Criminal Justice and Immigration Bill

Part of the debate – in the House of Lords at 5:00 pm on 3rd March 2008.

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Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Spokesperson in the Lords, Scottish Affairs, Spokesperson in the Lords, Ministry of Justice 5:00 pm, 3rd March 2008

I understand fully why the Government should be exercised about the matters addressed in this part of the Bill, but I wholly agree with what the right reverend Prelate said about the anxiety that the Government have not come up with the right answers. The problems of definition in this area are immensely difficult to resolve. What I find missing from this part of the Bill is the consideration, which ultimately made acceptable the Obscene Publications Act, that the judgment of expert witnesses about whether the works being considered were of literary merit would be capable of being led in a case about something that might otherwise be regarded by some as open-and-shut pornography.

The definition of an image in Clause 113(3) that the Government's amendment seeks to amend is not capable of improvement by the amendment the Government have advanced. It suggests that it would be appropriate to cut out any image that induced sexual arousal. Hardly any great classical play does not have such a moment. If one looks at renaissance painting or sculpture, there is hardly an artist of merit who has not employed an image for that purpose. The definition is far too sweeping, and if one is considering the dangers, the threat or the unattractiveness of filmed material reproduced by electronic means, is one really to take the view that because an image in a film might have that effect, indeed, might be intended to have that effect, the whole work should be regarded as being of such a nature that the possessor of it should be criminally responsible?

I also think that the Government have not succeeded in improving the language in respect to what is extreme. The issue of whether something is grossly offensive is treated as though it were objectively definable. The fact that something is grossly offensive to one person does not necessarily reflect the general view. It might be thought that the film that recently won an Oscar in Los Angeles, "No Country for Old Men", was grossly offensive and, indeed, extreme, not only because of the continuing threats in it but because there were acts that threatened a person's life. I cannot imagine one of Shakespeare's tragedies that does not involve an act threatening a person's life that, in itself, might be regarded as grossly offensive if taken out as an image. Lady Macbeth's famous speech when she is seeking to stir herself up seems to me to have been deliberately, explicitly sexual and designed to evoke a response from the audience.

Secondly, in the definition of an extreme image here we have, under subsection 6(b), a definition that would certainly have led to "Last Tango in Paris" being regarded as a film that it was a criminal offence to possess. The fact that Marlon Brando was engaged in the activity would apparently not be any defence, were the provision to be enacted.

Images fall under the definition in subsection 6(d) where a person performs an act of intercourse with an animal. How many images of "Leda and the Swan" would fall foul of that—images that are regarded as great expressions of human artistic endeavour? A remarkable example springs to my mind in the Kunsthistorisches Museum in Vienna. I doubt whether anyone would deny for a minute that it was intended to have a sexual purpose and a sexual response—or that it was a remarkably realistic image.

The provision is just badly thought out. The whole thing needs to be taken back and worked on again. We will be legislating in haste if we allow this to pass; and we could regret it very much at leisure.