| 29th November |
A 5am Wake Up Call for
Horror Fans
 Thanks
to MichaelG
I've just fired off the email below to The Dark
Side and DVD World magazines, both national mags dedicated to horror and
adult movies. I was quite surprised that neither publication had made
reference to the 'Dangerous Pictures' act, given their views on
censorship, but if this doesn't get them sitting up and taking notice,
nothing will!
Dear Allan,
I have read your magazine religiously (if that's the right word) for
around 15 years now, being a lifelong fan of the cinema and with a
particular interest in horror movies.
I felt I must write to you to inform you of some new legislation which
is coming soon from the Home Office, which could have a serious and
direct effect upon the entire readership of this magazine and horror
fans all across the country. I am very surprised, given your strong
anti-censorship standpoint (with which I wholeheartedly agree), that you
have not given any space in the magazine to this before now, but whilst
many people will have heard of this new legislation, few will pay much
attention to it because they don't think it will affect them. We are now
looking at the most dangerous, excessive piece of censorship this
country has ever seen - one which could land you in prison for up to 3
years for nothing more than looking at a picture. Please allow me to
explain.
Just over a year ago, the government announced plans to outlaw the
possession of what it called "Extreme Pornography". Much like the way
the Bulger murder case was initially claimed to have come about because
of exposure to the 'Child's Play' movies, this all-new, typically
British type of knee-jerk legislation came about because of the death
of Jane Longhurst. Graham Coutts will stand trial to consider the
possibilities of murder or manslaughter. Graham Coutts was said to have
a fixation with violent and pornographic websites. Jane Longhurst's mother Liz, with
little understanding of the type of material in question, launched a
crusade against such websites, managing to assemble a petition of 50,000
signatures and gather support from several Labour MPs. Soon after this,
the government unveiled plans to outlaw the possession of extreme and
violent pornographic material, with penalties of up to 3 years in jail
for transgression, even though they admit themselves that they have no
proof that such material is in any way harmful. The possible problems
became evident straight away as the Home Office, in much the same way
they have with the Obscene Publications Act have failed to provide a
clear and concise list of things which are to be made illegal. The real
worry comes with their wording within the legislation:
The legislation will target material featuring :
(i) serious violence (where this means "acts that appear to be
life-threatening or are likely to result in serious, disabling injury" )
(ii) intercourse or oral sex with an animal
(iii) sexual interference with a human corpse
To count as illegal, the material must be:
(a) pornographic (where this means "solely or primarily produced for the
purpose of sexual arousal" i.e. two scenes could be visually
indistinguishable, but have different legal status if produced for
different purposes)
(b) explicit
(c) real or appears to be a real act (this includes staged acts and is
defined as "conveying a realistic impression of fear, violence and harm"
)
The proposed maximum penalty is three years in prison, and your name
would also be placed on the sex offenders register.
Now on the surface, you may be thinking that this doesn't really have
any relevance to you if you don't go looking for really nasty porn on
the internet. Think again - these proposals are soon to be law as the
"Dangerous Pictures Act", and they won't be limited to material
downloaded from the internet. These definitions are so wooly, so
irrespective of the issue of consent within adult sexual relationships (
a very grave prospect for anyone into BDSM or bondage), and most
crucially to us, absolutely unconcerned with the facts of whether said
material is actually real or a work of fantasy! Which now probably puts
things into context for all fans of horror movies. Fancy going to jail
for up to 3 years because you own a copy of They Call Her One Eye,
Emanuelle in America or even Cannibal Ferox? Or being
placed on the sex offenders register because you have a DVD of SS
Girls, Sadomania, Salo or Night Train Murders? Next time you have an
imported DVD seized by customs, it may mean something more serious than
mere confiscation. In theory, you could even get arrested for owning a
BOOK about horror movies if some of the pictures were objectionable.
Simply because the Home Office are not prepared to tell us EXACTLY what
is to be outlawed, and are not prepared to distinguish between staged
acts and real acts , because, in their own words, this latter necessity
would "provide insurmountable hurdles to prosecution". This could quite
possibly affect tens of thousands of people, many of which will have
absolutely no interest whatsoever in violent internet porn.
I don't want this email to turn into a novel, so I'm going to leave
things here, but please, PLEASE let all your readers know about this and
the possible implications. You can find out much more about it on
www.melonfarmers.co.uk (an
excellent anti-censorship website which is well worth a look anyway),
www.backlash-uk.org.uk and
there's also a petition going against it at:
http://petitions.pm.gov.uk/Violent-Porn/. If you value the freedoms
of living in a democratic society, where you don't have to worry about
getting your door booted in at 5am by the police because you've ordered
a DVD or visited a certain website, then it's crucial that you join the
fight against this.
|
| 27th November |
Consulting the Predisposed
From
budgiebird on the SeeNoEvil
forum
see full email on thread Lobbying: Email to CPLU 24th October
Email sent to the CLPU complaining about the
Consultation:
I am writing to express my dissatisfaction and concern over the way the
consultation regarding Extreme Pornography has been carried out. The
original consultation document appeared to be very biased in it's
wording, it gave the impression that it deliberately set out to be
misleading, a lot of the questions asked were leading questions designed
to get the response the author of the Document was looking for and it
failed to give a full range of options for some of it's questions.
