The Home Office proposals
From Seenoevil
For the progress of the bill through the Commons and the Lords, please see: Hansard & MP website links to relevant comments
The criminalisation of possession of "extreme pornographic" images are included as part of the Criminal Justice and Immigration Act 2008, which received Royal Assent on 8 May 2008. See also the Explanatory Notes.
The relevant sections include:
- 63 Possession of extreme pornographic images
- 64 Exclusion of classified films etc.
- 65 Defences: general
- 66 Defences: participation in consensual acts
- 67 Penalties etc. for possession of extreme pornographic images
- Schedule 26 Sex Offender Register
Under the law, it will be a criminal offence to possess pornography images depicting (including "realistic" depictions, e.g., images of staged acts) any of the following:
- an act which threatens a person’s life,
- an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
- an act which involves sexual interference with a human corpse,
- a person performing an act of intercourse or oral sex with an animal (whether dead or alive),
where in each case a reasonable person looking at the image would think that any such person or animal was real.
An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. The law applies to faked images/images of staged acts as well as photos of real acts.
The defence "participation in consensual acts" applies only if the defendant can prove that he or she "directly participated" in the act, and there is no actual harm in the act that "is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself" (i.e., this means that any acts involving harm that is more than "transient or trifling" would not be covered by this defence, due to the precedent of R v. Brown [1]).
Classified works are exempt from the law, however, an image extracted from a classified work, if extracted for the purpose of sexual arousal, would not be exempt.
The examples which could fall under the law are: "depictions of hanging, suffocation, or sexual assault involving a threat with a weapon;" and "the insertion of sharp objects or the mutilation of breasts or genitals;" [2].
See also Human Rights for information on the Government's justification for this law with regards to the European Convention on Human Rights.
Contents |
Older proposals
Initial publication of the Criminal Justice and Immigration Bill
On 26 June 2007, the Government published the Criminal Justice and Immigration Bill, which includes the criminalisation of "extreme pornography". (See also the Explanatory Note.)
The relevant sections include:
- 64 Possession of extreme pornographic images
- 65 Exclusion of classified films etc.
- 66 Defence
- Further explanations, including examples of what would fall under the law
- The Government's justification for this law with regards to the European Convention on Human Rights
Consultation proposals
Following consultation between August and December 2005, in August 2006 the Home Office published its response to the consultation which stated that it intends to criminalise the possession of extreme pornography as soon as the legislative timetable will allow.
The consultation response proposed that it would be a criminal offence to possess pornographic material depicting the following (note that these definitions have now been superseded by those in the published bill, given above):
- serious violence which means acts that appear to be life threatening or are likely to result in serious disabling injury (note that the published bill no longer requires "disabling" injury).
- In a written reply to a request for clarification from Home Office minister Vernon Coaker expands on what this definition will mean: "we intend to catch material which is genuinely violent or conveys a realistic impression of fear, violence and harm."[3] This expansion is taken verbatim from the response document, and is clearly regarded as important.
The burden will be on the prosecution to establish that:
- (a) the image is pornographic (see pornography), and
- (b) shows an "actual scene or depictions which appear to be real acts".
The Home Office believes that the requirement that the material be pornography is will eliminate the following classes of material from the scope of the offence:
- Art
- News
- Documentaries by mainstream broadcaster that are of public interest
- Works classified by the British Board of Film Classification (other than those classified as R18 for sale only in licensed sex shops).
- Images that are not realistic.
Penalties
- There will be a maximum penalty of three years’ imprisonment for possession of material depicting serious violence
- A lesser maximum penalty for possession of material in the other categories
- Those sentenced to at least two years will be placed on the Sex offenders register.
- A rise in the maximum penalty for offences of publication, distribution and possession for gain committed under the 1959 and 1964 Obscene Publications Acts to five years’ imprisonment.
'As soon as the legislative timetable will allow'
The Ministy of Justice have stated that the planning date for bringing the extremne porn clauses of the Criminal Justice and Immigration Act 2008 into force is January 2009. This date is indicative only at this stage and is subject to confirmation nearer the time. [4]
Although some press articles have announced victory for the proponents of the law, there are many further stages through which the proposed legislation must pass before it can become law, and it may be altered or stopped at many of them.
This pdf is a government document detailing the 'Parliamentary Stages of a Government Bill', and similar information can be found at the 10 Downing Street website, or on wikipedia, and the BBC.
The last article, from the BBC, is specifically written for campaigners, emphasising how the law can be influenced at each stage of the process.
The Queen's Speech marked the State Opening of Parliament on November 15th 2006. The government and cabinet wrote the content of this speech. The proposed extreme pornography laws were not mentioned specifically, though they are likely to be included in an amalgamated bill:
"A bill will be brought forward for the next stage of reform of the criminal justice system, giving the police and probation services new powers to protect the public from violent offenders and anti-social behaviour." (For the full text of the speech, please click here.)
It is debatable whether the extreme pornography laws as proposed would actually help to achieve the aims of this bill, i.e. 'protect[ing] the public from violent offenders and anti-social behaviour.'
Parliament will now debate the government's proposed programme as set forth in the speech.
