Extreme Pornography News

Significant Lords amendments have been tabled to Challenge the Dangerous Pictures clauses

LORD WALLACE OF TANKERNESS
BARONESS MILLER OF CHILTHORNE DOMER

Clause 63

Page 47, line 7, leave out "both"
Page 47, line 9, at end insert ", and
(c) records an actual act (whether performed in the United Kingdom or not) in which one or more persons committed a sexual offence"

Page 47, line 30, leave out paragraph (b) and insert—

"(b) is obscene as defined by section 1 of the Obscene Publications Act 1959 (c. 66) (test of obscenity)"

Page 48, line 2, at end insert—
"(8A) In subsection (2) of this section, "a sexual offence" is an act which, if performed in the United Kingdom, would constitute an offence under Schedule 3 of the Sexual Offences Act 2003 (c. 42)."

These limit dangerous pictures to those of real (ie not staged) acts that are obscene or illegal

They have also submitted an amendment to leave out the Dangerous Pictures clauses in their entirety.

LORD WALLACE OF TANKERNESS
BARONESS MILLER OF CHILTHORNE DOMER

Leave out clause 63,63,65,66

Lords debate on the Criminal Injustice Bill has been extended

Further Report debates have been added on 27/3/08; 2/4/08; 21/4/08 and 23/4/08. Third Reading is on 30/4/08.

The timetable means that the Lords are keeping the Bill with them almost right up the 8th May dead-line which suggests all the ping-pong is being played now so that any law can get pushed through the HoC by May.

Certainly, the JCHR raised some serious objections, although leaving much material illegal.

We genuinely do believe that letters written at this stage is having an effect on the debate. Please encourage as many people as you can to have their say.

Comment: Possessed by Inconsistency

Thanks to Alan

Re JCHR comments criticising the Dangerous Pictures clauses:

It looks like a small - very small - step in the right direction, BUT...

How does the "no intention to distribute" provision make sense with regard to an offence of possession? The effect would surely be that if Mr A has dangerous pics which he has bought from a website, with the performers adequately paid, he commits an offence, while Mr B, who has hacked the private dangerous pics of his neighbour, doesn't.

They STILL seem to be taking the REA by Kelly et al. seriously. They don't seem to have noticed the research by Petley and others which demonstrates that it's rubbish.

SeeNoEvil has an interesting snippet about Salter ("Saltmines") who has now started moaning about post office closures, when it's suddenly dawned on him that the consultation process is a load of crap. Now, where has that happened before?

Parliament's Joint Committee on Human Rights has been considering the Dangerous Pictures Clause. They have not been particularly damning but have suggested a couple of areas where changes should be made:

2.16 The question is whether or not the proposed restrictions on the rights to freedom of expression and respect for privacy are proportionate to the aims the Government seeks to achieve. The Government has stated that the offence is needed to protect individuals from participating in the offence, to break the cycle and to prevent vulnerable people, such as children, from coming into contact with the material. Whilst many people may find the material morally offensive, this alone is not sufficient to justify outlawing its possession. Given the particularly intrusive nature of the proposed offence on an intimate aspect of an individual's private life (his or her sexual conduct), weighty reasons are required to justify prosecuting people for possessing and viewing these images privately. We remain concerned that "serious injury" (Clause 63(7)(b)) may be subject to a broadly subjective assessment. This term must be interpreted in a way which does not lead to unjustified interferences in an individual's private life and discrimination on the basis of his or her sexual orientation or gender.[93] We recommend that the threshold for serious injury must include permanent physical harm.

2.17 There is some evidence, provided by the Government's rapid evidence assessment, of a causal link between viewing such material and an increased risk of committing sexual offences for a small number of people. However, the evidence does not extend to demonstrating that those who participate in the making of images are harmed by their involvement. We therefore recommend that the definition of the offence be further refined to exclude images created by consenting adults, where there is no serious physical harm to any participant and no intention to distribute the material beyond the participants involved. We recommend that guidance spell out factors which should be taken into account in order to ascertain that participants have consented. Such factors should include, for example, whether or not participants received payment.

Phorm is a way to enable advertisers to meet web users' needs: no one gets hurt, right? Wrong. There's another reason this invasion of privacy is of such a concern and it is the potential effect of some worrying legislation that is currently being debated very quietly in the UK.

The proposed criminal justice and immigration bill contains a disturbing element within it: if passed and made into law, it will then be "an offence for a person to be in possession of an extreme pornographic image". It will be illegal to have in your possession certain pictures deemed "offensive" or "obscene" by the government. No, this is not 1984, surprisingly. According to this proposed bill, if you have in your possession hardcore BDSM sexual imagery you can be criminalised and potentially imprisoned for it.

So, let's say you're a man who gets off on being tied up and spanked. One day your girlfriend strips you naked, binds you and your genitalia tightly with some rope, hits you with a paddle, and perhaps you both have an orgasm or two. She also photographs you in situ. Let's then say that the next day you decide to upload those photos to a blog, so you can both look at them. Your girlfriend likes the pictures so much she decides she's going to download a couple to her computer so that she has permanent offline access to them and can enjoy them at her own leisure.

Guess what? If this law gets passed, you both would have just broken it, and risked a large fine, if not imprisonment, even though you were willing, mutually consensual participants, and your photos were for your own personal use. Both owning and downloading the pictures would be a criminal offence, and bar searching every home in the country, it'll surely be users' web history that allows others, whether it be ISPs, advertisers, or the government, to have access to what people are privately looking at and downloading from the web. While Phorm might look innocuous now, its use in the future may be more about gathering personal web viewing data, for legal purposes, rather than for targeted advertising and we should be challenging it now, for this reason.

Liberty has joined forces with the organisation Backlash in opposing the bill, not least because it breaches at least two aspects of the European convention on human rights. Given this, and the fact our private information is soon to be readily available to third parties courtesy of our ISPs, we should all be concerned about protecting the future privacy of our online use. Right now people have the chance to opt out - and by that I mean they have the choice to leave an ISP if it signs up to Phorm and join another one that will not be collecting data about its customers. But if we rest on our laurels and do not fight for online confidentiality, we may soon find that our right to privacy is eroded without our consent: once that is gone, it is unlikely we will ever win it back.

...Read full article

Update: Privacy Guardian

31st March

The boss of Phorm defended the embattled online advertising technology developer yesterday, offering to open the company up to outside scrutiny by a panel of independent web experts after the firm was blasted by privacy campaigners.

The challenge followed a 5% drop in Phorm shares as the Guardian declared it would not be signing up to the firm's advertising platform because of worries over the information the company had on internet users.

The Guardian's advertising manager, Simon Kilby, said: Our decision was in no small part down to the conversations we had internally about how this product sits with the values of our company.

The most frequent public complaint about Parliament and government is not about alleged sleaze but about the quantity and quality of legislation. Whether you are in the private or public sector, or a private citizen, the main impact of Westminster is through the torrent of Acts and consequent regulations.

The real problem lies in the desire of ministers to be seen to be legislating: the number of Bills each session is a measure of departmental virility. But the adversarial procedures of the Commons inhibit adequate scrutiny and have not stopped poorly drafted legislation from becoming law.

The record of the Lords is better. The increased assertiveness of peers has forced the Government to amend Bills. Not only has the Government been defeated twice as often as before the removal of most of the hereditary peers in 1999, but ministers have accepted broadly, rather than sought to reverse, the Lords’ position in two fifths of these defeats.

...Read full article

The government dropped yet more parts of its Criminal Justice and Immigration Bill on 27 February. However, the highly controversial clauses which will make it an offence even to possess certain kinds of ill-defined pornography remain firmly in place, in spite of the grave doubts about them now being raised — albeit belatedly — in Parliament.

In its legislative scrutiny of the bill, the Joint Committee on Human Rights noted that the government had already made it clear that it felt that the seriousness of the proposed offences justified interference with Articles 8 and 10 of the European Convention on Human Rights, which concern, respectively, an individual’s right to private life and their right freely to receive and impart information (including information which is offensive or unpalatable).

However, the committee was concerned whether the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement that interferences with these rights are ‘in accordance with the law’. Thus it asked the minister to explain how an individual user of pornography would be able to know whether their possession of a particular image would constitute a criminal offence.

