MEMORANDUM
THE INCOMPATIBILITY OF THE 2007 CRIMINAL JUSTICE AND IMMIGRATION BILL 6 /
64-67 WITH THE HUMAN RIGHTS ACT/EUROPEAN CONVENTION ON HUMAN RIGHTS.
ABBREVIATIONS-
CJIB-Criminal justice and immigration bill
ECHR-European convention on human rights
HO-Home office
HRA-Human rights act 1998
MOJ -Ministry of justice
OPA-Obscene publications act
CONTENTS
1) SUMMARY
2) INTRODUCTION
3) OBJECTIVE-"PROTECTION OF MORALS"
4) OBJECTIVE -THE "PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS" IN THE
PRODUCTION OF IMAGES-"PREVENTION OF CRIME"
5) OBJECTIVE-PREVENTING PSYCHOLOGICAL HARM-"PREVENTION OF CRIME"
6) OBJECTIVE-REDUCING SUPPLY AND DEMAND
7) OBJECTIVE-THE PROTECTION OF CHILDREN AND VULNERABLE ADULTS
8) CLARITY OVER WHAT IS PRESCRIBED BY THE LAW.
9) RECOMMENDATIONS
10) CJIB COMMITTEE
1) SUMMARY
The proposed criminalising of private possession of certain adult
pornography in the CJIB, interferes with Articles of the HRA and ECHR;
Article 8, concerning respect for private life and Article 10, concerning
freedom of expression. The MOJ claim that there are justifications which
make the proposed measures human rights compatible in this case. However,
the analysis of those justifications shows they are irrelevant, irrational
and insufficient. Further, subjective rules of evidence proposed, cannot
give citizens the required clarity over what would be "prescribed by the
law". Thus, at present, this part of the Bill is severely incompatible
with human rights. The memorandum recommends section 6/64-67 of the Bill
be withdrawn, or significantly amended.
2) INTRODUCTION
I submit this memorandum as a private individual with no personal
enthusiasm for the material at issue. Although a layman, I've tried to
develop a sound legal understanding of the matter, through reading the
relevant publications (Appendix 6).
I oppose this proposed law as incompatible with human rights protected by
the HRA and ECHR-
-it creates new criminals without clear evidence of necessity.
-it uses irrationality, distortions and prejudices as justifications.
-it creates a totalitarian "thought crime"
-it is racist, criminalising only English and Welsh British citizens
(presently, it doesn't appear such a law will be imposed in Scotland).
The MOJ state-
"802 The Government believes that these clauses constitute an interference
with Convention rights under Articles 8 and 10, but that for the reasons
set out below this is justified as being in accordance with the law, and
necessary in a democratic society for the prevention of crime, for the
protection of morals and for the protection of the rights and freedoms of
others."
-Explanatory notes to CJIB.
This note quotes a section of Article 8, detailing circumstances where
interference is permissible.
Human rights barrister Mr Rabinder Singh QC's consultation response
concludes-
"I consider that the legislation as proposed gives rise to real concerns
as to its compatibility with an individual's rights under Articles 8 and
10 of the Convention."
-Rabinder Singh QC-"In the matter of the Consultation Paper on the
Possession of Extreme Pornographic Material" ( 2005)
These doubts about the compatibility of initial proposals, apply equally
to CJIB 6/64-67. The following analysis of the MOJ's compatibility case in
the Bill's explanatory notes, is intended to complement Mr Singh's
critique of the Home office paper.
3) OBJECTIVE-"PROTECTION OF MORALS"
."802 ...this is justified as being . necessary in a democratic society
for the protection of morals.."
"803. The material to be covered by this new offence is at the most
extreme end of the spectrum of pornographic material which is likely to be
thought abhorrent by most people."
-Explanatory notes to CJIB
"Abhorrent" is a subjective opinion. Subjective notions of taste and
numbers (allegedly) holding such opinions, cannot in themselves confer
compatibility. The statement in 803 may represent an attempt to bolster a
"moral protection" case. ECHR judgements have upheld interference on moral
protection grounds. But these relate to public exhibitions, not what
individuals privately possess. It's abuse by interference in private life
that concerns Article 8. Nobody not wanting to, has to possess the images.
