Clause
64
Possession
of extreme pornographic
images
Harry
Cohen:
I beg to move amendment No. 184, in
clause 64, page 45, line 17, leave
out ‘appears to have’ and insert
‘has’.
The
Chairman:
With this it will be convenient to discuss the
following amendments: No. 185, in clause 64,
page 45, line 20, leave out ‘appears
to have’ and insert
‘has’.
No.
186, in
clause 64, page 45, line 27, leave
out ‘it appears
that’.
No. 187,
in
clause 64, page 45, line 33, leave
out from ‘which’ to end and insert
‘results in a person’s death or a
life-threatening
injury,’.
No.
188, in
clause 64, page 45, line 34, leave
out from first ‘in’ to
end.
No. 189, in
clause 64, page 45, line 36, leave
out ‘or appears to
involve’.
No.
190, in
clause 64, page 45, line 38, leave
out ‘or appearing to
perform’.
No.
191, in
clause 64, page 45, line 40, leave
out ‘or appears to
be’.
Harry
Cohen:
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 article
in 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.”
4.45
pm
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.
Mr.
Walker:
Thank you, Mr. O’Hara, for
calling me to speak on this important part of the
Bill.
I am aware that
the clause was inserted after a campaign by Mrs. Liz
Longhurst, whose daughter was tragically and violently killed by a
deranged lunatic. I
am also aware that her Member of Parliament, the hon. Member for
Reading, West (Martin Salter) has been closely involved in the
campaign, and that 50,000 signatures were secured in support of the
clause. However, we are not in Parliament to legislate on the basis of
one tragic case, difficult as that is. On the whole that does not make
for good legislation but, as a parent, I am hugely sympathetic with the
Longhurst family in their
loss. I have a number
of questions for the Minister, and I know that the clause is difficult
to navigate. If the Minister cannot answer my first question now, he
could do so when winding up. Why is extreme pornographic violence worse
than any other extreme violence? The Bill says that extreme
pornographic violence is
“serious injury to a
person’s anus, breasts or
genitals”.
Why is that
more serious than vivid images of people having their eyes gouged out,
or their faces burned off by a blow torch in films on general release?
Those injuries are just as appalling and disgraceful as any injury to
the parts of the body which were previously mentioned.
The clause will create the
strange scenario in which it does not cover films on general release.
If one had a copy of a film on general release which contained extreme
acts of violence, one would not fall victim to breaking the law;
however, if one downloaded clips of that film on general release and
had them on one’s PC, one could fall foul of the legislation and
be eligible for a significant period of detention in prison. That is a
contradiction.
I
raised those concerns on Second Reading, particularly in relation to a
film called “Hostel 2”. The director, a guy called Eli
Roth, took great exception to my observations and said that I was
trying to ban his film. Of course, I was not. I was just trying to
demonstrate the contradictions between his film, which is on general
release and shows periods of extreme torture, being granted an 18
certificate, and someone who had stills of that film on their computer,
which were deemed to be for pornographic purposes, who could spend five
years in prison. In defence of his film, Mr. Roth says that
I had it wrong, and that it showed only 30 or 40 minutes of extreme
violence—just 30 or 40 minutes in an hour and a half.
I shall not continue a war of
words with Mr. Roth, because Tory MPs tend to come off
second best when they take on people in the media and the film world.
We are portrayed as fuddy-duddies, and that may apply even to Labour
Members. If Mr. Roth wants to make films about women being
graphically tortured, and if he wants to make films that break the
taboo of children being murdered, which his film does, that is fine by
me. I am sure that he can live with his conscience, and that he spends
his money how he wants. But I think that civilised, decent, honourable,
caring and compassionate people like us have the right to raise our
concerns without being shouted down.