Furthermore, the list of stakeholder organsations that were invited to
respond, was heavily biased, once again in a fairly obvious attempt to
get the result the author of the document was seeking.
CONSULTEES
- Over 70 of the organisations that were invited to respond,
comprised of Police forces, police organisations or Justices of the
Peace.
- Over 30 Church organisations were invited to respond.
- 69 Womens Groups were on the list of organisations that the Home
Office asked to respond, including 13 Race Related Womens Groups.
- 18 Childrens organisations were contacted and invited to
respond.
Whilst I can understand the views of the police being sought in relation
to the problems which might be encountered in enforcing any new law, the
police and our Judges are appointed to do just that, enforce the law,
not get involved in making laws. Even then, was it really necessary to
send out individual requests for responses to each and every police
force in the land? Surely a few requests to the various umbrella police
organisations would have sufficed, or was it merely a matter of playing
the numbers games because it could be easily predicted that the police
will always be in favour of more laws which produce easy targets to
boost conviction rates?
Why were so many Church organisations consulted? Churches have no
expertise in law or psychology. Their responses were not needed because
one of the very few things that unite all religions is that abhorrence
of pornography in all it's forms. It is difficult not to come to the
conclusion that that was the reason why so many were included.
Why were so many Womens Groups included in the list of invitations sent
out by the Home Office? Once again, the only logical conclusion is that
their views on and opposition to pornography is well documented and well
known and they were an easy group of organisations to add to the list of
those who were certain to support the proposals.
I don't need to ask why so many Children's organisations were invited to
respond. The apparent fixation of the author's desire to attempt to
secure a misleading link in the reader's mind between the material he
would like to see made illegal and Child Porn (which is and should be
illegal), runs like a thread through the entire document.
So how many psychologists were asked to respond? Answer... one. That's
right, in a Consultation that revolves around the effects that
pornography has or does not have upon the human mind, just one
Psyschologists organisation was invited to respond. I think that one
fact alone, just about sums up how biased this whole consultation has
been right from the very beginning.
The impression which is left is that the Government did not want to seek
views which differed from it's own, instead it merely wished to invite
organisations to comment that were predisposed to support the
governments view. There was no attempt to seek a broad range of views
from different sections of the community.
|
| 5th
December |
Obscene
Origins
 Home
Office reply
To budgiebird on the SeeNoEvil
forum
see full email on thread Lobbying: Email to CPLU 24th October
Thank you for your email dated 24th October sent to the CLPU
consultations email account about the above consultation and the way in
which it has been taken forward.
In particular you express concern about the range of organisations
involved in the consultation and you express the view that the
consultation paper was misleading in its content.
It may be helpful if I explain some background to the consultation,
which, as is indicated in the original consultation paper, is aimed at
tackling the circulation of extreme pornography which would be likely to
contravene the Obscene Publication Act 1959 if it were published within
the UK. It set out the Government’s position and proposals in this
difficult area and asked for views. In view of the nature of the
material, we were mainly concerned to seek views from law enforcement in
drawing up the proposals which is why it was sent to all police forces,
although most of our consultations would be sent to all forces as a
matter of course. We were also aware that the proposals in the
consultation document aroused strong feelings on both sides of the
debate about the availability of pornographic material and the purpose
of consulting was to elicit as wide a range of views and opinions as
possible. That is why the original paper was therefore also sent to a
wide range of organisations including religious organisations, women’s
groups, industry representatives, children’s organisations,
representatives of the BDSM community and pro and anti-censorship
groups. The consultation also received wide publicity when it was
published and was available online and in hard-copy to anyone who
requested a copy.
I understand that you still have many reservations about the
Governments’ proposals. The proposals themselves are not aimed at any
particular part of society and, whilst we acknowledge that groups such
as the BDSM community and others, have an interest in particular types
of pornographic material, the consultation is not concerned with the
legal consensual material which already circulates within that community
and which does not already breach the Obscene Publications Act 1959. The
fact that some extreme pornographic material may in fact be consensual
while appearing to be otherwise, does not mean that it falls outside the
criminal law. Nor are the proposals intended to inhibit legal consensual
role play within the BDSM community.
I also understand that you are concerned about the way the Home Office
proposals were presented within the original consultation (which was
published in August 2005); you contend that the consultation was
prejudged and that the questions were misleading. We do not agree. It
was open for any respondent to challenge the premise set out in the
consultation - indeed that is one of the main points of consultation. I
accept that, in reviewing any document after such a length of time, it
is possible to envisage ways in which it could be presented differently
but, in respect of the questions asked, respondents were able to respond
to the questions in any way they liked, and nor did they have to use the
reply document supplied. Many respondents replied in whatever manner was
easiest and suitable for them, both to oppose and support the proposals,
and there was no inhibition evident in the replies we received.
