The Criminal Justice and Immigration Bill - Essay Example

Introduction The Criminal Justice and Immigration Bill (the “Bill will take forward the Governments programme of reform of the criminal justice system. In particular, the Bill will: build public confidence in the sentencing framework, ensure that prison and probation resources are targeted at repeat, serious and violent offenders, strengthen the protection of the public from violent offenders, strengthen the pre-court and community penalties available for young offenders, ensure that the police and their community safety partners have appropriate powers to tackle, anti-social behaviour at its roots, and ensure that the UK does not provide a safe haven for foreign criminals and terrorists. The Bill, introduced in the House of Commons on 26 June 2007, sets out new powers to deal with anti-social and violent behaviour, make sentencing decisions clearer and introduces a new community sentence for young offenders. The Government set out its commitment to delivering an effective criminal justice system in ‘Rebalancing the criminal justice system in favour of the law-abiding majority’, published in July 2006. It looks at how to cut crime, reduce reoffending and protect the public. The Bill sets out how it would deliver the commitments set out in the review. The proposal The new law proposed to make it a criminal offence punishable by up to three years imprisonment to possess violent and extreme pornographic material. The new law will ensure possession of such pornography, already covered under the Obscene Publications Act 1959, is illegal via the internet.1 The proposed legislation follows the August 2005 consultation on the Possession of Extreme Pornographic Material.2 Briefing Clauses 64 to 67 of the Bill create a new offence of possession of extreme pornographic images. An image will be ‘pornographic’ (Clause 64) if it appears to have been produced solely or principally for sexual arousal. It is ‘extreme’ if it falls into one of specified categories: 1) threatening or appearing to threaten life; 2) resulting or appearing to result in serious injury; 3) involving or appearing to involve sexual interference with a human corpse; or 4) performing or appearing to perform sex with an animal. In all cases the act must be real or appear to be real. It is a defence (Clause 66) for a person to establish that they have a legitimate reason for possession, that they hadn’t seen the image or if it was unsolicited. The offence does not apply to images from films that have been given a classification certificate unless the image has been extracted for sexual purposes. No prosecution can take place without the consent of the Director of Public Prosecutions. 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. Legitimate and proportionate legal restrictions on pornography, including criminal offences of possession, can be justified in a democratic society. The criminal law can play an important role in protecting the vulnerable from harm and possession of certain forms of pornography should be a criminal offence. In particular any pornography in which the participants have not consented is a legitimate subject of the criminal law. It follows that the possession of child pornography, for example, is rightly criminalised as children are unable to give consent to sexual activity. However, the proposed overbroad offence would criminalise those who do no harm to others and detract attention from those who cause genuine hurt. It would, for example, be tragic if the creation of this offence reduced the police resources available to tackle child pornography or other circumstances where participants are clearly forced to act against their will. It can be argued that all pornography is coercive and all those who participate exploited. Such debates have their place but are not appropriate to a consideration of the appropriate boundaries of the criminal law. 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. The state must provide justifications for legal restrictions on pornography and to demonstrate that a proposed measure does not go further than is necessary. It is vital to ensure that legitimate and undamaging behaviour is not unintentionally criminalised by carelessly drafted, over-broad criminal offences. The breadth of the proposed new offence might criminalise people who cause no harm to others and who possess pornographic material involving consensual participants. See for example the facts of the case in R v Coutts [2006] UKHL 39. Possession of child pornography is an offence under the Protection of Children Act 1978 which has been extended to cover generated or ‘pseudo-images’ under Section 84 of the Criminal Justice and Public Order Act 1994 and further extended to cover images of young people up to 18 years of age by virtue of Section 45 Sex Offences Act 2003 (SOA). Possession of extreme pornography has not, however, previously been a criminal offence, unless it satisfies the definition in the Obscene Publication Act 1959 (OPA) and is accompanied by an intention to distribute for gain. The definition of an obscene publication in S1(1) of the OPA is one which will “tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” The justification behind the offence should be appropriate protection of those involved in making the pornography. Only possession of material where they have not acted of free will, have not consented or have otherwise been coerced should, therefore, be included. It has been implied that the offence targets exploitative pornography causing harm to those involved against their will. However, the offence goes beyond that. If the Parliament feels that a new offence should be created to protect participants, the need for limitation must be emphasised. An ‘extreme pornographic image’ is one which has been produced principally for the purpose of sexual arousal and which covers certain acts (threat to life, serious injury and so on). The possession of pornography involving anyone whose life is genuinely threatened, who suffers serious injury against their will or who unwillingly performs sex acts with corpses or animals should be criminalised. The difficulty arises from determining whether involvement is willing or unwilling. The bill attempts to address this by also requiring that ‘any such act, person or animal depicted is real or appears to be real’. However, this still creates problems. In relation to images being ‘real’ it is understandable that this should be criminalised when, for example, life is threatened. However some pornography involves willing participants suffering ‘real’ injury through BDSM acts or acts of ‘bondage, domination and sadomasochism’. 