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.
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.
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.
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.
A
teenager has fallen fall foul of a new law which bans the possession of
'extreme' pornographic images.
