MelnAdam
01-29-08, 07:18 PM
from :- http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrls0708.cfm
The Joint Committee on Human Rights (JCHR) is tasked with checking legislation against Human Rights requirements
The Chair, Andrew Dismore, MP wrote to David Hanson at the Ministry of Injustice to ask questions about the Criminal Injustice and Immigration Bill.
Here are the questions attaining to Dangerous Pictures:
Extreme Pornography
The Committee is considering three compatibility issues which in its view arise from the Bill’s creation of a new offence of possession of extreme pornographic images.11 firstly, whether the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement that interferences with the right to respect for private life in Article 8 and the right to freedom of expression in Article 10 ECHR be “in accordance with the law”; second, whether the offence is necessary in a democratic society and proportionate so as to be compatible with those rights; and third, whether the offender should be subject to registration requirements.
Whether definition of new offence is sufficiently precise
The Committee is considering whether the definition of the new offence is sufficiently precise and foreseeable to meet the test of “prescribed by law”. The offence requires the pornographic image in the individual’s possession to be “extreme”. An assessment of whether an image is or is not “extreme” is inherently subjective. This means that 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.
Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.
Whether the new offence is necessary in a democratic society and proportionate
The Committee is considering whether the new offence has been shown to be necessary in a democratic society and strikes a fair balance between the rights of the individual and the needs of the community. According to its consultation, the Government suggests that the new offence is necessary to (1) break the supply/demand cycle as the growth in the internet means that supply can no longer be regulated; (2) protect participants involved in the making of the images, who may be victims of criminal offences; and (3) protect children from exposure to such materials. The Committee is considering whether the two proposed offences in clauses 64(6)(a) and (b) can be justified, so long as the participants consent and there is no risk of physical harm.12 The Government accepts that there is no proof that the use of such images causes or induces violence.
Q10. Please provide, in light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.
Sex Offender registration
An individual convicted under Clause 64 who is 18 years or over at the time of the offence and receives a sentence of at least two years imprisonment, will be subject to the registration requirements under the Sexual Offences Act 2003.13 Registration requirements interfere with an individual’s right to respect for private life (Article 8 ECHR) and must therefore be shown to be necessary and proportionate.
Q11. Why are registration requirements considered to be justified for the offences in Clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm?
David Hanson Replied:
Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.
26. The offence covers material which meets three thresholds: it must be pornographic, it must contain an extreme image and it must be real or appear to be real to the viewer, in other words it must be convincing.
2T. An image is "pornographic" if it appears to have been produced solely or principally for the purpose of sexual arousal. The Government believes that the individual pornography user will have no difficulty in recognising pornography.
28. An "extreme image" is an image of:
* "(a) an act which threatens or appears to threaten a person's life". We consider that these acts, given the pornographic context, will be easily recognisable since extreme pornographic scenarios frequently contain scenes of throttling, asphyxiation, hanging or threats with a knife or other weapon
* "(b) an act which results in or appears to result (or be likely to result) in serious injury to a person's anus, breasts or genitals". The focus of this paragraph is on the act which does or may cause serious injury. No medical knowledge is required to understand what a 'serious' injury ¡s likely to be. 'Serious' will have its normal meaning. ln the pornographic context, the infliction of injury to these parts of the body will be recognisable. The insertion of a sharp object into the vagina or anus, is an example of an act which would be caught
* "(c) an act which involves or appears to involve sexual interference with a human corpse". The Government considers that this material would be easily recognisable
* "(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal." The Government believes that this will also be easily recognisable.
29. The Government is aware of concerns which have been articulated during the oral evidence sessions on the Bill that the clause as drafted may not be sufficiently precise in limiting the scope of the offence to material which is extreme and explicit. We are considering how the drafting may be clarified.
Q10. Please provide, in the light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.
30. The focus of this offence is on the images themselves and the effect which they may have on those who view them, not on any underlying criminal offence which may or may not have been committed. In the context of pornography, a convincing, consensual depiction of an activity can have the same impact on the viewer as an image of that activity actually taking place. Moreover, for the viewer, the question of consent is largely irrelevant, since they can have no reliable means of verification, unless they happen to know (or themselves to be one of the participants. Once an image has been created, it is capable of being passed beyond those who actively consented (lawfully or not) to the activities shown, and of being circulated to a much wider audience via new technologies. For those reasons, the Government considers that a focus on the lawful consent of those who participated in the creation of the image is misguided.
