1. I would like to preface my response by expressing my concern at the
manner in which this consultation has been conducted. During the
consultation period, the consultation document has frequently been
unavailable on the Home Office website. Since this consultation is largely
focussing on the Internet it is incredible that this should have been the
case, given that the Internet is the most obvious and readily accessible
medium for the majority of interested parties.
2. The repeated references to “the arrangements already in place in respect
of indecent photographs of children, possession of which is already an
offence” is unhelpful and disingenuous. There is no connection whatsoever
between child pornography and the material with which the consultation is
concerned.
3. The proposals claim “…a desire to protect society, particularly children,
from exposure to such material…”. In fact, they will have the opposite
effect; by criminalising possession of such images, any child who comes
across proscribed images on the Internet will have committed a criminal
offence and be exposed to prosecution, a criminal record, and inclusion on
the register of sex offenders. In what way, precisely, can any rational
person see this as protecting children?
4. There are two statements implicit in the document:
a. that the Government is indifferent as to whether or not the images
depict non-consensual activity
b. that the Government is indifferent as to whether or not the images
depict actual (rather than staged – and therefore by definition, in all
relevant respects, consensual) activity.
It is critical that a clear distinction be drawn between consensual and
non-consensual activity.
The fact that the law at present does not always recognise that consensual
activity between adults may include an element of violence, and that this
violence may be abhorrent to some, is no justification for legislation to
prohibit the possession of images of such activity. A proportion of the
population also finds activities such as oral sex abhorrent and would wish
to have this banned; this wish is not in and of itself justification for
imposing such a ban.
5. The primary purpose of legislation in this area should be to protect
individuals’ rights – not to satisfy a media outcry, or to placate
“increasing public concern”. There is no clear evidence presented in the
consultation document to suggest that there are any persons whose rights are
presently being violated and whom such legislation would serve to protect.
There is, however, extremely strong evidence that such legislation would be
oppressive to a significant number in society, would suppress freedom of
speech, and be of no benefit in preventing actual abuse.
6. The claim that there is insufficient evidence to draw any definite
conclusions as to the likely long term impact of this kind of material on
individuals generally is of questionable veracity. Since the Obscene
Publications Act became law in 1959, there have been in excess of 45 years
of evidence that persons who have been reviewing (as part of their
employment) material banned under the Act have been influenced by that
material. It is a reasonable presumption that either no cases, or a
statistically insignificant number, of such a person having been
subsequently convicted of the type of crimes that this proposed legislation
envisages as, otherwise, it would have been referenced in the consultation
document.
7. The statement that the proposals are based on a desire to protect those
who may be a victim of crime “whether they notionally or genuinely consent”
is highly offensive to the concept of freedom of expression, freedom of
thought, and the right to personal self-determination.
8. The failure to define clearly the nature of pornography (itself a
devalued term for which there is no longer a consensus definition) that the
legislation seeks to prohibit is unfortunate. The title of the consultation
refers to “extreme pornographic material” but the proposal state a desire to
protect those who participate in the creation of sexual material containing
violence”. What does this mean?
- What is “sexual material”?
- What constitutes violence (e.g. hand spanking, enjoyed, I am given
to understand, by a significant proportion of the population from time
to time) and in what way is that different from extreme violence?
- What is cruelty (e.g. handcuffing a person to a bed – a scenario
depicted in a number of prime-time dramas)?
- What is degradation (e.g. “enforced cross-dressing” – the
“compelling” of an individual to wear clothing of the opposite gender –
a popular role play scenario)?
9. It does nothing to dignify the consultation process that it draws
unfounded, statistically irrelevant “conclusions” that the decline in
prosecutions under the Obscene Publications Act “may be” in part a
reflection of the higher priority given the combating the increase in child
pornography. Equally, it may be that the decline in prosecutions reflects
the view of prosecutors that there is no public interest served in the
majority of such prosecutions any longer given the realisation that ordinary
people are more sophisticated, intelligent and broad-minded than successive
governments appear to have recognised.