There is a far too casual
approach in society to violence. We in this place should legitimately
debate violence and our approach to it, and perhaps return to the
discussion in a separate Bill entitled, “Possession of Extreme
Violent Images”. Let us be honest: in the media over the past
year, there have been several horrific cases of murder in which a
person has been
detained against their will by gangs or groups of people and brutally
tortured in ways that Mr. Roth’s films depict very
graphically. There are huge similarities between the two. They were not
sexually tortured, but they were tortured in a vile and violent
way. Therefore, as
Members, we should consider the issue in the round. I do not think that
pornographic torture is any better or worse than the extreme torture
that I have described, so I hope that we can reflect on this aspect of
the Bill, organise cross-party discussions about how we can introduce a
Bill that would set new parameters of acceptability in society, and
start to roll back the appalling levels of violence that we so often
see depicted in films and on
television.
Mr.
Heath:
This is an extremely difficult aspect of the Bill,
not simply because of the subject matter, but because of the difficulty
of getting the law right. There are conflicting pressures on
legislators and the Executive, but there is also a great deal of
difficulty in constructing law that is effective against a real
mischief, but not effective against those who are entitled to the
liberty to conduct their life as they see fit, without the interference
of others.
5 pm
I am surprised that we are
returning to this subject so soon after the Sexual Offences Act 2003,
which was intended to consolidate previous legislation in this area.
That substantial Act dealt with and modernised several areas of law,
and our colleagues who considered the Bill—indeed it was
considered by the entire House—would have been aware of these
issues and must have felt that the Bill’s measures were
sufficient.
As is
always the Liberal position on these matters, I have to ask whether
there is an argument for banning something that is currently legal,
however distasteful or inappropriate some might think it. If so, what
is that argument? I am finding it difficult to discern the argument for
the measures, which go beyond legislating against people coercing
individuals into an activity against their will. Clearly, that should
be and is an offence, particularly when children are involved. None of
us wants to see a case in which a child is coerced to do such things.
Neither do we want to see it with adults, and that is already
illegal.
If the
Government want to persuade us that the legislation is necessary, they
must establish a degree of causation between what is to be banned and
another illegal activity. The petition that has been mentioned was
constructed on the basis that there is a causal relationship between
such material and violence against women. Of course, anyone would be
against it if that level of causation could be shown, but the evidence
is extremely thin. If that causation exists, however, it must, as the
hon. Member for Broxbourne said, apply to other violent images; it
cannot be only violent images that are intended to produce sexual
arousal that are causative agents of violent acts. If the Government
were being consistent and believed that that causal link existed, they
would extend the provision beyond what they propose, but it is
difficult to establish that
causation.
It is also
difficult to establish that the measures will not have the consequence
of making illegal activities and images that are currently legal. That
might seem an
obvious point—after all, why would one make a new offence if it
merely restated current offences—but if that is the case, there
is a genuine concern among a significant number of people. I have no
idea what percentage of the population is interested in
sado-masochistic behaviour, bondage, submission and domination, but a
constituent of mine came to talk to me about this issue this summer
when I was on my village tour. He came up to me at an obscure little
village in my constituency, which I shall not name, and told me about
the company that he runs from a lock-up garage in the village, which
specialises in producing material for this kind of interest. It was
quite a surprise to me; I had no idea that that might be the case, but
he said that he had a lot of local customers, so there is obviously a
market. That brings
me back to whether we are making something illegal for no sound reason
related to the causing of other offences, particularly violent
offences, and thereby depriving somebody of the liberty to do something
that we as a group and others outside may not like but which does not
constitute any problem for the rest of the community. My worry is that
we are.
Having said
that about the principle, there are also problems with the detail of
the clause and how it will work. I have mentioned the limitation to
violence in a sexual context rather than a general one, which is
puzzling. What is the argument for providing that images should be made
illegal but narrative should not, and that one cannot look at a picture
but can read a story portraying the same thing in a much more graphic
way—literally, in this instance—than a picture could? A
story will describe in the imagination of the consumer exactly what is
happening but will not be illegal or considered an obscene
publication.
