Jacqui Smith's work pushing through anti-porn laws has been highlighted now she is embroiled in a scandal involving adult movies.
Ben Westwood, who campaigned against the introduction of Section 63 of the Criminal Justice and Immigration Act 2008 banning 'extreme' pornography, said today: This proves that censorship and restriction of individual liberties in England is
occurring because of members of the government's personal hang-ups.
The focus comes as the home secretary faces calls for her resignation over her husband's use of public money to pay for blue movies.
The oldest son of Dame Vivienne Westwood accused Jacqui Smith of embarking on a crusade on the sex industry, which, he said: is not to protect people but to protect herself.
Bookmakers today made Ms Smith odds-on to be out of her job by the end of the year.
This Labour puritan's restriction of individual freedom has been so that she can restrict her own husband, Westwood added: She has attacked prostitution, lap-dancing clubs and pornography in her role as home secretary, and now we know
Peter Stringfellow calls for a chat about Jacqui Smith, which cannot bode well for the beleaguered Home Secretary. Does she have the moral authority, he asks, to pilot through legislation proposing stricter rules for lap-dancing establishments?
She said it was ‘bizarre' for City firms to take clients to clubs where women take their clothes off yet she is personally pushing this legislation. I don't mind her putting a couple of porno films through on the taxpayers' bill but I do think
it is breathtaking hypocrisy.
Generously, he says that Mrs Smith is welcome to “park” her husband, Richard Timney, in his West End “gentleman's club” while she attends to Commons business. As long as it's not claimed on expenses. The bill might add up to a little more
than £10 though.
A new Scottish anti-porn bill is being slammed from hill to glen by opponents as more severe than similar English legislation.
S34 of the Criminal Justice and Licensing (Scotland) Bill was published last week and met with a roar of disapproval.
Like its English cousin, the legislation attacks violent or "extreme" adult content including images of life-threatening acts, non-consensual sex, bestiality and necrophilia.
An exception to the rule is if those who possess the photos are principal actors engaging in a fantasy, which raises one of several gray areas, say opponents. Becky Dwyer of Consenting Adult Action Scotland has met repeatedly with Scottish
officials, to no avail.
The amount of research this team have put into the issue was pathetic. It hadn't even occurred to them that someone participating in a scene might not be in a photo, she told The Register. Meanwhile, they have given no assurances
whatsoever that BDSM safety material will be excluded on educational grounds. For a government allegedly interested in safety, this is a shameful omission.
Too much Scottish legislation still suffers from outdated and puritanical 'anti-sex' attitudes, said Scottish Greens leader Patrick Harvie: The law should have a basic respect for the freedoms of consenting adults, and for the diversity
of their sexualities.
Harvie is concerned that the government is criminalizing people needlessly. While I doubt that any radical amendments will gain a Parliamentary majority, I am hopeful that at least some improvements can be made.
The Scottish Government have decided to amend its existing obscene publications law rather than create a new standalone law.
34 Extreme pornography
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding the statutory maximum or to both, or
(b) on conviction on indictment—
(i) in a case where the obscene material is or includes an extreme pornographic image, to imprisonment for a period not exceeding 5 years or to a fine or to both, or
(ii) in any other case, to imprisonment for a period not exceeding 3 years or to a fine or to both.
51A Extreme pornography
(1) A person who is in possession of an extreme pornographic image is guilty of an offence under this section.
(2) An extreme pornographic image is an image which is all of the following—
(3) An image is pornographic if it is of such a nature that it must reasonably be assumed to have been made 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 of whether the image is pornographic is to be determined by reference to—
(a) the image itself (and any sounds accompanying it), and
(b) where the series of images (and any sounds accompanying them) is such as to be capable of providing a context for the image, its context within the series of images.
(5) So, for example, where—
(a) an image forms an integral part of a narrative constituted by a series of 10 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 made 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 if it may have been found to be pornographic where taken by itself).
(6) An image is extreme if it depicts, in an explicit and realistic way any of the
(a) an act which takes or threatens a person's life,
(b) an act which results, or is likely to result, in a person's severe injury,
(c) rape or other non-consensual penetrative sexual activity,
(d) sexual activity involving (directly or indirectly) a human corpse,
(e) an act which involves sexual activity between a person and an animal (or the carcase of an animal).