The reference to legislation on indecent photographs of children was
provided to illustrate that there was a precedent for creation of a
simple possession offence. It is acknowledged in paragraph 26 “that the
arguments are less clear cut in respect of violent and abusive adult
pornography….”
I also note your interpretation of the research in this area described
in the consultation document, but cannot agree with your view that there
is ‘no evidence ………that watching pornography is harmful’. Our
consultation document acknowledges the fact that there is a large amount
of research in this area. The paper goes on to comment that there has
been difficulty in interpreting the findings of such research and that
this has made it difficult to get a clear picture and understanding of
the possible harmful effects of pornography, and in particular extreme
pornography. It is not clear cut in the way that you suggest.
Regarding the issue of protecting children, as well as the proposals
seeking to inhibit the production of illegal, obscene material, we have
an ongoing dialogue with the IT industry about internet safety. An
increasing number of suppliers and retailers already provide filtering
software as part of their home PC packages. In addition, similar
functions are built into some other products, including search engines,
operating systems and some ISP connectivity settings. The Home
Secretary’s Task Force on Child Protection on the Internet has also
initiated work to develop a standard for such software products, which
would lead to a kitemark standard being awarded for products that meet
certain child safety specifications.
With regard to your concerns on about the proposed sentence, the three
year sentence proposed in respect of the possession of extreme
pornography is a maximum sentence and, as with any other offence, there
would clearly be a wide range of sentencing options below that.
Finally, in respect of your concern about the applicability of the Human
Rights legislation, as we outlined in the consultation paper, we have
considered whether there are any implications for our obligations under
the European Convention on Human Rights. Our view is that both our
domestic courts and the Strasbourg court will find our proposal
compatible with Article 10 (freedom of expression) or Article 8 (private
life) if that is raised.
|
17th September
updated to
3rd November |
Request For Explicit
Definitions
Thanks to Franco who wrote the
following letter to his MP
Announced
Ban of Possession of Extreme Pornographic Material
Not one to waste time, I thought I would hence send you my further
questions on this subject; these being not so much on the absolute
nature of the law but regarding specific detail of it. There are serious
issues remaining in the definition of the crime in question.
Precise Definition needed for the term ‘Explicit’
First I would like to draw your attention to the nature of the
definition ‘explicit’ used to define material to be banned from
possession. The Home Office response paper merely explains it as ‘not
disguised or pixellated’.
However, is the above point referring to explicit pornography, or
explicit violence? In order for the ban to apply to a picture, need the
depiction be explicitly pornographic (with exposed genitalia) or
explicitly violent (with graphic detail of the impact of violence)?
These two variables obviously would alter the nature of the law
considerably.
The definition of ‘explicitly pornographic’ would require pornographic
nudity. Meanwhile the definition of ‘explicitly violent’ would mean very
marginal material which by many might not be understood as pornographic
at all, but merely violent in the manner of a mainstream movie, might
fall under the ban.
On the other hand would the term ‘explicit’ actually define violence
which government wishes to differentiate from implied violence, such as
the threatened use of a weapon? Such implied violence, through
threatened use of a weapon, is generally described as ‘gun-play’ or
‘knife-play’ among fetishists relevant to this matter. However, the
uninitiated might indeed understand it as ‘violence endangering life or
likely to cause serious, lasting injury’, even though no actual
violence, other than the threat of it, takes place. Would the
brandishing of a knife or gun, an act of implied violence, in a sexual
context fall under this law?
My personal judgement would be that in order for the definition to have
any purpose
- the pornography would need to be explicit (exposed genitalia,
during or in consequence of the violent act)
- the violence would need to be graphic (not disguised)
- the violence would need to be executed (not implied/threatened)
- All three of these conditions would need to be fulfilled for the
term ‘explicit’ to apply.
The above paragraph states how I currently interpret the proposed
law. I do not understand the law to be banning any acts which involve
people with covered genitalia, disguised violence, or implied acts of
violence such as the threatened use of a gun or knife.
In your response please state your agreement to the above assertion,
else clarify the nature of your legal intentions specifically.
Boundaries of the Definition of Asphyxiation
If, as I believe and have pointed out in my previous letter, the
asphyxiation fetish is the main target of this law, then the question of
what precisely signifies asphyxiation soon arises. Staged scenes where
an actor/actress are choloroformed in a pornographic context; is this a
form of asphyxiation? Very widespread are scenes of oral sex where the
provider of oral sex chokes on the penis or dildo hitting the back of
his/her throat. Would this be understood to be asphyxiation?
Obscene Publications Act
There have been repeated claims in the media by various MPs that this
law merely ‘closes a loophole’ by simply outlawing possession of
material already banned under the existing Obscene Publications Act
(OPA). This is simply not the case. The OPA does not specifically ban
any type of pornography. It simply states that it is forbidden to
publish any material which has the possibility to ‘deprave and corrupt’
a fraction of its audience. To establish this the ‘common law test’ is
applied, which effectively means that each decision has to be applied
individually to any material brought before the court. The OPA does not
ban outright any form of pornography by name. Therefore the claims, made
by several labour MP’s, including ministers, are simply incorrect, if
not misleading.