Therefore, that some find images "abhorrent", is invalid as a
justification for punishing those who wish to privately possess them. No
right or freedom of those disliking such images is imposed upon by their
consensual private possession by others.
In considering a "moral protection" justification for the compatibility of
the measures, it's necessary to address these issues-
a) Is it uniquely "necessary" the English and Welsh people have their
"morals" "protected" in this severe manner?
This would mean the English and Welsh require a law over their private
behaviour, unnecessary in Scotland, for the peoples of any other state in
the ECHR, in the USA etc.
This cannot be rational, and it's implicitly racist.
b) Is the law "necessary" because images are responsible for a surge in
crime, as they "normalise" immoral criminal urges? The proposed law being
required to protect the "rights and freedom of others" from such
consequences?
As there's a huge amount of such material now available, only a
significant rise in connected real life offending could make this a well
grounded justification. But this hasn't happened; these proposals arose
out of an isolated case, that of Graham Coutts. The Government can't
present strong evidential grounds of either harm to users or to those
participating in the creation of images. Unsourced allegations and empty
opinions, not facts, provided the "evidence" for introducing this proposed
law.
Such a justification seems insufficient.
c) Does widely accepted legislation criminalising possession of indecent
images of children mean possession prohibition on adult material can be
justified as equally "necessary"?
Precedents can't confer compatibility. Legislation over possessing child
images exist for child protection, not merely to "protect morals", or
because images don't look "nice". Child porn possession law is an
acceptable and necessary interference in privacy because it addresses real
harm, widespread abuse of children. The Government presents no evidence of
a similar abusive/non consensual situation existing regarding adults-not
one example.
Therefore such an adult law isn't "necessary" in the same way; these
aren't comparable situations.
The criminalisation case is defended with an irrelevant opinion regarding
alleged subjective tastes. The protection of morals justification relies
upon subjective prejudices, irrational precepts and unsupported notions.
Such severe measures as proposed cannot be deemed legitimate and
proportionate upon such grounds; thus they are untenable.
4) OBJECTIVE-THE "PROTECTION OF THE RIGHTS AND FREEDOMS OF OTHERS" IN THE
PRODUCTION OF IMAGES- "PREVENTION OF CRIME".
".802 (the proposed law is)..necessary in a democratic society for the
prevention of crime..... and for the protection of the rights and freedoms
of others."
"803... It is not possible at law to give consent to the type of activity
covered by the offence, so it is therefore likely that a criminal offence
is being committed where the activity which appears to be taking place is
actually taking place."
-Explanatory notes to CJIB
" Evidence of harm
27. We believe from the
observations of the police and others...,
that the material may often
cause serious physical and other harm to
those involved in making it..."
-Home office Consultation Paper, 2005 p 9
". often.... people are actually murdered and killed on camera in
the name of private profit and sexual gratification..."
-Martin Salter MP, Radio 5 Live, 30/08/06
We're told that these statements represent sound justifications for
introducing a criminal law, interfering massively in human rights in
England and Wales. But they're unsupported opinions, not evidence-
-views we're told come allegedly from unidentified people about abuse
which they allegedly think may be happening.
-unsourced statements about people being "murdered... on camera" for
"entertainment".
Much of the material referred to justifying this proposed law comes from
the USA, where firm regulation exists. Such images are consensual fiction,
legally produced. Part 7 of the Home office's consultation paper is called
"Evidence of harm". It presents no evidence of harm in production. We
aren't given a single example of abuse in production by the framers and
advocates of the proposed law. As there's no evidence of the existence of
"victims", whose "rights and freedoms" require protecting here,
"necessitating" such a law?
As references to real life abuse are inapplicable to the fictional anyway;
the CJIB notes attempt to justify criminalising the possession of fiction-
".804. In the case of images of staged activity, the Government believes
that banning possession is justified in order to meet the legitimate aim
of protecting the individuals involved from participating in degrading
activities.
-Explanatory notes to CJIB
An actor committing a fictional murder etc is not behaving illegally, or
even in a "degrading" fashion ("degrading" is a subjective notion). Staged
behaviour isn't real behaviour. Nor is consensual harmless BDSM activity
illegal or "abusive". Saying pretending to do something and really doing
something are the same, is irrational. "Pretence", however allegedly
"degrading", won't become criminal under this proposed law, but to possess
an image of it could be-ludicrous.
