From 26th January 2009 it has been illegal for anyone in England and Wales to possess an "extreme" image, even if the activity itself is legal.
This site monitors implementation of the law, provides sources of advice for many otherwise law abiding citizens inadvertently caught up in this, and explains how the law came about.
This video
was made at the annual conference of the Libertarian Alliance, Liberty 2009, at The National Liberal Club in London on 25 October 2009. Myles Jackman, legal affairs adviser to Backlash, discusses the dangers of the current prohibition on "extreme pornography" and some possible future attempts at censorship on the Government's legislative agenda.
Crying out loud
The Crown dropped their first test case for using the Obscene Publications Act against writing published overseas on the internet, in alt.sex, by a person domiciled in the UK.
Arrested in February 2008 after being reported by official vigilantes the Internet Watch Foundation and charged that October, Darryn Walker finally faced trial in June 2009 in what Index on Censorship said "would have been a landmark test case" only to find the prosecution offered no evidence and the Judge return a not guilty verdict.
A statement from the Crown Prosecution Service said: "..the prosecution had received a number of expert reports, one of which cast doubt over the accessibility of the article to people searching the Internet and that it could only be found by those determined to find it. The prosecution was unable to provide sufficient evidence to contradict this and so took the decision there was no longer a realistic prospect of conviction" thus sparing a jury having to decide if his words would "deprave and corrupt" British readers.
"Law made on the back of a single issue campaign is often 'bad law' and it is my belief that s.63 misses nearly all it targets." says Andrew Murray, Reader in Law at the London School of Economics and Political Science, in an
article in the Modern Law Review. He has written a commentary for backlash. Click here to read it.
CPS advice
The Crown Prosecution Service have to agree to any prosecution.
The advice to CPS staff amplifies some definitions. They also took the trouble to read through the relatively small amount of debate in Parliament.
"Although the Act does not state what a serious injury is, prosecutors must be
aware that by the very nature of its name serious injury will not include
trivial or transient injuries which include bruises and grazes."
"Taking an example which was raised during parliamentary
debates on the Criminal Justice and Immigration Bill, the anal sex scene in the
movie Last Tango in Paris, even if it were to be considered pornographic and of
an obscene nature, would not be caught by the new offence, because it is not
explicit and does not portray an act resulting or likely to result in serious
injury to an persons anus."
"The painting Leda and the Swan, another example raised
during debates in Parliament, would also not be caught by the new offence,
because it would not meet the explicit and realistic test."
"The police may ask you to consent on behalf of the DPP over the telephone. Prosecutors should not do this."
ACPO statement
ACPO (the Association of Chief Police Officers) lead on Extreme Pornographic Images, Jim Gamble, Chief Executive for CEOP (the Child Exploitation and Online Protection Centre) issued a statement (in full here) that included
"the new criminal offence of possession .. reflects the potential damaging impact that the possession of this material could have." which does at least acknowledge the lack of clear evidence linking images and damage.
ACPO went on " This is not intended to infringe upon the personal lives of citizens or dictate their lawful sexual activities. This is about countering material that is sexually violent and illegal in nature and not about affecting one's civil rights and liberties" but of course it is legal to simulate but now illegal to make images of those simulations for others to view.
ACPO's statement to backlash is not quite as categoric as that quoted in a somewhat
tendentious article in the Guardian, to wit ACPO said "The police will not be actively targeting members of the public but will be conducting investigations into the unlawful possession of this material where found."
It is likely that the enthusiasm with which "criminals" are pursued will vary from force to force. Certainly in their responses to the consultation in 2005 some forces were very gung ho.
The Reading Evening Post, the local paper of Mrs Longhurst and Martin Salter MP, for the first time provided
an even handed account of the issue on 15 Jan 2009, quoting CAAN's Clair Lewis, and Alex Dymock from backlash. Mrs Longhurst concludes " I don't know how much they are willing to spend enforcing this new law".
Baroness Howe and others in both the House of Commons and the House of Lords are calling for a Select Committee on new media and violence.
During the passage of the law it emerged that only one parliamentarian had taken up the Minister's invitation to visit Charing Cross police station to view examples.
Lord Faulkner (a Labour appointment) said "I was left with the question whether their possession is so threatening to society that it is worth turning people into criminals and sending them to jail".
He concluded "I really cannot imagine that any useful purpose is served by creating criminals out of the people who possess them."
Justice oppose "disproportionate interference"
Leading human rights lobby group Justice has added its voice the the long list of people concerned about the reached of the proposed "extreme image" laws.
Justice are concerned about the premise behind the law and say the "over-inclusive definition" may constitute a disproportionate interference with the right to free e pression under Article 10 of the European Charter of Human Rights.
Making bad law, pt 1
Parliament's joint Human Rights committee were
very unimpressed by the Ministry of Justice's definitions in this Criminal Justice bill.
Quote " Individuals
seeking to regulate their conduct in accordance with the criminal
law cannot be certain that they will not be committing a criminal
offence by having certain images in their possession. We look
forward to the Government bringing forward an amendment to make
the scope of the new offence more precise. " The Government did not do so.
Making bad law, pt 2
The Times reported the Government's head of risk management has said Government policy is often badly formed because it is drawn up in response to tragedies and problems.
Rick Haythornthwaite, head of the Risk and Regulation Advisory Council, said that policy was often affected by pressure from an aggressive media and a confrontational Parliament. "We have got to deal with some of the systemic flaws in policy-making within Whitehall".
He told The Politics Show on BBC One that "calls to protect the public sapped self-reliance, resilience and the spirit of adventure" and that "Some risk could be a very good thing".
Amnesty does not support this legislation
"The factors that can enable violence against women are many and various and pornography will affect different people in different ways over different time periods and there is not research that we know of that can proove that pornography necessarily leads to violence against women."
"While many individuals would hold the view that it must have a long-term, cumulative and brutalising effect both on an individual and on a societies attittudes to women and what is acceptable, the lack of proven evidence making a consistent direct link means that Amnesty International does not feel it can take a position on the issue."
More than 40 academics have condemned government-backed research into the effects of pornography, saying it is extremely poor, based on contested findings and ignores the considerable research tradition into "extreme" (be they violent or sexually explicit) materials.
UK Human Rights lobby group Liberty opposed the Criminal Justice and Immigration Bill and raised concerns when giving evidence at the Committee Stage.
Women's views on the proposals
Many people assume that "violent pornography" is only of interest to
men, and no sane woman would enjoy or even tolerate it. However, many of those
in Backlash are women, and many of the words on this website are from women.
Delusional Labour MP Martin Salter continues to
rant against snuff movies without a shred of evidence to substantiate his claims, and rather a lot debunking this persistent urban myth.
Do not expect Labour to get to grips with the real facts anytime soon.
A documentary, Does Snuff Exist ?, was screened on 18 April 2006. See
also Kerekes and Slater, Killing for Culture: an Illustrated History of
Death Film, for an exhaustive investigation of the "snuff" myth.
Stay out of the bedroom
" The criminal law is drafted with great care, but sometimes its specific wording can trap victims and sentencers alike into facing unintended and unacceptable consequences. "
Jack Straw, opening for the Government in the House of Commons debate on this legislation in October 2007.
QC's conclusion "real concerns"
"In conclusion, I consider that the legislation as proposed gives rise to real concerns as to its compatibility with an individual's rights under Articles 8 and 10 of the Convention."
