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Part of Oral Answers to Questions — Home Department – in the House of Commons at 2:30 pm on 9 July 2007.

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Photo of Jacqui Smith Jacqui Smith Home Secretary 2:30, 9 July 2007

It is clearly unacceptable for such criminal acts to have been committed in the first place and then uploaded on to the sorts of sites that my hon. Friend mentioned. We need to look at the matter in two stages. First, criminal law already covers the first offence of the attack—whether it is assault, wounding, actual or grievous bodily harm or antisocial behaviour, which my hon. Friend mentioned.

Secondly, someone who records a violent offence could be criminally liable for uploading it either because they have committed the offence being filmed or because they were involved in planning it and would therefore be open to charges of conspiracy, incitement, aiding and abetting or being involved in a joint enterprise to commit the offence.

Uploading the video as well as taking part in the offence could be an aggravating factor when sentencing is considered. It is important to keep the matter under review and my hon. Friend has put her finger on something that concerns many people. However, the law is in place and we need to continue working with the police and internet service providers to ensure that we limit that unacceptable activity.


Steven Dorif
Posted on 11 Jul 2007 2:29 pm (Report this annotation)

I'm glad to see someone actually looking at this legislation with a clear head and applying rational thought to it, but it has to be pointed out that the wording of the proposed law with its empahsis on words and phrases such as "appears" and "appears likely to", means that images of many non-criminal acts or 'staged secnes' will be 'criminalised' by this law.

Bestiality and necrophilia aside;

No one is arguing that real acts of serious violence are acceptable, clearly they are not, but it is also clear they are a vanishingly small percentage of the images that will be caught under this law. In fact the Govt. has yet to name a single site that it can show carries such images. That is not to say such sites don't exist, but it is an indicator of how rare they really are.

This law is a sledgehammer trying to swat a fly in a china shop (if you will forgive the mixed metaphors)

The vast majority of 'Staged scenes' as the Govt. calls them (or acting as anyone else calls them) involve trifling injuries, but as in many forms of fictionalised entertainment, exageration is used to give the impression that something more serious is happening. Just like a film or T.V. show does.

Those not familiar with BDSM are often shocked at what they believe they are seeing, but it is simply play-acting and any injuries are transatory and trifling. Despite the Govt.s assurances that this law will not target BDSM, the wording used clearly does so.

When images of such 'play' are shown to a jury unfamiliar with these games, they may well be shocked and convict, not on based on what is really happening, but what they assume 'appears' to be happening.

This could be avoided, if a defence on the grounds of harm done or not done could be argued. Giving the jury the power to decide what is and is not acceptable, will avoid convicting those who can show the images are harmless role-play, focus on punishing owners of images of real crimes and will also more closely reflect societies changing attitudes, than a set of definitions fixed in law for decades to come.

The Govt. proposes to prosecute staged scenes, because, it says (in its consultation paper) "proving actual harm took place would be difficult", so they are going to convict on the assumption harm may have taken place? What happened to the presumption of innocence?

They changed tack in their explanatory notes and propose to ban the owning of images of 'staged scenes' "to protect people from taking part in 'degrading activities", this does not make sense. The Govt. wishes to protect people from taking part in what it sees as 'degrading activities' by banning the owning of images of those activites, but the activities themselves (adults acting out fictional scenes) remain legal in this country? Plain daft.

Please note with the current wording, nudity in the images is not a neccessary pre-requesite for conviction.

Besides that, it is perfectly possible that it can be proven, in very many cases, by the defendent, that no harm took place in the scenes depicted. U.S. laws forced many sites to include in their materials evidence that no one was seriously harmed. So, with the present wording of this law, we are in the even worse situation that a jury will be forced to convict, even if the defendent can prove no harm was done. Is this just?

If all of the above does not persuade then I will finish on a simple basic statement, if the Govt. is going to infringe basic human rights (articles 8 and 10 of the ECHR), then it must provide strong evidence of a need to do so.

No evidence of harm of any kind has been presented, nor any that shows this law would fulfil any of its declared aims.

Sending a clear message that real violence is unacceptable would be an admirable aim, but this law is not that focused and simply sends the message, that if your sexuality is expressed in ways outside the 'norm' you will be punished.

We do know that it will cause suffering, potentially for very many people (and their families) prosecuted for a 'sex offence'.