31. There is evidence that we have reason to be concerned about this material. The Ministry of Justice and Department of Health jointly published a research study on 28 September 200T entitled "The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (REA)". This research found that some people who accessed extreme pornography suffered some harmful effects. These included increased risk of developing pro-rape attitudes, beliefs and behaviours, and committing sexual offences. The research also showed that men who are predisposed to aggression, or who have a history of sexual and other aggression were more susceptible to the influence of extreme pornographic material. The REA found no formal research studies of the effects on those who participate in making extreme pornography but referred to evidence which supported the argument that participants in extreme pornographic material may be harmed in its making.
32. In addition to the evidence referred to above of the harmful effects of extreme pornography, there is also an argument that such material normalises and legitimises a culture of sexual violence. Proportionate interference is permitted under both Articles 8 and 10 not just for the purposes of preventing crime, protecting health and protecting the rights of others, but also for the protection of morals. Extreme pornographic material arguably has a negative impact on morals, and very little to justify it in other respects. As Baroness Hale of Richmond pointed out in the recent case of Belfast city Council v Miss Behavin' which concerned licences for sex shops, "My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast city Centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men."
33. The Government believes that it is justified in acting to control the circulation of this material for the reasons set out above.
Q11. why are registration requirement considered to be justified for the offences in clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm.
34. The answer to the previous question is also relevant. The focus of this offence is on the images themselves and the effect which they may have on those who view them. For the reasons given above, our concerns about the impact of the material on the viewer remain the same, if the activities shown were convincing consensual depictions of sexual violence.
35. No one will be subject to registration requirements unless sentenced to two years' imprisonment or more. On a maximum three year sentence, this is a high threshold which is intended to target those about whom the courts have particular concerns either because of the nature and extent of their collection of extreme pornography, their frequency of offending or for some other reason.
36. There is some evidence of harm to some people who access extreme pornography (see above) and those who are already predisposed to aggression are most at risk. In this circumstance, and in respect of only the most serious offenders, we believe that notification requirements are justified.
:noway2:
The Joint Committee on Human Rights (JCHR) is tasked with checking legislation against Human Rights requirements
The Chair, Andrew Dismore, MP wrote to David Hanson at the Ministry of Injustice to ask questions about the Criminal Injustice and Immigration Bill.
Here are the questions attaining to Dangerous Pictures:
Extreme Pornography
The Committee is considering three compatibility issues which in its view arise from the Bill’s creation of a new offence of possession of extreme pornographic images.11 firstly, whether the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement that interferences with the right to respect for private life in Article 8 and the right to freedom of expression in Article 10 ECHR be “in accordance with the law”; second, whether the offence is necessary in a democratic society and proportionate so as to be compatible with those rights; and third, whether the offender should be subject to registration requirements.
Whether definition of new offence is sufficiently precise
The Committee is considering whether the definition of the new offence is sufficiently precise and foreseeable to meet the test of “prescribed by law”. The offence requires the pornographic image in the individual’s possession to be “extreme”. An assessment of whether an image is or is not “extreme” is inherently subjective. This means that 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.
Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.
Whether the new offence is necessary in a democratic society and proportionate
The Committee is considering whether the new offence has been shown to be necessary in a democratic society and strikes a fair balance between the rights of the individual and the needs of the community. According to its consultation, the Government suggests that the new offence is necessary to (1) break the supply/demand cycle as the growth in the internet means that supply can no longer be regulated; (2) protect participants involved in the making of the images, who may be victims of criminal offences; and (3) protect children from exposure to such materials. The Committee is considering whether the two proposed offences in clauses 64(6)(a) and (b) can be justified, so long as the participants consent and there is no risk of physical harm.12 The Government accepts that there is no proof that the use of such images causes or induces violence.
Q10. Please provide, in light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.
Sex Offender registration
An individual convicted under Clause 64 who is 18 years or over at the time of the offence and receives a sentence of at least two years imprisonment, will be subject to the registration requirements under the Sexual Offences Act 2003.13 Registration requirements interfere with an individual’s right to respect for private life (Article 8 ECHR) and must therefore be shown to be necessary and proportionate.
Q11. Why are registration requirements considered to be justified for the offences in Clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm?
David Hanson Replied:
Q9. Please provide a more detailed explanation of how an individual user of pornography is able to know whether or not his or her possession of a particular image would constitute a criminal offence.
26. The offence covers material which meets three thresholds: it must be pornographic, it must contain an extreme image and it must be real or appear to be real to the viewer, in other words it must be convincing.
