The Ministry of Justice has published a response to a consultation paper that sought views on making all obscene images of children illegal including cartoons and drawings:
1. The formal period of consultation began on 2 April 2007 and ended on 22 June 2007. All responses, including those received shortly after the closing date, have been considered.
2. Prior to the consultation, the Criminal Law Sub Group of the Home Secretary'
s Task Force on Child Protection on the Internet had been considering the issues raised by computer generated images (CGIs), drawings
and cartoons, which show graphic depictions of sexual abuse of children or child-like characters.
3. Meetings have also taken place with a number of interested parties to further evaluate the proposals. These groups
included the Children'
s Charities'
Coalition for Internet Safety (CHIS), the Child Exploitation & Online Protection Centre (CEOP), the British Board of Film Classification (BBFC) and the Lucy Faithfull Foundation.
4. The response to the consultation illustrated the sensitivity surrounding many of the issues raised. The creation of a new offence of the possession of cartoons, drawings, computer generated images and other material which
depicts, or appears to depict, child sexual abuse is a significant step. It is recognised that these images, unlike those produced in the making of indecent photographs of children, do not involve harm to real children in their creation, and the
Government has further deliberated on the proposals, in the light of the comments put forward. However, possession of the material in question (which would be caught by the Obscene Publications Act 1959 in respect of their publication) is cause for
increasing concern. Recent technological advances have provided a challenge to the relevant legislative and physical protections that existed to obstruct the availability of these types of extreme images. It is important, in this changing environment,
that the law is responsive and remains fully equipped to protect the public, and, in particular, the most vulnerable members of society. We continue to believe that tightening up the law to cover possession of such material is justified.
5. It was apparent from the responses to the consultation that many people viewed the ‘definition of what will constitute ‘pornographic'
'
as troublesome and consider ‘pornography'
and ‘pornographic'
as ‘notoriously opaque concepts,'
2 further, pinpointing ‘the age of an unreal representational figure'
was seen as problematic. They noted that ‘stylisations of animations freely mix aspects typifying different ages. The inevitably subjective allocation of an age would
make impossible an assessment of legality.'
3 In terms of the proposed new offence, the age of the fictional character would be a matter for the jury to take a view on.
6. A number of the respondents, including the
IWF, Channel 4 Television Corporation, BBFC and Professor Clare McGlynn (Durham University), amongst others, asked that further consideration be given to providing a defence of ‘public good,'
similar to the terms of the Obscene Publications
Act. It was recognised however that the conditions and applicability of ‘legitimate reason'
for possessing the material would need careful scrutiny, in collaboration with a number of interested parties.
7.
The consultation paper stated that ‘it is not the intention to criminalise the possession of works of art, historical artefacts or in any way hamper or limit police investigations or medical research, for example, the legitimate visual recreations of
offences for investigative or risk evaluation purposes, or the medical care and treatment of adult abusers.'
However, many of the responses conveyed significant concern that the measures could have an impact on valid artistic expression and it
was suggested ‘there is a danger that the precise proposals as outlined may have significant unintended consequences, including in relation to works classified by the BBFC.'
4 Concern was expressed towards a potential breach of individual or personal
freedoms and ‘criminalizing the product of an individual'
s imagination'
. It was felt that this could be a potential infringement of an individual'
s right under Article 10 of the ECHR to freedom of expression although others pointed out, it
is not an absolute right and as such may be balanced with other rights and interests. The potential effect of the proposals on historical artefacts and judicial proceedings was also called into question, where sketches are used in court cases, for
example.
8. Many of the responses also recommended that the defences for the possession of any material should adequately cover the legitimate activities of law enforcement, broadcasters and those involved in the
internet industry (e.g. those who develop filter systems). The new offence will include a defence of ‘legitimate reason'
and aims to catch a range of material that is deemed pornographic; the terms of which are outlined later.
9. A number of respondents highlighted issues surrounding popular internet games and ‘virtual worlds'
, such as the creation of childlike ‘avatars'
; these matters have been given further consideration. It is anticipated
that the new offence may catch possession of material that depicts ‘avatars'
on the basis that it may meet the requirements and thresholds of the new offence.
10. Many responses cited the lack of specific
research or scientific evidence showing any direct link between the possession of these images to an increased risk of sexual offending against children, as problematic. Among the respondents who argued that it was unjustifiable to make it illegal to
possess the material in the absence of clinical research, there were a number who regularly viewed the material. In contrast, it was put forward that ‘such research could not, and should not, be conducted as it would be unethical and potentially
dangerous since it would mean exposing individuals to potentially harmful material with a risk of harm to children.'