Why are
we using the term “pornographic” in the clause rather
than basing the language on existing legislation? Why are we
introducing a new definition for the courts to decide on? A vagueness
runs through the entire clause, which is difficult to construe legally.
Much of it will have to be determined by a case being put before a
court. That, too, is a problem for those who may wonder, “Is
what I am doing illegal? Are these pictures that I have in my
possession illegal? Should I destroy them as a consequence? Do they
have a sufficient level of realism for me to be concerned, or can
anybody see that they are staged?” The problem is that, even if
they are not very real, they could fall foul of the clause. Even if we
know perfectly well that no coercion was involved, and a couple engaged
in activities of their own volition and by mutual consent, which they
filmed themselves doing and watched later, they will find
themselves falling foul of it. That cannot be the intention,
even if we accept the arguments for the clause. There are so many areas
of vagueness that will need further construction in the courts that we
should be wary of accepting the clause in its present
form.
We shall come to
defences later, and I do not wish to stray from the amendments, but we
must be careful not to create anything that approximates to an absolute
offence. Intent is important, and an individual’s reasonable
belief that what he or she is looking at does not fall foul of the law
should be at the forefront of considerations.
I understand why the Minister
has included the provisions, and I understand the perfectly proper
pressure from some, considering that there are egregious internet sites
and other places that promote violence against individuals. That
worries me, whether or not it is done in a sexual context. Promoting
violence against another individual is not what freedom of speech is
intended to allow. However, the wording of the clause swings the
pendulum too far the other way and will produce unexpected effects,
putting people in a position of offending that they had never intended
to be in, when they are not causing a problem to any other member of
the community. There are big issues of the context of material and we
ought to address those, too. I hope that the Minister will be able to
deal with some of those matters today. However, the architecture of the
provision as it stands simply cannot pass the tests that I am applying
to it to make it an effective piece of legislation dealing with a real
mischief, rather than a provision based on a view that something must
be done about something that we do not like, but we are not quite sure
what it is or what should be
done.
Ms
Sally Keeble (Northampton, North) (Lab): I am glad to have
a chance to contribute. I will be
brief.
I do not
support the amendments; I support the clause as originally drafted. I
want to make a couple of comments following up the remarks of the hon.
Member for Broxbourne, because the points that he made are important.
The clause deals with extreme pornographic images—and
understandably so. However, there is a much wider concern in society
about the level of violence and the use of images to record violence,
with those pictures passed around for all kinds of purposes. One thinks
of happy-slapping pictures and pictures sent by e-mail and phone. There
is a general concern in society that that is
horrendous.
In an
extraordinary case in Northampton, a gang of girls attacked another
girl in a fast-food outlet. That was filmed and texted right round the
world very quickly and there was outrage at what had happened. That
picks up, as hon. Members have said, on an abhorrence at the level of
violence in our
society.
It is
appropriate that we talk about this matter in domestic violence week.
There is particular concern about attacks mostly on women, but also
between people in a relationship of trust, where it is perhaps least
expected. Although it is hard to legislate in this area, legislation
has to try to keep pace with public opinion and public opinion is
moving on violence and pictures of
violence.
One has only
to look at the debate on images of violence in a shop, which, if I
heard Radio 4 properly this morning, the Advertising Standards
Authority has taken action over because it found that one of the images
was unacceptable for public use in an advert. I cannot recall such a
debate having taking place previously about a picture showing a man
hitting a woman. It is interesting that people are talking about images
of violence and what is acceptable. There have been repeated attempts
to look at outlawing happy-slapping in some way. That is an indication
that public opinion is moving and, at some stage, we might have to look
at that.
Perhaps my
hon. Friend the Minister might deal with some of the issues that the
hon. Member for Broxbourne outlined.
5.15
pm
Mr.