In reply, he stated that the government believed that the user of such material would have no difficulty in recognising pornography and that extreme images would be “recognisable” or “easily recognisable”. However, the committee remained unhappy about the vagueness of the definition of the offence, noting that ‘an assessment of whether an image is or is not ‘extreme’ is inherently subjective and may not, in every case, be, as the government suggests, “recognisable” or “easily recognisable”.

This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession. They concluded: We look forward to the government bringing forward an amendment to make the scope of the new offence more precise.

...Read the full article

Having read Lord Hunt’s amendments to the much criticized proposed statute prohibiting possession of ‘extreme’ pornography I’m quite astounded at what I see to be afoot here.

First the government withdraws ‘appears to be’ from the definitions.
Yet then it adds instead the terms ‘explicit’ and ‘realistic’.

Now first off, ‘explicit’ refers to what exactly? The pornographic nature of the image or the violence/bestiality/necrophilia of the act?
We all know, something can be ‘explicitly violent’ yet something can also be ‘explicitly sexual’.
The law does not make clear which of these two, if not both, is meant.
Again the language used simply is not clear.
This is a revived term which was already ditched from an previous draft proposal. I remember corresponding with the Home Office (the drafting was still under HO auspices then) regarding this very ambiguity. Shortly after, ‘explicit’ was ditched.
I am hence quite frustrated at seeing it re-imposed, still with no attempt at clearing up the inherent ambiguity.

Next, we come to what in my view amounts to an outrage. Namely an attempt at what I suspect to be deceit.

Given that the government withdrew ‘appears to be’ under pressure from the revising chamber, it seems an attempt at brinkmanship to simultaneously add ‘realistic’ to the definition.

‘Realistic’ is quite simply anything that appears to be real. It does not define something real, as opposed to something that is merely a pretence. No, ‘realistic’ is an adjective that deals with appearance. A realistic depiction is hence a depiction of an act that ‘appears to be’ real.
‘Realistic’ is hence a seamless replacement for the removed ‘appears to be’.

For example, previously we had a definition for depictions of acts that appear to threaten life.
Now we have a definition for depictions that appear to be real of acts that threaten life, - or possibly a definition for acts that appear to be real threats to life (depending on how you wish to interpret the emphasis of ‘realistic’).

We have hence not advanced an inch with this amendment.
More so the government has discredited itself by the sheer blatancy of this verbal trickery.
The amendment represents merely an attempt at appearing to compromise rather than an honest attempt at compromise per se.

Personally, I am greatly angered by this. As though it were not enough that government has been acting underhand on this issue right from the beginning (We all recall the misrepresentation of the consultation results on BBC radio by one Vernon Coaker MP.), we now have government producing amendments which one can only suspect are attempts at deceit.

If any measure demonstrates the necessity to kick this law into touch, then I believe it is this attempt at lingual slight of hand.

Then of course we come to what Lord Hunt now defines as ‘obscene’ for this statute.
According to his own words his is a definition taken from the Oxford English Dictionary.

'Obscene' is to be 'grossly offensive', 'disgusting' or ‘of an obscene nature’.

At the first instance I notice the word ‘or’ is inserted there. So to qualify for obscenity an item need only meet one of these three highly subjective terms.
So if something is deemed ‘disgusting’ it passes said legal test. This is the high threshold of which we have been assured?

Far be it for me to criticize the Oxford English Dictionary (I take Lord Hunt’s word for it that this is where these terms originated), but defining the word ‘obscene’ as ‘of an obscene nature’ seems far from a substantive definition. In fact it explains an adjective with the use of the same adjective. I cannot see how this is helpful.

Therefore, what is ‘grossly offensive’ and ‘disgusting’? I have no idea.

I am offended and disgusted quite frequently by things I see or hear. Yet others will hardly bat an eye at the content in question. The same occurs vice versa.

I am willing to bet money that I could find with ease a dozen depictions over which Lord Hunt and I would differ starkly in our feelings of disgust and offence. Clearly the verbiage is such that it simply doesn’t stand up to close inspection. It is purely subjective and not in the least precise.
In fact, it could mean anything. So pervasive is the term ‘disgusting’ in everyday use.

Very importantly, to whom must the material appear offensive, disgusting or obscene?

I would like to point out that with the Obscene Publications Act (OPA), obscenity is effectively deemed what is considered harmful to the material’s audience (‘to corrupt and deprave’) by the jury. Not merely is this a much higher threshold (one of harm), but the mention of the material’s audience here is of substantial import.
For in the case of ownership of a material the only audience is the owner.

If the jury, as seems to be suggested here, should now be instructed to adjudicate whether they deem the material offensive or disgusting, seems to miss the point entirely.
After all, in the Obscene Publications Act it is deemed irrelevant if the jury deems the material disgusting. What matters is the jury’s opinion on the effect the material has on its audience.

So in the case of the prohibition of ‘extreme’ pornography we truly are looking at a statute by which the criterion for a person’s right of entirely private ownership of an item depends on what someone else might think of it. Plainly this is nonsensical.

With the OPA an obscenity threshold of harm is applied to matters of publication, yet for possession of ‘extreme’ pornography a much lower threshold of obscenity (disgust per common law) is to be applied.

I cannot stress strongly enough how deeply annoyed I am at seeing it necessary to write hair-splitting explanations regarding the weakness of ministerial definitions and the ambiguity of badly chosen terminology.
Frankly, I have better things to do with my life.

But it is quite clear that government is determined to push through a malodorous statute here that has the whiff about it of something designed on the back of a beer mat.

I have been opposing this for nigh on three years now, corresponding ad infinitum. The opposition to this law has long since won the argument.

A law so lacking in any necessity or purpose should be dropped from the bill. But if political expediency means that it must be passed, then any amendments should at least be truthful ones and not such cosmetic trickery, solely designed to create an impression of compromise.

Hence, if ‘appears to be’ is to be removed, then it cannot be replaced with ‘realistic’ in another paragraph.
If ‘explicit’ is an ambiguous term dropped long ago in the drafting of this bill, then I cannot see how it can now make a return so late on.
If Lord Hunt creates a new definition for ‘obscenity in possession’ then I cannot see how it can be of a lower threshold than that of ‘obscenity in publication’ defined by the OPA.

Personally, I believe these amendments to be an insult to common sense and a possible attempt at deceit of parliament.
The law cannot possibly be passed in its current form.

I would strongly urge for this statute to be dropped entirely or for meaningful amendments to be introduced:

• no ‘appears to be’, no ‘realistic’ or similar terminology in the text.
• no ‘explicit’, or the inclusion of a clear definition of the nature of explicitness (sexual or contextual; i.e. violent/bestial/necrophile).
• no ambiguous, subjective terms such as ‘grossly offensive’, ‘disgusting’ or ‘obscene’.
• higher threshold for legal obscenity with possession than for publication, not vice versa
• either no BBFC exemption at all, or no proposed illegality of excerpts of BBFC approved content, thereby avoiding the multiplicity of legal and illegal status of the same content according to perceived context.
• assumption of consent of protagonists in imagery unless the CPS can prove a crime was committed in production (favoured option, following the principle of innocent until proven guilty – irrespective of inconvenience of said principle to CPS).
• exemption for consensually produced material, irrespective of content (alternative to the above, part I)
• exemption of material which can reasonably be assumed to be consensually produced (alternative to the above, part II)
• statutory duty for provision of clear, comprehensible, unambiguous, non-statutory guidelines to the public by a quango such as IWF in order to allow the average person to understand what the actual limit of legality is supposed to be.
• reduction of tariffs. 3 years for possession of ‘extreme’ adult imagery is disproportionate, no matter what the context. (Can anyone envisage any nature of imagery justifying this maximum tariff?)
• statutory commitment to non-registration on SOR, at least for first time offenders, due to inherent difficulty for public in comprehending the precise limits set by this statute.
• a statutory exclusion of risk as a factor in acts which ‘threaten life’ or are ‘likely to result in injury’. Likeliness of injury ought to reflect an external threat (e.g. assault), rather than self-imposed risk (e.g. a sexual act performed near a cliff top).
• a statutory commitment to blocking access to sites deemed to carry ‘extreme’ pornography, rather than allowing the police to ‘harvest’ the IP addresses from internet service providers of individuals who unwittingly break the law by visiting them or subscribing to them. This includes a statutory duty by government to publish the list of blocked sites, to allow for accountability of their censorial activity.

