Civic Government (Scotland) Act 1982

Part IV S Offences, Powers of Constables, etc.

Offences of annoying, offensive, obstructive or dangerous behaviour S

46 Soliciting and importuning by prostitutes. S

(1) A prostitute (whether male or female) who for the purposes of prostitution—

(a) loiters in a public place;

(b) solicits in a public place or in any other place so as to be seen from a public place; or

(c) importunes any person who is in a public place,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F1 level 2 on the standard scale].

(2) In subsection (1) above, “public place” has the same meaning as in section 133 of this Act but includes—

(a) any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and

(b) any public conveyance other than a taxi or hire car within the meaning of section 23 of this Act.

Textual Amendments

F1 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

47 Urinating etc. S

Any person who urinates or defecates in such circumstances as to cause, or to be likely to cause, annoyance to any other person shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F2 level 2 on the standard scale].

Textual Amendments

F2 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

F3 48 Dogs: fouling of pavements. S

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F3 S. 48 repealed (22.10.2003) by Dog Fouling (Scotland) Act 2003 (asp 12), ss. 17, 18(2)

49 Dangerous and annoying creatures. S

(1) Any person who suffers or permits any creature in his charge to cause danger or injury to any other person who is in a public place or to give such person reasonable cause for alarm or annoyance shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F4 level 2 on the standard scale].

(2) A district court may, if satisfied that any creature kept in the vicinity of any place where a person resides is giving that person, while in that place, reasonable cause for annoyance, make an order requiring the person keeping the creature to take, within such period as may be specified in the order, such steps (short of destruction of the creature) to prevent the continuance of the annoyance as may be so specified.

(3) An application to a district court for an order under subsection (2) above may be made by any person.

(4) Any person who fails to comply with an order under subsection (2) above shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F4 level 3 on the standard scale].

(5) The fact that there is a licence under the M1 Dangerous Wild Animals Act 1976 in respect of a creature shall not of itself afford a defence in proceedings under this section relating to that creature.

(6) Where a court convicts a person of an offence under this section or discharges him absolutely F5 ..., it may, whether or not (in the case of conviction) it imposes a penalty under subsection (1) or (4) above—

(a) subject to subsection (8) below, make such order as it sees fit as to the disposal of the creature to which the proceedings relate;

(b) authorise a constable, in pursuance of such an order, to take possession of the creature.

(7) An order under subsection (6) above may, subject to any enactment relating to the protection or conservation of living things, be for the destruction of the creature to which it relates.

(8) No creature disposed of under an order under subsection (6) above shall be given or sold for the purposes of vivisection.

Textual Amendments

F4 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

F5 Words in s. 49(6) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 2 para. 35(2); S.S.I. 2010/413, art. 2, sch. (with art. 3(1))

Marginal Citations

M1 1976 c. 38.

50 Drunkenness. S

(1) Any person who, while not in the care or protection of a suitable person, is, in a public place, drunk and incapable of taking care of himself shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F6 level 2 on the standard scale].

(2) Any person who is drunk in a public place while in charge of a child under the age of 10 shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F6 level 2 on the standard scale].

(3) For the purposes of subsection (2) above, if a child appears to the court to be under the age of 10, the child shall be deemed to be under that age unless the contrary is proved.

(4) A constable may arrest a person for contravening subsection (2) above if he has reasonable cause to believe that the child in the charge of that person is under the age of 10.

(5) Any person who is drunk in a public place while in possession of a firearm (including a crossbow, airgun, air rifle or air pistol) shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F6 level 2 on the standard scale].

(6) In this section, “public place” has the same meaning as in section 133 of this Act but includes—

(a) any place to which at the material time the public are permitted to have access, whether on payment or otherwise; and

(b) any public conveyance other than a taxi or hire car within the meaning of section 23 of this Act.

Textual Amendments

F6 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

51 Obscene material. S

(1) Subject to subsection (4) below, any person who displays any obscene material in any public place or in any other place where it can be seen by the public shall be guilty of an offence under this section.

(2) Subject to subsection (4) below, any person who publishes, sells or distributes or, with a view to its eventual sale or distribution, makes, prints, has or keeps any obscene material shall be guilty of an offence under this section.