.We have this statement as a compatibility argument in the Bill's notes--
"803..it is not possible at law to give consent to the type of activity
covered by the offence, so it is therefore likely that a criminal offence
is being committed where the activity which appears to be taking place is
actually taking place. The House of Lords upheld convictions for offences
of causing actual and grievous bodily harm in the case of Brown [1994] 1
AC 212 which involved a group of sado-masochists who had engaged in
consensual torture. The threshold that the clauses have set is very high,
so while those taking part might argue that they had consented to it, such
consent is not valid at law."
-Explanatory notes to CJIB
However, even with reference to "real" material, which this justification
alleges is illegal to "do" on the basis of the "Brown" case precedent, we
cannot inevitably say-
"...it is not possible at law to give consent to the type of activity.. "
It may well be possible to legally consent to an action illegal in England
and Wales. English law does not apply in every other nation. Regarding
fictional material (most of the images at issue), this justification is
irrelevant. Activities illegal when really carried out, are not when
merely "acted out". A murder in a fictional film is not the same as a real
one. So to say-
"..it is not possible at law to give consent to the type of activity
covered by the offence."
"..it is therefore likely that a criminal offence is being committed where
the activity which appears to be taking place is actually taking place"
and-
"..while those taking part might argue that they had consented to it, such
consent is not valid at law."
-is likely, even with reference to England and Wales, to be totally wrong.
The opposite to this will be much more factual. Prosecutions under the
present proposal can overwhelmingly be made over images produced by
activities which are legal and consensual.
Lacking evidence of crime to be prevented, the given justification seems
untenable.
5) OBJECTIVE-PREVENTING PSYCHOLOGICAL HARM-"PREVENTION OF CRIME"
"805.. Irrespective of how these images were made, banning their
possession can be justified as sending a signal that such behaviour is not
considered acceptable. Viewing such images voluntarily can desensitise the
viewer to such degrading acts, and can reinforce the message that such
behaviour is acceptable."
-Explanatory notes to CJIB
The words "irrespective of how these images were made", are there in
relation to the present proposal criminalising images resulting from
"staged activity" (pretence).
" Viewing such images voluntarily can desensitise the viewer to such
degrading acts, and can reinforce the message that such behaviour is
acceptable."
However, the Government's own consultation paper cannot back up with
evidence assertions about harm to users. All one can say is people with
violent real life sexual tendencies, may look at such material. We cannot
say there is proof that such material creates them. Indeed, a
parliamentary committee had evidence presented that pornography may bring
about a diminution in offending-
" The evidence.... across.... 50 US states...shows... the Internet has a
positive effect or a beneficial effect in that it reduces some crimes,
crimes of sexual violence and crimes of prostitution, which are assumed to
be linked with the increasing availability of pornography to young males."
-Professor Ross Anderson, Professor of Security Engineering, University of
Cambridge, and Chair of the Foundation for Information Policy Research in
evidence to a Home Affairs Committee:
-A surveillance society?
Home Affairs Committee 12/06/07
Further-
"When you look at all the research that has been done nationally, the
consensus is that there has not proven to be a link between the viewing of
pornography and the committing of hands-on offences."
-Dr.Stuart Kirby, Detective Chief Superintendent with Lancashire Police
- International Investigative Psychology Conference, 12/12/05
This contradicts assertions about harm to users. Like the HO consultation
paper, the MOJ's "Rapid evidence assessment" (dashed out after, not before
the CJIB appeared ) is too biased to be regarded as objective evidence
supportive of criminalisation. It's not possible to be certain about how
many people pornography has harmed, or has saved from harm. Both positions
remain conjecture.
Lacking the necessary evidence that images are sufficiently influential in
causing real criminal behaviour, the prevention of crime justification is
insufficient here; it is untenable.
6) OBJECTIVE-BREAKING SUPPLY AND DEMAND
"805. The Government considers that the new offence is a proportionate
measure with the legitimate aim of breaking the demand and supply cycle of
this material..."
-Explanatory notes to CJIB
Criminalisation only in England and Wales cannot make any significant
difference in supply of/demand for the material. Indeed, it remains
accessible not only elsewhere, but in England and Wales too, despite the
existence of the proposed law. The measures therefore have no rational
connection to this objective.
This justification is irrational, therefore not legitimate-it is
untenable.