None of the above proposed amendments could be deemed to be radical or extreme. They are simply intended to protect the innocent and the unwittingly guilty and to protect from punitive and censorial excess.
If ignorance is no defence, then there is an obligation of clarity upon our law makers and where law is as controversial as with this statute, punitive severity is unwise, even unjust.

Again, I stress the proposed legislation would best be dropped altogether.
Without substantive amendment it will be a prime example of bad law.

Baroness Miller of Chilthorne Domer (LD)

The Government have brought forward helpful amendments which meet the arguments about "appears to" and result in a much better definition. However, I do not see that any of the amendments they have brought forward so far deals with the point made by the Joint Committee on Human Rights.

(ie This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession).

We may not like it, but it is something that they do in the privacy of their own home. What entitles us as a legislature to pass something that is an invasion into their thoughts?

What really worries me about it is that we are asking these people to judge whether what they are seeing is going to fall within the remit of the Bill, before it ever gets to a jury. If they think that it does not, because they perhaps do not find it particularly exciting, and then for some reason their use is discovered, the police arrive and they are subsequently prosecuted, that will not sound like much of a defence. IS THERE SOMETHING ELSE THE GOVT CAN DO TO IMPROVE THIS CLAUSE? I suggest that this clause has been fairly rapidly arrived at, and it might be better to have something that is somewhat more substantial and over which more time has been taken. Perhaps a Joint Committee of both Houses could take evidence and look at the issue of violence and connection to crime, looking at substantial evidence from the UK, to SEE WHETHER WE CAN ARRIVE AT SOMETHING THAT IS SOMEWHAT MORE SATISFACTORY.

Baroness Falkner of Margravine (LD)-

....the Government are still muddled as to how to approach the problem of the dissemination of extreme pornography, which is why they have introduced the new and, as I see it, much more subjective standard in Amendment No. 125B. That would insert a new subsection stating that an "extreme image" is one which is,

grossly offensive, disgusting or otherwise of an obscene character.

The problem here lies in defining what is offensive and disgusting, which is naturally subjective. It is dangerous to attempt to comment in criminal law on where the boundaries of taste lie. As I understand it, pornography covers a wide range of acts of different levels of what might be described as extreme acts of a sexual nature. For legislation to attempt to draw subjective parameters is, at worst, unworkable and may criminalise people who would not otherwise have seen those acts as disgusting, particularly if they had filmed themselves committing the acts as consenting adults and were viewing them themselves. I suggest that in those conditions they would probably not find them offensive or disgusting.

Moreover, the definition of pornography will be left to the jury..... the Government are seeking to bring in legislation which is highly subjective and then they are leaving the test to be decided by juries, who could deliver very different outcomes in cases with similar content depending on the part of the country where they take place. The onus on the jury to define pornography will place good people in an invidious position on matters that are so sensitive that, if the law has to enter here at all, it should be law that is capable of being clearly understood and demarcated. THESE CLAUSES WILL NOT ACHIEVE THAT PURPOSE.

The Bishop of Chester

While I applaud the Government's attempt to get to grips with this issue, I share a feeling that THINGS ARE NOT RIGHT. My brief experience in your Lordships' House tells me that this number of amendments linked together usually means that the legislation is in difficulty.

I am with the noble Baroness, Lady Howarth, here: if a clear link is established between pornography as we would generally describe it and child sex abuse, that is something we should seriously consider, even if that puts restrictions on other individuals. That is an objective criterion. If there is a criterion of "the common good", something about society on which we agree just for the good of society, that is also more objective. BUT TO LEGISLATE ON THE BASIS THAT THIS IS WHAT MOST PEOPLE DO NOT LIKE IS A RECIPE FOR TRANSIENT AND BAD LAW..

Lord Henley (Con)

Bearing in mind that the Government are anxious to save a bit of time on this Bill, when the Minister comes to respond he might want to take the amendment away, give it some further thought—possibly send it to a Select Committee, or whatever—and bring it back having done so.

.....he (Lord Hunt) might want to take the amendment away and bring it back on some other occasion after we have had some further thought about it and about how properly to define the mischief we are trying to address.

Lord Maclennan of Rogart (LD)

...I wholly agree with what the right reverend Prelate said about the anxiety that the Government have not come up with the right answers.

The definition of an image in Clause 113(3) that the Government's amendment seeks to amend is not capable of improvement by the amendment the Government have advanced.

I also think that the Government have not succeeded in improving the language in respect to what is extreme. The issue of whether something is grossly offensive is treated as though it were objectively definable. The fact that something is grossly offensive to one person does not necessarily reflect the general view.

The provision is just badly thought out. THE WHOLE THING NEEDS TO BE TAKEN BACK AND WORKED ON AGAIN. WE WILL BE LEGISLATING IN HASTE IF WE ALLOW THIS TO PASS; AND WE COULD REGRET IT VERY MUCH AT LEISURE

Baroness Howe of Idlicote (Crossbench)

I join other noble Lords in their CONCERN THAT THIS IS STILL PART OF THE BILL.

One urges the Minister and the Government to think again.

We appreciate why the Government have tabled their amendments—they have seen the concern and have tried to remedy it—but THEY CERTAINLY DO NOT SATISFY ME. MORE PROBLEMS ARISE FROM THE PARTICULAR WORDS THAT HAVE BEEN USED. I therefore join other noble Lords in asking the Government to THINK AGAIN. This is too vital an area for us to allow it to be simply an add-on—yet another thing.

...I therefore VERY MUCH SUPPORT THE CALL FOR A RETHINK OF ALL THESE CLAUSES.

Lord Wallace of Tankerness (LD)

There is still a degree of uncertainty about what the criminal law will be. If we are indeed about to create a statutory offence with the potential for a serious term of imprisonment, we really need something that stands up to scrutiny much more than the terms of the clause. In his final remarks, the noble Lord, Lord Henley, said something about trying to determine what the mischief is. I tried to think who the potential victims of this crime are. Is it those who participate, because if actual events are being filmed, clearly a crime of serious assault will have been committed in any event? If it is simulated and if people are engaged in a consensual activity, it is stretching things a long way to suggest that people who are engaged in that kind of consensual activity, albeit in an activity that may be abhorrent to most if not all of us here, should be criminalised for that.

It is quite clear that in the case of child pornography, a child is incapable of giving consent. Therefore, it is only right that that is totally beyond the pale and is criminalised. We should tread very warily before we engage in criminalising something that is consensual. It would be very odd if a couple engaged in a consensual act which in itself would not be criminal but, if it was photographed, the possession of the photographs could be criminal. That seems to be going too far. On those who are perhaps viewing this material, again I have difficulty in accepting that that might be the case.

In introducing his amendments, the Minister made the point about how the Government are trying to bring the definitions more closely in line with the Obscene Publications Act. I note that Section 1(1) of the Act provides:

"For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it".

It has already been said in this debate that the type of people who are liable to see this are probably those who seek it out. It is very difficult to perceive, therefore, if one is trying to import the Obscene Publications Act, the type of people who are liable to see it and whether they would be victims of the crime intended to be created by this clause.

On whether the wider society could be the victims, my noble friend Lady Miller of Chilthorne Domer has indicated her concerns about the reference to the rapid evidence assessment referred to by the Minister. But it is equally the case that in the Government's consultation document on these proposals, both in the executive summary and on page 10, they acknowledge the question:

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?

In their consultation document, the Government accept that the case is not made and that there has not been conclusive research to the effect that it has a negative effect on wider society.

Before we create this, we are entitled to ask who the victims are. As yet, I do not think that that question has been answered. Just because we may find the type of material abhorrent, that is very often the time when we should stop and pause. It is very easy to talk about defending liberties and freedom of expression when people are making comments about things that we most readily agree with. But, as the European Court of Human Rights said in the case of Müller v Switzerland,

it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.

We should hesitate before we go down this road. I agree with Members of the Committee who have said that there will be other ways to address our concerns; perhaps a Joint Committee of both Houses could look at the evidence, or we could tackle more and engage more with the internet service providers. In the long run, that may be a more effective way of curbing this activity rather than trying to create an offence, which many Members of the Committee have said has many weaknesses in it.