[F7 (2A) Subject to subsection (4) below, any person who—

(a) is responsible for the inclusion of any obscene material in a programme included in a programme service; or

(b) with a view to its eventual inclusion in a programme so included, makes, prints, has or keeps any obscene material,

shall be guilty of an offence under this section.]

[F8 (3) A person guilty of an offence under this section is liable—

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

(b) on conviction on indictment—

(i) in a case where the obscene material is or includes an extreme pornographic image, to imprisonment for a period not exceeding 5 years or to a fine or to both, or

(ii) in any other case, to imprisonment for a period not exceeding 3 years or to a fine or to both.]

(4) A person shall not be convicted of an offence under this section if he proves that he had used all due diligence to avoid committing the offence.

(5) Under an indictment for or on a complaint of a breach of subsection (1) above, the court may, if satisfied that the person accused is guilty of an offence under section 1(1) of the M2 Indecent Displays (Control) Act 1981 (offence of public display of indecent matter), convict him of a breach of the said section 1(1).

(6) Nothing in this section applies in relation to any matter—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F9

(b) included in a performance of a play (within the meaning of the M3 Theatres Act 1968).

(7) For section 5(4)(b) of the Indecent Displays (Control) Act 1981 (saving) there shall be substituted the following—

“(b) section 51 of the Civic Government (Scotland) Act 1982.”

(8) In this section—

• [F10 “extreme pornographic image” is to be construed in accordance with section 51A;]

• “material” includes any book, magazine, bill, paper, print, film, tape, disc or other kind of recording (whether of sound or visual images or both), photograph, drawing, painting, representation, model or figure . . . F11 ;

• “photograph” includes the negative as well as the positive version;

• “public place” has the same meaning as in section 133 of this Act except that it includes any place to which at the material time the public are permitted to have access, whether on payment or otherwise;

• F12 ...

• [F13 “programme” and “programme service” have the same meaning as in the Broadcasting Act 1990;]

and the reference to publishing includes a reference to . . . F14 playing, projecting or otherwise reproducing [F15 , or, where the material is data stored electronically, transmitting that data].

Textual Amendments

F7 S. 51(2A) inserted by Broadcasting Act 1990 (c. 42, SIF 96), ss. 4(6), 87(6), 163(2)

F8 S. 51(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 42(1)(a), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

F9 S. 51(6)(a) repealed by Broadcasting Act 1990 (c. 42, SIF 96), ss. 163(3), 203(3), Sch. 21 (with ss. 4(6), 87(6), Sch. 12 Pt. II para. 1)

F10 Words in s. 51(8) inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 42(1)(b)(i), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

F11 Words added by Cable and Broadcasting Act 1984 (c. 46, SIF 96), s. 26(b) and repealed by Broacasting Act 1990 (c. 42, SIF 96), ss. 163(4)(a), 203(3), Sch. 21 (with ss. 4(6), 87(6), Sch. 12 Pt. II para. 1)

F12 Words in s. 51(8) repealed (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 42(1)(b)(ii), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

F13 Definitions inserted by Broadcasting Act 1990 (c. 42, SIF 96), ss. 4(6), 87(6), 163(4)(b)

F14 Word inserted by Cable and Broadcasting Act 1984 (c. 46, SIF 96), s. 26(c) and repealed by Broadcasting Act 1990 (c. 42, SIF 96), ss. 163(4)(c), 203(3), Sch. 21 (with ss. 4(6), 87(6), Sch. 12 Pt. II para. 1)

F15 Words in s. 51(8) inserted (3.2.1995) by 1994 c. 33, s. 168(1), Sch. 9 para. 20; S.I. 1995/127, art. 2

Modifications etc. (not altering text)

C1 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.

Marginal Citations

M2 1981 c. 42.

M3 1968 c. 54.

[F16 51A Extreme pornography S

(1) A person who is in possession of an extreme pornographic image is guilty of an offence under this section.

(2) An extreme pornographic image is an image which is all of the following—

(a) obscene,

(b) pornographic,

(c) extreme.

