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Lords linger over extreme porn definition

What's the meaning of 'obscene'?

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The camel that is the UK Government’s answer to what it terms "extreme porn" lumbers onward. Although, by the time it escaped the Lords last week it really was beginning to look like a particularly moth-eaten dromedary.

What started in the Commons as a relatively straightforward piece of legislation from the government has now twice survived opposition amendments – only to be mauled by its own side.

The proposal, contained in the Criminal Justice Bill, is to make it a criminal offence to possess certain images that are deemed to be extreme porn. In the course of its passage through the Lords, Baroness Miller, Home Affairs spokesperson for the Lib Dems, tried on two occasions to amend it.

In the first instance, two weeks ago, she attempted to remove this provision altogether, as being too unclear. In the second and latest instance last Wednesday, she attempted to give an objective test to the definition of extreme porn by linking it to the Obscene Publications Act 1959.

This was strongly resisted by the Minister, Lord Hunt, who suggested that such linkage might have the effect of widening the scope of the offense. The amendment was lost by 134 votes to 91.

Meanwhile, the government continued to amend its own legislation. On the legislation's previous outing, it amended the scope of what images might be caught by the legislation. Initially, material that was "pornographic" and depicted "explicit realistic extreme acts" was the target. It then added that it must also be "grossly offensive, disgusting or otherwise of an obscene character".

Despite the addition of the "o" word (obscene), the Minister was at pains to point out that this did NOT indicate any cross-over into the territory of the Obscene Publications Act. Whether a court will make that distinction remains to be seen.

Last week, a minor defence was also introduced. This is that where the image of an act fails these tests, but participants in the act know that the act is not real, then those who participated in the act may safely take and keep photos of it for their own delectation. Just who is a participant is another hostage to fortune: it would appear that the person behind the camera is not. Though again, that is a matter the courts might yet clarify.

The debate left behind a feeling of deep dissatisfaction: a sense that the government was indulging itself with extended foreplay on this issue rather than getting down to serious business.

The Lords again raised a number of issues, which were parried rather than answered. The vagueness of the definitions was of special concern, since this may either lead to many more people being criminalised than intended; or to the proposal being unworkable in the courts.

The selective use of academic research was questioned. Baroness Miller commented:

"[the Minister] could have chosen to quote from Professor Todd Kendall who presented his paper to Stanford Law School. It showed that as the United States brought in access to the internet at a different rate in the 50 states - not intentionally - a 10 per cent increase in internet access yielded a 7.3 per cent decrease in reported rapes. The purpose of quoting that is to show that different academic studies show different things."

Also of concern was the fact that individuals may be criminalised for looking at images of acts that are not themselves illegal: and that where they are, the penalty for looking at an image is on a par with the penalty for participating in the act. In most instances, up to three years in prison: though not an admission to the Sex Offender’s Register.

There were also accusations that this measure is yet more gesture politics, "sending a message" rather than legislating with clear purpose. This was not helped by the introduction of significant government amendments at such a late stage.

Overall, the debate felt far more like prologue than finale. The bill now goes back to the Commons, where it is almost certain to be passed. However, widespread calls for a select committee to look at the issues raised – and a relatively benign response by the Minister to such a proposal – means there may be far more debate to follow, even after this measure becomes law.

The last and most worrying observation came, again, from Baroness Miller:

"Perhaps the most chilling point in the Minister’s summing up - I thank him for going into some detail - was that when it came to policing this it was for dealing 'with individuals' who are 'causing concern'. Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried."

Time, perhaps, to start looking for a good disk washer! ®

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