Commons Committee

MP’s scrutiny

Public Bill Committee

Extracts from Hansard of MPs’ detailed scrutiny of clauses in the proposed Bill relating to extreme images.

Tuesday 16 October 2007

Q 50 Harry Cohen (Leyton and Wanstead) (Lab): In relation to the offence of possession of a single extreme pornographic image, or it could be more than a single image, what evidence do the Government have to show that either watching it or participating in it is harmful to adults? I am wondering that because, in August 2006, the Government stated:

“Given the many different approaches to conducting the research and framing the questions, as well as differences in the nature of the material examined, we are unable, at present, to draw any definite conclusions based on research as to the likely long term impact of this kind of material on individuals generally, or on those who may already be predisposed to violent or aberrant sexual behaviour.”

The Government subsequently produced a rapid evidence assessment in September of this year, long after the Bill had been published and presumably intended to back it up, which mentioned some increased risk. It is worrying that that was produced so late in this context. In that document, however, the Government stated:

“The REA found no formal research studies of the effects on those who participate in making extreme pornography.”

Where is the evidence?

Maria Eagle [Government Minister]: The evidence is contained in that rapid evidence assessment which, although it did not find any formal research studies on the effect on those who participate in making the extreme pornography, did find that there were some harmful effects on some of those who viewed it, particularly men who were predisposed to aggression or had a history of sexual aggression.

Therefore, the rapid evidence assessment looked around all of the research that had been done, rather than commissioning specific research to fill gaps in the research, and it showed that there was cause to have concern in certain circumstances for what is, no doubt, a smallish number of the population who might be susceptible to their behaviour being affected by viewing extreme pornography.

We must remember that when we are talking about extreme pornography, we are talking about images at the very top end of what most people would consider viewable.

We are not talking about the common or garden porn, of which there is much on the internet and that it is perfectly lawful for people to possess or make under current domestic law.

The proposal would make it illegal to download and possess images that it is already illegal to publish in this country, rather than extend the definition of what ought to be caught by the law.

The concern really arises from the increasing trend over recent years that we should seek to prevent harm to people, particularly children.

We have changed the law in recent years to deal with images that would be illegal if they were published or made in this country but which now, because of changes in technological capacity, can come into the country and be downloaded, having been published elsewhere.

Therefore, we are not seeking to extend the current law or to change the level of porn that is allowed to be published and considered lawful.

We are simply seeking to deal with the technological impact that means that such material can now be downloaded into one’s own computer, despite the fact that it would be illegal to publish or make it in this country.

Harry Cohen: We will come on to that –

The Chairman: We have limited time, Mr. Cohen, so you must be as quick as possible.

Q 51 Harry Cohen: The measure is limited to material of a sexual nature, but some of those people who were used in the evidence that the Government have given include those who could have got violent images of a non-sexual nature, and those might have stimulated them to kill.

There are thousands and thousands of horror films that show people being cut up, so why does this legislation concentrate on material of a sexual nature?

12.45 pm

Maria Eagle: The Government are concerned about all violent imagery and there are legislative controls on violent as well as sexual imagery through the Obscene Publications Act 1959.

There are also regulatory controls through the British Board of Film Classification and the Advertising Standards Authority. There is regulatory and legislative control of such images.

There has been particular concern about explicit and extreme pornographic material produced for the purposes of sexual arousal that also includes real or very realistic violence. That is one reason why the BBFC will not classify violent and abusive material in the R18 category, which is reserved for pornographic films. There is control in respect of this issue.

In this offence and this change to the law, we are seeking to catch the extreme end of the spectrum of pornographic material. While there may be points of difference on precisely where the line should be drawn, most members of the Committee and most ordinary members of the public would see necrophilia and bestiality as something that society ought to disapprove of and to think about controlling images of.

While there might be points of difference about precisely where the line should be drawn for some of the other imagery, this is a practical issue. I do not think that too many members of the public would disapprove of our attempt to catch the most extreme end of the spectrum.

Thursday 18 October 2007

Q 19 Harry Cohen: Let us move on to the criminalisation of extreme pornography. You expressed concerns that the legislation could be drawn too wide, and indeed the Bill includes, as part of extreme pornography, the phrase that I referred to on Second Reading, “appears to” which seems very wide. Do you feel that that is a wide definition? What are your views?

Gareth Crossman: [invited to contribute the views of Liberty]

Let me begin by saying that we have no issue with the principle of the offence, especially in situations when people are involved in activity and there is coercion involved. There is a gap in the criminal law, especially if someone does not fall within the realms of the Obscene Publications Act 1964, which deals with possession with intent to sell for gain.

One of my original points was that usually a criminal offence is created because there is a need to do so. What was surprising was that the original White Paper said that there was no evidence to show a greater degree of criminality as a consequence of people seeing this type of material. I understand that further research has now been done that might indicate a causal link. I have not seen it. However, that is the starting point. I was surprised that the offence was being created without some evidence behind it, but I do not take issue with the principle behind it.

