Clause 64
Criminal Justice and Immigration Bill
4:35 pm
Harry Cohen (Leyton and Wanstead, Labour)
The amendment relates to a series of clauses that increase the criminalisation of extreme pornography. I believe that the general test in matters sexual should be consent. That does not apply in every case; where harm is done, an argument can be made that that overrides consent. It should be the general rule, however.
I have no objection to the clause in so far as it concerns acts that have actually taken place, such as if extreme violence has in fact caused suffering, pain or death. My difficulty is with the words “appears to”, which appear throughout the clause, and which create too wide a gap. They would criminalise people that should not be criminalised, and would create injustice in a number of ways.
Let us be clear that the acts that are the subject of the clause are unpleasant—or appear to be. I am sure that Committee members would not like them and that neither would the overwhelming majority of members of the public. However, there is a distinction between practices that are unpleasant to a majority of people and those that are or should be made illegal. That is why child pornography is illegal, and properly so, as well as because consent is impossible in relation to it.
The clauses in this part of the Bill, however, concern practices that in some cases are actually quite well established between adults—albeit they might be practised in secret or in private. In preparing this speech, I had a choice about whether to go into detail on some of the acts themselves, which the Committee members might have liked on the basis that it would allow them to analyse things. I think that the Committee will be delighted to know that I decided not to do that. The other option was to cite various quotations, and that is what I shall do.
The first quote is from our esteemed friend the former Prime Minister. On 5 September 2006, he said that:
“there are areas in which the State, or the community, no longer has a role or, if it does have one, it is a role that is completely different. It is not for the State to tell people that they cannot choose a different lifestyle, for example in issues to do with sexuality.”
I think that that is a very good quotation from my friend the former Prime Minister, and we should take it on board.
Even more relevant is a quotation from Mary Warnock, who has a lot of prestige as a great moral thinker in this country, and a great record. In a recent articlein The Observer, she wrote:
“Men and boys have enjoyed pornographic images for years, heterosexual and homosexual, but that they feed their fantasies does not imply they will turn them into reality. They may or may not, depending on, for example, their wider social attitude towards women (or other men), their grasp of reality, the strength of their moral convictions and their depth of civilisation and dignity...Modern technology is capable of creating a convincing account of something that never happened. Enjoying an obscene story may be deplorable and show a sinister imagination, even one that is deranged, but it ought not to constitute a legal offence...The law must reflect this moral repugnance. But it must also apply fairly, drawing distinctions between those who have committed crimes and those who have been merely attracted towards them. A man must show guilty intent before he can be convicted and there is a difference between intention and fantasy.”
Her last point was:
“We should not use the force of law against a man’s thoughts, but only against his actions.”
That is a very good backdrop for our discussions. I tabled the amendments, which delete these “appears to” aspects, at the behest of the organisation Backlash. Deborah Hyde of Backlash wrote to me in connection with the matter. She says,
“In summary, the issues that arise from the proposal are as follows. The proposal has the potential effect of criminalising a much larger number of people than intended. Hundreds of thousands, if not millions, currently engage in non-abusive consenting sexual activity in the UK. It appears likely to particularly affect the lesbian, gay and bisexual community.”
Deborah Hyde goes on to say:
“The proposal will hamper efforts by responsible organisations to educate people about safe and consensual BDSM—bondage, discipline, domination and submission and sadomasochism—practices. This could result in real harm. That is people being injured or dying through accidents. Some will doubtless find such material abhorrent or offensive. However, sending people to prison on grounds of taste is not consistent with the values of a free and fair society. Including people who look at or engage in non-abusive consenting activities on the sexual offenders’ registers will dilute its effectiveness.”
She adds:
“The definition of extreme pornography is vague and, therefore, can only be determined once brought to trial, so people will not know if they are breaking the law at the point at which they view material. This makes for unclear law and, therefore, bad law. The evidence to date does not support the conclusion that such material encourages violent behaviour, as the Government have noted. In fact, there is evidence that access to pornography leads to falls in levels of violent behaviour.”
That is obviously very controversial. She continues:
“The breadth of the proposal will make illegal the possession of a wide range of currently legally published material, material that is not clearly illegal under the Obscene Publications Act, criminalising large numbers of people who have bought such material legally. The Government admit that the proposal breaches articles 8 and 10 of the European Convention on Human Rights. Their justifications are unlikely to meet the convention’s requirement for such interference.”
Deborah Hyde goes on:
“Does this material encourage violent or abusive behaviour? No. The Government admitted in their consultation paper that the evidence does not support this claim.”
She then adds:
“It is also worth noting that producers seem, in general, to employ actors on a regular basis who reappear unharmed despite the serious injuries that they have appeared to suffer previously, again demonstrating that no real harm has taken place. There is a critical difference here from the production of paedophile material, which cannot by definition involve consent and is therefore always abusive. Isn’t the material already illegal to publish under the Obscene Publications Act?”
That is a point the Minister made in our pre-hearing. Deborah Hyde said:
“No. This is very misleading. The OPA’s conviction threshold is far more demanding. The prosecution must show that material would deprave and corrupt someone who saw it, whereas proposed legislation only requires proof that the material depicts certain actions and is intended to arouse. The lower threshold means the proposal would likely catch material that would not be found illegal under the OPA.”
