Summary
Clauses 64, 65 and 66 of this Bill are
fundamentally unjust, present serious Human Rights violations and should
not be allowed to pass into law as currently drafted. Insufficient
justification has been provided by the Government for breaches in multiple
Articles of the ECHR:
Article 6
“Appears to” clauses could effectively make the defendant guilty until
proven innocent under some circumstances.
Article 7
Lack of legal clarity in “appears to” clauses would lead to uncertainty in
law. Where no actual criminal act has taken place in the production of an
image, creation of possession offences for that image on the basis of what
“appears to” be happening can only lead to confusion.
Article 8
Government interference in the most personal and private aspects of the
lives of citizens has not been justified with a sufficiently robust,
evidence based argument to prove proportion or necessity.
Article 9
Disproportionate and unnecessary Government interference with freedom of
thought by way of context crimes and an unnecessarily wide scope caused by
“appears to” clauses.
Article 10
Disproportionate and unnecessary Government interference with the right to
hold opinions by introduction of possession offences to matters more
appropriately dealt with by public dissemination/publication offences
(such as the Obscene Publications Act).
At the very least the following specific changes should be considered:
Clause 64
Make these offences a matter of substance rather than opinion - remove
“appears” from sub-clauses (3), (4) and (5). Breach to ECHR Articles 6, 7
and 9.
Clause 65
Put broadcast content on an equal footing with video content - Extend
exempted material to include material broadcast by any Ofcom licensed
service (new sub-clause). This is a simply matter of common sense to avoid
gross miscarriages of justice due to drafting errors.
Remove crimes of context by extending exempted material to include any
image that has been included in any BBFC classified work regardless of
context, i.e. remove sub-clause 65(3). Contextual crimes of this sort are
likely to breach ECHR Article 9.
If it was considered necessary to protect the public from prosecution by
exempting BBFC certified works it must have been considered at least
possible that some BBFC certified works might otherwise have become a
crime to possess.
This raises the question of why similar considerations have not been
extended to television content as the current Ofcom broadcasting code does
not require material to be classified by the BBFC prior to transmission
and uncertified works of a challenging nature are broadcast late at night
on a regular basis.
Whilst the content will be limited to the equivalent of BBFC 18
classification by the broadcasters the BBFC exemption (clause 65) will not
apply and anyone recording such content may be committing a serious
criminal act. If there is a case for exempting BBFC certified works then
there is also a case for exempting regulated broadcast content.
Clause 66
Allow a defence in cases where it can be proven that the acts were staged
or where it can be established that the law was not broken in the making
of the image (new sub-clause).
Exempt children and vulnerable adults from prosecution for possession (new
sub-clause).
If this legislation criminalizes content that it cannot even theoretically
reduce the availability of, as would be the case with BBFC certified
material taken out of context (and all broadcast content), there are
serious Human Rights implications.
Comment on the Government’s justification
for this Bill
“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.”
This has not been established. The Government’s proposals would directly
interfere with the personal sexuality of tens of thousands of adults in
the privacy of their own homes. I suggest that this amounts to a very
serious and disproportionate interference with their right to a private
life under Article 8 that could only be justified by the strongest
evidence of harm, evidence which the proposals themselves admit do not
exist. Even the recent Ministry of Justice "Rapid evidence assessment"
produced by the Government specifically to support it’s case in these
matters makes extensive use of correlation effects rather than direct
evidence of harm. Additionally given the timing and source of this report
it can hardly be considered to be non-biased.
The main motivation behind these proposals appears to be personal
revulsion over “abhorrent” images and a wish to create a tribute to
murdered schoolteacher Jane Longhurst. Feelings of personal abhorrence
over what other people choose to look at cannot possibly justify such
action. The destruction of people’s lives that would result from the
introduction of this legislation would serve as the most ghastly tribute
imaginable.
“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.”
Many people find many different things to be abhorrent. Many people would
find the image of a man crucified on a cross to be abhorrent, but
Christians would be the first to complain if this sort of abhorrence was
criminalized. Abhorrence on it’s own provides no justification for this or
any other legislation.