Garnier:
I thank hon. Members for their remarks this
evening. There is evidently some difficulty, because what we are
discussing, in terms of the amendment and the clause, ought not to be
matters of personal opinion, but should be about how to alter the
criminal law to afford protection to the people who are depicted or who
may be victimised as a consequence of the making of a
film.
Part 6 is
interesting because it deals with extreme pornographic images,
prostitution, the protection of nuclear facilities and penalties for
breach of data protection, so it demonstrates the meccano-like nature
of the Bill, if ever it needed to be demonstrated. I will not argue
with any of the previous contributors about whether one should be free
or not free to look at extreme pornographic images. We have had rather
a dry discussion about whether clause 64 does the job that the
Government—I assume—think it will
do.
The first thing we
must bear in mind is that the offence is not the production or the
watching of extreme pornographic images, but their possession. That is
the offence set out in clause 64(1). Let us compare that with clause
64(3) where “pornographic” is defined. It
reads:
“An
image is ‘pornographic’ if it appears to have been
produced solely or principally for the purpose of sexual
arousal.”
We will come on
to discuss in a minute the difficulties over the use of the expression
“appears to have” or “appears to be” which
is found throughout the clause. An image could have been produced in
identical form, but for different purposes. If I were to possess an
extreme pornographic image which had been produced solely or
principally for the purposes of sexual arousal, I would apparently be
guilty, but if I produced exactly the same image, but it was not
produced solely or principally for the purpose of sexual arousal, I
would not be guilty of an offence. That is the first
problem.
The second
problem is encapsulated by the points made by the hon. Member for
Leyton and Wanstead and is the subjective nature of the offence. To
whom must it have appeared to have been produced solely or principally
for the purposes of sexual arousal? Is it for the policemen or the vice
squad who do the raid to decide that, even though they are hardened
police officers who specialise in working in this area of criminal
activity and are completely immune to it? I believe that there is
department in New Scotland Yard where there are officers who spend
eight hour shifts looking at this sort of stuff. One would have a
different test if it was to be considered in the eyes of the
man on the Clapham omnibus to have been produced solely or principally
for the purposes of sexual arousal. There seems to be a problem that
needs to be sorted out in addition to the difference between possession
and production.
A
little later in the clause one gets to the point that my hon. Friend
the Member for Broxbourne raised in relation to the still and the
moving film. Whereas one might be caught by the clause, the other
probably is not. It strikes me, as one unpicks the clause, that it is
riven with uncertainties, which will make its enforcement difficult. It
will make its understanding by members of the public difficult and it
will bring the law into disrepute to some extent.
I will not
have an argument now about whether article 10 of the European
convention on human rights is brought into play. I am sure that the
Secretary of State spent many hours considering the terms of clause 64
and article 10. I have to assume that because he has rubber stamped it
on the front of the Bill the provisions are compatible with the
convention rights. I am not so sure about that, but there we are. He
says it is and that is all we have to concern ourselves with for the
moment.
Finally, I
just want to attempt to give the hon. Member for Somerton and Frome
some comfort. Proceedings for an offence under this section may not be
instituted without the consent of the DPP. I hope that a sensible DPP,
faced with a charge under this clause as currently drafted, would say,
“No.” But we cannot guarantee
that.
Mr.
Heath:
That is the point. I agree with the hon. and
learned Gentleman, but Joe Public has no way of understanding what the
range of material for which people might be prosecuted could be and
what the consequences for them could be. They are the ones who are left
in the dark, however sensible the DPP at the time
is.
Mr.
Garnier:
I agree. I think I said that in rather fewer
words
earlier.
Mr.
Heath:
There is no need to be like
that.
Mr.
Garnier:
I don’t think that I have told an untruth,
although I am always grateful for the hon. Gentleman’s
opinion.
The hon.
Member for Leyton and Wanstead has drawn our
attention to the criticisms of the subjectivity of the offences in
clause 64. However, if he does not mind, I shall not go through each of
his amendments—I trust that the arguments relate all of
them.