Lord Thomas of Gresford (LD)

If the offence—not of producing and distributing material of this sort but of simply possessing it, never mind whether you are looking at it—is to be punishable by three years' imprisonment, it is necessary to know precisely what the limits, boundaries and purpose of that offence are to be. The clause may have been drafted after consultation, as the Minister said, but IT IS CLEARLY HELD ALL AROUND THIS HOUSE TO BE UNSATISFACTORY. IT SHOULD BE LOOKED AT AGAIN AND WITHDRAWN FROM THE BILL..

Lord Hunt of Kings Heath (Lab)

I have already prayed in aid the rapid assessment (what?)

Lord Elystan-Morgan (Crossbench)

I very much doubt, with the greatest respect, whether the test, in so far as it is going to turn on the question of what the public in general feel is abhorrent, can be sustained.

The difficulty with abhorrence is that whereas most people would be able to agree absolutely where that line is in relation to honesty or dishonesty, people might have hundreds or thousands of different views about what exactly is abhorrent. To my mind the use of that word carries echoes of the Lady Chatterley trial, which must have been 50 years ago, and Mervyn Griffith-Jones, learned counsel for the Crown, exhorting the jury to consider whether that was the sort of disgraceful book they would allow their servants to read.

Baroness Kennedy of The Shaws (Lab)

I have always argued that extreme pornography of this kind has to be accessed on the internet using credit cards. Why have the Government not thought of it as a course to dealing with it? They could approach credit card companies and say, "It is your responsibility to put a block on these sites, and when someone seeks to use their credit card for this extreme pornography, they cannot do it". Why are we not seeking to address it that way rather than introducing the problem of finding a criterion that does not fall foul of the problems raised in this debate?

Comment: What Problem?

Thanks to Alan, 12th March 2008

What disturbs me is the mindset even of those who quibble with the detail of the DPA. For instance, Lady Falkner refers to the problem of the dissemination of extreme pornography.

What problem? So far as I can see, no politician in either the Lords of the Comics has made the obvious point that it is just plain wrong to throw people in the slammer because you don't like the contents of their video cabinet or hard drive.

The House of Lords committee recently debated the Dangerous Pictures clauses of the Criminal Injustice Bill.

The proposed law was widely condemned by most speakers but no useful amendments were moved. The Lords seemed to be particularly concerned that individuals could not be clear about whether they are breaking the law or not.

Alan points out that it is interesting that the Bishop of Chester is beginning to see to see the light and talk some sense about this daft proposal.

Particularly interesting as he's by no means at the liberal end of the theolological spectrum. In fact, if there was any part of the Criminal Injustice Bill about which I would have expected him to get aerated it was the "be nice to poofters" bit, in view of his earlier form.

Anyway, the Bishop of Chester contributed to the debate:

I would welcome a thorough look at the whole issue of what pornography is and its impact on our society. Clause 113(3), as amended by Amendment No. 122B, would state:

"An image is 'pornographic' if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal".

You can see that when you go into many newsagents in our society and look not just at the top shelf but at almost any shelf these days. Many of the soft porn films seem to have been produced precisely for that purpose.

The last thing we want to do is to produce an aura where everyone is a potential criminal. In one sense, we are and we need to acknowledge that, but that produces very negative reactions in the population. One can instance all sorts of ways in which that is the case. This whole area needs very careful examination not least in terms of whether there is any link between what is published and broadcast and crime. There are definitely imitative patterns of behaviour. There are the awful tragedies of the suicides in south Wales at the moment which is an illustration of how images can be created, as it were, and behaviour follows those images and is repeated. Sexual arousal is simply part and parcel of the whole of the creative world. When one looks at David Attenborough's series "Life on Earth", one sees that much of the depiction of the way in which the creative world operates is tied in with the reality of sexual arousal—let us be honest about it. If we are going to produce laws in this sort of area, they must carefully define what they are attempting to criminalise.

The clauses also seem to move between issues of violence and issues of pornography and sexual arousal. I know that they can often be linked, but I tend to think that they are often rather different. I think, from my own perspective, of the Christian faith, which has a violent image right at its heart: that of somebody being nailed to a cross. There are ways in which you could find portrayals of central features of the Christian faith covered by these clauses. Some people find them offensive; indeed, in one sense they are. There is such a deep subjectivity here that these things need careful consideration.

While I applaud the Government's attempt to get to grips with this issue, I share a feeling that things are not right. My brief experience in your Lordships' House tells me that this number of amendments linked together usually means that the legislation is in difficulty.

The House of Lords committee yesterday debated the Dangerous Pictures clauses of the Criminal Injustice Bill.

The proposed law was widely condemned by most speakers but no useful amendments were moved.

The Lords seemed to be particularly concerned that individuals could not be clear about whether they are breaking the law or not

However the Government agreed to have talks between now and the report stage. A tactic they have used before without actually resulting in any changes whatsoever

Yesterdays item about Martin Salter's question about commitment to the Dangerous Pictures clause has now been transcribed.

Martin Salter (Reading West, Labour):

The Deputy Leader of the House will be aware of the long-standing support of three Home Secretaries and 180 MPs of all parties, as well as Amnesty International, women's organisations, faith groups and thousands of individuals, for the Jane Longhurst campaign against violent internet pornography. Will my hon. Friend confirm that the Government intend to deliver quickly on the assurances given at the Dispatch Box by the Justice Secretary to include the promised measures in the forthcoming Criminal Justice and Immigration Bill that is currently in the other place?

Helen Goodman (Parliamentary Secretary, House of Commons):

Of course I am well aware of this important issue, and of the effective campaigning that my hon. Friend has done to raise the issue with Ministers and in the House. The Criminal Justice and Immigration Bill contains many good, important measures. As he knows, it is vital that the Bill secures support in both Houses to a reasonable timetable. That means that difficult decisions sometimes have to be made. However, I am sure that my colleagues in the Ministry of Justice are aware of the public support for the measures that my hon. Friend has mentioned, and I will refer the matter to the Secretary of State.

David Lepper (Brighton, Pavilion, Labour):

Further to the assurances that the Deputy Leader of the House has just given to my hon. Friend the Member for Reading, West (Martin Salter) on legislation to deal with violent internet pornography, she will be aware that the need for such legislation was highlighted by the brutal murder some five years ago of my constituent, Jane Longhurst, a respected teacher.

Assurances have been given in the past by the Government. In addition to the reminders that the Deputy Leader of the House has undertaken to give to her colleagues in the Ministry of Justice, will she also remind them of the 50,000-signature petition on the issue that my hon. Friend the Member for Reading, West and I presented to Parliament, and of the fact that the Dutch Parliament, as well as other European Parliaments, is carefully watching what happens in the House with a view to introducing legislation along similar lines?

Helen Goodman (Parliamentary Secretary, House of Commons):

I am grateful to my hon. Friend for making those points, which I shall relay to colleagues in the Ministry of Justice.

Comment: Any Lords Amendment May Stick

Thanks to Harvey the Melon Farmers Forum

Salter and Lepper certainly seem to think that if the Lords amend the Dangerous Pictures Act in a way which is not to their liking, the government may not force the issue in the Commons by sending the Bill back.

Salter was trying to get a public confirmation from the government  that they would do. But the Deputy Leader of the House refused to give one. Interesting that; a) Salter thinks the Lords will vote to amend the DPA, and b) the government  wouldn't give a commitment to reverse it in the Commons.

Perhaps Goodman's reply and mention of "difficult decisions" means that the government   would prefer have the remainder of the CJI Bill passed quickly, rather than play ping-pong with the Lords over the DPA.

Comment: Depicting Life Threatening Injury of the Truth

Thanks to Alan

Notable, and already spotted by the good folk over at Backlash, is his claim that Amnesty supports the Dangerous Pictures Act. In parliamentary psychobabble, he was "misleading the House". In plain English, he was lying. Amnesty takes no position on the proposal.

