Extreme Pr0n - One Year On
Little protection from extreme images - but pets are safe
Analysis One year on from the passage of the extreme porn laws, and it would appear that the worst fears of those who campaigned against them have, in the main, not been realised. At the same time, the case for driving a coach and horses through some basic principles of English Law feels equally unmade.
A year ago this week, ss63-68 of the Criminal Justice and Immigration Bill 2008 came into effect. This law made it an offence for an individual in future to possess material deemed as "extreme porn", described as images that depicted "explicit realistic extreme acts" – such as necrophilia, bestiality or acts that were life-threatening or likely to cause serious harm to intimate body parts - pornographic (produced for the purposes of sexual arousal), and "grossly offensive, disgusting or otherwise of an obscene character".
That is actually quite a high hurdle to cross, as material may tick the box on one or two counts – yet still remain OK to possess because it doesn’t fulfil the final criterion.
ACPO, sensing a legal quagmire that could easily see police officer’s time sucked into endless debate about what sort of material a jury would consider to be grossly offensive, put out its own guidance. This suggested that the police should prosecute extreme porn when they found it – but that they should not waste time and resource going on a witch-hunt looking for it.
Thus the number of cases that have actually reached the courts in the last year has been limited. El Reg has maintained a database of cases reported publicly or otherwise brought to our attention, and we can provide the top line figures here.
Over the last 12 months, there have been approximately 26 cases involving extreme porn: the approximation lies in the fact that we have some evidence that police have been using the charge as a "quick and dirty" means to deal with individuals selling dodgy (animal) DVDs – and that would inflate the overall tally by an unknown number of cases.
Otherwise, this is in line with the official expectation of around thirty cases in the first year.
The majority of cases have been in respect of images downloaded to PC – but mobile phone porn also has a good showing.
Almost without exception, extreme porn has been an add-on charge. Of the 26 cases reported, 24 have involved individuals being prosecuted for other serious offences – from drug dealing, to making indecent images, to indecency – and only two have been exclusively about extreme porn.
Those two included the first ever case, brought in St Helens, after a man was reported to the police for images found on his PC by a co-worker, and one of the most recent cases: the "Frosties Tiger" case reported in North Wales.
In only one case – the Frosties Tiger case – have the police actually gone looking for extreme porn.
In terms of content, details are given in just 17 of the cases reported. These reveal an interesting trend: 14 of those cases were for animal porn: one was for a mix of adult and animal porn; just two were brought in respect of adult porn alone. In other words, far from acting as a brake on the sort of extreme adult porn that advocates of the law claimed that it would, the extreme porn law appears to have mutated very quickly into the "Safeguarding Vulnerable Animals Act".
It's the Principle of the Thing!
For me, it's the principles that are important. And I see that John Ozimek is mindful of the question of underlying principles with how he finishes his fine article:-
"On the whole, therefore, the worst fears have not been realised. On the other hand, once a principle is breached, government has a habit of returning to ask for more – and so it has been with the principle of possession. Last year, government legislated on possession again, this time making it an offence to possess a cartoon that depicted illicit acts with children.
Concerns remain that as each "loophole" gets plugged, government is all too ready to move on to the next, widening the net of censorship further and further."
On the matter of "loopholes" (I remember when loopholes were real loopholes, not the pretend "loopholes" they have these days), I have exactly the concern that Ozimek describes here.
Reality is not neat and tidy. As we legislate over it, it's like we're laying down crazy paving - the ever advancing edge remains untidy, with gaps at the edge that legislators feel compelled to fill with yet more slabs. And so the edge continues to advance, with new gaps appearing at the newly established edge.
We can see this with the cartoon porn law. The Protection of Children Act 1978 was originally supposed to protect children from abuse, since the production and distribution of indecent photographs of them was itself abusive. But the edge appeared untidy, since pseudophotographs were not illegal. Concerned that those in possession of real photographs might claim them to be pseudophotographs, and therefore get around the law, the possession of pseudophotographs was criminalised. But then there was concern that photographs and pseudophotographs could be somehow transformed and disguised, such as by tracing them to turn them into drawings. And so the law was extended to cover such derived images as well. And now we have the cartoon porn law, which seeks to cover images that aren't derived, no matter how obvious it is that the images were never real.
As I understand it, there's no defence for possession of an indecent pseudophotograph on the grounds that it can be shown to be a pseudophotograph rather than a real photograph. This extension of the law doesn't simply fill a perceived gap, but actually extends the law beyond where it was originally intended to reach. The cartoon porn law is a much more obvious example of this, since it's explicitly about images that aren't indecent photographs or pseudophotographs.
While the legislation becomes increasingly further removed from the original purpose of protecting real children from real abuse (the link with real abuse is extremely tenuous, if it exists at all, in the case of the cartoon porn law), there's a subtle but significant change in important, underlying principles.
We no longer live in a society in which we are free, in private, to privately express to ourselves, on paper, whatever it is we might happen to think, to imagine. Instead, the State now claims that what we privately express to ourselves on paper is the business of the State. The State believes it rightly has the authority to decide and dictate what kinds of thoughts and ideas we may privately put down on paper.
There's no guarantee that this deep shift in principle will be limited to just undesirable images of people or animals.
With that fundamental shift in principle, we are all now far less free than we recently were.
The handgun ban is a good example of some very stupid legislation.
The problem with gun crime wasn't the lawful possession and use of guns by those who complied with the law and never used their guns for crime. The problem was - and remains - the criminal use of guns in breach of the law. And you simply can't solve that problem by criminalising the previously lawful possession and use of guns. The criminal use of guns still remains criminal, and those prepared to commit such crimes still commit such crimes.
It's like there's a wall, six foot high, that criminals are climbing over. They're not supposed to climb over the wall - it's against the law! But they do climb over it. It's a problem. The wall is supposed to stop them, but it doesn't.
So, in an effort to stop the criminals from reaching the six foot high wall, a small fence is erected in front of it - a full foot in height! This is there to stop people from walking over the grass in front of the wall and climbing over it. What's more, there are little signs on the grass, saying, quite clearly, "KEEP OFF THE GRASS".
The law-abiding do indeed keep off the grass. Some complain that they used to be allowed on the grass, that they weren't hurting anyone by walking, sitting or lounging around on the grass, and that the fence and signs haven't stopped criminals from just walking over to the wall and climbing over it. Indeed, criminals do still climb over that wall, while the law-abiding have lost the enjoyment of that grass.
The handgun ban is much like that. Criminals still break the law and commit crimes with guns. But the law-abiding have had something taken away from them, without this doing anything much at all to stop the criminals.
It really is spectacularly dumb to expect criminals to be stopped from committing big crimes by relying on them to abstain from committing smaller crimes.
@ Dan Breen
'Banning Handguns back in 97 is the only success really.'
How exactly has that been a success Dan? I mean assuming that you aren't a member of a competitive pistol shooting team from another country delighted that the British team can't practice in their own country any more..
The real problem was never licensed handguns, it was illegal unlicensed ones and (obviously) the change in the law has had no impact on those.
It hasn’t even really stopped people privately owning/shooting pistols as most of the pistol clubs just attached long stocks to their weapons, meaning that they are over the length specified in the law and as such are classed as rifles.
All it has achieved is buggering up our sportsmen and women who need to train with firearms of a specific specification and who are now not allowed to.
I'm sorry - In my book that goes down as another fail.