How the fuck are we expected to know how old she is?

David Hockney is over 70 years old, and very angry. With the passing of the years, the Sixties working-class wonder boy has metamorphosed into a very cross pensioner. That he is Britain's greatest living artist might be disputed by Lucian Freud devotees and others, but surely he, and no one else, holds the title of Britain's Grumpiest Artist.

This is too bad for Gordon Brown. With his radical background, libertarian views and general disrespect for authority, Hockney might seem like a natural Labour voter. But yesterday he made it clear that he is not any more. I detest the cultural vandalism that contaminates New Labour, he pronounced. I hope they go – and soon.

That is another vote lost for the Government, and it appears that the minister responsible is Maria Eagle, at the Ministry of Justice, who has alarmed many of the people who care for the right to free expression with a proposal she announced last week to deal with computer-generated pornography.

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How the fuck are we expected to know how old she is?

First they came for the child pornographers... It may not have quite the same resonance as Pastor Niemuller’s oft-quoted aphorism. But the reality behind this particular slippery slope is just as sinister.

The British government today announced proposals to make possession of drawings and computer-generated images of child abuse illegal. “Good on them”, is likely to be the most common response. However, it will be an ill thought-out response if it is.

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At the consultation for the Extreme Porn law, one Police Force – Kent – argued also for the criminalisation of written material. It is clear that the government has an appetite for this form of censorship. So it is not unthinkable that adult censorship will progress to cartoon material as well. Or even literature.

Professor Julian Petley is an expert on media policy and regulation. He believes this government “won’t rest content until it has terrified people into viewing only material which bears the official seal of moral approval – an ambition which it shares with Iran, Saudi Arabia and China.”

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How the fuck are we expected to know how old she is?

The ingenuity of the human mind allows both the creation of art and the misuse of images. The twisted mind will always find loopholes - and the government has correctly identified one - but, if closing a loophole threatens other legitimate forms of expression, then it is wrong.

The Eagle scheme is like some brilliant new mousetrap which, while annihilating some mice, also takes out the family cat and the songbirds sitting innocently on the kitchen windowsill. Perverse legislation is not the right response to perverts.

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How the fuck are we expected to know how old she is?

I am driven to my wits' end by my fellow humans' feeble grasp of principled reasoning. Take this week's announcement of new government proposals. Anyone caught with drawings (or computer-generated images) of child sexual abuse will face up to three years in prison. This will close what ministers are now calling a “loophole”.

That was not yesterday's argument. When the existing ban on photographic images was enacted, the argument in principle was that real children are exploited and harmed to make these images, which is true. That entire philosophical plank on which the legislation

rested has now been kicked casually away. If you, alone in your room, put pencil to paper and draw - for your eyes only - an obscene doodle involving a child, you will invite a prison term of up to three years. There is real scope for vindictive citizens to ransack desks or bins and call the police.

Maria Eagle, the Justice Minister, said that the move was not intended to curb creativity or freedom of expression but to tackle images that had “no place in society”. Crikey - the intellectual sloppiness! The move does curb creativity and freedom of expression: it curbs both in pursuit of what its proponents consider the greater public good. No censorship in history has ever been advanced on any other ground.

And it establishes a principle: that images with “no place in society” should not be allowed to exist. So what about racist, or sexist, or sadomasochistic, or gratuitously violent, or homophobic, or anti-Islamic, or anti-Christian images produced not for publication but for private gratification? The logical extension of Ms Eagle's principle is almost boundless.

Even as I write I realise the lament will be a lonely one. Some will even think I have a soft spot for child-molesting. I know I am wasting my time.

How the fuck are we expected to know how old she is?

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:

The new proposed offence is set out below:

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.

How the fuck are we expected to know how old she is?

The Drawings and computer-generated images of child sex abuse would be made illegal under proposals announced by Injustice Minister, Maria Eagle.

Owners of such images would face up to three years in prison under the plans.

Under the Obscene Publications Act it is illegal to possess photos of child abuse but it is legal to own drawings and computer-generated images.

Eagle spouted the usual bollox that the proposed move would help close a loophole that we believe paedophiles are using.

The plans are part of the government's response to a public consultation exercise carried out last year. The results have yet to be published.

A Ministry of Injustice spokeswoman said the authorities had noticed an increase in the existing availability of these images on the internet. If we do not address the issues these images raise now it is likely their availability will continue to grow. They are often advertised as a legitimate depiction of child sexual abuse.

Eagle said the plans were not about criminalising art or pornographic cartoons more generally, but about targeting obscene, and often very realistic, images of child sexual abuse which have no place in our society.