This follows his bizarre performance in the second reading. Jack "Boot" Straw breathes his pieties about the unacceptability of slagging people off because of their sexuality, and Salter launches into a squalid rant about sadomasochists which appears on any objective criterion to be slagging people off because of their sexuality. Apart from the twaddle about non-existent "snuff" movies, Salter also seemed not to understand the effect of the legislation he supports so assiduously, referring to people going to jail if they PUT IT ON THE INTERNET. People can quite legally "put it on the internet" in places like the USA, Hungary or the Czech Republic. It's those downloading it who are in trouble.

If somebody had told me twenty years ago that by 2008 material legally produced and distributed in the countries of the Warsaw Pact could only be circulated in samizdat form in the UK and that the government would be contemplating imprisoning people just for owning it, I'd have thought he was barmy....

During questions on future Commons business, Martin Salter and David Lepper sought assurances that the Government would include restrictions in access to violent online pornography in the Criminal Justice and Immigration Bill, which is going through the House of Lords, ..

Salter (Reading West) referred to the long-standing support of three Home Secretaries, 180 MPs of all parties as well as Amnesty International and thousands of individuals, women's organisations and faith groups and others who supported the Jane Longhurst campaign against violent internet pornography.

He asked Deputy Leader of the House, Helen Goodman to confirm that the Government intends to deliver quickly on the assurances given at that despatch box by the Justice Secretary (Jack Straw) to include these promised measures within the forthcoming Criminal Justice and Immigration Bill that is currently in the House of Lords.

Ms Goodman said she was aware of the issue, stating: The Criminal Justice and Immigration Bill contains many important and good measures. As you know, it's vital that the Bill secures support in both Houses to a reasonable timetable. This means that sometimes difficult decisions have to be taken.

She added: However, I'm sure that my colleagues in the Ministry of Justice (MoJ) are aware of the public support for the measures which you have mentioned and I will refer the matters to the Secretary of State.

JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law.

They produced a briefing paper for the House of Lords 2nd Reading of the Criminal Injustice and Immigration Bill and are critical of the scope of the Dangerous Pictures clauses:

We agree that the possession of ‘extreme pornographic material' as defined in clause 113 may be both extremely distasteful and, in some cases, the rightful subject of criminal sanction. We acknowledge that the right to freedom of expression under Article 10 of the European Convention on Human Rights allows for regulation of such material, including to protect public health or morals, and to protect the rights of others. In particular, we note that the proposed definition of ‘extreme pornographic material' includes a great deal of material whose manufacture and distribution is already prohibited by the criminal law, e.g. the production of a snuff film (involving ‘an act which threatens … a person's life' within the meaning of clause 113(6)(a)) would already constitute a criminal offence.

However, to the extent that clause 113 goes beyond the possession of material whose production and distribution is already unlawful, we question the empirical foundation for the government's proposal to criminalize such material. The basis for the proposal appears to be a speculative causal connection between the possession of such material and a propensity to commit violent crime, particularly sexual offences. In our view, such a claim is not supported by evidence sufficient to justify the sanction of the criminal law. We are, moreover, concerned that the breadth of the definition of an ‘extreme image' in clause 113(6) – while legitimately covering much that is already illegal – also includes much that is arguably innocuous (e.g. the simulated depiction of an act ‘likely to result … in serious injury' (clause 113(6)(b)). Accordingly, we are concerned that such an over-inclusive definition may constitute a disproportionate interference with the right to free expression under Article 10 ECHR.

Tuesday 26th February
2.30-4.30pm
Westminster Bridge, South Side, London SW1

Everybody needs a sexual outlet
Disabled People have sexual rights
Some of us need sex workers and extreme pornography - don't ban us!

Bring placards and chains, dress warm

Demo organised by the Outsiders Trust with police permission, under the Serious Organised Crime and Police Act 2005.

Report: Promises Promises

Poignant placards were on display quoting Gordon Brown saying: We will do everything in our power that... the needs of disabled people are properly recognised, pointing out that the Disabled may develop fetish fantasies due to medical treatment they've endured.

Re the Governments new Dangerous Pictures Act wording:

"(5A) An "extreme image" is an image which—
(a) falls within subsection (6), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.
(6) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person's life,
(b) an act which results, or is likely to result, in serious injury to a person's anus, breast or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real."

The proposed law concerns ownership only. The "Gross offence" and "disgusting" terms are obviously not applicable, as I pointed out, you cannot offend yourself and are unlikely to be disgusted by something you choose to own. These terms are so daft they were almost certainly added so that they could be given up at a later time, to make it look as though the Government were giving concessions.

The suggestion that obscenity be part of the definition of an extreme image is a good thing for us. A test for obscenity goes to the heart of the matter; whether this material does deprave and corrupt the viewer.

Having said that, because it would be very much more difficult for the Government to get a conviction using this test for obscenity, it is unlikely they will agree to it, they have refused it before and could not give a rational reason why.

I despair at the level of thought put into this law, either they are incredibly thick or they are so arrogant they believe they can get away with any old rubbish and it doesn't have to make sense.

The Government have proposed amendments to the Dangerous Pictures section of the Criminal Injustice and Immigration Bill. They do not seem have added anything to water down the nastiness of the bill. They appear to be designed to tighten up the definitions to answer some of the objections from the JCHR (who scrutinise human rights issues).

Knowingly staged and consensual violence is still criminalised eg: if it is grossly offensive, disgusting or otherwise of an obscene character and portrays in an explicit and realistic way an act which threatens a person's life or is likely to result, in serious injury to a person's anus, breast or genitals.

Illegal scenes now hinge on the definition of grossly offensive, disgusting or otherwise of an obscene character. Obviously the person being done won't consider the material as offensive but we know how easily offended some people are these days...

Amendments:

Clause 113

LORD HUNT OF KINGS HEATH

Page 79, line 38, leave out "appears" and insert "is of such a nature that it must reasonably be assumed"
Page 80, line 1, after "Where" insert "(as found in the person's possession)"
Page 80, line 2, leave out "appears to have been so produced" and insert "is of such a nature as is mentioned in subsection (3)"
Page 80, line 9, leave out from beginning to "produced" and insert "having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been"
Page 80, line 14, leave out subsection (6) and insert—
"(5A) An "extreme image" is an image which—
(a) falls within subsection (6), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.
(6) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person's life,
(b) an act which results, or is likely to result, in serious injury to a person's anus, breast or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),
and a reasonable person looking at the image would think that any such person or animal was real."

Clause 114

LORD HUNT OF KINGS HEATH

Page 80, line 41, leave out "appears that the image was" and insert "is of such a nature that it must reasonably be assumed to have been"
Page 80, line 44, leave out "appears to have been extracted as" and insert "is of such a nature as is"

If these amendments are accepted then the Dangerous Pictures Bill will then read:

113 Possession of extreme pornographic images

(1) It is an offence for a person to be in possession of an extreme pornographic image.

(2) An “extreme pornographic image” is an image which is both—
(a) pornographic, and
(b) an extreme image.

(3) An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

(4) Where (as found in the person's possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a) the image itself, and
(b) (if the series of images is such as to be capable of providing a context for
the image) the context in which it occurs in the series of images.

(5) So, for example, where—
(a) an image forms an integral part of a narrative constituted by a series of images, and
(b) having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.

(5A) An "extreme image" is an image which—
(a) falls within subsection (6), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.

(6) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person's life,
(b) an act which results, or is likely to result, in serious injury to a person's anus, breast or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.

(7) In this section “image” means—
(a) a moving or still image (produced by any means); or
(b) data (stored by any means) which is capable of conversion into an
image within paragraph (a).

(8) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).
(9) Proceedings for an offence under this section may not be instituted—
(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or
(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

114 Exclusion of classified films etc.

(1) Section 113 does not apply to excluded images.

(2) An “excluded image” is an image which forms part of a series of images contained in a recording of the whole or part of a classified work.

(3) But such an image is not an “excluded image” if—
(a) it is contained in a recording of an extract from a classified work, and
(b) it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal.

(4) Where an extracted image is one of a series of images contained in the recording, the question whether the image is of such a nature as is mentioned in subsection (3)(b) is to be determined by reference to—
(a) the image itself, and
(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images; and section 113(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

(5) In determining for the purposes of this section whether a recording is a recording of the whole or part of a classified work, any alteration attributable to—
(a) a defect caused for technical reasons or by inadvertence on the part of any person, or
(b) the inclusion in the recording of any extraneous material (such as advertisements), is to be disregarded.