(3) An image is pornographic if it is of such a nature that it must reasonably be assumed to have been made solely or principally for the purpose of sexual arousal.

(4) Where (as found in the person's possession) an image forms part of a series of images, the question of whether the image is pornographic is to be determined by reference to—

(a) the image itself, and

(b) where the series of images is such as to be capable of providing a context for the image, its context within the series of images,

and reference may also be had to any sounds accompanying the image or the series of images.

(5) So, for example, where—

(a) an image forms an integral part of a narrative constituted by a series of images, and

(b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been made solely or principally for the purpose of sexual arousal,

the image may, by virtue of being part of that narrative, be found not to be pornographic (even if it may have been found to be pornographic where taken by itself).

(6) An image is extreme if it depicts, in an explicit and realistic way any of the following—

(a) an act which takes or threatens a person's life,

(b) an act which results, or is likely to result, in a person's severe injury,

(c) rape or other non-consensual penetrative sexual activity,

(d) sexual activity involving (directly or indirectly) a human corpse,

(e) an act which involves sexual activity between a person and an animal (or the carcase of an animal).

(7) In determining whether (as found in the person's possession) an image depicts an act mentioned in subsection (6), reference may be had to—

(a) how the image is or was described (whether the description is part of the image itself or otherwise),

(b) any sounds accompanying the image,

(c) where the image forms an integral part of a narrative constituted by a series of images—

(i) any sounds accompanying the series of images,

(ii) the context provided by that narrative.

(8) A person guilty of an offence under this section is liable—

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

(b) on conviction on indictment, to imprisonment for a period not exceeding 3 years or to a fine or to both.

(9) In this section, an “image” is—

(a) a moving or still image (made by any means), or

(b) data (stored by any means) which is capable of conversion into such an image.

Textual Amendments

F16 Ss. 51A-51C inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 42(2), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

51B Extreme pornography: excluded images S

(1) An offence is not committed under section 51A if the image is an excluded image.

(2) An “excluded image” is an image which is all or part of a classified work.

(3) An image is not an excluded image where—

(a) it has been extracted from a classified work, and

(b) it must be reasonably be assumed to have been extracted (whether with or without other images) from the work solely or principally for the purpose of sexual arousal.

(4) In determining whether (as found in the person's possession) the image was extracted from the work for the purpose mentioned in subsection (3)(b), reference may be had to—

(a) how the image was stored,

(b) how the image is or was described (whether the description is part of the image itself or otherwise),

(c) any sounds accompanying the image,

(d) where the image forms an integral part of a narrative constituted by a series of images—

(i) any sounds accompanying the series of images,

(ii) the context provided by that narrative.

(5) In this section—

• “classified work” means a video work in respect of which a classification certificate has been issued by a designated authority,

• “classification certificate” and “video work” have the same meanings as in the Video Recordings Act 1984 (c.39),

• “designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act,

• “extract” includes an extract of a single image,

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

Textual Amendments

F16 Ss. 51A-51C inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 42(2), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

51C Extreme pornography: defences S

(1) Where a person (“A”) is charged with an offence under section 51A, it is a defence for A to prove one or more of the matters mentioned in subsection (2).

(2) The matters are—

(a) that A had a legitimate reason for being in possession of the image concerned,

(b) that A had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image,

(c) that A—

(i) was sent the image concerned without any prior request having been made by or on behalf of A, and

(ii) did not keep it for an unreasonable time.

(3) Where A is charged with an offence under section 51A, it is a defence for A to prove that—

(a) A directly participated in the act depicted, and

(b) subsection (4) applies.

(4) This subsection applies—

(a) in the case of an image which depicts an act described in subsection (6)(a) of that section, if the act depicted did not actually take or threaten a person's life,

(b) in the case of an image which depicts an act described in subsection (6)(b) of that section, if the act depicted did not actually result in (nor was it actually likely to result in) a person's severe injury,

(c) in the case of an image which depicts an act described in subsection (6)(c) of that section, if the act depicted did not actually involve non-consensual activity,

(d) in the case of an image which depicts an act described in subsection (6)(d) of that section, if what is depicted as a human corpse was not in fact a corpse,

(e) in the case of an image which depicts an act described in subsection (6)(e) of that section, if what is depicted as an animal (or the carcase of an animal) was not in fact an animal (or a carcase).

