(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

(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;

(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;

(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

(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.

52C

(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.

65A

The local authority shall, in carrying out functions under this Part of this Act, have regard to any guidance in that respect issued by the Scottish Ministers.

Interpretation of Parts I and II.

Applications for knife dealers' licences: notice

Licensing and regulation of knife dealers

27A

(1) A licence, to be known as a “knife dealer's licence”, is required for carrying on business as a dealer in any article mentioned in subsection (2).

(2) Those articles are—

(a) knives (other than folding pocket knives whose blades do not exceed 3.5 inches (8.91 centimetres) in length or knives designed for domestic use);

(aa) daggers (other than kirpans or skean dhus whose blades do not exceed exceed 3.5 inches (8.91 centimetres) in length);

(b) knife blades (other than those designed for domestic use);

(d) any other article—

(i) which has a blade; or

(ii) which is sharply pointed,

and which is made or adapted for use for causing injury to the person.

(3) A knife dealer's licence shall, in addition to specifying the activity which the dealer engages in, specify the premises in or from which the activity is to be carried on.

(4) In subsections (1) and (3), “dealer” means a person carrying on a business which consists wholly or partly of—

(a) selling;

(b) hiring;

(d) exposing for sale or hire;

(e) lending; or

(f) giving,

to persons not acting in the course of a business or profession any article mentioned in subsection (2) (whether or not the activities mentioned in paragraphs (a) to (f) are carried out incidentally to a business which would not, apart from this section, require a knife dealer's licence).

(5) In subsection (4), “selling”, in relation to an article mentioned in subsection (2)—

(a) includes—

(i) selling such an article by auction;

(ii) accepting goods or services in payment (whether in part or in full) for such an article; but

(b) does not include selling (by auction or otherwise) such an article by one person on behalf of another;

and “sale” is to be construed accordingly.

(6) For the purposes of subsection (4), an article is not to be treated as being exposed for sale if it is exposed for sale (by auction or otherwise) by a person other than the owner.

(7) The Scottish Ministers may by order modify subsection (2) so as to—

(a) add articles or classes of article;

(b) amend descriptions of articles or classes of article;

(8) The Scottish Ministers may by order—

(a) modify subsection (4) so as to modify the definition of “dealer”;

(b) specify descriptions of activity which are not to be taken to be businesses for the purposes of that subsection (or that subsection as modified).

(9) The power in subsection (8)(a) includes in particular power to add descriptions of business.

27B

(1) A licensing authority must cause public notice to be given of every application made to them for the grant or renewal of a knife dealer's licence.

(2) Sub-paragraph (8) of paragraph 2 of Schedule 1 applies to the giving of public notice under subsection (1) as it applies to the giving of public notice under sub-paragraph (7) of that paragraph.

27C

(1) In granting or renewing a knife dealer's licence, a licensing authority—

(a) must attach to the licence such conditions as are specified (in particular or in general) by order by the Scottish Ministers;

(b) may, without prejudice to section 3B and paragraph 5 of Schedule 1, attach to the licence different conditions in relation to different articles or different classes of article;

(i) the keeping of records by the holder of the licence;

(ii) the storage of articles mentioned in section 27A(2); and

(iii) the display of such articles.

(2) An order under subsection (1)(a) may provide for different conditions to apply to different articles or different classes of article.

27D

(1) Subsection (2) applies where the holder of a knife dealer's licence (“the dealer”)—

(a) is required by the licence to obtain information of a type specified in the licence from a person; and

(b) the dealer requests (whether orally, in writing or otherwise) the information from the person.

(2) A person, or any person acting on behalf of the person, who knowingly or recklessly provides false information in response to a request under subsection (1)(b) is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

27E

(1) Subsection (2) applies if a justice of the peace or sheriff is satisfied by evidence on oath that—

(a) subsection (3) applies; and

(b) subsection (4) or (5) applies.

(2) The justice of the peace or sheriff may grant a warrant authorising a constable or an authorised officer—

(a) to enter and search the premises specified in the warrant; and

(b) to seize and remove any relevant article.

(3) This subsection applies if there are reasonable grounds for suspecting that a person (the “suspect”) is carrying on in any premises an activity in respect of which a knife dealer's licence is required under section 27A.

(4) This subsection applies if no knife dealer's licence is in force in respect of the activity.

(5) This subsection applies if a knife dealer's licence is in force in respect of the activity but there are reasonable grounds for suspecting that the suspect has failed, or is failing, to comply with a condition of the licence.

27F

(1) A constable or an authorised officer may use reasonable force in executing a warrant granted under section 27E(2).

(2) Where a constable who is not in uniform is about to enter, is entering or has entered any premises under the powers conferred under section 27E(2) he must, if required to do so by a person in or upon the premises, produce his identification.

(3) Where an authorised officer is about to enter, is entering or has entered any premises under the powers conferred under section 27E(2) he must, if required to do so by a person in or upon the premises, produce his authorisation.

(4) If a constable has been required to produce his identification under subsection (2) he is not entitled to enter or search the premises or, as the case may be, remain there or continue to search the premises until he has produced it.

(5) If an authorised officer has been required to produce his authority under subsection (3), he is not entitled to enter or search the premises or, as the case may be, remain there or continue to search the premises until he has produced it.

(6) Any person who—

(a) fails without reasonable excuse to permit a constable, or an authorised officer, acting in pursuance of a warrant granted under section 27E(2) to enter and search any premises; or

(b) obstructs the entry to, or search of, any premises by a constable or an authorised officer so acting,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(7) Any relevant article which has been seized and removed under a warrant granted under section 27E(2) may be retained until the conclusion of proceedings against the suspect.

(8) For the purposes of subsection (7), proceedings in relation to a suspect are concluded if—

(a) he is found guilty and sentenced or otherwise dealt with for the offence;

(b) he is acquitted;

(d) it is decided not to prosecute him.

(9) In this section, “suspect” is to be construed in accordance with section 27E(3).

27G

(1) Subsection (2) applies where—

(a) a constable or an authorised officer has reasonable grounds for suspecting that an activity in respect of which a knife dealer's licence is required under section 27A is being carried on; and

(b) no such licence is in force in respect of the activity.

(2) The constable or authorised officer may—

(a) require a relevant person to produce any records or other documents connected with the activity,

(b) inspect any such records or documents, and

(3) A relevant person who—

(a) is required under subsection (2) to produce records or documents; and

(b) fails without reasonable excuse to do so,

is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(4) Before exercising the power conferred by subsection (2)—

(a) a constable who is not in uniform must produce his identification to the relevant person;

(b) an authorised officer must produce his authorisation to the relevant person.

(5) For the purposes of this section, a person is “relevant” if the constable or authorised officer has reasonable grounds for believing that the person has access to the records or documents.

27H

(1) In sections 27E and 27F—

“premises” includes a vehicle or vessel;

“relevant article” means an article mentioned in any of paragraphs (a) to (d) of subsection (2) of section 27A.

(2) In sections 27E to 27G, “authorised officer” means an officer of a licensing authority authorised by the authority for the purposes of section 27E, 27F or, as the case may be, 27G.

27J

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.