Minister Coaker’s misleading Statement
It also hasn’t escaped my notice that minister Vernon Coaker, when
presenting this issue on the radio (30 August, BBC Radio 4, World at
One), simply claimed the majority of respondents (people and
organizations) to the consultation had supported the government
proposals. This is in fact the opposite of the truth. Evidently the
public were misled. How a minister of the crown can do this is, quite
frankly, beyond me. Is there going to be an apology or at least a public
retraction made regarding this evident untruth?
Exception of Material rated by BBFC
The announcement that material which would fall under the definitions
set out by the law, but which has already been rated by the BBFC, seems
bemusing. If the government is convinced of the dangerousness of this
material why allow it, if it has been rated by the BBFC? If anything it
would mean that the staff at the BBFC, whom the government appears to
judge experts in this field, disagree with the government on the very
principle which was the cause for this law. In short, this is an inbuilt
contradiction into the law itself. Either the ban is necessary or it
isn’t. The law itself, or previous contrary decisions by the BBFC cannot
be correct simultaneously.
A comparative Argument of Proportionality
On a more practical level, here is an example, highlighted on the
internet recently, of what I see as a lack of proportion.
On July 23 2001 Crawley Magistrates Court sentenced Nadine Trewin to
a two-year community rehabilitation order and banned her from keeping
animals for five years; this because Mrs Trewin intentionally killed her
pet cat by placing it in her microwave.
For the full press article please consult this internet page:
http://archive.theargus.co.uk/2001/7/23/174696.html
I would like to draw your attention to the fact that microwaving the
animal did not produce a jail sentence. Yet the offence of possessing a
picture of bestiality with that same animal could, according to the
proposed law, lead to a jail sentence of up to three years. Clearly
there is a problem with proportionality which would, were this law to be
implemented, make a mockery of legal justice. The maximum sentence of 3
years therefore still appears grossly disproportionate.
So far, this government has very thin credentials on matters of civil
liberties. When faced with a choice, it appears to prefer
interventionism and prohibition to a more liberal ‘laisser faire’. Can
the government point to any subject matter, apart from political
opposition, which it deems abhorrent, yet which it is categorically
going to permit due to a principled belief in freedom of expression and
freedom of speech?
I await your reply.
|
| 29th September |
Reply:
Explicit
Definitions
From
The Melon
Farmers' Forum
Just got another letter back from Home Office, signed 'Vernon' to my
MP, who`s passed it on to me...
The first point of interest is:
The
government's response to the consultation states that the proposed
new offence would have to meet two thresholds:
First it would apply only to pornographic (underlined) material, by
which we mean material that has been solely or primarily produced to
for the purpose of sexual arousal. This we believe would eliminate
works of art, news and documentary programmes and works classified
by the BBFC (other than R18, etc...). This would be an objective
test for the jury.
The second would be an objective test for the jury in respect of
actual scenes or depictions which appear to be real acts. We would
aim to cover activity which can be clearly seen, leaves little to
the imagination, and is not hidden or disguised. By actual scenes or
depictions which appear to real acts, we intend to catch material
which is genuinely violent or conveys a realistic impression of
fear, violence and harm.
then it goes on to say;
By serious violence we mean violence which appears to be life
threatening or likely to result in serious disabling injury. The
threshold level is necessary since the intention is to target
material which is already illegal to publish under the Obscene
Publications Act 1959.
What follows is an interesting line: it states that I mentioned BDSM,
spanking, bondage and rape material in particular.
This covers a very broad range of activity and while not
specifically mentioned in the Government response, such material
will fall under the new offence only if it falls within the
threshold I have outlined above.
The detail is still being considered but it is likely that
some depictions of rape will be covered; material featuring spanking
is unlikely to be caught, unless the injuries caused are life
threatening.
Next it acknowledges that I wish to know exactly what is prohibited
and goes on to say:
The government accepts the importance of achieving clarity
with regard to the types of material which are to be covered by the
legislation and we will consider giving non-statutory guidance on
the type of activity or injury which we consider would fall within
these categories. This will be developed alongside the proposals for
legislation.
Now all this seems to suggest shifting ground... Coaker speaks of a
threshold defined by two points, pornography and serious violence. What
happened to `explicit`?
My next worry is in this sentence conveys a realistic impression of
fear, violence and harm... this seems outside of the threshold of
pornographic, explicit and seriously violent...
Once again we get the quotation that what is sought to be banned is
already outlawed by the OPA... my latest letter challenged this, it will
be interesting to see what reply I receive...
Anyhow, we have - at least to some degree - a ministerial sentence which
states that bdsm, bondage and spanking material only is effected if it
falls within the threshold (pornographic and seriously violent).