The problem is with the breadth of the offence. For a number of years, there has been a legislative tendency to draft offences extremely broadly. The Sexual Offences Act 2003, which has some similarities, created a range of extremely broad offences that one would not object to in principle but which create concern as to the number of people who might be criminalised.

There was a tendency to say, “It’s okay, we’ll require some extra authorisation before prosecution can take place, be it from the Director of Public Prosecutions or the Attorney-General.”

That in itself is not grounds for overbroad criminalisation. It is a bar against improper prosecution, but technically if you commit a crime, you commit a crime, whether or not you are then prosecuted.

I am sorry, I realise that you asked me to be brief and I have given a lengthy answer. My concern about this offence, is that the range of activity that will be covered could include activities, such as sadomasochistic practices, that people might find peculiar but that frankly do not harm anyone apart from those who participate in them. I know that a number of people have expressed extremely strong concerns about this, and we share those concerns.

There will be people who cause no harm to anyone else, who engage in private activities or who possess material that clearly involves acting and where there is no suggestion of any coercion. That falls within the breadth of the offence.

The defences that accompany the offence do not seem to be particularly relevant. They seem to revolve around someone not being aware that they are possessing material. There needs to be some limitation.

I would base that around the idea of knowledge of consent or actual consent of those who have partaken in the material.

Q 20 Harry Cohen: That is interesting, but let me take you further on this. I raised the issue on Second Reading. You did not quite get to the point that it is not just the activity itself happening for real that is covered, but also when it “appears to”. That would presumably be ritualised or, as you say, acted out.

I think that Ministers would probably argue that not having “appears to” would open up a huge loophole. How would you cover not just the act, but a bit beyond that-or would you not go beyond the act?

Gareth Crossman: I think that you are right and have identified a real problem. What illustrated this issue to me was the idea that “appears to” clearly covers things that are not real such as acting and representation.

Because it was realised that by putting that wording in a lot of certified material in films could fall into the definition, it was necessary to introduce a defence that the film might be certified, but if an excerpt is taken from a certified film it becomes an offence again.

This offence ties itself up in knots somewhat because it is trying to identify the correct parameters of the criminal law by setting them so broadly that little loopholes have to be created that are, frankly, not particularly impressive.

The example I gave in the briefing was the film “Casino Royale”, in which there are sections that may well fall into the definition of the offence if taken as cuts on their own. For anyone who is wondering which bits I am talking about, they are the torture scenes. That film was certified as suitable for 12-year-old children to see when accompanied by an adult.

That is the danger of having an offence that is based partly on the need to criminalise and partly on a subjective concept of what is moral and proper. As soon as you start doing that, you get into grey areas about where the law should end.

Q 23 Mr. Hanson (Labour Minister shepherding the Bill through the Committee):

I want to clarify, Sir Nicholas, the point that was made, because I think that it will be an important matter of debate. Our colleague from Liberty, Mr. Crossman, has just mentioned that, for example, scenes from the film “Casino Royale” could be outlawed under this legislation.

I would like just to press him on what basis he makes that assertion, given that, for example, in clause 64 we define quite clearly in subsection (6) what an extreme image is. Also, clause 65 relates to matters concerning classified films and so on. I am interested to know on what basis he makes that assertion, because it will be a matter of public debate around these issues.

Gareth Crossman: To quote clause 64(6)(b):

“An “extreme image” is…an act which results in or appears to result…in serious injury to a person’s anus, breasts or genitals”.

I do not know if you have seen “Casino Royale”, but there is a section where there is quite severe damage being caused to someone’s genitals.

On the point of classification, as I said, there is an exemption, if it is a classified film, but that exemption does not apply if you take an excerpt from that film.

Q 24 Mr. Hanson: But again, clause 64(5) says:

“for the purpose of sexual arousal”.

From the Government’s perspective, we are trying to define what is, under clause 64(6), an extreme image, which is one that is made for the purpose solely of sexual arousal in terms of the film.

There may be aspects within film classification that examine those issues and the British Board of Film Classification will make a determination on that. However, the focus of the legislation is to ensure that we outlaw the downloading of extreme pornography that is undertaken for purposes of sexual arousal, which actually causes-or appears to cause-damage to a person’s life, or indeed, under clause 64(6), other aspects that I will not go into in the Committee today.

I was interested in the definition, from Liberty’s perspective, of whether this is a real objection or, in a sense, a technical objection that needs later clarification, or whether the objection is specifically on a freedom of speech or freedom of information basis, in relation to the type of material that we intend to cover.

Gareth Crossman: It is both of the first two. It includes the technical aspect, as to how it will be determined that the purpose of an extraction of the type that we are talking about might be for purposes of sexual arousal.

More broadly, there is concern over the idea of criminalising activity where you are dealing with something that, in itself, is perfectly legal-a film that has been censored and given a 12 certificate.

A part might be extracted for the purpose of sexual arousal and the possession of that extract becomes a crime.

It is where you feel comfortable about the limits of the criminal law, when no one else is being affected. Obviously, no actors were harmed in the making of this film. So it is about where you define the limits of where the appropriate criminalisation is to be.