“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 first part of this statement is factually incorrect. It is possible at
law to give consent to some of the activities covered by the offence. An
actor would be able at law to given consent to activity that involved
staged acts or trick photography. In fact the overwhelming majority of
material covered by this bill is likely to fall into the “appear to”
category. Such legally consenting actors are as likely to suffer harm as
the actors who play the ‘dead’ bodies investigated by TV detectives.
“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. This is also the case with images of bestiality, which while
involving harm to animals can also involve the non-consensual
participation of humans who are harmed in the process of making the
images.”
What constitutes “degrading activities” is very open to interpretation.
Many participants do not feel degraded by this activity regardless of what
the Government thinks. And if this were a genuine concern then there could
be no excuse to limit this legislation to pornography nor to exempt BBFC
certified works. This argument also fails to address why images certified
by the BBFC can become a crime to possess if taken out of context (for
example where a video clip is taken of one particular scene).
The original proposal presented to the public in the Governments
consultation contained the same prohibition on staged activity but was
justified by suggesting that it would be too hard for the prosecuting
authorities to tell the difference between real and staged acts. The
change in justification does not inspire confidence that the Government is
being candid about the real reasons for this legislation.
Restrictive laws, particularly those which effectively reverse the
presumption of innocence, should only be introduced where there is clear
proof of harm, yet the government have freely admitted that there is no
proof that this material is harmful or that the people involved in the
production or consumption of it are being harmed.
In criminalising the mere possession of fictional content made by
consenting adults for consenting adults and viewed in private the
Government has crossed an important threshold that is perilously close to
the introduction of thought crimes and will set an alarming precedent for
future legislation.
“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, which may be harmful to those who view it.”
The destruction of careers, homes, marriages and even lives that this
legislation will bring about is totally disproportionate where staged acts
and crimes of context are concerned.
Without international agreement there is no realistic prospect of breaking
the supply and demand cycle on any material and in the case of extracts
from BBFC classified works (which may in some cases also become a crime to
possess under this legislation) there is not even a theoretical prospect
of affecting the supply and demand cycle. In these instances at least the
aim of the legislation is not functionally connected to the means.
The Government has on many occasions noted that there is insufficient
scientific evidence to back up their claims over these images. What
evidence there is such as the "Rapid evidence assessment" recently
produced by the Ministry of Justice makes extensive use of correlation,
however there is also correlation evidence that suggests that countries
with liberal censorship laws such as Denmark and Japan tend to have less
sex crime than counties with greater restrictions such as the UK. It is
also noteworthy that the UK is the only democracy that has seen fit to
take such draconian measures.
“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.”
A very similar argument is made by some against homosexual pornography and
is equally wrong and for the same reasons. Wanting to possess “abhorrent”
images has more to do with a person’s inherent sexual orientation than
simple choice.
In some cases viewing “abhorrent” images can act as a safe way to relive
sexual tension in those who are unfortunate enough to find these sorts of
images sexually arousing. This fact would appear to have been ignored
entirely, but is a particularly good reason why the Government should base
its decisions entirely on firm scientific evidence not personal disgust.
I might add that the law of the United Kingdom is not some form of
semaphore signalling system to be used by the Government for sending
messages, although the message being sent, such as it is, is one of
intolerance and ignorance.
“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.”
The current Bill will not remove any images from the internet as their
sale (let alone possession) is generally legal in their country of origin.
As it would be possible to create illegal images by extracting “abhorrent”
scenes from otherwise legal BBFC classified works this legislation is
unlikely to alter the accessibility of this material, the effect on
children and vulnerable adults who by whatever means do manage to access
this type of content will be to turn them into sex criminals - hardly a
protective measure.
The overwhelming responsibility for protecting children and vulnerable
adults currently lies with and will continue to lie with parents and legal
guardians.
A note on use of the word “appears”
Extensive use of the word “appears” in clauses
64(3), 64(4), 64(5), 64(6) (a,b,c and d), 65(3) and 65(4) are particularly
chilling and fundamentally change the nature of this section. It will not
be necessary for images to include any sexual content or even nudity to
fall foul of this legislation merely an “appearance” of an intention of
sexual purpose and an appearance to threaten life.
Vague legislation based on appearances rather than on substance will lead
to regular miscarriages of justice with the difference between legality
and illegality becoming indistinct and subjective. This piece of
legislation would lead to a disproportionate and unnecessary Human Rights
violations under ECHR Articles 6, 7, 9 and 10.