(5) The defence under subsection (3) is not available if A shows, gives or offers for sale the image to any person who was not also a direct participant in the act depicted.

(6) In this section “image” and “extreme pornographic image” are to be construed in accordance with section 51A.]

Textual Amendments

F16 Ss. 51A-51C inserted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 42(2), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

52 Indecent photographs etc. of children. S

(1) Any person who—

(a) takes, or permits to be taken [F17 or makes], any indecent photograph [F18 or pseudo-photograph of a child]

(b) distributes or shows such an indecent photograph [F19 or pseudo-photograph];

(c) has in his possession such an indecent photograph [F19 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 [F19 or pseudo-photograph], or intends to do so

shall be guilty of an offence under this section.

(2) [F20 In subsection (1) above “child” means, subject to subsection (2B) below, a person under the age of [F21 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 [F21 18].

[F22 (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 [F23 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 [F24 6 months] or to a fine not exceeding the prescribed sum within the meaning of [F25 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 [F26 [F27 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 [F28 or pseudo-photograph] if he parts with possession of it to, or exposes or offers it for acquisition by, another person.

(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 [F28 or pseudo-photograph] or (as the case may be) having it in his possession; or

(b) that he had not himself seen the photograph [F28 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 M4 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.”

F29 (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;

[F30 (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.

[F31 (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

F17 Words in s. 52(1)(a) inserted (3.2.1995) by 1994 c. 33, s. 84(6)(a)(i) (with Sch. 9 para. 17)

F18 Words in s. 52(1)(a) substituted (3.2.1995) by 1994 c. 33, s. 84(6)(a)(ii) (with Sch. 9 para. 17

F19 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

F20 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

F21 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

F22 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

F23 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.

F24 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

F25 Words in s. 52(3) substituted (1.4.1996) by 1995 c. 40, ss. 5, 7(2), Sch. 4 para. 44(3)

F26 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

F27 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.

F28 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

F29 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.

F30 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

F31 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)

C2 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

C3 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.

C4 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

M4 1952 c. 67.

[F32 52A Possession of indecent photographs of children. S

(1) It is an offence for a person to have any indecent photograph [F33 or pseudo-photograph of a child] in his possession.

(2) Where a person is charged with an offence under subsection (1), it shall be a defence for him to prove—

(a) that he had a legitimate reason for having the photograph [F34 or pseudo-photograph] in his possession; or

(b) that he had not himself seen the photograph [F34 or pseudo-photograph] and did not know, nor had any cause to suspect, it to be indecent; or

(c) that the photograph [F34 or pseudo-photograph] was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.

(3) A person shall be liable

[F35 (a)] on summary conviction of an offence under this section to [F36 imprisonment for a period not exceeding 6 months or to]a fine not exceeding level 5 on the standard scale [F37 “or to both.”].

[F38 (b) on conviction on indictment of such an offence to imprisonment for a period not exceeding 5 years or to a fine or to both.]

(4) Subsections (2) [F39 to (2C)] [F40 and (8) to (10)] of section 52 of this Act shall have effect for the purposes of this section as they have for the purposes of that section.]

Textual Amendments

F32 S. 52A inserted by Criminal Justice Act 1988 (c. 33, SIF 39:1, 2) s. 161(1)(2)

F33 Words in s. 52A(1) substituted (3.2.1995) by 1994 c. 33, s. 84(7); S.I. 1995/127, art. 2(1), Sch. 1

F34 words in s. 52A(2)(a)-(c) inserted (3.2.1995) by 1994 c. 33, s. 84(7)(b); S.I. 1995/127, art. 2(1), Sch. 1

F35 Words in s. 52A(3) renumbered as s. 52A(3)(a) (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 19(1)(b), 89(2); S.S.I. 2003/288, art. 2, sch.