(7) In determining whether (as found in the person's possession) an image depicts
an act mentioned in subsection (6), reference may be had to—
(a) how the image is or was described (whether the description is part of the image itself or otherwise),
(b) any sounds accompanying the image,
(c) where the image forms an integral part of a narrative constituted by a series of images, the context provided by that narrative.
(8) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a period not exceeding 12
months or to a fine not exceeding the statutory maximum or to both,
(b) on conviction on indictment, to imprisonment for a period not exceeding
3 years or to a fine or to both.
(9) In this section, an “image” is—
(a) a moving or still image (made by any means), or
(b) data (stored by any means) which is capable of conversion into such an image.
51B Extreme pornography: excluded images
(1) An offence is not committed under section 51A if the image is an excluded
(2) An “excluded image” is an image which is all or part of a classified work.
(3) An image is not an excluded image where—
(a) it has been extracted from a classified work, and
(b) it must be reasonably be assumed to have been extracted (whether with or without other images) from the work solely or principally for the purpose of sexual arousal.
(4) In determining whether (as found in the person's possession) the image was extracted from the work for the purpose mentioned in subsection (3)(b), reference may be had to—
(a) how the image was stored,
(b) how the image is or was described (whether the description is part of the image itself or otherwise),
(c) any sounds accompanying the image,
(d) where the image forms an integral part of a narrative constituted by a series of images, the context provided by that narrative.
(5) In this section and section 51C—
“classified work” means a video work in respect of which a classification certificate has been issued by a designated authority,
“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 of a single image,
“image” and “extreme pornographic image” are to be construed in accordance with section 51A.
51C Extreme pornography: defences
(1) Where a person (“A”) is charged with an offence under section 51A, it is a defence for A to prove one or more of the matters mentioned in subsection (2).
(2) The matters are—
(a) that A had a legitimate reason for being in possession of the image concerned,
(b) that A had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image,
(c) that A—
(i) was sent the image concerned without any prior request having been made by or on behalf of A, and
(ii) did not keep it for an unreasonable time.
(3) Where A is charged with an offence under section 51A, it is a defence for A to
(a) A directly participated in the act depicted, and
(b) subsection (4) applies.
(4) This subsection applies—
(a) in the case of an image which depicts an act described in subsection (6)(a) of that section, if the act depicted did not actually take or threaten a person's life,
(b) in the case of an image which depicts an act described in subsection (6)(b) of that section, if the act depicted did not actually result in (nor was it actually likely to result in) a person's severe injury,
(c) in the case of an image which depicts an act described in subsection (6)(c) of that section, if the act depicted did not actually involve nonconsensual activity,
(d) in the case of an image which depicts an act described in subsection (6)(d) of that section, if what is depicted as a human corpse was not in fact a corpse,
(e) in the case of an image which depicts an act described in subsection (6)(e) of that section, if what is depicted as an animal (or the carcase of an animal) was not in fact an animal (or a carcase).
(5) The defence under subsection (3) is not available if A shows, gives or offers for sale the image to any person who was not also a direct participant in the act depicted.
Serious is replaced with severe - god knows what the difference is.
The law is much broader, including any depiction of rape or other non-consensual penetrative sexual activity - even if it was actually consensual, an image will be illegal if it looks non-consensual. Part 7 makes it clear that the only
context allowed in determining whether it depicts an non-consensual act (or falls under any of the other clauses) is the image itself, any accompanying sounds, and its context if the image is part of a series of images.
Similarly, much like the English law, the decision of pornography is decided solely by looking at the image, any sounds, and the context if the image is part of a series of images. So But this image wasn't really produced for the
purpose of porn won't help.
The defence for directly participating in consensual acts is there, but not as broad. For threat to life and severe injury , the defence only applies if the act did not really involve a threat, or was not really likely to result in
severe injury. In practice, this is the same as the English law (where the defence only applies to acts we can legally consent to), however, at least there is the possibility of a court deciding we can consent to the act. Here, the Government
have made up their minds for them, and explicitly left images of consensual acts illegal, unless they are staged.
