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2009: Oct-Dec

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9th December   

Realistic?...

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Man prosecuted for 'realistic' photo of intercourse with a tiger
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The latest dangerous pictures victim is Andrew Holland who is accused of possessing an extreme pornographic image which portrayed a person performing an act of intercourse with a tiger. This was supposedly realistic and grossly offensive, disgusting or otherwise of an obscene character.

Holland is also accused of possessing an extreme pornographic image which resulted in or was likely to result in serious injury to a person's genitals and which was grossly offensive, disgusting or otherwise of an obscene character.

Holland appeared briefly before Wrexham Magistrates Court where the case was committed to be heard at Mold Crown Court on New Year's Eve.

Both charges relate to June 10 and his solicitor Euros Jones told the court his client was intending to plead not guilty.

 

27th November   

Dangerous Laptops...

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Council laptop snitches find dangerous pictures
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A former Taunton Deane councillor has been banned from public office for two years after supposedly offensive material, including a bestiality porn film, was discovered on his publicly funded laptop.

LibDem Andrew Woolley who was elected to represent the Lyngford ward in 2007, resigned from the post in August this year under pressure from Taunton Deane Council leader Ross Henley after discoveries were made by the authority's IT department.

Woolley claimed he did not download the inappropriate material found on his council-issue machine.

A report published by local authority watchdog the Adjudication Panel for England this week says he admitted breaching the code of conduct. The Panel issued the ban and published a report which describes how inappropriate material, including a porn film featuring bestiality, was downloaded to the machine.

Woolley also admitted breaching council rules in allowing unauthorised people to use the laptop. He told the County Gazette: I'm innocent. I didn't download the film. None of the inappropriate material was downloaded by myself – it's downloaded automatically by the machine - so why should I get done for it? I really hate porn – it shouldn't even be shown on the telly.

Cllr Henley said: As soon as I was told of the severity of this issue I advised Andrew Woolley to resign. The one good thing from this is that it shows the public that if councillors are found guilty of inappropriate action, they are dealt with.

A by-election was held last month to replace Mr Woolley, with LibDem Nicci Court being returned.

To read the Adjudication Panel for England's report into the matter, click on the Related Link below. The report contains the name of a porn film which some readers may find offensive.

 

20th November   

Manic Police State...

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Isle of Man politician campaigns against extreme porn law
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The Isle of Man could become a police state if a new criminal justice bill goes ahead, warned David Callister MLC. The Department of Home Affairs has proposed a new Criminal Justice (Miscellaneous Provisions) Bill 2009.

Public views are now being sought on the new draft legislation. But Callister said many of the clauses in the draft bill border on the draconian and would impact to the detriment of Manx life and make an enemy of the police .

He said: If this bill is passed in its present form it will become a precursor to the creation of a police state. The draft bill contains a number of highly controversial clauses. Several of these would allow the police to by-pass the judicial process.

He explained: It would allow the police to enter your home without a warrant, act as a censor of stage performances, of unclassified films and even internet images.

Public meetings could be disbanded, exhibits could be removed from art galleries (as has already happened in the UK) and, astonishingly, under-age children could be used to entrap shopkeepers.

He added: The provisions in the draft bill even extend to who may, and who may not, provide food between the hours of midnight and 5am and it would give a constable the power to prevent an individual from drinking in any public place on the Island (at present this is limited to designated areas).

The DHA is even considering introducing legislation to control such websites as Facebook.

He said that although not all of the 85 clauses in the draft bill were unacceptable, and many appear to be both sensible and reasonable , he would not be supporting the bill in its present form.

Callister wrote to the Isle of Man Newspapers following a letter by civil liberties campaigner Tristram Llewellyn Jones, of Port Lewaigue, calling for closer inspection of the bill, which was published in the Isle of Man Examiner of October 20.

In his letter, Llewellyn Jones said: The police would use these powers without any judicial oversight whatsoever. This begs the question: What happens if the police are wrong and target someone who is innocent? Our existing justice system fundamentally relies on the courts verifying crime and punishment. Who wants to abandon this ancient right?

He added: We have watched the UK become a bit of a police state but there is no need for the Isle of Man to follow suit. In the Isle of Man we need common sense — not punitive and pointless laws. These contentious new proposals need widespread debate.