F36 Words in s. 52A(3) inserted (3.2.1995) by 1994 c. 33, s. 84(7)(c)(i); S.I. 1995/127, art. 2(1), Sch. 1

F37 Words in s. 52A(3) added (3.2.1995) by 1994 c. 33, s. 84(7)(c)(ii); S.I. 1995/127, art. 2(1), Sch. 1

F38 S. 52A(3)(b) inserted (27.6.2003) by Criminal Justice (Scotland) Act 2003 (asp 7), ss. 19(1)(b), 89(2); S.S.I. 2003/288, art. 2, sch.

F39 Words in s. 52A(4) inserted (3.2.1995) by 1994 c. 33, s. 84(7)(d); S.I. 1995/127, art. 2(1), Sch. 1

F40 Words in s. 52A(4) substituted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 41(1)(b), 206(1); S.S.I. 2010/413, art. 2, sch.

[F41 52B Sections 52 and 52A: exceptions for photographs of 16 and 17 year olds S

(1) If subsection (2) below applies, the accused is not guilty of an offence under section 52(1)(a) of this Act of taking or making an indecent photograph of a child.

(2) This subsection applies if—

(a) either—

(i) the photograph was of the child aged 16 or over; or

(ii) the accused reasonably believed that to be so;

(b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i) married to or civil partners of each other; or

(ii) partners in an established relationship; and

(c) either—

(i) the child consented to the photograph being taken or made; or

(ii) the accused reasonably believed that to be so.

(3) If subsection (4) below applies, the accused is not guilty of an offence under section 52(1)(b) of this Act relating to an indecent photograph of a child.

(4) This subsection applies if—

(a) either—

(i) the photograph was of the child aged 16 or over; or

(ii) the accused reasonably believed that to be so;

(b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i) married to or civil partners of each other; or

(ii) partners in an established relationship;

(c) either—

(i) the child consented to the photograph's being taken or made; or

(ii) the accused reasonably believed that to be so; and

(d) the showing or distributing of the photograph was only to the child.

(5) If subsection (6) below applies, the accused is not guilty of an offence under section 52(1)(c) of this Act relating to an indecent photograph of a child.

(6) This subsection applies if—

(a) either—

(i) the photograph was of the child aged 16 or over; or

(ii) the accused reasonably believed that to be so;

(b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i) married to or civil partners of each other; or

(ii) partners in an established relationship;

(c) either—

(i) the child consented to the photograph's being in the accused's possession; or

(ii) the accused reasonably believed that to be so; and

(d) the accused had the photograph in his possession with a view to its being distributed or shown only to the child.

(7) If subsection (8) below applies, the accused is not guilty of an offence under section 52A of this Act relating to an indecent photograph of a child.

(8) This subsection applies if—

(a) either—

(i) the photograph was of the child aged 16 or over; or

(ii) the accused reasonably believed that to be so;

(b) at the time of the offence charged or at the time when the accused obtained the photograph, the accused and the child were—

(i) married to or civil partners of each other; or

(ii) partners in an established relationship; and

(c) either—

(i) the child consented to the photograph's being in the accused's possession; or

(ii) the accused reasonably believed that to be so.

(9) Subsections (2), (4), (6) and (8) above apply whether the photograph showed the child alone or with the accused, but not if it showed any other person.

Textual Amendments

F41 Ss. 52B, 52C inserted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 16(3), 20(2); S.S.I. 2005/480, art. 2

52C Section 52B: proof of exceptions S

(1) This section applies for the purpose of determining whether a matter within a paragraph of section 52B(2), (4), (6) or (8) of this Act is the case.

(2) If sufficient evidence is adduced to raise an issue as to whether the matter is the case, it shall be held to be the case, except where subsection (3) below applies.

(3) This subsection applies where the prosecution proves beyond reasonable doubt that the matter is not the case.

(4) Otherwise, the matter shall be held not to be the case.]

Textual Amendments

F41 Ss. 52B, 52C inserted (7.10.2005) by Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (asp 9), ss. 16(3), 20(2); S.S.I. 2005/480, art. 2

53 Obstruction by pedestrians. S

Any person who, being on foot in any public place—

(a) obstructs, along with another or others, the lawful passage of any other person and fails to desist on being required to do so by a constable in uniform, or

(b) wilfully obstructs the lawful passage of any other person

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F42 level 2 on the standard scale].