The defence is also not available if you show or give the image to anyone who didn't directly participate (even if it's the photographer, or your partner)!
On the plus side, it looks like they have restricted the law to images that would be illegal under Scotland's equivalent of the Obscene Publications Act? The image must be obscene , and this text modifies the law on publication (so unlike
the two-faced English law, it seems they haven't switched to using the dictionary definition?)
What this government does not trust us with is sexual agency. The extreme porn legislation sends a strong message that UK citizens are not to be trusted with pictures of violent sex. The excitement might go to our little heads, and we might rush
out and re-enact them with no thought for the safety of ourselves or others.
This is tremendously insulting. I'm female, so I'm used to legislation and media trying to deny me volition and agency. It happens all the time in films and TV. Now, the government is telling me that I'm not allowed to possess obscene pictures
because it doesn't trust me to use them responsibly. What will the government do next? Make it illegal to rape a blow-up doll, wank over a photo of a friend or desecrate a photo of an enemy? Make it illegal to draw violent pictures, or write
about extreme fantasies? Make it illegal to talk about them?
Dangerous Pictures campaigner Martin Salter has made the announcement that he is to step down as an MP.
He has represented Reading West since 1997 and has just celebrated 25 years of public service, but says he does not want to hit 60 and still be sat at Westminster. (A wish echoed by many)
He will stay as MP until the general election, which will probably happen in May next year.
He will join Labour's national general election campaign team under Douglas Alexander.
Reading Tory Rob Wilson said: He has been part of the local political landscape for almost 25 years, and it will therefore be very different without him. Being up against a high quality opponent, Alok Sharma, and the national polls have
obviously led him to reassess his electoral prospects. It's likely he decided to jump before the electorate pushed him out.
The Crown Prosecution Service has now published its guidance on the Dangerous Pictures Act. There take on a dangerous picture is as follows
Elements of the Offence
For an offence contrary to section 63 of the Act the prosecution has to prove:
That the image is pornographic; and
That the image is extreme namely grossly offensive, disgusting, or otherwise of an obscene character; and
That the image portrays in an explicit and realistic way any of the extreme acts set out in section 63(7).
An Extreme Image
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. Whether an image is pornographic or not is an issue for the District Judge or
jury to determine simply by looking at the image. It is not a question of the intentions of those who produced the image. Nor is it a question of the sexual arousal of the defendant.
Section 63(6) of the Act states that an extreme image must be explicit and realistic; both those terms take their ordinary dictionary definition. Taking an example which was raised during parliamentary debates on the Criminal Justice and
Immigration Bill, the anal sex scene in the movie Last Tango in Paris , even if it were to be considered pornographic and of an obscene nature, would not be caught by the new offence, because it is not explicit and does not portray an act
resulting or likely to result in serious injury to an persons anus.
The painting Leda and the Swan , another example raised during debates in Parliament, would also not be caught by the new offence, because it would not meet the explicit and realistic test.
Section 63(7) lists a number of extreme acts including:
An act which threatens a persons life; this is not defined in the Act and therefore should be given its ordinary dictionary meaning. The Ministry of Justice note of Further information on the new offence of Possession of
Extreme Pornographic Images at paragraph 11 gives examples of life threatening acts.
An act which results in or is likely to result in serious injury to a persons anus, breast or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals. The words serious injury
are not defined in the Act and would take their ordinary dictionary meaning and be a question of fact for the District Judge or jury.
The Ministry of Justice note of Further information on the new offence of Possession of Extreme Pornographic Images specifically states that the reference to serious injury was not intended to expressly link into the case
law with respect to grievous bodily harm contrary to sections 18 and 20 of the Offences Against the Person Act 1861 (which has been interpreted as being capable of including psychological harm).
Although the Act does not state what a serious injury is, prosecutors must be aware that by the very nature of its name serious injury will not include trivial or transient injuries which include bruises and grazes.
The CPS information also outlines defences, charging guidance and information about obtaining consent from the DPP
A while back, British newspapers were harrumphing about the Australian government banning Aboriginals from accessing pornography, as a knee-jerk response to a report showing high levels of sexual abuse of Aboriginal children. What they signally
failed to notice, however, was that one of the nineteen new offences announced in New Labour's 54th criminal justice bill since it came to power was the possession of what it calls 'extreme pornographic images'. Those found guilty risk three
years in gaol, or a hefty fine, or both. They will also be put on the sex offenders register, and thus have their lives wrecked.
In spite of a concerted three-year campaign against this measure, and great swathes of the bill being dropped as it passed through parliament, the anti-porn clauses not only remained in the bill but were actually widened in scope. This can only
be regarded as a direct smack in the faces of those like Backlash, the Spanner Trust, Index on Censorship and a considerable number of academics, who had the temerity to object to it in the first place, and a clear warning that the government
intends to intimidate and criminalise not only the entire BDSM community but very considerable portions of the DVD/video-owning and website-visiting communities as well.
This week, the new law on extreme porn went live throughout the UK (except Scotland). Hopes in some quarters that this law would prove a panacea to the nastier end of internet kinkiness were dashed last week when ACPO announced that they
would not be actively policing it.
All change, however, as an organisation calling itself extremeporn.org.uk mails The Register to announce that if the government won’t do it, they will. A slightly topsy-turvy argument on its homepage states:
We believe that the law should be enforced; not doing so breeds laziness and impreciseness in the legislature, lack of inspection of the law outside of the legislature, increased power of the executive due to selective
enforcement and permits many people guilty - of a crime, if nothing else - to get away Scot-free … This is bad for everyone.
Some more explanation of what it plans to do is contained a little further into the site. They claim that they will primarily categorise and monitor torrents. Once a torrent has been added to their system, they will periodically poll the tracker
for peer IPs and then use GeoIP technology to identify UK-based IPs. Where a match is found, the system will, in principle, email the abuse contact for that IP. (This is where extremeporn’s claims become a little vague: they seem to be
agreeing, however, that there are practical issues with this stage of the process.)
They claim already to have filed more abuse reports than the Government planned to prosecute in an entire year.
Campaigners Martin Salter and Liz Longhurst
smiling about the nasty new
Dangerous Pictures Act
The die is cast. It is now illegal to possess "extreme porn" - though exactly what that means, despite two years of debate, is still unclear.
Depending on who you believe, this will criminalise 2m individuals or a mere handful.
On Sunday, around 100 demonstrators braved the cold and damp to attend a last-minute demo, organised by CAAN and supported by Backlash and Spanner. Peter Tatchell was out, as were fashion photographer Ben Westwood and Mr Leather UK, Paul Stag.
Police will not actively target members of the public to track down those who own violent pornography banned under a new law, police chiefs said.
The law, comes into effect today.
The injustice ministry said it expected to see a only small number of prosecutions a year under the new law, which carries a maximum sentence of three years in jail and makes it illegal to own pornographic material that depicts necrophilia,
bestiality or violence that looks life-threatening or is likely to result in serious injury to the breasts, genitals or anus.
Responsibility for implementing the ban will lie with individual police forces, which will receive no extra funding and will not be expected to devote resources to speculative hunts for people viewing extreme pornography.
A statement from the Association of Chief Police Officers said: The police will not be actively targeting members of the public but will be conducting investigations into the unlawful possession of this material where found.
The injustice ministry expects to see about 30 prosecutions a year. It estimates that 10 offenders will be jailed, for an average of six months.
Nutter organisations expressed concern that officers would not search for users of the material unless prompted by specific suspicions or other investigations. Katherine Rake, director of the Fawcett Society, said: It would make a nonsense of
the legislation if there wasn't proactive policing around it.
Sandrine Leveque, of Object, said: Many women's organisations see this material as a factor in violence against women. For a law to have any effect there needs to be the feeling that you might be caught breaking it, and if that's not there it
does undermine it.
Liz Longhurst said she had expected that the implementation of the law would lack teeth and resources, but hoped it would eventually lead to tougher policing of violent pornography. I think it will have a slight effect, but if it doesn't have
a lot of effect it will concentrate the minds of people and possibly they will tighten the law.
