The Scottish legal authorities have no time for criminals who – unsportingly – try to change their behaviour in order to avoid committing criminal acts and ending up in court.
That is the strange conclusion that follows from a reply we received last week from the Crown Office and Procurator Fiscal Service, which is responsible for the prosecution of crime in Scotland. Following queries from our readers, we put a series of questions over the soon-to-be-commenced Scottish extreme porn law. We asked whether the Crown Office intended issuing guidelines, as has happened south of the border, to enable those unclear over the precise scope of the law to delete any images that might get them in trouble.
A spokesman told us: "We do not publicly disclose our prosecution policy in relation to specific offences as to do so may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold."
They added that any such information would also be exempt from any attempt to tease it out by using Freedom of Information legislation.
Jennie Kermode, a Glasgow-based campaigner and writer for film review site Eye for Film told us: "The problem with the Crown Office's position in this instance is that, with the best will in the world, people cannot be expected to adhere to a law they do not understand. In the case of a crime like murder, it's pretty simple – don't kill people."
She added: "In this case, what the law says is that people may possess some images but not others; how are they to know which ones are okay?
"This kind of law has a chilling effect on activity not actually considered criminal, much as the infamous Section 2A (clause 28 in England) restricted discussion of homosexuality far beyond its original mandate due to its lack of clarity. Such intentional obfuscation goes against the spirit of our legal system."
The Scottish extreme porn law is not yet in effect. It was passed by the Scottish Parliament, as s42 of the Criminal Justice and Licensing (Scotland) Act 2010 and is similar in most respects to the English version of that law, banning possession of pictures depicting extreme violent sexual activity with humans (and any sex at all with animals). However, it goes a step further, adding any depiction of "rape or other non-consensual penetrative sexual activity" to the list of categories a jury will have to ponder over.
As the Crown Office pointed out: the precise date on which a law is commenced is a matter for the Scottish Government.
We also asked why it had ignored calls by campaigners for this law to be referred to the UK Supreme Court voluntarily, in order to ensure it did not breach human rights. The Office declined to answer this directly, suggesting instead it was up to the courts to decide on such matters. ®