2T. An image is "pornographic" if it appears to have been produced solely or principally for the purpose of sexual arousal. The Government believes that the individual pornography user will have no difficulty in recognising pornography.
28. An "extreme image" is an image of:
* "(a) an act which threatens or appears to threaten a person's life". We consider that these acts, given the pornographic context, will be easily recognisable since extreme pornographic scenarios frequently contain scenes of throttling, asphyxiation, hanging or threats with a knife or other weapon
* "(b) an act which results in or appears to result (or be likely to result) in serious injury to a person's anus, breasts or genitals". The focus of this paragraph is on the act which does or may cause serious injury. No medical knowledge is required to understand what a 'serious' injury ¡s likely to be. 'Serious' will have its normal meaning. ln the pornographic context, the infliction of injury to these parts of the body will be recognisable. The insertion of a sharp object into the vagina or anus, is an example of an act which would be caught
* "(c) an act which involves or appears to involve sexual interference with a human corpse". The Government considers that this material would be easily recognisable
* "(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal." The Government believes that this will also be easily recognisable.
29. The Government is aware of concerns which have been articulated during the oral evidence sessions on the Bill that the clause as drafted may not be sufficiently precise in limiting the scope of the offence to material which is extreme and explicit. We are considering how the drafting may be clarified.
Q10. Please provide, in the light of the above, the weighty reasons required to justify prosecuting people for viewing these images privately.
30. The focus of this offence is on the images themselves and the effect which they may have on those who view them, not on any underlying criminal offence which may or may not have been committed. In the context of pornography, a convincing, consensual depiction of an activity can have the same impact on the viewer as an image of that activity actually taking place. Moreover, for the viewer, the question of consent is largely irrelevant, since they can have no reliable means of verification, unless they happen to know (or themselves to be one of the participants. Once an image has been created, it is capable of being passed beyond those who actively consented (lawfully or not) to the activities shown, and of being circulated to a much wider audience via new technologies. For those reasons, the Government considers that a focus on the lawful consent of those who participated in the creation of the image is misguided.
31. There is evidence that we have reason to be concerned about this material. The Ministry of Justice and Department of Health jointly published a research study on 28 September 200T entitled "The evidence of harm to adults relating to exposure to extreme pornographic material: a rapid evidence assessment (REA)". This research found that some people who accessed extreme pornography suffered some harmful effects. These included increased risk of developing pro-rape attitudes, beliefs and behaviours, and committing sexual offences. The research also showed that men who are predisposed to aggression, or who have a history of sexual and other aggression were more susceptible to the influence of extreme pornographic material. The REA found no formal research studies of the effects on those who participate in making extreme pornography but referred to evidence which supported the argument that participants in extreme pornographic material may be harmed in its making.
32. In addition to the evidence referred to above of the harmful effects of extreme pornography, there is also an argument that such material normalises and legitimises a culture of sexual violence. Proportionate interference is permitted under both Articles 8 and 10 not just for the purposes of preventing crime, protecting health and protecting the rights of others, but also for the protection of morals. Extreme pornographic material arguably has a negative impact on morals, and very little to justify it in other respects. As Baroness Hale of Richmond pointed out in the recent case of Belfast city Council v Miss Behavin' which concerned licences for sex shops, "My Lords, there are far more important human rights in this world than the right to sell pornographic literature and images in the backstreets of Belfast city Centre. Pornography comes well below celebrity gossip in the hierarchy of speech which deserves the protection of the law. Far too often it entails the sexual exploitation and degradation of women for the titillation of men."
33. The Government believes that it is justified in acting to control the circulation of this material for the reasons set out above.
Q11. why are registration requirement considered to be justified for the offences in clause 64(6)(a) and (b) or for any consensual activity not leading to physical harm.
34. The answer to the previous question is also relevant. The focus of this offence is on the images themselves and the effect which they may have on those who view them. For the reasons given above, our concerns about the impact of the material on the viewer remain the same, if the activities shown were convincing consensual depictions of sexual violence.
35. No one will be subject to registration requirements unless sentenced to two years' imprisonment or more. On a maximum three year sentence, this is a high threshold which is intended to target those about whom the courts have particular concerns either because of the nature and extent of their collection of extreme pornography, their frequency of offending or for some other reason.
36. There is some evidence of harm to some people who access extreme pornography (see above) and those who are already predisposed to aggression are most at risk. In this circumstance, and in respect of only the most serious offenders, we believe that notification requirements are justified.
:noway2: