Section 105 Pornographic images of strangulation or suffocation: ScotlandI1

After section 51C of the Civic Government (Scotland) Act 1982 insert—

“Pornographic images of strangulation or suffocation

51D

(1)

It is an offence for a person to be in possession of an image if—

(a)

the image is pornographic, within the meaning of section 51A,

(b)

the image depicts, in an explicit and realistic way, a person strangling or suffocating another person, and

(c)

a reasonable person looking at the image would think that the persons were real.

(2)

It is an offence for a person to publish an image of the kind mentioned in subsection (1).

(3)

Publishing an image includes giving or making it available to another person by any means.

(4)

Subsections (1) and (2) do not apply to excluded images, within the meaning of section 51B.

(5)

In this section “image” is to be construed in accordance with section 51A.

Defences to offences under section 51D

51E

(1)

Where a person is charged with an offence under section 51D(1), it is a defence for the person to prove any of the matters mentioned in subsection (2).

(2)

The matters are—

(a)

that the person had a legitimate reason for being in possession of the image concerned;

(b)

that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an image of the kind mentioned in section 51D(1);

(c)

that the person—

(i)

was sent the image concerned without any prior request having been made by or on behalf of the person, and

(ii)

did not keep it for an unreasonable time;

(d)

that the person directly participated in the act depicted and the act did not actually involve strangulation or suffocation of any person.

(3)

Where a person is charged with an offence under section 51D(2), it is a defence for the person to prove any of the matters mentioned in subsection (4).

(4)

The matters are—

(a)

that the person had a legitimate reason for publishing the image concerned to the persons to whom they published it;

(b)

that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an image of the kind mentioned in section 51D(1);

(c)

that the person directly participated in the act depicted, the act did not actually involve strangulation or suffocation of any person, and the person only published the image to other persons who directly participated.

Penalties for offences under section 51D

51F

(1)

A person who commits an offence under section 51D(1) is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding two years or a fine (or both).

(2)

A person who commits an offence under section 51D(2) is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).

Possession of extreme pornographic images: alternative verdict

51G

If on the trial of a person charged with an offence under section 51A a court finds the person not guilty of the offence charged, the court may find the person guilty of an offence under section 51D(1).”

In the Extreme Pornography (Electronic Commerce Directive) (Scotland) Regulations 2011 (S.S.I. 2011/137)—