Clause 65

Criminal Justice and Immigration Bill – in a Public Bill Committee at 5:30 pm on 22 November 2007.

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Exclusion of classified films etc.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

I beg to move amendment No. 192, in clause 65, page 46, line 13, after ‘is’, insert—

‘(a) an image of an act to which all participants in the production have consented,

(b) an image the production of which involves fictional or staged acts performed by consenting actors,

(c) an image produced for the purpose of responsible education, or

(d) ’.

I am back on my feet again very quickly. In a way, this is much the same debate, but my amendment sets out issues that should not be caught up under the clause. It was also suggested by Backlash, but I shall not repeat its arguments. I have received a paper from Equity, which stated:

“Equity’s remit on this issue is limited to areas where the proposed changes may impact on the work of our members in the entertainment industry.

Specifically we are concerned that the current wording of clauses 64 and 65 could have the impact of criminalising the possession of extracts of mainstream certified films featuring our members.

This is due to the combination of a subjective judgement of whether the images ‘appears to’ have been produced for sexual arousal...whether it ‘appears to’ be an extreme image...and that extracts from classified films are not excluded...As members of the Standing Committee on the Bill have already been informed, even clips from mainstream films such as Casino Royale could become illegal if possessed and distributed in isolation. Therefore, while not wishing to dilute the intention of this proposal, Equity would be keen to ensure that the work of our members was not criminalised in this way.”

I shall not repeat the other arguments that have been expressed. Equity’s point is that people performing legitimately should not be criminalised.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Does the hon. Gentleman not consider that it is a slight contradiction for an act to be obscene in one context, but not obscene in another context?

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead

Well, we have had such a debate before, and there is a host of inconsistencies not least in the dreadful Longhurst case when the man was murderously deranged. He could easily have picked up committing such acts from watching classified horror  films, which are 10 a penny all over the place. In a way, that is the point that the hon. Gentleman is making. Yet it is not covered by the Bill, so there is a problem. Moreover, such films are legitimate entertainment for the majority of people, more than 99 per cent. of whom would not copy any of the acts that they had seen performed. There are inconsistencies in the way in which issues have been dealt with under the Bill, but we have had that debate. I do not want to reiterate it. Such a point was well made by Liberty, too, in some of its representations. It said that some classified films and images could be caught.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice

The purpose of the amendment tabled by my hon. Friend the Member for Leyton and Wanstead is to exclude from the scope of the possession offence extreme pornographic images that depict participants who have all consented to the production of the image; extreme pornographic images, the production of which is fictional or staged; and extreme pornographic images that have been produced for educational purposes.

On the face of it, particularly in view of my hon. Friend’s earlier amendments, I understand what he is proposing. However, his amendment is problematic. As for fictional or staged acts under paragraph (b) of the amendment, there is considerable overlap with the amendments to clause 64 that we have already dealt with. The effect of the amendment would be to exclude from the offence an image that did not depict a real event. As I have explained, whether the events depicted are real is not, in the context of the offence that we have established under clause 64, the most important issue. That also applies to the amendments.

As for consent, to which reference is made under paragraphs (a) and (b) of the amendment, but most pertinent under paragraph (a), when the events will, by implication, be real, where an image reaches the thresholds to which I have referred in respect of its pornographic, extreme and convincing nature, we consider that it is right that it is caught by the offence, notwithstanding any consent on the part of the participants. Again, the offence is about the impact of the images, not the circumstances of their production. The impact of an image is not affected by whether the participants consented or whether the events depicted are real. The capacity for transmission of an image is not affected by whether it is real or whether there was consent. It is for those reasons that the Government do not consider that those things should be elements of the offence. The proposals concern material that we believe would already be illegal to publish and distribute in the UK under the Obscene Publications Act. That Act is not limited, as I said, to material that depicts real events or non-consensual activities.

Paragraph (c) of the amendment concerns educational material. Some groups produce material for educational purposes so that information about sexual activities that carry a risk of harm can be given in such a way as to enable those activities to be carried out safely. But the proposals cover images that meet the thresholds in terms of their pornographic extreme and convincing nature. It ought to be possible to produce educational material without breeching those thresholds. The thresholds  are high, although I appreciate that the offence that we are creating is an offence of possession. I appreciate the hon. Gentleman’s concerns, but I do not believe that we can accept the amendment.

A point was made about how an image can fall foul of the offence in one context but not, say, if it appears in the middle of a film. Because of how we are defining the measure, the purposes for which the image is produced are significant. An image that is principally produced for sexual arousal would clearly and squarely fall within the offence. The scene in “Casino Royale”, which I have had described to me—[Interruption.] I should get out more; almost everybody else has seen it. There is no way, in the context of that movie, that the scene was produced principally or solely for the purpose of sexual arousal. I say that on the basis of the definitions that we currently have. I am not saying that I do not understand why those who criticise the definitions in the Bill will stand up and say, “How can it be? How can it be caught in this context and not in another—that’s not sensible?”, but the offence is to do with context. On that basis, I hope that my hon. Friend will withdraw the amendment, and I commend clause 65 to the Committee.

Photo of Harry Cohen Harry Cohen Labour, Leyton and Wanstead 5:45, 22 November 2007

I am grateful to the Minister for that thorough reply. I have only one comment. On “Casino Royale”, if the Minister saw the whole film, she would be okay, but if she saw only the scene to which she referred, she could be accused of her own offence—or perhaps not. I do not wish to delay further the Committee, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 ordered to stand part of the Bill.