But when it comes to rape, he chickens out. Here things are still
being considered and it is likely to result in a ban. So something
substantial will still be changing in the legislation. At current
definition rape would have to be deemed legal. If Coaker wishes to bring
rape within the ban, then he will be introducing pieces he has neither
consulted on nor mentioned in his government response.
|
| 30th September |
Comment:
What are children's charities doing lobbying around consensual adult
pornography?
From
Alan
We need to remember that the "individual"
responses include that of Professor Julian Petley, the only "expert" to
comment who really is an expert - i.e. published in refereed academic
journals on regulation/censorship. Petley thinks the proposal is
iniquitous.
The remarks about "arguments advanced" are bollox. All rational
arguments seem to be against the proposed legislation. Kevin Kirk's
excellent article on Inquisition 21st Century clearly reveals the
self-serving agenda of many of the organizations responding.
The reference to children's charities is particularly intriguing.
What are children's charities doing engaging in political lobbying
around consensual adult pornography? Consider that the Child Poverty
Action group has been denied charitable status precisely because its
work is adjudged "political". Perhaps a complaint to the Charities
Commission might be in order
|
| 2nd October |
Follow Up:
Good Points
Thanks to Franco who followed up his previous letter wither further very pertinent questions
Dear
Mr Coaker,
First please let me thank you for your letter to Eric Martlew MP.
I do indeed believe that the achievement of precise definitions is of
paramount importance to the entire undertaking. As you know, I object to
the entire idea of this law. Yet, your government being resolved to
seeing it passed, I feel it a duty to continue to question the detail
and highlight discrepancies where I see them.
Omission of ‘explicit’ from Definition
Your reply stated only two definitions: pornographic and serious
violence. However, your official response to the consultation included a
third: explicit. You will recall that my last letter dealt in some depth
with that very definition. Has the official position changed and
‘explicit’ is now to be disregarded as one of the definitions?
Profound Disagreement regarding Objectivity of Test for Jury
In your reply you state that both the definition of ‘pornographic’ and
‘seriously violent’ provided objective tests. I would dispute this
vehemently; this not, because I’m seeking to be contrary or semantic.
But definitions such as ‘pornographic’ are inherently subjective. Tracey
Emin’s artwork for example springs to mind, or recent Saatchi art
exhibitions. The words pornographic were used frequently used by the
media to describe these. If your definition (produced solely or
primarily for sexual arousal) provides some guidance, it is still
controversial in a law which criminalises not the producer but the
consumer, as it requires the consumer to know the producer’s intention.
Also it could be argued that the initial purpose for the pictures of the
prisoner abuse at Abu Ghraib would essentially fall within this law as
the producers (i.e. the abusers) evidently made these pictures for their
own pornographic purposes.
Wordings such as ‘seriously violent’ could be put to those in support or
in opposition of boxing and I think you would agree that wildly varying
responses would be forthcoming. Also in the debate regarding computer
games ‘violence’ is an incredibly controversial subject which virtually
every individual interprets differently. The debate regarding the
smacking of children by their parents only adds further fuel to the
controversy surrounding the word ‘violence’.
Regarding the above I would insist that ‘pornographic’ and ‘violent’ are
in fact among the most subjective and emotive words in the English
language. I therefore make it clear that I categorically disagree with
you on this matter.
Relation of new Terminology to Existing Definitions
Your reply also included the term: ‘material which is genuinely violent
or conveys impression of fear, violence and harm’. This seems entirely
new terminology.
How precisely does this interact with the definitions of ‘pornographic’,
‘explicit’ and ‘seriously violent’? Is this an additional definition
which can capture material not effected by the other three definitions?
The introduction of this new term seems to jar with the intended clarity
in definition. After all, ‘impression of fear’ is heading into extremely
tenuous territory for a legal definition. Inclusion of such wordings
into the law could eventually introduce pornographic material of very
little violence, or possibly none at all, due to an actor or actress
feigning distress for dramatic purposes.
So please explain the exact role of this new terminology.
Shifting Grounds
Your mention of ‘some depictions of rape’ being covered by this new
legislation seems to hint at shifting grounds. As serious violence is
defined as effectively life threatening, rape would as such fall outside
your definitions. Your intention to include some rape imagery therefore
suggests that you intend some substantial changes to the legislation
which so far have not been disclosed. I would urge that the nature of
these changes is revealed forthwith.
Element of Intent required
The definition of serious violence as threatening to life or causing
possible disabling injury has been cause for some concern with people
interested in bondage. Among the more advanced rope artists suspension
bondage is quite widespread. This entails suspending the model with
ropes. I stress this doesn’t involve hanging her by the neck. However,
the fear is that it could be argued that, should the suspension fail,
the model might injure herself and that therefore the depiction of
suspension bondage could fall under the law.
Personally, I feel that this is not the way this law is intended. As I
would understand your intention being to outlaw depictions of actual,
intentional, severe harm, as opposed to possible, unintended harm.
Perhaps the above suggestion is a good example of the current distrust
felt by many toward the government’s intentions. The fear remains that
the law could be ‘bent’ sufficiently in the courts by prosecuting
lawyers to allow sexual activity which entails an arguable risk to be
‘violence threatening to life or likely to cause serious, lasting
injury’.
