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Isle of Man plays catch-up on extreme porn law

Spare the birch, spoil the sexual deviant

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Just when you thought everything had gone quiet on the extreme porn front, up it pops once more. This time, it’s the Isle of Man doing its best to save us all from unnatural vice, and demonstrating in the process the oddly fractured nature of law-making in the British Isles.

The Isle of Man, along with the Channel Islands is not part of the United Kingdom, but is in fact a crown dependency, and therefore owned and governed directly by the British Crown. Custom has it that the British Government is solely responsible for defence and international representation, and Crown dependencies have responsibility for their own customs and immigration services - however, Acts of the British Parliament do not usually apply unless explicitly stated.

That is why, since early October, the Isle of Man parliament (the Tynwald) has been seeking opinions on its proposed Criminal Justice (Miscellaneous Provisions) Bill 2009 (pdf). Those looking for serious disagreements between the Manx view and that already passed into law for England Wales and Northern Ireland will be disappointed.

The proposed wording is virtually identical to that contained in the Criminal Justice and Immigration Act 2008: there is one minor difference, which is that the Manx law would not include a requirement for a case to be referred to the Director of Public Prosecutions before it is allowed to proceed. In England and Wales, this step is an intrinsic part of the judicial system, and helps protect the courts from unwinnable and frivolous cases set off by private individuals.

Given the altogether more parochial nature of the Isle of Man judiciary, this safeguard is less necessary.

Some critics of the current law may find it perplexing that a territory that only recently outlawed the practice of birching for judicial purposes is now proposing to make it illegal to look at images of the selfsame practice where it is carried out for sexual purposes. (Readers unable to distinguish between the two images should possibly refrain from visiting the Isle of Man for the foreseeable future.)

This late discovery of the extreme porn law by Manx authorities also serves to highlight a growing tension within British law-making between local "community standard" approaches and top-down legislation supposed to apply to the entire “nation”. While obscenity in England and Wales is governed by the Obscene Publications Act 1959 (pdf), in Scotland by s.51 of the Civic Government (Scotland) Act 1982 (pdf), and in Northern Ireland by Common Law.

Homosexuality was legalised in England in 1967, but remained unlawful in Scotland until 1980, in Northern Ireland until 1982 – and in the merchant navy until 1994. Coincidentally, that was the year in which the Manx government also legalised homosexual acts.

Returning to extreme porn, the proposals (pdf) now before the Scottish parliament are considerably more extreme than those already passed for the rest of the UK, widening the definition of extreme porn to include "rape or other non-consensual sexual activity", "indirect" sex with a human corpse, and sex with the carcass of an animal.

Within the United Kingdom different laws are being passed in relation to sexuality at different times and in different localities. Despite that, "national" bodies such as the British Board of Film Classification continue to make judgements on what is "acceptable" for viewing on the basis of whether some act might fall foul of a jury in some part of the UK.

As issues go, this is one that can only get worse, as pressures mount for regional Assemblies and more local law-making powers.

While the law proposed for the Isle of Man may precisely match that already in force in England and Wales, beware: idiosyncracies in the Manx justice system (including a presumption against bail) mean that you are twice as likely to end up on remand pending trial. So whether you are eventually found guilty or not, the chances of doing jail time in Man are significantly higher than in the rest of the UK. ®

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