This response has been prepared on behalf of the WS Society by Gordon hmes,
WS, Jean Abbot, WS the Chief Executive and the Clerk. No consultation
exercise beyond this group has been undertaken.
Whilst of course we share the revulsion of those seeking to advance this
legislation, we are unconvinced that a change in the law is necessary or
desirable. The stated purpose behind the proposed. new offence is twofold:
(1) the protection of those who participate in the creation of extreme
pornographic material; and (2) a desire to protect society, on the reasoning
that such material may in itself inspire criminal acts. We agree that both
purposes are, in theory, worthy of legislation. We disagree, having regard
to the balance of legitimate interests, that criminal sanctions ought to be
applied to the possession of extreme pornography as defined in the
consultation document.
Discussion
The proposal to criminalise mere private possession of an image, where there
is no proof of intent to publish or distribute, is a very radical one.
Whilst we accept that there are circumstances in which the legislature.
should exercise its power in this way, that power ought in our view to be
very sparingly deployed. We consider that a distinction ought to be made
between the statutory framework relating to photographs and
pseudo-photographs of children (which we agree is necessary and appropriate)
and the contemplated new offences. The legislation relating to photographs
of children necessarily proceeds upon the basis that the very existence of
the images entails (a) an absence of consent and (b) the commission of a
criminal offence. No such necessary inference can be drawn from the creation
of the images possession of which is sought to be prohibited by the new
proposed offence. In our opinion, any new offence would require to be
justified by similar considerations; it would require to be restricted to
the possession of images of actual acts which are criminal in nature. Such
an offence would be difficult, if not impossible to enforce. We believe that
legislation which has proper regard to civil liberties and the presumption
of innocence will be ineffective, and that effective legislation would
entail an unacceptable infringement of those values.
Scope
So far as the scope of any new offence is concerned, we do not take issue
with the proposed categorisations at paragraph 39 of the consultation paper,
but prefer the concept of "pseudophotographs" to "realistic depictions". We
accept the rationale behind the inclusion of pseudophotographs in the
defmition of offences regarding children and accept that some such provision
is practically necessary. It seems to us that the concept of a
"pseudo-photograph" is narrower than that of a "realistic depiction" and
insofar as any proposed offence is extended beyond images of actual criminal
acts it should be restricted to "pseudo-photographs".
Defences and Civil Liberties Issue
The consultation paper takes into account in a general way the need for
proof of mens rea insofar as it contemplates defences on the basis of
accidental or unwitting possession, or possession for. legitimate purposes.
These are important safeguards. . Whereas in the case of children we
consider that the balance of interests has been properly struck as between
protection of the vulnerable and the freedom of the individual, in the case
of adults we think these competing interests are more equally balanced.
.It is easy to fall into the error of thinking that no major issue of civil
liberties arises in this context, because the behaviour the proposed
legislation seeks to punish is deeply repugnant to civilised society. That
approach justifies trivialising the rights of the accused possessor by
presupposing moral and legal guilt on his part. Such a presumption runs
contrary to the principle which underpins our system of justice. The
proposed criminalisation of possession poses obvious risks for innocent
persons wrongly accused. Employment Law cases demonstrate that it is easy
for computer terminals to be used by others to the risk of the innocent. In
cases such as these the personal consequences of an arrest or merely an
investigation are, even if the subject matter is not ultimately proved,
potentially devastating.
It may be in the contemplation of the Executive that once possession is
established, the onus of proof should transfer to the accused to prove his
defence. We readily accept that there are some circumstances in which this
is necessary for the protection of society. We believe that those
'circumstances should be narrowly defined and account must be taken of the
interference with Human Rights which this transfer of onus creates. We
believe the criminalisation of possession can only be justified where there
is persuasive evidence that possession in itself leads to further criminal
activity of a particularly abhorrent nature, where a very powerful
overriding interest may properly displace the established principles of our
legal system. We do not consider that it is justified in the circumstances
under discussion.
Conclusion
We would encourage the Executive to resist the temptation to adopt a course
of action which is bound to have a certain popular attraction, but may serve
as a precedent which puts at risk certain fundamental legal safeguards. The
reasoning which applies to the proposed categories of prescribed images
applies equally to depictions of non-sexual violence. It may be argued that
it would be only a small further step to extend the prohibition to images
created by words which can also be powerful. However we believe that if the
presumption of innocence and the liberty of the individual are to be
adequately protected by the proposed new law, that will result in
legislation which is fundamentally unenforceable and consequently bad.
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