APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Clarke Lord Menzies Lady Dorrian	[2013] HCJAC 45 XJ1010/12   OPINION OF THE COURT   delivered by LORD CLARKE   in   STATED CASE   by   COLIN ANTHONY MATTHEW ROBINSON   Appellant;   against   PROCURATOR FISCAL, DUMFRIES   Respondent:   _____________

 

Appellant: B Gilfedder, Solicitor Advocate; Paterson Bell

Respondent: I McSporran, Solicitor Advocate AD; Crown Agent

 

14 February 2013

[1] The point taken in this stated case is whether or not section 7(1) of the Sexual Offences Act 2009 has to be read as meaning that an offence is committed only if the purpose in making a sexual communication was the obtaining of sexual gratification from the actual sending of the communication itself or whether the provision falls to be read as including sending written sexual communications for the purpose of obtaining future sexual gratification.

[2] We understand why this point was taken given the nature of this legislation which is somewhat novel and perhaps, on one view, somewhat wide in its ramifications but, nevertheless, we are concerned with construing statutory language. Without the assistance of the Court of Appeal case to which our attention was drawn, that is Regina v Abdullahil 2006 EWCA CR 2060, we would have, ourselves, after due consideration, reached the view that what is said in that case in relation to the identical phrase "for the purposes of sexual gratification" applies equally well to that phrase where it finds its place in the relevant statutory provision before us. We can do no better than adopt the language of the Court of Appeal in England to the effect that there is nothing in the language of the statutory provision to suggest that the offence can only be committed if the sexual gratification and the display of the images are simultaneous or contemporaneous or synchronised. We agree with the Court of Appeal that the temporal restriction that was argued for on behalf of the appellant in this case, in relation to section 7(1) of the Sexual Offences Act 2009 does not fall to be read into the statutory wording having regard to its purpose. When one considers what that purpose is, the more one appreciates that the restricted approach advocated for in this appeal could well defeat what can be in many cases seen to be the statutory intention in its enactment.

[3] For these reasons, we shall answer the question posed by the sheriff in this case in the negative.

 

 

 

 

 

Aud