If it seems impossible to exclude every conceivable unintended
possibility, it may be wise to include an element of intent into the
wording of the law regarding the definition of ‘serious violence’. (e.g.
‘violence intended to be threatening to life, etc.’ )
Threat to the Obscene Publications Act so far no addressed
In my initial submission to the government consultation I raised an
argument which I believe was not addressed in the government response.
However, it seems imperative that the issue is taken seriously. The
problem is a follows:
The fragile interpretation of the Obscene Publications Act is that
publishers are required to judge if a fraction of their audience could
be depraved or corrupted. It assumes a certain part of the adult
audience at least to be impressionable, naïve, possibly influenced by
such material. It therefore places the requirement of legal competency
on the publisher. The individual is deemed effectively incompetent and
therefore in need of legal/censorial protection by the state from any
untoward materials of the publisher.
However, this legislation bestows the idea of legal competency on each
adult individual in judging pornographic material for himself. Else the
individual can not be punished with imprisonment. The premise of the
individual being impressionable and naïve, requiring protection is
thereby removed.
Ergo, it contradicts the underlying argument of the current
interpretation of the OPA. It seems therefore inevitable that the OPA
will have to be radically reinterpreted in the courts. This however will
fall completely outside the influence of your department. It is
foreseeable that a much more liberal interpretation of the OPA will
follow, resulting in the publication of more and stronger pornography,
not less.
Another possibility is the effective collapse of the OPA by it falling
into effective disuse due to the contradiction inherent to this law. I
stress that, in my view, this is a significant problem.
To expose the current conventions of the OPA to such fatal contradiction
for the addition of a highly controversial piece of legislation seems at
best courageous, at worst reckless.
Prime Minister’s Comments
There is a need to explain how the Prime Minister’s comments of 5 Sept
06, merely six days after the announcement of this legislation, square
with government intention to ban possession of a type of pornography.
‘It is not for the State to tell people that they cannot choose a
different lifestyle, for example in issues to do with sexuality. All
that has changed and rightly.’
The above quote is taken from a government website at (www.number-10.gov.uk/output/Page10037.asp).
It is therefore a matter of undeniable, official record.
An individual’s use of pornography is undoubtedly a question of
sexuality. The prime minister’s statement therefore seems to be in
complete contradiction to the actions of your department. How is the
public supposed to interpret this?
Reassurance concerning Safety of Opposition
Another concern has been repeatedly voiced by some opposing this
legislation. There is a fear of recrimination should this law pass, that
those who have democratically opposed this legislation would find their
names passed on to police as prime suspects of being in breech of it.
Therefore some feel deterred from further active opposition fearing that
else they might eventually find their houses raided in the middle of the
night, with all the publicity of local media brought to bear.
Naturally we all would be seeking reassurance that this would not be the
case and that active opposition to this legislation will not suffice as
reason for police investigation.
Point of Order
The decision having been reached to present the law to parliament at
some point in the future, there should now be a fairly clear idea of
what the law, in plain English, would ban. It is understood that the
exact legal wording of the statute is still a work in process.
Therefore this is not a question of complex legal phrasing, merely a
demand for a final official position of what is actually to be outlawed.
We should now be at the stage where the Home Office at least knows this.
Your response to my question on rape alone suggests the basic parameters
of the law are still in flux, which might further broaden the scope of
the legislation.
This is extremely worrying as it begs the question what the government
actually announced on 30 August 2006. An aspiration? Or the intention to
outlaw specific material?
The series of questions for clarification I alone so far have sent you
seem to suggest that there indeed remain substantial gaps within the
intellectual fabric of this legislation. This before the question of
compatibility of human rights law is even broached.
I would like to make clear that I present these thoughts without
hostility. I have remained constructive throughout as I believe befits
civil opposition. The point above is not raised emotively or from a
position of argumentative opportunism. But the nature of the law itself
still being in flux at this point is cause for concern.
I await your reply.
|
| 28th
October |
Reply:
Legislation Being Prepared
"Parlimentary
Counsel" would be the barristers and lawyers employed by the government,
who would have to frame their censorious repressive desires into legally
workable laws...
Thanks to Franco who posted about the reply on
The Melon
Farmers' Forum
Just received reply from Home Office to my last two letters...
it seems they are now trying to close down the debate...
Below are the paragraphs of interest. and my comments...
In your letters you raise a number of issues where you have concerns
over the governmen's response to the consultation. I should note that
the response set out policy rather than being couched in terms suitable
for legislation. While it states the principles, it will be for
parliamentary counsel to draft legislation.
I understand your wish to know exactly what will be prohibited. The
government accepts the importance of achieving clarity with regard to
the types of material which are to be covered by the legislation and
will consider giving non-statutory guidance on the type of activity or
injury which we consider would fall within the categories I have
outlined. This, along with clarification of police powers in this area,
will be developed alongside the proposals for legislation.