Textual Amendments

F42 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

54 Playing instruments, singing, playing radios, etc. S

(1) Any person who—

(a) sounds or plays any musical instrument;

(b) sings or performs; or

(c) operates any radio or television receiver, record player, tape-recorder or other sound producing device

so as to give any other person reasonable cause for annoyance and fails to desist on being required to do so by a constable in uniform, shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding £50.

(2) This section is without prejudice to any offence under section 62 of the M5 Control of Pollution Act 1974 (operation of loudspeakers in streets).

[F43 (2A) Where a constable reasonably suspects that an offence under subsection (1) above has been committed in relation to a musical instrument or in relation to such a device as is mentioned in paragraph (c) of that subsection, he may enter any premises on which he reasonably suspects that instrument or device to be and seize any such instrument or device he finds there.

(2B) A constable may use reasonable force in the exercise of the power conferred by subsection (2A) above.

(2C) Schedule 2A to this Act (which makes provision in relation to the retention and disposal of property seized under subsection (2A) above) shall have effect.]

(3) Subsection (1) above shall not apply to the operation of a loudspeaker—

(a) for police, [F44 fire-fighting] or ambulance purposes, by [F45 Scottish Water] in the exercise of any of its functions, or by a local authority within its area;

(b) for communicating with persons on a vessel for the purpose of directing the movement of that or any other vessel;

(c) if the loudspeaker forms part of a public telephone system;

(d) if the loudspeaker—

(i) is in or fixed to a vehicle, and

(ii) is operated solely for the entertainment of or for communicating with the driver or a passenger of the vehicle or, where the loudspeaker is or forms part of the horn or similar warning instrument of the vehicle, solely for giving warning to other traffic, and

(iii) is so operated as not to give reasonable cause for annoyance to persons in the vicinity;

(e) otherwise than on a [F46 road], by persons employed in connection with a transport undertaking used by the public in a case where the loudspeaker is operated solely for making announcements to passengers or prospective passengers or to other persons so employed;

(f) by a travelling showman on land which is being used for the purposes of a pleasure fair;

(g) in case of emergency.

F47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F48 (4) In subsection (3)(a), the reference to fire-fighting purposes is a reference to—

(a) the purposes of [F49 the Scottish Fire and Rescue Service] ; or

(b) fire-fighting functions of any other employer of fire-fighters.]

Textual Amendments

F43 S. 54(2A)-(2C) inserted (1.12.1998) by 1998 c. 37, s. 24(2); S.I. 1998/2327, art. 2(1)

F44 Words in s. 54(3)(a) substituted (2.8.2005) by Fire (Scotland) Act 2005 (asp 5), s. 90, sch. 3 para. 11(a) (with s. 77); S.S.I. 2005/392, art. 2(k)

F45 Words in s. 54(3)(a) substituted (1.4.2002) by Water Industry (Scotland) Act 2002 (asp 3), s. 71(2), Sch. 7 para. 13(a), (with s. 67); S.S.I. 2002/118, art. 2

F46 Word substituted by Roads (Scotland) Act 1984 (c. 54, SIF 108), s. 156(1), Sch. 9 para. 87(4)

F47 Words in s. 54(3) repealed (1.4.2002) by Water Industry (Scotland) Act 2002 (asp 3), s. 71(2), Sch. 7 para. 13(b), (with s. 67); S.S.I. 2002/118, art. 2

F48 S. 54(4) inserted (2.8.2005) by Fire (Scotland) Act 2005 (asp 5), s. 90, sch. 3 para. 11(b) (with s. 77); S.S.I. 2005/392, art. 2(k)

F49 Words in s. 54(4)(a) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 53(2); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)

Marginal Citations

M5 1974 c. 40.

55 Touting. S

(1) Any person who—

(a) in a public place—

(i) touts for the purpose of selling or advertising anything or otherwise obtaining custom so as to give any other person reasonable cause for annoyance; or

(ii) importunes any other person for that purpose so as to give that, or any other, person reasonable cause for annoyance; and

(b) fails to desist when required to do so by a constable in uniform,

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F50 level 2 on the standard scale].

