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.