This is difficult, because, as I said at the beginning, we do not have an issue with the creation of this offence. The difficulty arises when you are dealing, effectively, with offences involving morality; it is very difficult to draw a specific line where the criminal law should begin and where it should finish. This is the Government’s offence.

We will obviously try to make suggestions as to where we think that that line should be appropriately drawn, and we do not pretend that it is easy. We will try to make positive suggestions, but frankly we would be uncomfortable with the idea of something being criminal simply because it is going to cause sexual arousal, if no other criminality is being alleged.

Q 25 Mr. Garnier: But is it not more difficult than that? If one looks at clause 64(3), there is a huge degree of uncertainty and subjectivity. It provides:

“if it appears to have been produced solely or principally for the purpose of sexual arousal.”

Who is to decide whether it so “appears”? Is it the judge, the policeman, the viewer or the maker? Have you any idea what the Government are thinking about, or what they appear to be thinking about?

Gareth Crossman: No, and I thank you very much, Mr. Garnier, for succinctly putting one of my other concerns into a far more condensed version than I did.

The problem is, indeed, that this is extremely subjective. When making a subjective determination on criminality, some jurors might think, “Oh, that is horrible stuff. I do not like that. They must be guilty”, when dealing with acts that are not causing harm to other people-obviously parts of the Bill will cover areas where people are being hurt, and that has rightly been criminalised-and it will be very difficult for a judicial or jury determination to be consistent about who is convicted and who is acquitted.

Q 26 Mr. Burrowes: The provisions arise on the basis of the horrific Jane Longhurst killing, which I understand involved accessing websites containing rape scenes.

In relation to the issues that you have raised about the definitions of “extreme image”, do you think that there is a need to have a definition of rape within the offence? There may be a question as to whether an image of rape is covered by the offence.

Gareth Crossman: It becomes very difficult to talk about the way in which this offence is defined, when referring to rape.

If you are talking about a depiction of rape in a film, that is something that will have occurred in many classified films, but it is not rape because it is acted.

If it is actually rape, that is non-consensual; someone has been coerced into something against their will.

Therefore it is appropriate to make it a criminal offence to possess such material. That is why the element of coercion is so important in how you can properly draw the offence.

Mr. Burrowes: Yes, I assume that you are referring to whether it would be covered within the definitions in clause 36?

Gareth Crossman: I see. If it does not appear to threaten a person’s life or so on, that may be so.

Q 27 Mr. Garnier: The depiction of rape may constitute an extreme image, but it must fit within the rest of the clause to become an offence. Until we understand what clause 64(3) means, we are not much further forward.

I can think of any number of extreme images which are disgusting and unattractive to look at, but the prosecution will have to prove that an image appears to some unknown person to have been produced solely or principally for the purposes of sexual arousal.

Gareth Crossman: Yes.

The Chairman: Was there a question there, Mr. Garnier?

Mr. Garnier: A quizzing look.

The Chairman: Do you wish to follow this up any further before I pass the questioning to David Heath?

Q 28 Harry Cohen: Is the burden of proof shifted on to the individual, to defend themselves, if an allegation is brought against them under the provision?

Gareth Crossman: I was not aware that that was the case. Could you point out where that might be so?

Harry Cohen: I think that it is somewhere in one of my briefings.

Gareth Crossman: With regard to the defences, it is not that the individual takes on the burden of proof, but there is a presumption, if they are in possession of the material that falls within the definition of the offence, that they have to prove that one of the defences applies.

In some ways, a strict liability offence is in position which will result in a conviction unless you can establish the defences. That is not uncommon in criminal law.

If I was to say where my concerns with the offence lie, it has less to do with the way in which the defences are constructed, and more with the very broad nature of what is criminal.

Q 29 Mr. Garnier: I do not want to engage in an undergraduate level of conversation when you are well beyond that. Looking at the defences in clause 66(2), it is a defence for the person charged with the offence under clause 64 to show that he “had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image”.

To go back to clause 64(2) and (3), there is a direct problem there because we have the “appears to” under clause 64(3), yet there is a different requirement under clause 66(2), in that the defendant has to show that it did not appear to him that it was not-

Gareth Crossman: That is a very good point. I think that that reinforces the concern that I have about how to get consistency of conviction from the interpretation of what the offence is. It is extremely unclear.

I have looked at this several times-although, obviously not in the detail that I should have done-but every time that I look at it, it seems to raise more questions about what or will not be criminal.

Unfortunately, when these matters arise, the Government’s response in recent years has just been to make it as broad and criminal as possible, and then not to prosecute unnecessarily, which is okay by them.

I maintain that that is not the correct approach to criminal law.

Thursday 22 November 2007

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.”

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.

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.

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.

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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  • Backlash is an umbrella organisation providing academic, legal and campaigning resources defending freedom of sexual expression. We support the rights of adults to participate in all consensual sexual activities and to watch, read and create any fictional interpretation of such in any media.