Textual Amendments

F50 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

56 Fires. S

Any person who lays or lights a fire in a public place so as to endanger any other person or give him reasonable cause for alarm or annoyance or so as to endanger any property shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F51 level 3 on the standard scale].

Textual Amendments

F51 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

Preventive offences S

57 Being in or on building etc. with intent to commit theft. S

(1) Any person who, without lawful authority to be there, is found in or on a building or other premises, whether enclosed or not, or in its curtilage or in a vehicle or vessel so that, in all the circumstances, it may reasonably be inferred that he intended to commit theft there shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F52 level 4 on the standard scale] or to imprisonment for a period not exceeding 3 months or to both.

(2) In this section “theft” includes any aggravation of theft including robbery.

Textual Amendments

F52 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

58 Convicted thief in possession. S

(1) Any person who, being a person to whom this section applies—

(a) has or has recently had in his possession any tool or other object from the possession of which it may reasonably be inferred that he intended to commit theft or has committed theft; and

(b) is unable to demonstrate satisfactorily that his possession of such tool or other object is or was not for the purposes of committing theft

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F53 level 4 on the standard scale] or to imprisonment for a period not exceeding 3 months or to both.

(2) For the purposes of subsection (1) above, a person shall have recently had possession of a tool or other object if he had possession of it within 14 days before the date of—

(a) his arrest without warrant for the offence of having so possessed it in contravention of subsection (1) above; or

(b) the issue of a warrant for his arrest for that offence; or

(c) if earlier, the service upon him of the first complaint alleging that he has committed that offence.

(3) Where a court convicts a person of an offence under this section or discharges him absolutely F54 ... in respect of such an offence it may order the forfeiture of any tool or other object in respect of the possession of which he was convicted or [F55 , as the case may be, discharged absolutely.].

(4) This section applies to a person who has two or more convictions for theft which are not, for the purposes of the M6 Rehabilitation of Offenders Act 1974, spent convictions.

[F56 (4A) In subsection (4), the reference to a conviction for theft includes a reference to a conviction by a court in England and Wales, Northern Ireland or a member State of the European Union other than the United Kingdom of an offence that is equivalent to theft.

(4B) Any issue of equivalence arising in pursuance of subsection (4A) is for the court to determine.]

(5) In this section “theft” includes any aggravation of theft including robbery.

Textual Amendments

F53 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

F54 Words in s. 58(3) repealed (1.2.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 2 para. 35(3)(a); S.S.I. 2010/413, art. 2, sch. (with art. 3(1))

F55 Words in s. 58(3) substituted (28.3.2011) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), ss. 24(3)(b), 206(1); S.S.I. 2011/178, art. 2, sch. (with sch.)

F56 S. 58(4A)(4B) inserted (13.12.2010) by Criminal Justice and Licensing (Scotland) Act 2010 (asp 13), s. 206(1), sch. 4 para. 9; S.S.I. 2010/413, art. 2, sch. (with sch.)

Marginal Citations

M6 1974 c. 53.

Powers of constables etc. S

59 Powers of arrest and apprehension. S

(1) Subject to subsection (2) below, a constable may, where it is necessary in the interests of justice to do so, arrest without warrant a person whom he finds committing an offence to which this section applies or a person who is delivered into his custody in pursuance of subsection (3) below.

(2) A constable who is not in uniform shall produce his identification if required to do so by any person whom he is arresting under subsection (1) above.

(3) The owner, tenant or occupier of any property in, upon, or in respect of, which an offence to which this section applies is being committed or any person authorised by him may apprehend any person whom the owner or, as the case may be, the tenant, occupier or authorised person finds committing that offence and detain the apprehended person until he can be delivered into the custody of a constable.

In this subsection “property” means heritable or moveable property.

(4) This section applies to offences under sections 50, 57 and 58 of this Act.

(5) This section shall not prejudice any power of arrest conferred by law apart from this section.

