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Archive for the ‘Parliament’ Category

Its Like The State Entering Our Bedrooms And Minds (from Sunday Herald) The passing of a new law criminalising the possession of extreme pornography is about to take the ‘thought police’ out of the realm of fiction. By Brian McNair

THE SHAME once associated with looking at dirty pictures has fallen away since porn moved into the mainstream, around the time of Madonna’s Sex book. With the rise of the internet there can be few adults in the UK who have not seen some porn, somewhere.

But all of these people could soon, without knowing it, be breaking the law. This week, with little fanfare or media debate, the Labour government finally puts on to the statute book its Criminal Justice and Immigration bill, which creates a new offence of possessing ‘extreme pornography’. The bill is based on a joint Home Office/Scottish Executive consultation on the possession of extreme pornographic material undertaken in 2005/06, and though this bill is for England and Wales, the law in Scotland is likely to follow suit.
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I have been trying to highlight the complications with regards to the possession of extreme pornography provisions of the Criminal Justice and Immigration Bill (dubbed as the Dangerous Pictures Act) during the last few weeks.

This is another short note to highlight the fact that further complications will arise in terms of sentencing of the offenders with regards to the possession provisions of the Criminal Justice and Immigration Bill. When considering the imposition of penalties a comparison can be made with possession prosecutions involving child pornography. In R v Oliver and others, [2002] EWCA Crim 2766, the Court of Appeal established that possession, including downloading, of artificially created pseudo-photographs and the making of pseudo-photographs, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of “real children”. Although the Court of Appeal has noted that there may be exceptional cases in which the possession of a pseudo-photograph could be as serious as the possession of a photograph of a real child. This could include

“for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect.”

One may assume that the same considerations will be applied in relation to offenders possessing extreme pornographic images even though the Criminal Justice and Immigration Bill provisions do not draw this distinction. There has been no discussion of potential problems that could arise with regards to sentencing at the Parliament. Those convicted of possessing “appears to be real” imagery or images produced as a result of “consensual sexual activity” may therefore receive non-custodial sentences. The Court of Appeal in Oliver recommended that the appropriate penalty in the scenario of an offender who was “merely in possession of material solely for his own use, including cases where material was downloaded from the Internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children or exploitation of children”, or there was no more than a small quantity of material at Level 1 on the Oliver Image Scale (images depicting erotic posing with no sexual activity)” is a fine, and far below the custody threshold for a possession offence under section 160 of the Criminal Justice Act 1988.

The Court of Appeal established that in cases of possession, the custody threshold would be passed when defendants possess real images, for example, large amount of material at Level 2 on the Oliver Image Scale (sexual activity between children, or solo masturbation by a child), or a small amount at Level 3 on the Oliver Image Scale or above (non-penetrative sexual activity between adults and children), and the length of the custodial sentence would depend upon the quantity and the nature of the images.

A custodial sentence of between six and twelve months is recommended usually for cases involving possession of a small number of images at Levels 4 on the Oliver Image Scale (penetrative sexual activity between children and adults) or 5 on the Oliver Image Scale (sadism or bestiality). A custodial sentence between twelve months and three years is appropriate for possessing a large quantity of material at Levels 4 or 5 on the Oliver Image Scale.

Similar detailed sentencing guidelines as set out by the Court of Appeal in Oliver will be necessary in relation to the possession of extreme pornography provisions assuming that the Criminal Justice and Immigration Bill will be enacted.

See further on the same topic: Extreme Porn Provisions: Unanswered Questions and Extreme Pornography Offence includes disproportionate penalties

Police go slow with encryption key terror powers: “

Is the threat enough?

New powers to force terror suspects to hand over encryption keys have been used in only eight criminal investigations, prompting fears that police could be bypassing courts by spooking suspects with the mere threat of extra jail time.…

“

I already reported on this news item but here is an article with some commentary.

(Via The Register – Public Sector.)

Lords linger over extreme porn definition: “

What’s the meaning of ‘obscene’?

The camel that is the UK Government’s answer to what it terms ‘extreme porn’ lumbers onward. Although, by the time it escaped the Lords last week it really was beginning to look like a particularly moth-eaten dromedary.…

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What started in the Commons as a relatively straightforward piece of legislation from the government has now twice survived opposition amendments – only to be mauled by its own side.

The proposal, contained in the Criminal Justice Bill, is to make it a criminal offence to possess certain images that are deemed to be extreme porn. In the course of its passage through the Lords, Baroness Miller, Home Affairs spokesperson for the Lib Dems, tried on two occasions to amend it.

Read the rest through the Register, good article summarizing last week’s discussions at the House of Lords.

(Via The Register – Public Sector.)

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 [2006] 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.

Whitehall kick starts digital strategy: “

Minister juggles responsibility for e-inclusion and Wales

A new Cabinet committee on IT and information security is aiming to publish a digital strategy for government this summer.…

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(Via The Register – Public Sector.)

HL Third reading version is available through CyberLaw.org.uk

You can see here the latest version of the Possession of extreme pornographic images provisions of the Criminal Justice and Immigration Bill following the Third Reading debate that took place at the House of Lords on 30.04.2008.
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Lord Hunt’s proposed participation in consensual acts defence was agreed at the House of Lords on 30.04.2008 during the Third Reading debate for the Criminal Justice and Immigration Bill.

Lord Hunt of Kings Heath moved Amendment No. 14:

14: After Clause 64, insert the following new Clause—

“Defence: participation in consensual acts

(1) This section applies where—

(a) a person (“D”) is charged with an offence under section 62, and

(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.

(2) It is a defence for D to prove—

(a) that D directly participated in the act or any of the acts portrayed, and

(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and

(c) if the image portrays an act within section 62(7)(c), that what is portrayed as a human corpse was not in fact a corpse.

(3) For the purposes of this section harm inflicted on a person is “non-consensual” harm if—

(a) the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or

(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.”

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30.04.2008
Criminal Justice and Immigration Bill
Read a third time.

Clause 62 [Possession of extreme pornographic images]:

Baroness Miller of Chilthorne Domer moved Amendment No. 13:

13: Clause 62, page 49, line 31, leave out paragraph (b) and insert—

“(b) is obscene as defined by section 1 of the Obscene Publications Act 1959 (c. 66) (test of obscenity).”

[This amendment was defeated after a lengthy discussion and not agreed to]

The noble Baroness said: My Lords, there are many things in these clauses about extreme pornography with which we on these Benches remain deeply unhappy. On Report, the Minister did not explain why he could not move at least a little nearer the Obscene Publications Act 1959. Linking these clauses to that Act would have made the measure more objective, and less subjective, and would have had the other strength of targeting the producers of such material rather than the end user. It would target those who are making vast amounts of money out it.

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