Maria
Eagle:
This is an interesting, if increasingly tetchy
debate. I hope that I can deal with some of the points raised. I shall
have to say something about clause 64 as a whole, despite the fact that
we are discussing the amendments tabled by my hon. Friend the Member
for Leyton and
Wanstead.
As the hon.
and learned Member for Harborough pointed out, clause 64 creates a new
offence of possession of extreme pornographic images. That is not an
attempt to change the law or to extend or reduce the scope of the
Obscene Publications Act 1959, but to create a new offence of
possession, which is a serious step to take, as has been pointed out by
a number of hon. Members—it was the basis of the point made by
my hon. Friend the Member for Leyton and Wanstead.
I
realise that criminalising such things is a serious
matter. However, we have taken that step after a long period of public
consultation and discussion and in response to concerns about the
increasing availability of the most disturbing types of violent and
abusive pornographic material, particularly on the internet. My hon.
Friend the Member for Northampton, North and the hon. Member for
Broxbourne raised issues relating to extreme violence. However, at the
moment, we are dealing with pornographic violence and abuse. I hear
what hon. Members have said and, as my hon. Friend
the Member for Leyton and Wanstead said, this debate is ongoing and
perhaps increasing interest is being shown in it. No doubt that will
continue; however, in the context of this Bill, I cannot say much more
about it. We believe that hardly any of
the material being discussed is hosted in this country. Although the
publishers could be prosecuted under the 1959 Act, it originates abroad
and, therefore, those responsible are under another jurisdiction.
However, a gap has opened up because of the huge technological
developments over the last few years and in our ability to control such
material. My right hon. Friend the Prime Minister recently announced a
review looking at, among other things, how parents can protect their
children from exposure to potentially harmful material on the internet.
That is why we felt it necessary to take the serious step of
criminalising possession of such images.
I accept that that is
a departure from the 1959 Act, which criminalises publication, but not
possession. However, we are trying to deal with a technological change
that means that publication takes place abroad—beyond our
jurisdiction. Possession and downloading such images now equate to what
would have been publication many years ago without this
technology.
Mr.
Walker:
On the point about such material originating
overseas, what can we do, if anything, to penalise companies that host
it on their websites, or search engines that allow people to access
them?
Maria
Eagle:
There is a lot of activity going on, especially in
relation to material that is obviously illegal in this country under
the 1959 Act. However, there are always grey areas, which we cannot
solve. There is a range of arrangements with internet service providers
and website hosts to deal with material that clearly would fall foul of
domestic law, and there is a lot of co-operation in that regard. Most
internet service providers do not wish to be responsible for hosting
illegal material, but wish to be responsible purveyors of services to
the general public and to co-operate fully. They are, of course,
concerned about our effectively targeting them rather than the
producers or
publishers.
A balance
should be struck, but a lot of work goes on to try to ensure that
illegal material is not available. Much of that material comes in from
abroad and once it is taken down, it can be put up again fairly
quickly, partly because of the nature of the internet, which is almost
impossible to police with the degree of strictness that would be
necessary completely to prevent such material appearing and then
reappearing somewhere else if it is taken down. I am sure that many
hon. Members have had experience of organisations such as Redwatch. My
hon. Friend the Under-Secretary of State for the Home Department will
know well how difficult it is to deal with unacceptable, illegal
material on the internet that incites violence, as he has been tackling
the issue.
The
provision is not aimed at extending the Obscene Publications Act 1959
in any way or at extending our basic law beyond creating the possession
offence, but it is necessary to create that as an offence because the
technological changes are such that the 1959 Act cannot cope with the
current reality. We do not seek to change the law in respect of what is
obscene or pornographic, but we seek to enforce the current law. It is
important that hon. Members remember
that. Introducing a
measure that has implications for personal freedoms will always raise
arguments about where the line should be drawn. We have set a high
threshold for the offence, focusing on material that we believe is
already illegal to publish. That is the point that I wish to make. It
does not mean that all other material that does not fall into those
categories is acceptable; people will have their own views about that,
but we seek to enforce current law in the context of new
technology.