(6) Nothing in this section is to be taken as affecting any duty of a designated authority to have regard to section 113 (along with other enactments creating criminal offences) in determining whether a video work is suitable for a classification certificate to be issued in respect of it.

(7) In this section—
“classified work” means (subject to subsection (8)) a video work in respect of which a classification certificate has been issued by a designated authority (whether before or after the commencement of this section);
“classification certificate” and “video work” have the same meanings as in the Video Recordings Act 1984 (c. 39);
“designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act;
“extract” includes an extract consisting of a single image;
“image” and “pornographic” have the same meanings as in section 113;
“recording” means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

(8) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this section as it applies for the purposes of that Act.

Proposed amendment to Clause 113

BARONESS MILLER OF CHILTHORNE DOMER
LORD WALLACE OF TANKERNESS

123* Page 79, line 38, leave out "appears to have" and insert "has"
124* Page 80, line 2, leave out "appears to have" and insert "has"
125* Page 80, line 9, leave out "it appears that"
126* Page 80, line 15, leave out from "which" to end and insert "results in the death of, or life-threatening injury to, a person"
127* Page 80, line 16, leave out from "in" to end
128* Page 80, line 18, leave out "or appears to involve"
129* Page 80, line 20, leave out "or appearing to perform"
130* Page 80, line 22, leave out "or appears to be"

Proposed amendment to Clause 114

BARONESS MILLER OF CHILTHORNE DOMER
LORD WALLACE OF TANKERNESS

131* Page 80, line 41, leave out "it appears that"
132* Page 80, line 44, leave out "appears to have" and insert "has"

This amendment means that staged violence will not be caught out by the prohibition on possession of extreme porn.

Going under the dishonest headline: The  'Snuff' movies website shut down after Mail on Sunday probe, a follow up story glories in the censorship of a porn featuring adult consensual sex and staged violence.

The censorship came after The Mail on Sunday revealed that Dutchman Frans van der Hulst was operating hundreds of sites selling images of simulated asphyxiation, strangulation and hanging.

Within 24 hours of the disclosures last week, credit card companies Mastercard and Visa had suspended their payment services to the sites.

As a result, van der Hulst is unable to collect members' credit card fees – effectively crippling his 230-website operation.

Thames Valley Police is also considering whether to bring charges against him under the Obscene Publications Act.

After the newspaper revealed many of his websites used scenes filmed in a luxury flat in Milton Keynes, Buckinghamshire, police say he could be prosecuted for possessing with view to distributing violent pornography in the UK.

However, a source close to the pornographer said van der Hulst was more concerned about the possibility of losing huge amounts of money. He added: Frans is hopping mad over this – he has told friends that he is losing £10,000 a day because no credit card companies will go near him. The membership is the life-blood of the companies. Without their paying the £25 a month to subscribe there is no money to pay the models.

A message posted yesterday on one of van der Hulst's sites, which boasts more than 3,000 users, simply said: No new members are being admitted while we look for new billing partners.

Previously the father of two had used WebStream.net and NetCash.com, US-based third-party companies, to process payments from Visa and Mastercard holders. However, following discussions with the credit card companies they pulled the plug on the websites. Both have signed up to strict agreements with Visa and Mastercard promising not to support sites which host violent pornography.

Proposed amendment to Clause 115

LORD WALLACE OF TANKERNESS
BARONESS MILLER OF CHILTHORNE DOMER

Page 81, line 35, leave out "prove" and insert "show"
Page 81, line 44, at end insert—

"(d) that they reasonably believe that no person portrayed in the image was made to act against their will.

(2A) For the purposes of this section whether a belief is reasonable is to be determined having regard to all the circumstances."

This is basically the Liberty defence; that the defendant could reasonably have believed that the images were not real" and asks for the images to be viewed in context, that is if a complete series which includes shots of the performers after the scene happy and unharmed or possibly even any disclaimers kept with the images.

Comment: Making the Last Few Weeks Count

Thanks to dlh

This is a great step forward, although some think it still doesn't go far enough. And of course these Lords, or indeed any other peers, can lay more amendments.

Now is the time to make your opposition to proposals to criminalise the possession of dirty pictures heard:

• Write to your MP -- referring him/her to the proposed amendments -- asking for help in getting these or other changes backed by the Lords and later in the Commons.
• Even better, attend your MPs surgery to voice your views. The earlier you get to their office the better chance you have of getting a hearing.
• Write to these Lords, the party whips, or other peers outlining your opposition to plans to criminalise your harmless viewing material. Write to local/national newspapers/radio stations/TV channels outlining your views. (N.B. there is lots of useful supporting material at www.backlash-uk.org.uk , on the FAC blog and on www.melonfarmers.co.uk).
• Air your thoughts on as many blogs, sites, chat rooms as you can. Ask people to do any/all of the above.

There are now only a few weeks left to challenge these plans. Make them count.

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, I beg to move that this Bill be now read a second time. This is a wide-ranging Bill: it traverses youth justice, sentencing, anti-social behaviour, the risk management of violent and sex offenders, the law on self-defence and the possession of extreme pornographic images, to name but a few of its provisions.

...In tackling the possession of extreme pornographic images, the Bill seeks to bring our controls on such violent and explicit material into the internet age. We can no longer control the circulation of this pernicious and potentially harmful material through legislation dealing with the traditional forms of publication and distribution. We have to look to an offence of possession. We want to ensure that the new offence hits the right target. In the other place, concerns were expressed that the offence went too wide. We understand that concern. I aim to bring forward amendments in Committee that will clarify the drafting of the offence and, I hope, put beyond doubt that the type of imagery found in popular mainstream films will not be covered by the offence.

I have no doubt that the new offences of inciting homophobic hatred will attract much debate in this House, and rightly so. In constructing the offences we have been very conscious of the need to balance the protection of the gay and lesbian community from material inciting hatred with the right to freedom of expression. We believe that we have struck the right balance in the Bill. The new offence will apply only to threatening words and behaviour intended to stir up hatred on grounds of sexual orientation. Given that high threshold, and all the other safeguards, including the consent of the Attorney-General to any prosecution, we do not consider that a saving is needed to protect expressions of criticism or antipathy towards homosexual practices. If such expressions are not threatening and not intended to incite hatred, they will not be covered by the offence. If they are, then they should not be excluded. This was debated in the other place, and the other place rejected such a saving by a considerable margin.

Lord Thomas of Gresford:

...As for extreme pornography, Clause 113 is utterly vague, and Clause 115 proposes an unacceptable reverse burden of proof. We welcome what the Minister said a moment ago, when he appeared to recognise that.

Baroness Miller of Chilthorne Domer:

...The two issues I shall concentrate on are set out in Part 7—the first is extreme pornography. It is a difficult issue to debate at all, but one to which I hope we shall bring some cool and objective thinking. Again, it did not really receive the sort of examination in the other place that it should have had. We have had an interesting briefing from a large number of academics such as lecturers in media studies and so on who have joined together on this issue. The first point they make bears repeating at this stage: the Government have been using a rapid evidence assessment to back up their claims that legislation is necessary in this area. They say that the REA document is based on largely discredited research emanating from particular psychology and sociology traditions once favoured in America and that the supporting evidence has no real connection to the British case. That is the sort of issue that we need to examine in Committee.

Legislation needs to be objective and evidence-based, not subjective. Personally, I do not like pornography and believe it to be essentially degrading to the spirit, and violent pornography is even worse. Indeed, anything depicting extreme violence is, I think, dangerous as regards the well-being of society. However, I also do not believe in censorship unless it is absolutely essential to protect people, and my personal view is not what I want the House to focus on. We need to concentrate on the fact that this sloppy clause is dangerous.

On 6 December last the Minister said that the Government believe that the individual pornography user will have no difficulty in recognising pornography. That is not an objective or evidence-based approach. Surely it cannot be for the possible perpetrator of a crime to judge whether he actually is committing a crime. A great deal more thought needs to go into exactly how these clauses have been drafted, and I recognise that the Minister has suggested that the Government will bring forward something which I hope will be more evidence-based. Further, I am extremely glad that we will have the benefit of the report of the Joint Committee on Human Rights before us.

The Earl of Onslow:

...I now turn with gentle delicacy to extreme porn. What is it? Is it Juvenal’s ninth satire? I have unfortunately lost my Latin copy of it; otherwise, I would have quoted it to your Lordships. However, I certainly would not dream of translating it. Luckily, we are of a much less classical generation so I hope that most of your Lordships would not have understood it. I once quoted it on the wireless—on a Radio 3 programme about pornography rock with the encouragement of the noble Lord, Lord Alli, and a minor payment. This little sideline concerns what is meant by extreme porn. “Extreme” is an extremely subjective word. The law must not have subjective judgments in it; it makes things too difficult, if not impossible, and it makes judgment on facts difficult.

We wrote to the Minister, asking for a definition that was sufficiently precise and foreseeable to pass Article 8, relating to respect for privacy, and Article 10, relating to freedom of expression, and asked whether the new offence was necessary in a free society. We are concerned at the vagueness of the offence. We question whether Clause 113 is precise or foreseeable enough to meet the Convention requirements. The offence requires the image to be extreme. That is an extremely subjective judgment in itself. The Explanatory Notes state that the new offence was made to protect individuals from participating in degrading staged activities or bestiality, to cut supply and to prevent others from accidentally coming across such material. We question whether the behaviour criminalised in Clause 113(6)(a) and (b) should be so if carried out by adults in private.

Lord Hunt of Kings Heath:

...I turn to the subject of extreme pornography. The noble Earl, Lord Onslow, and a number of other noble Lords expressed some concerns, which I well understand, about the definitions and how they might be applied. The reasons for bringing this matter before your Lordships’ House are well taken: some very disturbing cases, with disturbing impacts, have arisen from the availability of extreme pornography. Equally, I accept that we have to be very careful about the definition; we do not want it to be wider than we intend. I said in my opening speech that we will bring forward amendments—in Committee, I hope—to make that absolutely clear.

...

On Question, Bill read a second time, and committed to a Committee of the Whole House.

The Joint Committee on Human Rights (JCHR) is tasked with checking legislation against Human Rights requirements

The Chair, Andrew Dismore, MP wrote to David Hanson at the Ministry of Injustice to ask questions about the Criminal Injustice and Immigration Bill.

Here are the questions attaining to Dangerous Pictures:

Extreme Pornography

The Committee is considering three compatibility issues which in its view arise from the Bill’s creation of a new offence of possession of extreme pornographic images.11 firstly, whether the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement that interferences with the right to respect for private life in Article 8 and the right to freedom of expression in Article 10 ECHR be “in accordance with the law”; second, whether the offence is necessary in a democratic society and proportionate so as to be compatible with those rights; and third, whether the offender should be subject to registration requirements.

Whether definition of new offence is sufficiently precise

The Committee is considering whether the definition of the new offence is sufficiently precise and foreseeable to meet the test of “prescribed by law”. The offence requires the pornographic image in the individual’s possession to be “extreme”. An assessment of whether an image is or is not “extreme” is inherently subjective. This means that individuals seeking to regulate their conduct in accordance with the criminal law cannot be certain that they will not be committing a criminal offence by having certain images in their possession.

Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.

Whether the new offence is necessary in a democratic society and proportionate

The Committee is considering whether the new offence has been shown to be necessary in a democratic society and strikes a fair balance between the rights of the individual and the needs of the community. According to its consultation, the Government suggests that the new offence is necessary to (1) break the supply/demand cycle as the growth in the internet means that supply can no longer be regulated; (2) protect participants involved in the making of the images, who may be victims of criminal offences; and (3) protect children from exposure to such materials. The Committee is considering whether the two proposed offences in clauses 64(6)(a) and (b) can be justified, so long as the participants consent and there is no risk of physical harm.12 The Government accepts that there is no proof that the use of such images causes or induces violence.

Q10. Please provide, in light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.

Sex Offender registration

An individual convicted under Clause 64 who is 18 years or over at the time of the offence and receives a sentence of at least two years imprisonment, will be subject to the registration requirements under the Sexual Offences Act 2003.13 Registration requirements interfere with an individual’s right to respect for private life (Article 8 ECHR) and must therefore be shown to be necessary and proportionate.

Q11. Why are registration requirements considered to be justified for the offences in Clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm?

David Hanson Replied:

Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.

26. The offence covers material which meets three thresholds: it must be pornographic, it must contain an extreme image and it must be real or appear to be real to the viewer, in other words it must be convincing.

2T. An image is "pornographic" if it appears to have been produced solely or principally for the purpose of sexual arousal. The Government believes that the individual pornography user will have no difficulty in recognising pornography.

28. An "extreme image" is an image of:

• "(a) an act which threatens or appears to threaten a person's life". We consider that these acts, given the pornographic context, will be easily recognisable since extreme pornographic scenarios frequently contain scenes of throttling, asphyxiation, hanging or threats with a knife or other weapon
• "(b) an act which results in or appears to result (or be likely to result) in serious injury to a person's anus, breasts or genitals". The focus of this paragraph is on the act which does or may cause serious injury. No medical knowledge is required to understand what a 'serious' injury ¡s likely to be. 'Serious' will have its normal meaning. ln the pornographic context, the infliction of injury to these parts of the body will be recognisable. The insertion of a sharp object into the vagina or anus, is an example of an act which would be caught
• "(c) an act which involves or appears to involve sexual interference with a human corpse". The Government considers that this material would be easily recognisable
• "(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal." The Government believes that this will also be easily recognisable.

29. The Government is aware of concerns which have been articulated during the oral evidence sessions on the Bill that the clause as drafted may not be sufficiently precise in limiting the scope of the offence to material which is extreme and explicit. We are considering how the drafting may be clarified.

Q10. Please provide, in the light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.

30. The focus of this offence is on the images themselves and the effect which they may have on those who view them, not on any underlying criminal offence which may or may not have been committed. In the context of pornography, a convincing, consensual depiction of an activity can have the same impact on the viewer as an image of that activity actually taking place. Moreover, for the viewer, the question of consent is largely irrelevant, since they can have no reliable means of verification, unless they happen to know (or themselves to be one of the participants. Once an image has been created, it is capable of being passed beyond those who actively consented (lawfully or not) to the activities shown, and of being circulated to a much wider audience via new technologies. For those reasons, the Government considers that a focus on the lawful consent of those who participated in the creation of the image is misguided.

31. There is evidence that we have reason to be concerned about this material. The Ministry of Justice and Department of Health jointly published a research study on 28 September 200T entitled "The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (REA)". This research found that some people who accessed extreme pornography suffered some harmful effects. These included increased risk of developing pro-rape attitudes, beliefs and behaviours, and committing sexual offences. The research also showed that men who are predisposed to aggression, or who have a history of sexual and other aggression were more susceptible to the influence of extreme pornographic material. The REA found no formal research studies of the effects on those who participate in making extreme pornography but referred to evidence which supported the argument that participants in extreme pornographic material may be harmed in its making.

32. In addition to the evidence referred to above of the harmful effects of extreme pornography, there is also an argument that such material normalises and legitimises a culture of sexual violence. Proportionate interference is permitted under both Articles 8 and 10 not just for the purposes of preventing crime, protecting health and protecting the rights of others, but also for the protection of morals. Extreme pornographic material arguably has a negative impact on morals, and very little to justify it in other respects. As Baroness Hale of Richmond pointed out in the recent case of Belfast city Council v Miss Behavin' which concerned licences for sex shops, "My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast city Centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men."

33. The Government believes that it is justified in acting to control the circulation of this material for the reasons set out above.

Q11. why are registration requirement considered to be justified for the offences in clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm.

34. The answer to the previous question is also relevant. The focus of this offence is on the images themselves and the effect which they may have on those who view them. For the reasons given above, our concerns about the impact of the material on the viewer remain the same, if the activities shown were convincing consensual depictions of sexual violence.

35. No one will be subject to registration requirements unless sentenced to two years' imprisonment or more. On a maximum three year sentence, this is a high threshold which is intended to target those about whom the courts have particular concerns either because of the nature and extent of their collection of extreme pornography, their frequency of offending or for some other reason.

36. There is some evidence of harm to some people who access extreme pornography (see above) and those who are already predisposed to aggression are most at risk. In this circumstance, and in respect of only the most serious offenders, we believe that notification requirements are justified.