Regarding the OPA, they totally missed the point(intentionally?):
with regard to your comments on the OPA 1959, the threashold has been
set at a high level to ensure that it will only catch material, which
would be subject to prosecution if the police were aware of its
publication or distribution. AS you note, the OPA does contain a general
test of obscenity which juries apply in each case. However, the law
enforcement authorities have considerable knowledge of the type of
material which juries find to be obscene, they have fully been involved
in the consultation process and there is no wish to go beyond the scope
of the Act.
I also note your comments about the proposal to exempt material
classified by the BBFC. You may be aware that the BBFC asked us to
consider the option to ensure that those who buy pornographic material
given an R18 classification were not concerned that the material they
held was in breach of any proposed legislation. It is also the case the
under the Video Recordings Act 1984 the BBFC would not classify material
which may breach the OPA 1959.
so no matter if the exemption of BBC material is illogical I guess...
With regard to your comments on `proportionality`, sentencing is a
matter for the courts. The three year sentence proposed in respect of
the possession of extreme pornography is a maximum sentence and, as with
any other offence, there would clearly be a wide range of sentencing
options below that.
So what would the 3 year maximum be used for? hmmm...
Finally, I can assure you that opposing this legislation in a
peaceful, democratic and lawful fashion would in no way serve as grounds
for police investigation or any other such action.
The letter is interesting by its omissions as well as by what it says...
so no comment on Blair`s speech where he states that the government
should stay out of personal sexuality...
The legislation now is subject to 'parliamentary counsel', so
essentially they no longer want to answer questions...
Generally there now is a move to close things down... I don't see the
tone of this letter and my Labour MP's unwillingness to be helpful as
coincidence... they're getting on with it and they're shutting shop to
the outside world... next stop: announcement of detailed legislation...
it seems how they arrive there is not to be revealed...
|
| 3rd
November |
Follow Up:
When the Policy Unit
Doesn't Know the Policy
Thanks to Franco who
continues his discussion with the Home Office
Thank you for your letter dated 20 October 206.
I refer to the following statement made in your letter: I should note
that the response set out the policy rather than being couched in terms
suitable for legislation. While it states the principles, it will be for
the ‘Parliamentary Counsel’ to draft legislation.
The above statement obviously refers to my detailed questioning of your
policy. A policy which so far has been shown not to stand up to detailed
scrutiny. However, as long as the Home Office Policy Unit remains
unclear on policy, then policy must continue to be questioned,
scrutinised and probed.
I cannot stress strongly enough the fact that so far, your department
has not been able to provide a definition that satisfies even your own
views.
In a letter dated 20 September 2006 Vernon Coaker states that: …it is
likely that some depictions of rape will be covered. This however
does not fit with your own definition of ‘serious violence’ (likely to
cause death or serious, lasting injury). Rape doesn’t threaten life or
cause serious, lasting injury.
It is therefore not the lack of legal precision but the simple inability
to describe your own policy that is cause for concern. The questions
‘what are you intent on banning?’ should be something answerable by your
department. An intent to ban is a matter of policy. You are the Home
Office Policy Unit. Deferring to the Parliamentary Counsel does simply
not suffice.
Personally, I cannot help but suspect that your statement is more an
attempt to close down debate and to deter any further opposing
correspondence being sent to your office.
In fact, given that my two letters, to which your latest correspondence
was a response, were of considerable length and contained many arguments
and questions, your reply seems somewhat brief. Curtailed by what I ask;
a wish to be rid of such scrutiny? I understand entirely that letters
such as this one are an inconvenient irritation to government
departments. I would stress that I in turn find it an irritant having to
write these letters. I would have other things to do and unlike
yourselves I‘m not paid for the privilege. Yet I see it as my civic duty
to oppose, to scrutinise, to demand explanation on this proposal and
where necessary, make your department answerable to the lawful,
democratic opposition to this policy.
A proposed law’s intended content is a matter of policy, its legal
wording a matter of Parliamentary Counsel. I am inquiring about the
intended content of the law. I am therefore inquiring on policy. You are
the Home Office Policy Unit. What is the law’s intended content?
Parliamentary Counsel is to draft law according to policy, not make
policy. You therefore must be in possession of working definitions which
you can provide to Parliamentary Counsel. So, what has Parliamentary
Counsel been instructed to furnish a legal text for?
Are they working purely from the definition provided by the government’s
consultation response? Or have further definitions and instructions been
added? Or are they to decide on policy themselves, where the gaps in
policy are evident? In short, please provide me with the same
instructions you have forwarded, or will forward to Parliamentary
Counsel.
As we all know by now the definitions published so far simply do not
hold water.
We in opposition are convinced that there are alternative definitions in
use in your department.
The decision to proceed was self-evidently based on a political bias as
it was contrary to the weight of argument provided in the consultation
response.
If the opposing camp could muster academics of law, media and
psychology, even expert argument from a QC, then the majority of those
in support of this folly are organisations that are opposed to all
pornography per se. So be it. Government is not obliged to heed
consultation responses.