In order
for the offence to be made out, the material will have to appear to
have been produced solely or principally for the purpose of sexual
arousal. Where an image forms part of a series of images, the question
whether it is pornographic will be determined by reference to the image
itself and the context in which it appears, so an image that is part of
a narrative, such as a mainstream or documentary film, may not be
pornographic if viewed as part of a series of images which do not
appear to be produced for the purpose of sexual
arousal.
Mr.
Garnier:
The hon. Lady is very kindly reading out the text
of the Bill, but we want to know why it is in the shape that it is, and
whether she can justify the use of the subjective clauses—I use
the word in the grammatical rather than the statute sense—such
as “it appears to have been”. We really need to know the
answer to that. With respect, we can see what the Bill says, we just
need to know why it says
it.
Maria
Eagle:
I am glad that the hon. and learned Gentleman is in
such a very good mood as the evening wears on. It is not even half-past
5 yet. I am trying, having heard from a number of hon. Members on the
Committee, to deal with the point that has been raised, but in the
context of setting out the offence and explaining why we have come to
the view that we have. I have now probably forgotten what he was asking
me.
Mr.
Garnier:
I will repeat it while the hon. Lady looks
through her notes. She was very kindly reading out subsections (3), (4)
and (5); that was very good of her, but could she move forward in her
notes to the justification by the Government for the use of the
subjective term, “appears to have been” throughout
the
clause.
The
Chairman:
Before the Minister replies, I have been
following the debate quite closely and it is clearly one of those where
it is difficult for the clause stand part debate not to be taken with
the amendment. Therefore, I propose now, before we complete this
debate, that clause stand part be dealt with
formally.
5.30
pm
Maria
Eagle:
I am grateful for that ruling, Mr.
O’Hara. I apologise if I have strayed. It is difficult to deal
with the amendments without doing so.
To move to the
substance of the amendments, whether the scenes
depicted in such images are real or not is an important matter. The
amendments would limit the scope of the offence to images that could be
proven to be real depictions of events that actually took place. Given
that most of such material is hosted and produced abroad, it would be
extremely difficult to prove that from this country. Indeed, the
amendments would probably make the offence so difficult to prove that
it would not be worth having it on the statute
book.
We are trying to deal with the
harm caused by the possession of extreme and abusive pornographic
images. Perhaps the point made by the hon. Member for Somerton and
Frome about causation and whether there is any harm is also important,
although I am not saying that everybody would accept it. There is
certainly controversy about causation—whether there is any and
whether it can be proven. The Government held a rapid evidence
assessment across the piece addressing the issue on the basis of the
research that has been done. It supported
“the existence of some harmful
effects from extreme pornography on some who access
it”,
including
“increased
risk of developing pro-rape attitudes, beliefs and behaviours and
committing sexual offences...Although this was also true of some
pornography which did not meet the extreme pornography
threshold”.
Obviously,
there are grey areas. It is always difficult, as I think everybody
accepts, to be precise about where lines are drawn, but the
REA
“showed that the
effects of extreme pornography were more serious...Men who are
predisposed to aggression, or have a history of sexual and other
aggression, were more susceptible to the influence of extreme
pornographic
material.”
That is the
harm that the clause seeks to tackle. There is controversy about the
extent to which causation exists. It is difficult to draw lines. The
offence is one of possession, which we have not had before, but it
addresses some of the
concerns.
Mr.
Walker:
There is a debate about causation. I know that I
am straying from the point slightly, but would the Government consider
having a proper look at what link exists between violent
images—both those that are pornographic and those that are
purely violent—and violence and
offending?
The
Chairman:
Order. I do not think that the Minister is
obliged to reply to
that.
