The Criminal Justice and Immigration Bill has just finished its Third Reading Debate at the House of Lords (30.04.2008) and there seem to be little hope for improvement (or complete abandonment) when it goes back to the House of Commons for its third reading.
However, certain questions remain unanswered and it is not clear whether these will be clarified within the Bill and whether further guidelines will be necessary, assuming that these provisions dubbed as the Dangerous Pictures Bill will become law.
1. Extreme Pornography Offence includes disproportionate penalties with regards to clause 62(7)(c) (an act which involves sexual interference with a human corpse) or 62(7)(d) (a person performing an act of intercourse or oral sex with an animal). Surely, intercourse with a living animal or the sexual penetration of a corpse under the Sexual Offences Act 2003 are more serious offences than simple possession of a real or appears to be real image. Currently, they attract the same penalty. You decide which one is worse.
2. Overnight (when the provisions come into force) an activity which was deemed to be legal will become illegal. So far, no guidance has been issued (although questions raised at the HL) in terms of what Joe Public should do with regards to his collection of pornography. How is Joe going to know which of the items he possess are of an extremely dangerous kind?
3. Possession of digital content is also problematic from a technical point, and simply deleting dangerous images may not be enough to avoid prosecution. A recent Court of Appeal decision with regards to deleted images involving child pornography (R v Porter  EWCA Crim 560) established that it may not be so easy to get rid of images from one’s computer. Following the decision of the Court of Appeal, in the scenario of Joe knowingly downloading child pornography (or for that matter extreme pornography) but deciding to delete them with no intention to undelete or recover them, Joe would expect to avoid possession and could have a defence, if the images were in deleted state and unrecoverable by Joe at the alleged time of possession and Joe does not have in his possession software which is capable of recovering deleted images or there is no evidence to suggest that Joe tried to recover the deleted images by such software. Following Porter, it would be a matter for the jury to decide whether the deleted images were within the control of Joe having regard to all the factors in the case, including his knowledge and particular circumstances and the available evidence.
4. Finally, it is very very easy to stumble upon pornographic websites on the Internet, either deliberately or by mistake. The users, in most cases, are not in a position to know, prior to accessing such sites whether the content provided on such sites would be regarded as illegal and dangerous under the Criminal Justice and Immigration Bill provisions. This will create lot of anxiety among the members of the public. There is no discussion yet whether the government (presumably through the Ministry of Justice) will issue any guidance in terms of what could be regarded as illegal and should be avoided, and what the users should do if they come across such sites inadvertently. In such a scenario Joe Public may have a defence under clause 64(2)(ii) if he did not keep the material for an unreasonable time (for example immediately emptied his browser’s cache).
These are only some of the unanswered questions that I can think of right now and please do let me know if you have any further puzzling answered issues with regards to these provisions.
Please also see a later piece that I wrote entitled Extreme Pornography: Sentencing Issues which discusses potential sentencing problems with regards to future “convicts”.
Inconsistencies with other legislation within the extreme pornography provisions of the Criminal Justice and Immigration Bill will lead into definitional problems, and disproportionate penalties argues Dr. Yaman Akdeniz.
According to subsection 7 of Clause 62 of the Criminal Justice and Immigration Bill (HL Bill Third Reading) on Possession of extreme pornographic images, an “extreme image” falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.
However, section 69 of the Sexual Offences Act 2003 criminalizes intercourse with a living animal (rather than a pseudo-animal). Unlike the proposed clause 62 provisions, section 69 does not cover oral sex with animals. Similarly, section 70 of the Sexual Offences Act 2003 criminalizes sexual penetration of a corpse but unlike the proposed clause 62 provisions it does not cover “sexual interference” with a human corpse.
Under clause 65 of the Criminal Justice and Immigration Bill (HL Bill Third Reading) which deals with penalties for possession of extreme pornographic images, the commission of a possession offence in relation to clause 62(7)(c) (an act which involves sexual interference with a human corpse) or 62(7)(d) (a person performing an act of intercourse or oral sex with an animal) attracts a penalty on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both. However, currently, a person guilty of an offence under section 69 or section 70 of the Sexual Offences Act 2003 face the same amount of penalty – on conviction on indictment, to imprisonment for a term not exceeding 2 years.
Surely, intercourse with a living animal or the sexual penetration of a corpse under the 2003 Act are more serious offences than simple possession of a real or appears to be real image. Therefore, the proposed possession offence penalties under clause 65 of the Criminal Justice and Immigration Bill (HL Bill Third Reading) remain disproportionate.
Unspeak » Extreme images: “Extreme images
Pornography and thoughtcrime in Britain
May 1, 2008
The British government, net exporter of liberty, is going to make it a criminal offence, punishable by a prison term of five years, to have in one’s possession an image or video of adults consensually engaging in a non-criminal act.
This ludicrous situation has arisen in the new Criminal Justice and Immigration Bill, which outlaws the possession of ‘extreme pornographic images’. “
No rough sex please, we’re British | Opinion | The First Post: “No rough sex please, we’re British
A new law banning so-called ‘extreme’ pornography is a nonsense, argues Sean Thomas
Hard cases make bad law’ is an aphorism much beloved of legislators. It is also a motto that could be usefully tattooed on the foreheads of British MPs. Because right now the British government is about to pass a very bad law, rooted in one tragic case.”
Office snooping software attacked by privacy groups – Times Online: “From Times Online
April 25, 2008
Office snooping software attacked by privacy groups
E-mail reading programs can monitor message content and even analyse the relationship between sender and receiver
Companies are coming under fire from privacy campaigners for rolling out a computer program which enables them to track the communications and contacts of their staff.
Technology is beginning to allow big City firms to monitor the e-mail correspondence of their workers to establish whom they know and how well they know them.
The alleged benefit is that the company can tap the collective knowledge of their organisation – in particularly the connections its employees have with other firms – to drum up new business and assist with tasks like recruitment.
But privacy activists say the programs amount to illegitimate ’snooping’, and lawyers have questioned whether they are legal, saying that even if staff do agree to a monitoring policy as part of their contract, the amount of ’silent observation’ might be unreasonable.”
BBC NEWS | Magazine | ‘I am not doing anything wrong’: “‘I am not doing anything wrong’
A bill outlawing the possession of ‘extreme pornography’ is about to be passed. But thousands of law-abiding citizens say they will be criminalised by the law. One of them is Helen, from the Midlands, who explains why she enjoys watching such porn.
I first noticed my sexuality when I was 14 or 15 and I used to get turned on watching horror films.
But even before that, as a child of four or five, I used to like hiding in cupboards in the dark or making cages out of these rattan chairs we had.
I first snogged someone at 14 and lost my virginity just before my 16th birthday.”
Read the rest through the BBC website.