The Scottish government has
outlined plans to extend their version of a Dangerous Pictures Pictures Bill to be published in Spring 2009. It will additionally include images of non-violent rape.
We have decided to introduce a new offence for the possession of extreme pornographic material. We propose that this offence will criminalise the possession of pornographic images which realistically depict:
Life-threatening acts and violence that would appear likely to cause severe injury;
Rape and other non- consensual penetrative sexual activity, whether violent or otherwise; and
Bestiality or necrophilia.
The maximum penalty for the proposed new offence will be 3 years imprisonment.
We intend that the new offence will be similar to that at section 63 of the Criminal Justice and Immigration Act 2008, which will apply in England, Wales and Northern Ireland. The Scottish offence will go further than that offence, however, in
that it will cover all images of rape and non-consensual penetrative sexual activity, whereas the English offence only covers violent rape.
Under section 51 of the Civic Government (Scotland) Act 1982, it is already illegal to publish, sell or distribute or to possess with a view to selling or distributing the material that would be covered by this new offence. We propose to
increase the maximum penalty under section 51 of the 1982 Act in respect of extreme pornographic material from 3 to 5 years.
Unless you happen to have been living on Mars for the last year or so, you probably know that next week (January 26 to be precise) it will become a criminal offence (in England and Wales) to possess pictures that the government deems to be
"extreme porn". You might also be aware of two diametrically opposed views on this legislation.
On the one hand, soothing words from Government and the Ministry of Justice suggest that the offence will catch only a very small number of people who possess the most abhorrent imagery. Cynics - including many lawyers who know a thing or two
about obscenity - point out that the law as written is very broad, could catch a lot of quite ordinary stuff, and remind us of how laws, originally "intended" to focus on the most serious offences, end up being used far more widely. A
good example is the Regulation of Investigatory Powers Act 2000, supposedly aimed at terrorists, and now used by local Councils to pursue individuals guilty of anti-social doggy poo.
The two most recent posts on Pandora Blake's blog are relevant:
Kinky Slogans is a call for suggestions for placard slogans at Sunday's London protest on the eve of Dangerous Pictures Day:
Big Brother is Watching You Masturbate
Consensual Sex is Not a Crime
God made us kinky, Idiots made this law
Become an MP, Meet good people, And criminalise them
Don't Fuck with our Fucking rights
Stop repeat offenders, Don't re-elect them.
And some Melon Farming suggestions:
Britain's in depression from sub-prime legislation
Our sex lives are just a loophole waiting to be closed
There's probably no God. So start worrying, there's no protection from New Labour
Taking action is particularly good. Ms Blake is a highly intelligent, articulate woman, and really gives the lie to the idea that those participating in videos as submissives are unwilling or victimised.
Among other interesting sites, Ms Blake links to
Penny Red: Whipping boys. This is interesting as a view about the DPA from a socialist feminist and a friend of the late Jane Longhurst, whose shroud Salter waved so vigorously in whipping up - sorry, groan! - support for the DPA.
Martin Salter, Reading West MP, campaigned with Mrs Longhurst for the new law. He said the latest campaign by Backlash was too late because the bill had received Royal Assent and was now the law of the land.
He said all the new law did was to make illegal on the internet what was already illegal under the Obscene Publications Act.
He said: The internet made the Obscene Publications Act redundant and it was necessary to modernise it as had been done so successfully in the case of child pornography.
My advice to these people is that they can continue their weird practices with each other, just don’t put it on the interne t.
And a lovely quote from Ms Longhurst:
"I am not against pornography in general, after all what about all those Renaissance paintings?”
Comment: Salter - does he understand what he's doing?
24th January 2009. Thanks to Alan
Does Martin Salter actually understand the legislation which he has so assiduously promoted?
There are two clear indications in the quotation you give that he does not.
"My advice to these people is that they can continue their weird practices with each other, just don’t put it on the internet."
Leaving aside the sneering reference to "these people" - would he speak in the same way about homosexuals? - he doesn't seem to grasp that the legislation has absolutely nothing to do with "putting it on the internet",
which people will continue to do quite legally in just about every advanced country in the world, including parts of the former Soviet Union and its satellites. The DPA criminalises people who merely "possess" the stuff in this country.
