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.