirming the applicability of the English Court of Appeal's reasoning in R v. Bowden was established.