The same error, among others, underlies his false claim that "all the new law did was to make illegal on the internet what was already illegal under the Obscene Publications Act ". First, what
was illegal under the OPA - itself an utterly absurd and iniquitous piece of legislation - was PUBLICATION, not possession. Furthermore, the act specifically criminalises possession of extracts from BBFC rated films. I can think immediately of at
least two DVDs rated 15, one of them a Channel 4 series previously aired on telly, which contain scenes which might fall foul of the DPA.
While England is very soon to begin the interesting experiment of sending people to jail for possession of dangerous pictures, the Scottish Government is only just getting its act together on the subject.
Not to be outdone, their proposed new Law goes significantly further than the English one, creating the very real possibility that travellers could depart London with nothing but legal pictures on their laptop – and pull into Edinburgh
Waverley facing arrest for their hard-drive smut.
An instance of a common BDSM act which might now fall under the Extreme Pornography Act is 'breath play' or erotic asphyxiation. Erotic asphyxiation is the act of constricting a person's breath to achieve sexual stimulation. While this
reporter agrees that erotic asphyxiation is dangerous, images of such may now be deemed illegal because it shows an act that threatens a person's life , whether the image is staged or not.
Photos of suspension bondage is another BDSM act which may be illegal under the Extreme Pornography Act because it depicts a person hanging , which could be construed as being life threatening.
Pictures depicting knife play, or 'edge play' as it is sometimes called, may now be illegal under the Extreme Pornography Act. In the BDSM community, knife play is used to heighten sexual arousal by putting the submissive in a dangerous situation. Knife play is commonly used in conjunction with blindfolds and bondage and is always consensual. But according to the Extreme Pornography Act, images of knife play may be illegal because it
threatens a person's life and depicts an act of sexual assault involving a threat of a weapon.
There can be no argument that action to limit the viewing and distribution of extreme pornography is desirable. But where to draw the line in proposed new legislation is a potential minefield for Scottish Justice Secretary Kenny MacAskill.
Under plans to be unveiled in detail by the Government next month, downloading images of rape and other extreme material will be punishable by up to three years in prison.
But precisely how he and ministers define what represents the unacceptable exploitation of victims by criminals and the legitimate depiction of sexual acts involving consenting adults could keep government lawyers occupied – entertained
even – for years. It potentially throws Scotland back to the days of the Lady's Chatterley's Lover obscenity trial and the Lord Chamberlain's censorship of West End theatre.
And who could forget the farce of the early 80s when the religious zealots on Glasgow City Council forced the banning of Monty Python's Life of Brian on the grounds of blasphemy. A different sort of censorship but censorship all the same
Since taking over the justice brief Mr MacAskill has often courted controversy and it is difficult at times to work out just what kind of Scotland he envisages.
He is right in that we do not want children to grow up in a culture where alcohol-fuelled violence is an acceptable hazard of a night out – or of a night in for that matter. But demonising anyone who likes a drink or two occasionally is not
the solution to the problem. His desire to see drink removed from displays in supermarkets and minimum prices set will be as unsuccessful in curbing alcohol abuse as his government's plans to hide cigarettes under shop counters will stop people
Given that sex assault and any exploitation of children is already illegal, the latest proposals centre around depiction, but how the law is supposed to decide whether a film like Straw Dogs or Clockwork Orange , both of which
feature sexual violence, should or shouldn't be made illegal is anyone's guess.
Much of this legislation already applies to the internet, which has become the focus of Mr MacAskill's attention. And in any case, changes to the law will not stop the viewing of explicit material, nor for the most extreme cases will the threat
Of course Mr MacAskill is well-intentioned but as the old saying goes that is what paves the road to hell. The best that can be said for some of his hare-brained schemes is that he is attempting to score politically-correct, tough-on-crime
populist points, but instead he is coming over as a kill-joy who cares little for the implications or the detail of his proposals.
And headline-chasing is not something of which the Scottish Government is in short supply.
It's official: the government believes it is entitled to pass law which is incomprehensible.
