Civic Government (Scotland) Act 1982

52 Indecent photographs etc. of children. S

(1) Any person who—

(a) takes, or permits to be taken [F1 or makes], any indecent photograph [F2 or pseudo-photograph of a child]

(b) distributes or shows such an indecent photograph [F3 or pseudo-photograph];

(c) has in his possession such an indecent photograph [F3 or pseudo-photograph]with a view to its being distributed or shown by himself or others: or

(d) publishes or causes to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such an indecent photograph [F3 or pseudo-photograph], or intends to do so

shall be guilty of an offence under this section.

(2) [F4 In subsection (1) above “child” means, subject to subsection (2B) below, a person under the age of [F5 18]; and] in proceedings under this section a person is to be taken as having been a child at any material time if it appears from the evidence as a whole that he was then under the age of [F5 18].

[F6 (2A) In this section, “pseudo-photograph” means an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph.

(2B) If the impression conveyed by a pseudo-photograph is that the person shown is a child, the pseudo-photograph shall be treated for all purposes of this Act as showing a child and so shall a pseudo-photograph where the predominant impression conveyed is that the person shown is a child notwithstanding that some of the physical characteristics shown are those of an adult.

(2C) In this section, references to an indecent pseudo-photograph include—

(a) a copy of an indecent pseudo-photograph;

(b) data stored on a computer disc or by other electronic means which is capable of conversion into [F7 an indecent pseudo-photograph] .]

(3) A person guilty of an offence under this section shall be liable—

(a) on summary conviction, to imprisonment for a period not exceeding [F8 6 months] or to a fine not exceeding the prescribed sum within the meaning of [F9 section 225(8) of the Criminal Procedure (Scotland) Act 1995] (at the passing of this Act £1,000) or to both;

(b) on conviction on indictment, to imprisonment for a period not exceeding [F10 [F11 10 years]] or to a fine or to both.

(4) For the purposes of this section, a person is to be regarded as distributing an indecent photograph [F12 or pseudo-photograph] if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

[F13 (4A) Where a person is charged with an offence under subsection (1)(a) of making an indecent photograph or pseudo-photograph of a child, it shall be a defence for the person to prove that—

(a) at the time of the offence charged, the person was a member of OFCOM, employed or engaged by OFCOM, or assisting OFCOM in the exercise of any of their online safety functions (within the meaning of section 235 of the Online Safety Act 2023), and

(b) the person made the photograph or pseudo-photograph for the purposes of OFCOM’s exercise of any of those functions.]

(5) Where a person is charged with an offfence under subsection (1)(b) or (c) above, it shall be a defence for him to prove—

(a) that he had a legitimate reason for distributing or showing the photograph [F12 or pseudo-photograph] or (as the case may be) having it in his possession; or

(b) that he had not himself seen the photograph [F12 or pseudo-photograph] and did not know, nor had any cause to suspect, it to be indecent.

(6) In paragraph 2 of the Schedule to the M1 Visiting Forces Act 1952 (offences against the person in the case of which a member of a visiting force is in certain circumstances not liable to be tried by a United Kingdom court) the word “ and” immediately preceding sub-paragraph (b)(iii) shall be omitted and after the said sub-paragraph (b)(iii) there shall be added—

“(iv) section 52(1)(a) of the Civic Government (Scotland) Act 1982.”

F14 (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) In this section—

(a) references to an indecent photograph include an indecent film, a copy of an indecent photograph or film and an indecent photograph comprised in a film;

(b) a photograph (including one comprised in a film) shall, if it shows a child and is indecent, be treated for all purposes of this section as an indecent photograph of a child;

[F15 (c) references to a photograph include—

(i) the negative as well as the positive version; and

(ii) data stored on a computer disc or by other electronic means which is capable of conversion into a photograph.]

(d) “film” includes any form of video-recording.

[F16 (e) “OFCOM” means the Office of Communications.]

[F17 (9) In this section, references to a photograph also include a tracing or other image, whether made by electronic or other means (of whatever nature), which is not itself a photograph or pseudo-photograph but which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both).

(10) And subsection (2B) applies in relation to such an image as it applies in relation to a pseudo-photograph.]

Textual Amendments

F1 Words in s. 52(1)(a) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(a)(i) (with Sch. 9 para. 17)

F2 Words in s. 52(1)(a) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(a)(ii) (with Sch. 9 para. 17

F3 Words in s. 52(1)(b)(c)(d) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(b); S.I. 1995/127, art. 2(1), Sch. 1

F4 Words in s. 52(2) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(c); S.I. 1995/127, art. 2(1), Sch. 1

F5 Word in s. 52(2) substituted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 16(2), 20(2); S.S.I. 2005/480, art. 2

F6 S. 52(2A)-(2C) added (3.2.1995) by 1994 c. 33, s. 84(6)(d); S.I. 1995/127, art. 2(1), Sch. 1

F7 Words in s. 52(2C)(b) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 41(1)(a)(i), 206(1); S.S.I. 2010/413, art. 2, sch.

F8 Words in s. 52(3)(a) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(e)(i); S.I. 1995/127, art. 2(1), Sch. 1

F9 Words in s. 52(3) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 44(3)

F10 Words in s. 52(3)(b) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(e)(ii); S.I. 1995/127, art. 2(1), Sch. 1

F11 Words in s. 52(3)(b) substituted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 19(1)(a), 89(2); S.S.I. 2003/288, art. 2, sch.

F12 Words in s. 52(4)(5)(a)(b) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(f); S.I. 1995/127, art. 2(1), Sch. 1

F13 S. 52(4A) inserted (26.10.2023) by Online Safety Act 2023 (c. 50), ss. 214(5), 240(4)

F14 S. 52(7) repealed (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 7 para. 13; S.S.I. 2010/413, art. 2, sch.

F15 S. 52(8)(c) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(g); S.I. 1995/127, art. 2(1), Sch. 1

F16 S. 52(8)(e) inserted (26.10.2023) by Online Safety Act 2023 (c. 50), ss. 214(6), 240(4)

F17 S. 52(9)(10) added (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 41(1)(a)(ii), 206(1); S.S.I. 2010/413, art. 2, sch.

Modifications etc. (not altering text)

C1 S. 52(2)-(2C) applied (1.5.2004) by Sexual Offences Act 2003 (c. 42), s. 141, Sch. 3 para. 97(b); S.S.I. 2004/138, art. 2; S.I. 2004/874, art. 2

C2 The text of ss. 16, 18(11), 51(7) and 52(6) is in the form in which it was originally enacted: it was not reproduced in Statutes in Force and does not reflect any amendments or repeals which may have been made prior to 1.2.1991.

C3 S. 52(8) applied (1.5.2004) by Sexual Offences Act 2003 (c. 42), s. 141, Sch. 3 para. 97(b); S.S.I. 2004/138, art. 2; S.I. 2004/874, art. 2

Marginal Citations

M1 1952 c. 67.