60 Powers of search and seizure. S

(1) Subject to subsection (2) and (3) below, if a constable has reasonable grounds to suspect that a person is in possession of any stolen property, the constable may without warrant—

(a) search that person or anything in his possession, and detain him for as long as is necessary for the purpose of that search;

(b) enter and search any vehicle or vessel in which the constable suspects that that thing may be found, and for that purpose require the person in control of the vehicle or vessel to stop it and keep it stopped;

(c) enter and search any premises occupied by a second-hand dealer or a metal dealer for the purposes of his business;

(d) seize and detain anything found in the course of any such search which appears to the constable to have been stolen or to be evidence of the commission of the crime of theft

and may, in doing so, use reasonable force.

In this subsection “second-hand dealer” and “metal dealer” have the meanings respectively assigned to them by sections 24(2) and 37(1) of this Act.

(2) The power under subsection (1)(b) above to require the person in charge of a vehicle or vessel to stop it shall be exercisable only by a constable in uniform.

(3) A constable who is not in uniform shall not be entitled to exercise the powers which he may exercise under subsection (1)(a) to (c) above until he has produced his identification—

(a) in relation to the exercise of powers under subsection (1)(a) above, to the person in respect of whom the powers are exercised;

(b) in relation to the exercise of powers under subsections (1)(b) or (c) above, to the person for the time being in charge of the vehicle, vessel or premises and to any other person in or on the vehicle, vessel or premises who, having reasonable cause to do so, requests to see it.

(4) In subsection (1) above “theft” includes any aggravation of theft including robbery.

(5) Nothing in [F57 section 54(2A) of this Act or] this section prejudices any power of entry or search or any power to seize or detain property or any power to require any vehicle or vessel to be stopped [F58 which is otherwise exercisable by a constable].

(6) Any person who, without reasonable excuse—

(a) fails to allow a constable [F59 to enter and search—,

(i) any premises in pursuance of section 54(2A) of this Act or of subsection (1) above; or

(ii) any vehicle or vessel in pursuance of the said subsection (1)], or seize and detain anything found in the course of such searsh;

(b) when required by a constable in pursuance of subsection (1) above to stop a vehicle or vessel and keep it stopped, fails to do so; or

(c) obstructs a constable in the exercise of his powers under [F60 section 54(2A) of this Act or]subsection (1) above;

shall be guilty of an offence and liable, on summary conviction, to a fine not exceeding [F61 level 3 on the standard scale].

Textual Amendments

F57 Words in s. 60(5) inserted (1.12.1998) by 1998 c. 37, s. 24(3)(a)(i); S.I. 1998/2327, art. 2(1)

F58 Words in s. 60(5) substituted (1.12.1998) by 1998 c. 37, s. 24(3)(a)(ii); S.I. 1998/2327, art. 2(1)

F59 Words and s. 60(6)(a)(i)(ii) substituted for words in s. 60(6)(a) substituted (1.12.1998) by 1998 c. 37, s. 24(3)(b)(i); S.I. 1998/2327, art. 2(1)

F60 Words in s. 60(6)(c) inserted (1.12.1998) by 1998 c. 37, s. 24(3)(b)(ii); S.I. 1998/2327, art. 2(1)

F61 Words substituted by virtue of Criminal Procedure (Scotland) Act 1975 (c. 21, SIF 39:1), s. 289G

61 Protection of insecure premises. S

(1) Where—

(a) any premises have been left open, unlocked or otherwise insecure; and

(b) in the opinion of a constable, the insecurity of the premises is likely to conduce to the commission of an offence,

the constable may take such reasonable steps as he may consider necessary to make the premises secure.

(2) Any reasonable expense incurred by a constable in making any premises secure under subsection (1) above may be recovered by the [F62 Scottish Police Authority] from the occupier (or, where there is no occupier, from the tenant or, where there is no occupier or tenant, from the owner) of the premises.

Textual Amendments

F62 Words in s. 61(2) substituted (1.4.2013) by Police and Fire Reform (Scotland) Act 2012 (asp 8), s. 129(2), sch. 7 para. 6(3); S.S.I. 2013/51, art. 2 (with transitional provisions and savings in S.S.I. 2013/121)