Thank you for your further email of 7 December concerning the information note [pdf] , published by the Ministry of Justice on 26 November, which covers sections 63-67 of the Criminal Justice and
Immigration Act 2008.
In your email you suggest that the information provided by the Ministry of Justice is not sufficiently clear to enable individuals to consider whether or not they possess potentially illegal material. You have also raised a number of points about
the Obscene Publications Act 1959 (OPA) and about the definition of an extreme image.
Taking first the general point which you have made about clarity, while we fully understand what prompts your concern, ultimately a decision in any particular case would be a matter for the courts. It is not for the Ministry of Justice to be
prescriptive about whether certain scenarios are legal or illegal. The examples which were offered in the information note were indicative of the type of material which could fall foul of the new offence, if all the elements of the offence were
met. Both in the structure of the offence and the further explanation which has been given, we consider that we have provided as much clarity as is possible.
There is a limit to the extent to which language can encapsulate images and it may not be possible for an individual to have absolute certainty about which side of the line an image may fall. On this issue, it has been held by the Court of Appeal
that “it is not necessary for an individual to be able to be sure in advance whether his conduct will be characterised by a jury as a crime” (R v O’Carroll 2003 EWCA Crim 2338). This was in relation to an argument that the term
“indecent” (in the context of images of children) was too imprecise to enable the applicant to know in advance whether this conduct was criminal.
A similar argument about definitions was made in the case of R v Stephane Laurent Perrin 2002 EWCA Crim 747 in respect of the term “obscene” as it appears in the OPA. Moreover, the European Court of Human Rights, in Muller v
Switzerland 2001 13 EHRR 212, rejected the submission that the word “obscene” in the Swiss Criminal Code was too vague to enable the individual to regulate his conduct.
We consider that the offence set out in section 63 of the Criminal Justice and Immigration Act 2008 is as clear as possible, and that we have done what we can to ensure that the offence is “in accordance with the law” because in
addition to providing that the material must be 1) pornographic and 2) grossly offensive, disgusting or otherwise of an obscene character, it also sets out a list of the extreme, explicit and realistic images which are caught.
Turning to the points you have raised about the OPA 1959, and about the “grossly offensive, disgusting or otherwise of an obscene character” element of the offence, as the Government has previously said, it is not the intention to
criminalise possession of material which it would be legal to publish. However, we chose not to build upon or draw from the 1959 Act directly, as the language of that Act is structured around the wider concept of publication and does not
translate easily to the context of possession. It also covers a much broader range of material than is covered by the new possession offence.
On your question about useful precedents, there is no central list of material which has been found to be obscene under the OPA and no list of precedent cases but information is available on the Crown Prosecution Service website about the sort of
material they would consider for prosecution. The associated question which you have posed about reassurance in these circumstances that the new offence will not catch material which is legal to publish was raised during the parliamentary stages
of the Criminal Justice and Immigration Bill. The addition of the “grossly offensive, disgusting or otherwise of an obscene character” test was intended to meet those concerns.
You have queried the explanation of the test in the information note. It draws upon the ordinary dictionary definition of ‘obscene’ rather than the technical definition which is contained within the OPA and which is geared around the
concept of publication. The terms “grossly offensive” and “disgusting” are there as examples of “obscene character”, neither to be ignored nor taken in isolation. We are of the view that the practical effect of
including this test – in conjunction with the other elements of the offence – will be to ensure that this offence only catches material which would be caught by the OPA were it to be published in this country.
Downloading images of rape and possessing other forms of extreme pornography will be punishable by up to three years in prison under new laws to be unveiled next month.
Kenny MacAskill, the injustice secretary, has revealed details of his proposed nasty law on owning hardcore pornography that he claims is sexually and physically abusive and degrading to women.
The move will be included in a new Criminal Injustice and Licensing Bill to be published in the coming weeks.
Currently the law in Scotland only prohibits the importing and supply of extreme pornography and possession with the intention to sell.
The new ban will be tougher than similar legislation being introduced south of the Border next week.
