The inexorable slide into thought crime ?

Knee-jerkism, misinformation and farce in development of Government policy

In August 2005 the Government launched a consultation on the Possession of Extreme Pornographic Material. Jointly promoted by the Home Office and the Scottish Executive, it purported to be exploring whether the law needed to be changed to control the spread of pornography via the Internet. The rationale for this seems to be that since the majority of Internet content is generated outside the UK, it is impossible to control the production of material and therefore the only avenue is to attempt to control consumption. The results of the consultation are due to be published shortly, but are overshadowed by misinformation, misunderstanding and a misguided belief that passing new laws will, by definition, solve a problem.

The Government has been struggling to come to terms with how to regulate the Internet, and indeed how much regulation (if any) is necessary, or desirable, or acceptable. It seems that it has yet to arrive at any concept of what the Internet is and how it fits into the life - given that it is not analogous to books and other publications, nor to art, nor to photographs, nor to television, nor to the human mind, nor to conversations, nor to a high street, nor to an amusement arcade, but to all of these things, and much, much more.

The conclusion appears to be that not to regulate is unacceptable, because of an apparent perception that the public is unwilling or unable to take responsibility for its own actions. Rather than to ensure that people understand and are capable of exercising appropriate choices on behalf of themselves (and, by extension, for their children), the response is to find a subject to demonise and then pass unworkable laws that won't actually achieve anything positive, but give the appearance of action. Rather like an MC Escher image, the Government wants to be seen to be doing something, even if it goes round in circles without actually doing anything.

The consultation on the Possession of Extreme Pornographic Material is based on two main pretexts: that violent and extreme pornography is inherently abusive in its production; and that consumption of extreme pornographic material acts as a trigger to criminal activity. The former ignores the fact that the overwhelming majority of the commercial material with which the consultation is concerned originates in the USA, which has extremely rigorous record keeping and reporting requirements aimed at protecting pornography models, who are engaged in simulated (not real) acts - and is therefore no more abusive or exploitative than "conventional" pornography (if a person believes that to be the case); the latter, whilst the Government freely acknowledges there is no evidence of a link between extreme pornography and any harm, insists on implying that harm does result. Advice sought by the Spanner Trust from human rights law expert Rabinder Singh concluded that the proposals were in any case incompatible with Articles 8 and 10 of the European Convention on Human Rights, even though the Government claimed in its consultation document already to have considered this.

A further issue is that of uncertainty. In order for a law to be fair and reasonable, it is essential that a person should be able to know what is legal and what is not, and yet the Government has been unforthcoming with clear explanations of what it is proposing to proscribe. This uncertainty is exacerbated by a rather unpleasant aspect of these proposals - the introduction of thought crime. One category of image that is included in the proposals is "serious violence in a sexual context"; the key here is the word "context". It is highly open to interpretation, but whether a context is sexual or not is a question of perception, not definition, hence whether the context is in the creation of an image, or the viewing of that image, the "context" requires an insight (or presumption) into the intentions of either the producer or the viewer of the image.

It was clear from the outset that the consultation was biased, with a presumption of the outcome, loaded questions, and an undercurrent that this matter was in some way connected to the issue of child pornography - of course it isn't. In addition, the proposals will in no way protect any victims (assuming, of course, since none has been identified, that there were any to protect) - it is all about prosecuting the person who possesses an image that has already been created. The "cut off demand and cut off supply" argument does not wash, since a many images are not produced commercially, but are made by private individuals, as personal records of their consenting adult sexual activities. And of course, far from one stated aim of the proposals being to protect children, the likely effect would be to criminalise them; because the proposal is to make possession illegal, a child who happened inadvertently (or deliberately) to come across proscribed images would not be prevented from doing so, but could be prosecuted as a consequence.

To add to the near-farcical situation of a consultation on proposed legislation to protect victims that don't exist, that attempts to criminalise the innocent, and which would be unenforceable under EU law, the consultation process itself completed the descent into farce. The consultation period coincided with major maintenance work on the Home Office web site - as a consequence of which the consultation document was only sporadically available online. This was compounded by submissions made by email to the Scottish Executive being intercepted by its email scanners due the inclusion of "profane or possibly inappropriate words" (In a consultation about pornography? The mind boggles). It is therefore unclear whether all submissions to the consultation have even been received by the Government, let alone considered.

The proposals seem to be symptomatic of a puritanical Government that has lost sight of its duty, inter alia, to protect the freedom of the individual to express their sexuality in the way that makes sense to them, where this does not result in the oppression of another. It will be interesting to see where the Government intends to go with this now the consultation is complete and whether, on reflection, it concludes that scarce law enforcement resources might be better deployed dealing with real crime than spying into the bedrooms of law-abiding citizens.