10. Human Rights Considerations
It is disingenuous to suggest this has no human rights considerations
because you (the authors of the consultation document) consider the material
to be at the very extreme end of a spectrum that you have defined. You are
making numerous presumptions about the proportion of the population who may
wish to have the right to view such images, even if they do not wish to
exercise that right, because they see it as an unwarranted intrusion into
the activity of free individuals.
11. This should not be an issue of people justifying what they should have
access to, but of justifying what should be restricted. No evidence cited
anywhere in the consultation document goes any way to making a case for
restriction; all the arguments are in terms of “we think this is bad for
you” or “we think that most people think”. This is oppressive and unworthy
of legislators if we are to continue to hold our reputation as a democracy.
Now, turning to the specific questions posed in Annex A to the consultation
document:
1. Do you think that the challenge posed by the Internet in this area
requires the law to be strengthened?
This loaded question presupposes there is a “challenge” that needs to be
addressed. I think there is a challenge to address in terms of the
expectation of the various media (in the guise of “public opinion”) that
every regrettable event must somehow have a novel cause, and is caused by an
absence of legislation. However, pandering to media outcry in this way
achieves nothing beyond establishing the Government as obsessed with
appearance rather than substance.
Criminals commit crimes. Murderers kill victims. This happened before the
Internet was invented, it will happen from time to time in future,
regardless of any laws that are passed. The murder of a young woman referred
to in the consultation document was not “validated” by images the murderer
viewed on the Internet. It is insulting to the memory of the victim to
suggest that the murderer was influenced by images he saw on the Internet.
He was a murderer; he had no regard for his victim and no respect for her.
In simple terms, I do not think the law needs to be strengthened, as I do
not accept the premise that there is a challenge posed by the Internet.
2. In the absence of conclusive research results as to its possible negative
effects, do you think that there is some pornographic material which is so
degrading, violent or aberrant that it should not be tolerated?
I do not believe there is any pornographic material that should not be
tolerated. Individuals find different types of material to be of interest,
and it is not for any of us to judge that any person’s tastes are
unacceptable, however distasteful or incomprehensible we as individuals may
find them.
3. Do you agree with the list of material set out in paragraph 39?
I do not agree with the list. Any images that depict consensual activities
should not be proscribed under any circumstances, regardless of the content.
Possession of images of non-consensual activity should not be prohibited
because this could possibly be evidence of a crime having been committed and
could reasonably be in the public interest. Any activity that is criminal
should be investigated as such; legislating against possession of images of
such activity will not prevent the activity and may serve to suppress
evidence of criminal activity.
4. Do you believe there is any justification for being in possession of such
material?
As a general principle, any person should be free to act as they wish, go
where they please, view whatever they wish, provided it does not infringe on
another person’s freedom. There is, therefore, no need for any
justification. Any person should be free to possess such material as they
may desire. If crimes are committed in the production of any images, that
should be investigated and prosecuted under existing legislation.
5. Which option do you prefer?
The only acceptable option is Option 4. Any legislation would represent an
unwarranted attack on basic freedoms, and contrary to the assertion in the
consultation document that the proposals are believed not to be in
contravention of human rights legislation, my understanding is that a
prominent QC who has been consulted is of the opinion that this is not the
case. It is unfortunate that the options have been couched in emotive terms,
including Option 4 being described as a “do nothing” option. Maintaining the
freedom of the individual in a democratic society is never a “do nothing”
option, and to suggest otherwise is highly offensive.
6. Why do you think this option is best?
Making no change is not doing nothing; it is considering the situation, it
is considering whether any person would be protected by any legislation.
Not least, it is considering whether the restriction to people’s rights and
freedoms is outweighed by the need to avoid “sending a message” when, as
conceded in the consultation document, decades of research have failed to
demonstrate any causal link to criminal activity.
7. Which penalty option do you think is preferable?
Since I do not believe that any option other than Option 4 is acceptable,
clearly no penalty is appropriate. I believe that the paragraph 54 note is
emotive and inappropriate; there is no similarity, and none should be
inferred, between the images under consideration here and indecent
photographs of children.
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