7) OBJECTIVE-THE PROTECTION OF CHILDREN AND VULNERABLE ADULTS
"806. The Government considers that the restrictions on this material also
achieve the aim of protecting others, particularly children and vulnerable
adults, from inadvertently coming into possession of this material, which
is widespread on the internet."
-Explanatory notes to CJIB
This relates back to the statement made in 805 on "breaking" the
supply/demand for the material. As the proposed measures cannot affect
supply, make images vanish, curb accessibility, they cannot prevent
children, "vulnerable adults", or anyone from seeing them. The proposed
measures being irrelevant, what children access, deliberately or
inadvertently, would therefore remain entirely a matter "policed", as now,
by parents,
Being justified on the grounds of objectives they cannot possibly meet,
the measures are therefore irrational-the justification is untenable.
8) CLARITY OVER WHAT IS PRESCRIBED BY THE LAW.
In some cases this proposed law as it currently appears, can make even
BBFC classified material illegal to possess-
"...an image is not excluded if it is contained in a recording of an
extract from a classified work and it appears that the image was extracted
solely or principally for the purpose of sexual arousal.
-CJIB, para 390
Invariably, there's no criminality in image production here. Nor is this
criminalising possessing material illegal to produce/distribute under the
OPA. Here the "belief" a person might possess BBFC classified material to
have "erotic thoughts" about it could be enough to destroy their life
(thought crime). Exactly the same image may be legal or illegal depending
on the supposed "intention" of a producer and a jury's subjective beliefs
about its "purpose" for the defendant.
Here are quotations from the Bill-
"382. ... In order to be considered pornographic, an image needs to have
been produced solely or mainly for the purpose of sexual arousal. Whether
this threshold has been met will be...for a jury to determine..... .
384. .... the types of image which are defined as an "extreme image" for
the purposes of the offence...
* acts which threaten or appear to threaten a person's life; this could
include depictions of hanging, suffocation, or sexual assault involving a
threat with a weapon;
* acts which result in, or appear to result (or be likely to result) in,
serious injury to a person's anus, breasts or genitals; this could include
the insertion of sharp objects or the mutilation of breasts or genitals;
* acts which involve or appear to involve sexual interference with a human
corpse; or
* acts which show a person performing or appearing to perform an act of
intercourse or oral sex with an animal.
. ..acts and participants depicted... must appear to be real to the
viewer."
- The CJIB
The individual cannot know, under such rules of evidence, if they possess
an image which can convict them-until a jury reaches a verdict. The words
"appear"/"appears"/"appearing" mean we aren't dealing here with the
objective, but beliefs and opinions, subjective views of individuals. The
defendant, juries etc, are asked to make subjective judgements over
whether an image meets some so called pornographic "threshold"; how "real"
some fictional image "appears"; how real the fictional violence "appears";
what level of harm "appears" in the fictional image ( and worse, may
"appear" to be the consequence of some fictional act in an image). This
proposed law implies subjective opinions about fantasy are on a par with
the kind of solid, safe evidence used in real cases of criminal violence,
where objective not subjective evidence is available to decide the case.
The absurdities here come from the way reality and unreality are being
compounded; the implicit notion that both are the same. Any law based in
such a concept is inevitably irrational, and dangerous. A law resting in
such subjectivity cannot be compatible with the demand for clarity where
personal behaviour in private is concerned.
Lacking the requirement for clarity when criminalising private behaviour,
the proposed law is not compatible with human rights.
9) RECOMMENDATIONS
The proposed law seriously fails to meet the requirement that legislation
impacting on human rights be "necessary". A severe law which fails this
test is inevitably badly disproportionate. The measures proposed are
irrational, unable to address stated objectives. They cannot make images
inaccessible; that alone makes the current proposals illogical; it means
none of the stated objectives can be addressed, whether rational or not.
The subjective "evidence" means the proposed law crucially lacks clarity.
Being extremely incompatible, such a law would inevitably be challenged
under human rights legislation. Ideally, it should be withdrawn. However,
adding a defense that consensual/fictional images are excluded from
criminalisation, would go some way towards making such a statute
compatible with human rights, a standard required of all legislation.
10 ) CJIB COMMITTEE
Doubts were raised in committee as to the compatibility of the proposed
law (see Appendix 4 and 5).