Deborah Hyde then asks what is the definition of extreme pornography and notes:
“It is unclear or subjective or both.”
Deborah Hyde asks whether the Bill will affect only a small number, and states:
“An estimated 10 per cent. of the adult population have this orientation, up to 4 million people. Various surveys have found that a much higher percentage of people have at some time engaged in some form of BDSM activity.”
I do not know whether that is true, but that is one category of people who will be affected.
Goth community material features depictions of death, vampirism and so on that could easily be counted as pornographic under the proposed definitions. People who own low-budget thrillers and horror films could be included.
Deborah Hyde states:
“The legislation will particularly undermine the BDSM community which allows individuals with similar interests to get together and offers advice and education on consent and safe practice. Proper supervision and education is crucial to preventing tragic accidents such as that which befell Stephen Milligan, MP. Does it matter if more people are caught by this proposal? Yes, it is a serious concern because it would swamp the sexual offenders register and result in more convictions and more police time used.”
Deborah Hyde states:
“On the Government’s own consultation, the Government cited 220 individuals against, 90 in favour; 18 organisations against, 53 in favour, of which 21 were police forces.”
So the majority actually were against.
Deborah Hyde states:
“Much has been made of the 50,000 who signed the petition organised by Martin Salter and the Jane Longhurst Trust.”
But the scope of that petition was much narrower than the current proposals. She says that
“signatories were invited to oppose ‘extreme internet sites promoting violence against women in the name of sexual gratification’. Anyone would object to material ‘promoting’ violence against women (as would this document).”
But comments in much of the press as well as responses to the proposal on forums such as the BBC discussion boards suggest that most people do not support the much broader prescriptions in the proposed legislation. She concludes that sending people to prison on grounds of taste is not consistent with the values of a free and fair society.
I quoted Liberty extensively earlier. It states:
“The regulation of pornographic images is an extremely emotive issue for many people. Views range from those who believe possession of pornography involving non consensual coercion should not be an offence to those who consider that all pornography should be forbidden. Liberty subscribes to neither of these”.
That is the bind that the Minister finds herself in as well. There are all sorts of views right across the range.
Liberty goes on to state:
“We agree that legitimate and proportionate legal restrictions on pornography, including criminal offences of possession, can be justified in a democratic society... certain forms of pornography should be a criminal offence”,
and, again, child pornography is obviously included.
Liberty states:
“The fact that many people find pornography morally offensive, damaging or worthless is not a good reason in itself to outlaw possession. Extreme caution should be exercised when new criminal laws are imposed with the intention of imposing a subjective opinion of what is morally acceptable.”
Again, it signals the point about what appears to be real creating problems.
Liberty states:
“some pornography involves willing participants suffering ‘real’ injury through BDSM acts. While there is a requirement that the injury be ‘serious’, this is not defined. If ‘serious’ is equated with the level of injury covered by the offence of Grievous Bodily Harm...it would cover non permanent cuts and other relatively minor injuries. The fact that the offence would also cover images that ‘appear to be real’ makes it even more problematic...the offence would appear to catch footage which is no more ‘real’ than the depiction of a violent sexual assault or murder in a classified film.”
The next person I want to quote is Yaman Akdeniz, who is a senior lecturer of law at the school of law at the University Leeds. He complains about the consultation, and that the Government inserted the clause just four days after that consultation. He supports my amendment, and says:
“Just to give a short example, it is not acceptable that one person could be imprisoned for up to two years for having in possession a sexually explicit image of someone looking dead, realistically pictured, but not really dead. In such a scenario involving pseudo-necrophilia there is no harm in the production or consumption of such content”.
He says that the Government do not have such a compelling interest in criminalising such content as they do in the case of child pornography. He states that the Government’s
“decision to criminalise the possession of extreme violent pornography is based solely on moral and political grounds rather than on public safety. Private morality has not been seen as a proper field for Government meddling since the time of the Woolfenden report and that position was reiterated by the Williams report in 1979. Aside from the reasons given in those reports, the Government should respect the growing diversity in society and the fact that there are wide differences in moral outlook and practices. So long as they do not cause proven harm to others, the Government should not interfere.”
I could quote a legal opinion from a respected QC, Rabinder Singh, a member of the Matrix chambers. I will not quote it because of the time, but it covers many of the same points, and more, and it shows that there will be a legal challenge if the Government push ahead with the Bill.
I shall give one last quote, which is on the same piece of paper as the quote from Tony Blair, but this one is anonymous. I do not usually give anonymous quotes, but it summarises the matter quite well. It comes from The Guardian’s website, and states:
“Any porn that involves harming or coercing anyone in its creation should be illegal - but it already is.
This is about criminalising images in which no-one has been coerced or harmed in their creation. We have the ludicrous situation where creating the image could be entirely legal but viewing it gets you treated like a paedophile.
I suspect a lot of people are happy to see it banned not because it does any harm (there's no evidence that it does) but because they think it's just a bit horrible. Pretty much the same argument used to keep homosexuality illegal for most of the 20th century, in fact.”
I think I have made the case.