Maria
Eagle:
Thank you, Mr. O’Hara. I will
write to the hon. Gentleman about what research is going
on.
The offence
focuses on the images and the effect that they may have on those who
view them. That is where the controversy about evidence and causation
come in, but we believe, based on what we know, that there is some link
and some evidence of harm in some people. Concern arises whether the
incident depicted in such an image is a real crime or behaviour, or is
convincingly staged, and whether it is consensual. The Obscene
Publications Act, which the offence is intended to underpin—it
will bring up to date our capacity to enforce the existing law in the
face of changing technology—is not limited in scope to material
depicting real events or non-consensual activity.
I am not saying that any of this
is easy. There is no doubt that trying to legislate on such matters is
extremely difficult. I shall not argue that we have necessarily got it
right. I am perfectly happy to reflect on any concerns that Members of
the Committee have raised and to see whether we can improve the wording
of the clause. Nevertheless, after a lot of effort, work and
consultation, we believe that these matters are of sufficient concern
to warrant legislation. On that basis, and on the basis of the
explanations that I have given in respect of the amendments that my
hon. Friend the Member for Leyton and Wanstead tabled—he may not
agree with those explanations, but I hope that he understands the
points that I made—I hope that he will withdraw his amendments
and I also hope that the Committee will support clause 64 standing
part.
Harry
Cohen:
I am grateful to the Minister; in fact, I am
grateful to all the hon. Members who have taken part in this debate,
which has been a good one. I acknowledge that the Minister has an
extremely difficult brief, one that she cannot satisfy, and that it is
difficult to frame legislation in this area that is right and proper
and fair, and seen by everyone as fair. There is such a wide variety of
views that it is unlikely that everyone will see any such legislation
as being
fair.
I
am also grateful to the Minister for her acknowledgment that, with the
new possession offence, the clause goes wider than the Obscene
Publications Act 1959, which was a point made by Deborah Hyde of
Backlash, whom I quoted.
I am still very
concerned about the threshold that the Minister referred to. How is a
person to know what that threshold is? I do not think that there is
clarity about the threshold. It will affect adults, even adults whose
behaviour is consensual. I understand her point about the words,
“appears to”. As these images are hosted abroad, removing
those words could almost render the clause ineffective. The way to deal
with that problem is to put pressure on the internet service providers.
Greater emphasis should have been placed on doing that than on creating
legislation that could be much more of a catch-all. However, I welcome
the Minister’s commitment to look at the clause again in the
light of our
debate.
Mr.
Garnier:
I would like to ask the hon. Gentleman to extract
from the Government a commitment to do something rather more than say,
“We will look at it again,” because too often the
Government say that they will look at a matter again in order to avoid
a further debate and we never see it again.
It is really quite important
that we get the clause right, because, as it is currently drafted, will
cause more problems than it will solve, for many of the reasons that
the hon. Gentleman set out in his earlier speech. I am not at all sure,
and I hope that he is not at all sure either, that the
Minister’s response to his arguments about the subjectivity
issue has been adequate. When we finish this short debate, I urge him
to urge the Minister to do something really quite radical, either on
Report or in the other place, so that the Bill is produced in a
sensible form. Otherwise, as I just said, the Bill will cause more
trouble than it will solve.
Harry
Cohen:
I agree. The point of my tabling the amendment is
that I think that this clause needs to be changed and I hope that it
will be, either on Report or in another place, as the hon. and learned
Gentleman suggests.
Having said that, I know that
the Minister is a woman of integrity; when she says that she is going
to look at the matter again I know that she will do so in the light of
our debate. I hope that some changes that reflect that debate—I
know that that is difficult, because different points were made in the
debate—and that will improve the Bill will result.
I beg to ask leave to withdraw
the
amendment.
Amendment,
by leave,
withdrawn.
Clause
64 ordered to stand part of the
Bill.
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