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 (Section 20 of the Offences Against the Person Act 1861) 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. It is presumably the role of a consenting performer in pornography to ‘appear real’. Therefore, 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 Bill attempts to address this problem by exempting any film that has been given a classification (Clause 65). It does, however, exempt from this exclusion any part of a classified film that has been extracted for sexual purposes (Clause 65(3)). This exemption encapsulates the problem caused by the general broad definition of the offence. Possession of material that has been considered suitable for classification can become a criminal offence solely on the basis that it results in the sexual arousal of the person in possession.3 In the absence of any evidence to suggest that possession of such material might cause wider public harm this is a worrying development in the criminal law. The defences available are limited in that they only protect those who had a legitimate reason to have the material4 or who were not aware they possessed it. The requirement of consent of the Director of Public Prosecutions before any prosecution can occur does provide a bulwark against inappropriate prosecution (Clause 64 (9)). However, the broad definition means that many people will be committing the offences regardless of whether they are actually prosecuted. Legislation should provide sufficient clarity so that people are aware of the parameters of criminal activity. A new subclause was inserted ‘(i) that they reasonably believe that no person portrayed in the image was made to act against their will (ii) for the purposes of this section whether a belief is reasonable is to be determined having regard to all the circumstances. This will create an extra defence to the offence of ‘possession of extreme pornographic images’. It will allow a person to rely on a defence of a belief that is reasonable in the circumstances that no-one portrayed in the image was coerced. The purpose of the amendment is to create an additional defence available where a person believes that those involved in the material they possess consented to their participation. While this might be difficult to prove in the case of mass produced pornographic images, it could provide a useful defence in the case of images made by consenting couples, or groups, for their own use. In order for this defence were to mirror the approach to consent in the SOA30 it would also require that such a belief were ‘reasonable’. The introduction of a need for reasonable belief in consent in the Sexual Offences Act arose from problems arising under the previous law which resulted in defendants being acquitted if they successfully argued that they genuinely believed that a person consented to a sexual assault even if that belief was itself unreasonable.5 It is arguable that such an approach would be difficult to adopt as there would be no evidential basis (such as interaction between the person in possession of the material and those involved in it) for a jury to determine whether or not the belief in consent was reasonably held. However, an unreasonably held belief in consent should not allow acquittal when material clearly involves coercion. This amendment is also intended to address the uncertainty mentioned above arising from the question of what appears to be real. The current drafting is unclear as to whether ‘real’ means i) that it is something acted but the intention is that it should appear to be a real act or ii) It is ‘real’ in that there is no acting i.e. there is coercion. The amendment means that something whether or not something is ‘real’ can be determined by evidential assessment as to the defendant’s belief as to whether a person was forced to participate or not. Furthermore, under Clause 66, all the defences available for the offence of possession of extreme pornographic images place the onus of proof on the defendant. This means that if the person wishes to rely on any of these defences they must satisfy the court on a balance of probability that they apply. If the usual criminal law evidential burden were applied the onus would change in that the prosecution would be required to prove every element of the prosecution case beyond doubt i.e. that there was no legitimate 30 S.1 Sexual Offences Act 2003 and elsewhere in the Act reason for possessing the image, that the person had seen the image, and that it had not been solicited. Reverse burdens of proof can be compatible with the right to a fair trial under Article 6 of the Human Rights Act (the Right to a Fair Trial). One of the key questions that needs to be established is whether the reverse burden relates to something that is difficult to prove. Proving a legitimate reason (such as academic research) might be a reasonable burden as there is likely to be other evidence that can be adduced to support this reason.6 However, proving that the defendant didn’t see material or that they didn’t request it would be extremely difficult to establish. The reverse burden would therefore be extremely onerous if thee defences were relied on. It should be remembered that the offence is one where possession of the material presumes guilt. As a consequence, the application of the defences would be fairer if the traditional onus of the criminal law remains on the prosecution. References: Article 6 of the Human Rights Act (the Right to a Fair Trial) Clare McGlynn & Erika Rackley, 2007. Striking a Balance: Arguments for the Criminal Regulation of Extreme Pornography Criminal Law Review 677-690. Consultation Paper on the Possession of Extreme Pornographic Material (August 2005) Criminal Justice and Immigration Bill Criminal Justice and Public Order Act 1994 Daily Telegraph, August 31, 2006, 6 Esther Addley ‘Jane’s legacy’ The Guardian, 2 September 2006 Guardian, August 31, 2006, 1,4 Home Office, Consultation on the Possession of Extreme Pornographic Material – summary of responses and next steps (Home Office: London, 2006) Home Office, Consultation: On the possession of extreme pornographic material (Home Office: London, 2005) Independent, August 31, 2006, 15 Obscene Publication Act 1959 Offences Against the Person Act 1861 Protection of Children Act 1978 R v Coutts [2006] UKHL 39. Rebalancing the criminal justice system in favour of the law-abiding majority (July 2006) Sex Offences Act 2003 Times, August 31, 2006, 6. Read More