More than £17m has been seized through the Proceeds of Crime Act since 2002.

Now the Scottish Government is also to add new offences indicating a criminal lifestyle to the act, including bribery and corruption and distribution of child and extreme pornography.

Justice Secretary Kenny MacAskill said
It's a win, win situation for the law abiding many - and galling for the parasites of serious crime. The government believes that expertise in areas such as forensic accountancy will make it increasingly difficult for organised criminals to hide their money in legitimate businesses they set up.

The justice secretary also said extending the range of crimes covered under the Proceeds of Crime Act would provide a "further weapon" for the authorities. Organised crime is not about drugs and trafficking. Its tentacles stretch to crimes such as fraud, pornography and also using legitimate businesses as fronts for money laundering.

....And even if some legislation was introduced to formalise these server blocks, can we trust parliament to examine it properly?

If we take the example of the provisions in the current criminal justice and immigration bill regarding "extreme pornography" - closely targeted at internet users - then it's doubtful we can rely on the Commons at all. The third reading debate was guillotined to just eight hours. "Extreme pornography" barely got a mention and the proposals to criminalise men who pay for sex, subject of so much debate here on Cif, did a little better. Just one MP was permitted to speak for 15 seconds. If you want a shocking snapshot of the appalling way we're governed today, take a look at the Hansard transcripts, if you don't have time for that then this opening comment from Tory Edward Garnier to his clearly embarrassed Labour opposite number, David Hanson, might give you an inkling of the mood: "May I begin by congratulating the minister on his ability to keep a straight face?"

By preventing debate the government was able to kick the bill to the House of Lords, where finally some sanity may prevail. Already half a dozen lords have spoken up to oppose the extreme pornography proposals, from one perspective or another - not that you would know it from the media. We even had, thanks to the Earl of Onslow, a suggestion that what people get up to in their own homes, or own dungeons, might not be the proper concern of government. Can it really be that the UK's last remaining defenders of individual freedom are the lords? Optimists even reckon that in Lords committee stages the bill might be stripped of its worse excesses.

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The Mail On Sunday are running a 'shock horror exposé' about the producers of one of the 'extreme porn' websites visited by Graham Coutts.

The original site cited was the defunct hangingbitches.com but there are several replacements by 3Fall Productions SL. Dutchman Frans van der Hulst and his company have UK connections and some filming is apparently done in Milton Keyenes.

There's absolutely nothing in the article to suggest that there is anything being done that is not consensual and staged by well paid models and actors.

Read the full article

Measures in the new Criminal Justice and Immigration Bill will infringe human rights in the UK and should be amended or dropped, an all-party parliamentary committee warned Friday.

The bill lays out proposals across policy areas as diverse as blasphemy laws, dealing with prostitution, youth offending and the proposed ban on prison workers striking.

It has been described by the government as an exercise in rebalancing the criminal justice system in favour of the law abiding majority.

But the Joint Select Committee on Human Rights (JCHR) warned that there were many serious implications for the rights and freedoms of UK citizens.

This is yet another criminal justice bill with potentially enormous implications for human rights in this country, said JCHR chair Andrew Dismore. We have serious questions about the Government's justification for some of these proposals, he said.

Dismore said there were particular concerns whether the Government is seeking to protect public safety in the face of genuine threats or using legislation to deal with exaggerated public perceptions about crime levels.

The new crime of possessing "extreme" pornography was said to be too vague and the criteria too subjective, while new "Violent Offender Orders" were also not well defined and represent another resort to methods of control outside the proper criminal process.

While pornography can be dehumanising and exploitative, it can also be educative, liberating, empowering, fulfilling and immensely socially beneficial. It all depends on how it is made, who makes it, what it depicts and why it is being used.

The puritanical rightwing feminist claim that porn is always anti-women is simplistic, untrue, insensitive, uncaring and, dare l say it, sometimes misogynistic and homophobic. Using sexually explicit imagery can be egalitarian, health promoting, emotionally fulfilling and life saving.

Legislation in this area is likely to throw up more problems than solutions. Even in the case of depictions of sexual violence and degradation, much of it involves consensual SM fantasy and role-play, where two or more adults commit sexual acts with mutual agreement and where no one experiences any lasting physical harm.

Criminalising such behaviour violates the right to privacy, individual liberty and personal autonomy. To deny mutually consenting adults the right to personal private space, and the right to make decisions about their own bodies, has more than a whiff of authoritarianism.

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The parliamentary debate on ‘violent pornography’ is in danger of allowing personal tastes to overshadow compelling, factual arguments, writes Julian Petley

In June 2007, the government introduced its 54th Criminal Justice Bill. This puts 19 new offences onto the statute book, and the probation officers union estimates that these could add 3000 more people to the prison population (already at a record 81000). Amongst these could well be people guilty of possessing, albeit unwittingly, the ‘wrong’ kind of pornography.

Well worth reading the full article

As we have a Government which is trying to make illegal "extreme pornography" the question has to be asked, are we being ruled by puritans or are they simply stupid? I tend to think that both options are true but I agree that people might differ.

How so, I hear the crowds asking? Well, try this for an argument. We want to know whether the consumption of pornography ("extreme" or not) increases the liklihood of someone going on to commit a sexual offence. The general consensus amongst the banners is that it does and that reducing the amount of pornography would reduce the number of offences.

An alternative might be that the consumption of pornography reduces the number of offences: certainly amongst men such consumption is associated with certain manipulations of the physique which further lead to a certain satiation of the sexual and violent urges. How long that satiation lasts (as many a woman with a lover rich in maturity has been known to bemoan) tends to depend upon age and fitness.

In economic terms we might wonder therefore whether porn and rape are compliments (one leads to the other) or substitutes (you do one or the other). And as usual when economists talk about compliments and substitutes, we would expect both to be present, the question being, which predominates? (This argument runs through vast areas of economics, believe me...do tax cuts make people work more, as they get to keep mopre of their money, or work less, as they need to earn less gross in order to earn net what they want?) The only way to answer this is to search out some empirical information, ideally, we'd like to see whether there's been a change in rape associated with a change in the consumption of porn.

And it turns out that we do indeed have this information. We have rape statistics for the US and we also have had an explosion in the availability and consumption of porn in the past 20 years (really, what else did you think the internet was for?). So which effect dominates? Subsitution or are they compliments?

...there were 2.7 rapes for every 1,000 people in 1980; by 2004, the same survey found the rate had decreased to 0.4 per 1000 people, a decline of 85%.

Substitutes, clearly. Thus if you really are concerned about sexual crimes you would welcome, make more available, pornography, not ban it nor certain forms of it.

We are thus left with the original question. Are our rulers stupid in that they don't know this, or are they puritans who do, but think that banning something they don't like is worth the rise in crime that will result?

The next major event for the Dangerous Pictures Bill is the 2nd Reading in the House of Lords. This will be on 22nd January.

Currently the plan is to take Committee on the floor of the House i.e. there are no plans for a Lords Committee.

Some hope the fact that the whole Criminal Injustice Bill was rushed, largely undiscussed, through parliament means the Lords will take a far greater interest in discussing the plans.

The Criminal Injustice and Immigration Bill had its report stage/third reading in the Commons on 9th January.

The government timetabled it so there was no time to debate the extreme porn offences, let alone take a vote on the proposed amendments.

What happened today was a complete disgrace. A bill with well over 100 new clauses of law was debated in it's entirety in around 2 hours...

Both the Lib Dem and Tory spokespersons bemoaned the lack of debate on the extreme porn law, but it now seems like a done deal as far as the commons goes.

From Bloomberg see full article

Opposition amendments had sought to water down the bill by allowing images made of consenting adults or actors.

Everybody is opposed to violent acts that are real violent acts, but when it is simply for sexual purposes such as bondage, it shouldn't be a criminal offense,' Harry Cohen, a Lib Dem member of Parliament who wants the bill amended, said: The definition of what will be an offense is far too wide. People won't know what the threshold is.'

Couples who make home videos of themselves engaged in restricted acts may be prosecuted, according to Deborah Hyde, a spokeswoman for Backlash, a lobby group set up to campaign against the legislation. She said the rules would allow courts to jail people for three years for making violent images.