But on the decision having been reached I would have thought there would
be an interest in the problems opposition foresaw in the imposition of
the policy as currently laid out. Should government agree with
opposition or not, there is some wisdom to be drawn from its ranks. As
it stands, the policy is flawed.
The policy is clearly not yet fully developed and contains
inconsistencies and contradictions people such as I have been trying to
bring to your attention.
The fact that the new law undermines the OPA (insistence on individual’s
competency negates the duty of publisher to scrutinise if his material
depraves and corrupts) remains unanswered . The fact that exemption of
BBFC material contains flawed logic (as it implies that material can be
illegal on principle, but rendered legal by BBFC – else exemption is not
necessary), which calls into question the reason for the entire policy,
still remains. The above points are hardly matters for parliamentary
legal experts, but matters of policy. They are also not the only flaws
to be contained within the policy.
The intention behind this policy is confused and unclear. It is
ambiguous if it wants to ban material such as rape or not, cannot define
a dividing line between legal and illegal adult pornography and flails
helplessly at producing some kind of consistent underlying principle.
Ministers misrepresent it on the radio and the prime minister
contradicts its very sentiment in his official statements. All the above
is a matter of policy, not legal wording. To defer to Parliamentary
Counsel simply does not suffice.
Although I agree with the notion the government announcement of 30
August 06 cannot be a legal text within itself, I repeat my question
what the government respond actually announced?
If the precision on what is to be banned is entirely subject to
Parliamentary Counsel then you, as the Home Office Policy Unit, do
currently not know what it is you have decided ought to be banned. Seen
in this light your reference to Parliamentary Counsel seems ill advised.
In fact it might be of considerable interest to the media if government
has announced a policy it is currently ignorant of and will remain so
until it is further defined by Parliamentary Counsel. The policy of
introducing any new offence must by definition entail knowledge of what
the offence is to be.
Further, I note that your letter contained no reply to my reference to
the Prime Minister’s comments of 5 September 06 which contradicted the
very notion of this law.
Once again this referred to a contradiction in publicly stated policy.
Yours is the Policy Unit of the Home Office.
I stress that the Home Office’s view on this whole matter has been
entirely partisan. The bias shown in the text of the consultation itself
was quite blatant. This approach seems to have continued throughout.
This is not least expressed in the organisations which were invited by
government to contribute to the consultation. I believe official
complaints have already been received regarding this very matter.
Therefore, mine is not a lone voice.
I have readily engaged and contributed on this matter – the first time I
have ever seen necessary to do - as I fear the government is about to
commit tragic mistake which will lead to injustice on a scale I think it
does not foresee.
Your latest correspondence provides a clear impression that no further
correspondence is welcomed and that all further proceedings prior to
this going to parliament,- where it will be subject to party politics
and the influence of the whips. This is of deep concern.
The prisoner figures alone that this legislation might generate are so
far unclear and is likely to figure in the thousands at least. Something
I would have thought the Home Office, given recent developments, would
take some interest in.
Finally, I would like to ask if the ordering of a retrial affects the
progress of this proposed legislation. As we all know the Coutts/Longhurst
case was openly linked to this policy by its authors. Government still
acknowledges this link by holding back from publication of any
consultation responses which refer to the Coutts case.
Therefore I would like to ask will, according to government, the retrial
of the Coutts case have any effect on the further progression of this
legislation? For example, is it on hold until the Coutts case has been
resolved?
Or is government now to state that there is no link between the Coutts
case and the proposal of this legislation? If so, what light does this
cast upon the relevance of the Longhurst petition which was considered
during consultation?
Given that everyone is keen to know how and when things will progress, I
would much appreciate clarification on this matter.
I trust as the Home Office Policy Unit you are obliged to keep
democratic, political opposition to policy informed. I await your swift
reply.
|
| 28th December |
Reply:
When the Policy Unit
Won't Tell the Policy
Thanks to Franco who
transcribed his reply from the Home Office on
SeeNoEvil
I understand that you continue to have concerns about Government policy
in this area and seek more information about proposed legislation.
I also note your comments about rape material and your view that 'rape
does not threaten life or cause serious, lasting injury'. We disagree.
With regard to Mr Coaker's answer of 20 September about the depictions
of rape which may be covered by the legislation, our position remains
the same - some depictions of rape will be covered if they meet the
thresholds outlined in the Government's response.
I also note you wish to see the instructions sent from the Home Office
to parliamentary counsel. I am afraid that I am not in a position to
send you sich material which is in the form of legal advice from the
Home Office lawyers. This information is being withheld under sections
35(1)(a) and 42(1) of the Freedom of Information Act. The former allows
us to withhold information relating to the formulation and development
o |
Pink
News publicises Downing Street petitions
Graham
Coutts to be retried for the murder of Jane Longhurst
This
rather shows how dangerous bad taste emails could become due to the
dangerous pictures act
Interesting,
but when the knee jerking politicians want to put innocent people in prison for
human rights abusing populist policies, then surely they deserve every bit of
stick that they get.
From
Alan
From
Bob in Upminster.
From