Section 63 of the Criminal Justice and Immigration Act 2008 comes into force next Monday and makes owning offending pictures a criminal offence. Under the English law, an image is deemed to be extreme if it "is grossly offensive, disgusting
or otherwise of an obscene character" and portrays in any way an act which threatens a person's life, or which results or appears likely to result in serious injury to someone's genitals or breasts.
MacAskill told The Scotsman that the proposed Scottish legislation will go further, making it clear that the possession of images of rape – regardless of whether the act could physically injure the victim – will be outlawed.
But precisely how and where ministers draw the line between mainstream and "extreme" pornography is likely to spark a furious civil liberties debate, amid fears unprecedented powers to police people's bedrooms are being created.
MacAskill said people who mistakenly access extreme pornography, for example by clicking on the wrong computer button, would not be pursued. Equally, it is likely that convictions under the new law will require people actually to download images
of extreme pornography, rather than by viewing websites alone.
The legislation will cover some of what is available on the internet, which is frankly horrific and involves criminal offences such as rape, MacAskill said: There are people who participate in this and we need to do something about it.
These are not crime-free and cost-free matters. Somebody is suffering, and those who view are encouraging and assisting with the exploitation of these people.
The former lawyer said the maximum penalty for publishing and selling extreme pornography would increase from three to five years: We are intending to send out the message that this is frankly totally abhorrent. This is far from a victimless
crime. Previously you could close down bookshops; now everybody has access to the internet. What is being portrayed in a number of these sites and DVDs is not erotic art – it's fundamental abuse of an individual and to consort with it is to
A crackdown on extreme pornography by the Scottish Government will be difficult to enforce and could end up banning art, critics said.
Conservative MSP Bill Aitken, the convener of the Justice Committee, which will have to scrutinise the proposed Criminal Justice and Licensing Bill, said he had grave concerns over how a new law might work, especially as the new laws on
downloading images of rape and serious assault could include simulations between consenting adults.
The proposal has raised the prospect of films such as Clockwork Orange or American Psycho being made illegal if they are downloaded from the internet, but not if they are bought on a DVD.
Aitken said: Any site showing the actual rape or serious injury being imposed upon a victim is utterly unacceptable and must be acted upon. But we do have to recognise that simulated acts do sometimes occur in dramatic productions.
He suggested the law could mean banning drama, including works by Shakespeare, in which simulated violent and sexual scenes form part of the storyline.
While I would prefer that they were not too explicit, any proposal to make the watching of such scenes illegal could be seen as an attack on artistic freedom and an illiberal move, he said. He added that questions had to be addressed over
how the law could be policed: You have to question how it is going to be policed with the availability of material on the worldwide web and the fact that the police will have to obtain warrants for people's home computers .
The Daily Mail has produced a typically nasty
article supporting the impending Dangerous Pictures Act, titled:
Protesters say it's their right to watch sadistic porn. Tell that to the mother of the girl murdered by a man addicted to it...
So much glee in punishing innocent people for a crime committed by somebody else.
The Telegraph recently produced a more informative article on the issue:
New pornography law 'will criminalise bondage'
A new law that will make it illegal to possess "extreme" pornographic images risks criminalising law-abiding people who simply enjoy unusual sex, say campaigners.
And as previously reported the Independent had a few sensible things to say about the legislation in an
article and a
Section 63 of the Criminal Justice and Immigration Act 2008 comes into force on 26 January and makes owning extreme porn pictures a criminal offence punishable by up to three years' imprisonment.
An image is deemed to be extreme if it is grossly offensive, disgusting or otherwise of an obscene character and portrays in any way an act which threatens a person's life, or which results or appears likely to
result in serious injury to someone's genitals or breasts.
Members of Britain's BDSM (bondage, domination and sado-masochism) community, as well as those in the gothic and alternative scenes, complain that they are being unfairly targeted. I firmly agree that images of non-consensual activities which
involve violence should be criminalised but this is a badly worded law that risks criminalising thousands of ordinary people, said Claire Lewis, a 35-year-old disabled rights activist from Manchester who has set up the Consenting Adult
Action Network (Caan). The Government seems to be convinced that if people like us look at pictures for too long we'll end up turning into abusers. That's outrageous.