Secondly, it was argued ‘the establishment of ‘direct links,'
to the causation of harm, is perhaps misconceived since
human behaviour is not so reducible to only one influence (i.e. images of child abuse), but is a result of many different factors.'
5 Strong views were also expressed about the possible role of the material in actual abuse, with many respondents
suggesting that the material served as a legal outlet for potential offenders, whilst others suggested that the material reinforced inappropriate perceptions of children, allowing a sense of social acceptance towards actual child abuse. Since the close
of the formal consultation period, we have held a series of meetings with interested parties on these issues and have considered the views and experiences outlined in the response to the formal consultation.
11. A
large majority of those in support of further action to tackle non-photographic images of child sexual abuse supported the creation of a new, free-standing offence, as proposed in the consultation. Overall, of the respondents who expressed a preference,
42 respondents were in favour of further legislation in general, as opposed to the 21 respondents in favour of doing nothing.
12. Of the 87 responses, however, many failed to answer the questions posed in the
consultation, but rather explored general problems surrounding the main issues.
The proposed offence
13. The consultation paper outlined the proposed offence itself, stating that it
would have two thresholds. The first would be an objective test for the jury that the material was pornographic. In terms of the pornography threshold, the material should be of such a nature that it must reasonably be assumed to have been produced
solely or principally for the purposes of sexual arousal. This test is intended to eliminate, for example, works of art, news and documentary programmes by mainstream broadcasters which are of public interest and works classified by the BBFC (other than
those classified R18 for sale only in licensed sex shops.)
Content of material
14. The second threshold would be an objective test for the jury in respect of the content of the
image. It was suggested in the consultation paper that the threshold for fantasy images should be different from that of ‘indecent'
which is used for images involving real children.
15. In the case of
non-photographic depictions of the sexual abuse of children, the offence will outline a number of specific acts in order to provide clarity and precision. To some extent, this threshold will be based on the scale of seriousness in the Court of Appeal
Sentencing Guidelines (R v Oliver and others (2003) 2 Cr.App.R(S) 15) and the revised guidance, published by the Sentencing Guidelines Council.6 The offence should criminalise nonphotographic visual images depicting the following:
- An image which focuses excessively on a child'
s genitalia - A person of any age performing an act of intercourse or oral sex with a child
- An act of
masturbation by, of or involving a child
- Penetration of the vagina, anus or mouth of a child with a part of the person'
s body or with anything else - Bestiality involving a
child
The third element
16. It is not our intention to criminalise possession of material which it would be lawful to publish in the UK (material which would not fall foul of the Obscene Publications
Act). To that end we envisage the offence having a third element to it, namely that the material caught is of an obscene character. It should be noted that this third element to the offence was not proposed in the consultation paper, but has been
included to ensure that the offence catches the intended material.
Defences
17. We have considered the concerns expressed by broadcasters and those in the internet industry to ensure
that that there are adequate defences to cover those who need to have contact with the material in the course of their legitimate work, those who stumble across the material accidentally or are sent it unsolicited. These are likely to mirror the defences
provided for the possession of indecent photographs of children in the Criminal Justice Act 1988 S160 (2): if the defendant can prove he had a legitimate reason for having the image; or he had not seen it and did not know or suspect it to be illegal; or
it was sent to him unsolicited and he did not keep it for an unreasonable time.
Penalties
18. In the consultation, it was proposed that there should be a maximum penalty of three
years'
imprisonment, or an unlimited fine, or both for possession of material depicting non-photographic visual depictions of child sexual abuse. The offence will be an either way offence and, on summary conviction, the maximum penalty will be
six months, or a fine up to the statutory maximum (currently £5,000), or both.
19. A maximum penalty of three years'
imprisonment will place the offence in the sentencing framework below the offence of
possession of indecent photographs of a child (section 160 of the 1988 Act) which has a maximum penalty of five years'
imprisonment or a fine or both.
20. It is expected that prosecutions for the simple
possession of non-photographic depictions of child sexual abuse would be extremely low, since the police generally find these images alongside indecent photographs or pseudo-photographs of children. One of the benefits of the creation of a new possession
offence would be to give the police the power to forfeit these images, which at present they do not have.
Timing
21. The Government plans to bring forward legislation to introduce
the new offence and a three year penalty, as soon as the Parliamentary timetable allows.