 

15th November   

Not Extreme Enough?...

Scottish Parliament Justice Committee reports on extreme porn bill
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Report by the Scottish Parliament`s Justice Committee on the Criminal Justice and Licensing (Scotland) Bill

Section 34: Extreme pornography

278. Section 34 of the Bill inserts into the Civic Government (Scotland) Act 1982 new provisions to criminalise the possession of obscene pornographic images which explicitly and realistically depict various extreme acts .

279. The policy objective is to help ensure the public are protected from exposure to extreme pornography that depicts horrific images of violence . The maximum penalty for the new offence will be three years imprisonment or a fine or both.

280. The Policy Memorandum explains that it is already illegal to publish, sell or distribute the obscene material that would be covered by this new offence. Section 34(1) increases the maximum penalty for these activities from three to five years to emphasise the seriousness attached to distribution of this type of material .

281. The new offence is similar to that in section 63 of the Criminal Justice and Immigration Act 2008, which applies in the rest of the UK. The proposed Scottish offence goes further, however, as—

it will cover all obscene pornographic images which realistically depict rape or other non-consensual penetrative sexual activity, whether violent or otherwise (whereas the English offence only covers forms of violent rape).

282. Provisions to establish a category of excluded images and defences to a charge of possession of an extreme pornographic image are also included within section 34.

283. Most of those who commented on this section supported the creation of an offence of possessing extreme pornography, although some argued that there is no evidence that pornography increases sexual offending and opposed these provisions as an unjustifiable intrusion into the private lives of citizens.

Definition of extreme pornography

284. A number of concerns were expressed about the definition of the new offence, either arguing that it is too wide or that it should be extended in various directions.

285. In his written submission, James Chalmers of Edinburgh University School of Law noted that the provisions in the Bill go significantly beyond the definition canvassed in a consultation exercise carried out by the Scottish Executive and Home Office in 2005 and subsequently implemented for the rest of the UK in the Criminal Justice and Immigration Act 2008.218 He noted that the Policy Memorandum says only that this definition was insufficiently broad without giving any further explanation—

The Policy Memorandum observes that the English legislation does not cover rape per se, but this is hardly an accident of drafting: there was a clear desire to limit the legislation to extremely serious cases.

286. Mr Chalmers argued that the Scottish Government had at no stage explained its rationale for criminalising such possession. It can hardly be the simple fact that the activity depicted is criminal: murder is regularly depicted on terrestrial television without objection.

287. On the other hand, several respondents expressly supported the use of the wider definition in the Bill.

288. Ian Duguid QC, representing the Faculty of Advocates, expressed strong support for an offence of possessing extreme adult pornography—

It is only proper that the law deal with such images, including computer-generated images. The difficulty that I can envisage concerns policing the internet, but I have no difficulty with the full weight of the law being applied when a fruitful investigation is undertaken that reveals images of that type. If the law requires to be amended as is proposed so that it reflects the public's attitude, that is perfectly reasonable as far as I am concerned.

289. In its written submission, the Crown Office explained how it would approach enforcement of the new offence—

Although the offence is broad in its terms and allows for a wide latitude of discretion in determining what amounts to a prohibited image, careful consideration will be given, if it is enacted, to the development of clear guidance for police and prosecutors to ensure that it is enforced consistently and fairly.

290. In oral evidence, the Lord Advocate was asked whether the new offence was drawn widely enough. She commented—

We already have the Civic Government (Scotland) Act 1982, which includes the wider definition of, or the fundamental platform of, obscenity. … The difficulty in respect of pornography is that we come up against the ECHR rights of freedom of expression and the article 8 rights to privacy in the context of sexual activity. It is important to derive some certainty in that area in order to show a balance – to show not only that what is being done in engaging article 8 is proportionate, but that it has a degree of certainty in that area of criminality.

Definition of obscene

291. Several respondents questioned whether the word obscene should form part of the definition. For example, the Women's Support Project argued that—

the inclusion of 'obscene' in the criteria for extreme pornography dilutes the focus of the new proposals, retains a 'moral' judgement and suggests that the intention behind the proposals is to prevent depravity or corruption. The WSP believes that the Scottish Government should not rely on the 1982 Act for a definition of obscenity but develop a definition based on an understanding of the broad cultural harm to which pornography contributes.

292. Other respondents also argued for a definition focused on cultural harm . Professor Clare McGlynn and Dr Erika Rackley, Durham Law School, offered a justification for this approach—

Legislative action against extreme pornography is justified because of the 'cultural harm' of such material, by which we mean that the existence and use of extreme pornography contributes to a society which fails to take sexual violence against women seriously.

293. Professor McGlynn and Dr Rackley urged the Committee to reconsider the use of the language and concept of obscenity , partly because the definition of 'obscene' is vague and opaque and leads to a great level of discretion and lack of clarity . In addition, the term—

has been used to cover the depiction of activities which are not in themselves unlawful, yet may be viewed by some as morally wrong or disgusting (such as images of coprophilia). The criminal law should not be used to proscribe the depiction or viewing of acts which are not unlawful in themselves to carry out.

294. However, they also argued that the use of the term obscene alone was preferable to the exceptionally vague and undefined reference in the English provisions to material which is 'grossly offensive, disgusting or otherwise of an obscene character' [section 63(6) of the Criminal Justice and Immigration Act 2008] .

295. For ACPOS, the problem was that while pornographic and extreme were defined in the Bill, obscene was not, and it suggested it could be defined as abhorrent to morality or virtue; specifically designed and intended to incite lust or depravity .

296. The Committee notes the evidence presented regarding the inclusion of the term obscene as part of the definition of extreme pornography. The Committee understands that the Civic Government (Scotland) Act 1982 already includes reference to obscene material but notes that the word obscene is not defined in that Act.

Definition of extreme image

297. The Bill defines an image as extreme if it depicts, in an explicit and realistic way any of the following—

(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).229

298. Some respondents, including the Zero Tolerance Charitable Trust and the Violence Against Women Strategy Multi-Agency Working Group, suggested that the definition of an extreme image set out at (b) above should be changed from an act which is likely to result in severe injury to threatens to cause this result. They argued that this would increase the scope to cover acts of rape which could be said to threaten severe injury, but are not likely actually to result in severe injury.

299. The SCDEA suggested there might be practical difficulties with the definition of an extreme image—

The use of the terminology 'depicts, in an explicit and realistic way' would seem to include all images where such acts are depicted but are subsequently shown to have been staged or acted out. For example, a realistic depiction of a rape or sexual murder, which is undoubtedly pornographic but where the 'victim' is shown to have suffered no harm and to have been a willing participant in actions depicted, would appear to be included in the definition.231

300. Subsequently, in a joint submission with SCDEA, ACPOS suggested that a better approach to defining extreme image could be to replace the list of specified acts with a more general definition that would capture all images of illegal acts committed with a sexual motivation (subject to the exclusions currently outlined within the Bill) .

Computer-generated images

301. Several respondents suggested that non-photographic representations of extreme acts should be covered, in particular computer generated images of the sort found in virtual reality games. Rape Crisis Scotland explained the basis for its concern about this issue—

We believe that it is a missed opportunity to not include non-photographic representations of extreme acts in the Bill. This means that the provision in the Bill will not cover depictions of extreme pornography on virtual worlds such as Second Life or games online or other digital platforms, where the pornography is violent, extreme and interactive, but where the images are not photographic. Similarly, we would like to emphasis that there is still a need to enact similar legislation in relation to child pornography, as proposed by the Scottish Executive in early 2007.

302. Tom Roberts, representing Children 1st, commented on the effect such images may have on children—

Given that computer-generated images can be used to groom children by suggesting to them that something that happens on their computer must be acceptable, the distribution of such images can cause harm or distress to children and can be just as bad as the other type of material that circulates on the internet. We need to ensure that our laws can deal with that appropriately.

303. ACPOS considered this issue in a supplementary written submission—

The use of the phrase 'in an explicit and realistic way'is worthy of debate when considering the definition of 'extreme' in respect of cartoon images, etc. It may be argued that cartoon (or other) images with gross distortions are not 'realistic'. However these may well portray extreme pornographic images which are clearly understood.

304. ACPOS suggested that it may be more appropriate to address the action rather than the realistic portrayal of the image, for example by referring to any image that depicts in an explicit manner a representation of an event of a sexual and pornographic nature .

305. But for James Chalmers, it was clear that section 34 already covers computer generated images—

The only limiting factor is that an image must be 'realistic' to fall within the scope of the provisions. The Bill is not limited to particular types of image. In this respect, it is rather wider than the offence of possessing indecent photographs of children, which is restricted to 'photographs or pseudo-photographs', including photographs comprised in films. A 'pseudo-photograph' is 'an image, whether produced by computer-graphics or otherwise howsoever, which appears to be a photograph' [Civic Government (Scotland) Act 1982, sections 52 and 52A].

Incest

306. A number of organisations argued in favour of extending the definition of extreme pornography to cover incest.239 Rape Crisis Scotland argued that the provisions in the Bill would not necessarily cover pornography which glorifies incest, unless it is clear that the woman depicted is not old enough to consent—

We believe serious consideration must be given to extending the definition of extreme to include depictions of incest (which is in itself an illegal activity) to ensure these types of materials are covered by the legislation.

Possession

307. Various questions about the definition of possession were raised by respondents to the Committee's call for evidence.

308. The SCCJR argued that for reasons of clarity, it would be better if the provisions were to clearly define the meaning of possession—

Since, as is acknowledged in the Policy Memorandum, this is aimed at material produced and distributed in electronic form, it is important to be specific about what amounts to possession in these circumstances. Viewing an image online means that it is downloaded and (usually) stored on the hard drive of the computer of the viewer. Does possession extend to all images cached on the computer hard-drive?

309. The National Gender-based Violence Programme Team, part of the Healthcare, Strategy and Policy Directorate, Scottish Government, submitted that there was a need to clarify whether possession would cover repeated viewings of extreme pornography, whether or not the material was actually downloaded.

310. According to Professor McGlynn and Dr Rackley—

The concept of possession is key to this offence. It is not defined in the Bill (nor in the English provisions). This is a serious omission. We suggest the legislation include a definition of possession to clarify exactly what will be covered.

311. However, ACPOS and the SCDEA said they were content that existing legislation and case law would provide sufficient definition around the term 'possession'.

Excluded images and defences

312. Under the proposed section 51B of the 1982 Act, images that would otherwise qualify as extreme pornography are excluded from the scope of the offence (under proposed section 51A) if they are from a classified work – which is defined as a video work which has been classified by a designated authority such as the British Board of Film Classification (BBFC). In addition, section 51C provides a series of defences to a charge of possession of an extreme pornographic image, including a defence for those who directly participated in the act depicted.

313. The Consenting Adult Action Network, which opposes making possession of extreme pornography a criminal offence, questioned whether the provision for excluded images was appropriate—

If the material in question causes demonstrable harm, then it is totally utterly irresponsible on the part of government to insert the BBFC exemption – and suggests a bowing to commercial (film) pressure in preference to a genuine desire to protect members of society. Further, would not most BBFC material fail the 'realistic' or 'pornographic' test once it is known that the material is from a film? There is no reason for this section to be in there.

314. The Judges of the High Court of Justiciary also questioned the provisions regarding excluded images and the defence of direct participation—

We question the policy of allowing a designated body to exclude from the scope of the criminal law an image which meets the definition of extreme pornographic image. Why should such a body, in the context of criminal law, decide that such material, the possession of which would otherwise be criminal, is acceptable as a part of or as being in its entirety a work of art?

We are also at a loss to understand the defence in proposed section 51C of the 1982 Act protecting the persons who directly participated in the act depicted. If the depiction is unacceptable as amounting to extreme pornography, we do not see why the participant who retains the material for private use should have the defences available in subsection (4) of section 51C when other possessors, for good policy reasons, do not.

Committee conclusions

315. The Committee shares the Scottish Government's aim to protect the public from extreme pornography, but has noted a range of concerns raised in evidence about the parameters of the new offence proposed. There are various points on which we would seek further clarification from the Scottish Government. The first is why the definition of extreme image includes a much broader reference to depictions of rape than was suggested in consultation and is provided for in the equivalent England and Wales legislation. Secondly, we would be grateful for further explanation about why that definition refers to realistic depictions of sexual acts, and how that relates to cartoons or other images that have been distorted or have a fantasy element. Thirdly, we would seek clarification on the rationale for using the term obscene as part of the definition of extreme pornography, when that term is itself undefined in the Bill, and whether any consideration was given to alternative definitions in terms of the cultural harm that pornography can cause. Finally, we would be grateful for clarification of what is meant by possession of extreme pornography, and whether, in the absence of any definition in the Bill, what understanding of that term would be relied on by the courts (particularly where images come into someone's possession through electronic transmission).

316. The Committee accepts the rationale for excluding from the offence of possessing extreme pornography images that form all or part of a classified work, such as a film granted a certificate by the British Board of Film Classification. However, we are uncertain about some of the practical implications, for example whether it offers protection from prosecution to the film-maker who is in possession of a film that the BBFC has not yet been able to consider for certification.

317. We are satisfied with the defences that are provided in inserted section 51C. In particular, while we note the concerns raised in evidence, we agree that the Bill is right to distinguish between the possession of an image by those who participated in the sexual activity depicted and the onward transmission of that image to third parties.

 

10th November   

Offsite: Manic Legislation...

Isle of Man plays catch-up on extreme porn law
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The Isle of Man, along with the Channel Islands is not part of the United Kingdom, but is in fact a crown dependency, and therefore owned and governed directly by the British Crown. Custom has it that the British Government is solely responsible for defence and international representation, and Crown dependencies have responsibility for their own customs and immigration services - however, Acts of the British Parliament do not usually apply unless explicitly stated.

That is why, since early October, the Isle of Man parliament (the Tynwald) has been seeking opinions on its proposed Criminal Justice (Miscellaneous Provisions) Bill 2009. Those looking for serious disagreements between the Manx view and that already passed into law for England Wales and Northern Ireland will be disappointed.

The proposed wording is virtually identical to that contained in the Criminal Justice and Immigration Act 2008: there is one minor difference, which is that the Manx law would not include a requirement for a case to be referred to the Director of Public Prosecutions before it is allowed to proceed.

...Read the full article

 

23rd October   

Serious Injury...

First mention of charges of violent extreme porn
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A Chertsey man has appeared in court after being charged with two counts of possessing extreme pornographic images. He faces three counts of possessing an extreme pornographic image portraying an act of intercourse or oral sex with a dead or alive animal.

He has also been charged with possessing an extreme pornographic image portraying an act, which is likely to result in serious injury to a person's private parts. He also faces three counts of downloading an indecent photograph or pseudo photograph of a child.

The case was adjourned until December 17.

 

15th October   

Viral Policing...

Teenager fined for possessing bad taste viral video clip
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A teenager has fallen fall foul of a new law which bans the possession of 'extreme' pornographic images.

A Lowestoft teenager, Damien Wentworth, was fined after police found a short video on his mobile telephone which contained an extreme image. The newspaper wouldn't reveal the content of the image because of its supposedly pornographic nature.

Lowestoft magistrates court heard that Damien Wentworth's mobile telephone was seized by police in connection with another incident and that the video clip, which had been sent to him several years previously, was found stored on his memory card.

Colette Griffiths, prosecuting, said that when he was interviewed by officers, the 18-year-old said he was aware of the film clip and had kept it on his phone after it was sent to him.

Wentworth pleaded guilty to possessing an extreme pornographic image. His solicitor Richard Mann said: Technically, he is guilty of the offence, but I would say that he didn't even know it was an offence to have this on his phone. I can't blame him for that, as I didn't know that either and nor did the solicitors I have spoken to in court today. It is a law which came into force this year, so it is hardly a surprise that he didn't know.

Mr Mann said that Wentworth had received the image several years ago. He said: He would no doubt say that at the time, everyone was sending these sort of images around…This was just one image on his phone and something which he had not looked at for some time. He was not putting it on the internet or distributing it to anybody.

Wentworth was ordered to pay £175 in fines and costs. Magistrates also ordered the destruction of the image.

 

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