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Legislating in Haste
Proponents of a ban on ‘extreme pornography’ are looking increasingly desperate in their attempts to push their plan through Parliament, writes Julian Petley
Faced with a rising tide of opposition in the Lords, the government dropped yet more parts of its Criminal Justice and Immigration Bill on 27 February, including a crackdown on prostitution and a proposal which would have stopped the appeal court quashing convictions on a technicality in cases where there was ‘no reasonable doubt’ about a defendant’s guilt. However, the highly controversial clauses which will make it an offence even to possess certain kinds of ill-defined pornography remain firmly in place, in spite of the grave doubts about them now being raised — albeit belatedly — in Parliament.
For example, in its legislative scrutiny of the bill, the Joint Committee on Human Rights noted that the government had already made it clear that it felt that the seriousness of the proposed offences justified interference with Articles 8 and 10 of the European Convention on Human Rights, which concern, respectively, an individual’s right to private life and their right freely to receive and impart information (including information which is offensive or unpalatable). However, the committee was concerned whether ‘the definition of the new offence is sufficiently precise and foreseeable’ to satisfy the requirement that interferences with these rights are ‘in accordance with the law’. Thus it asked the minister to explain how an individual user of pornography would be able to know whether their possession of a particular image would constitute a criminal offence. In reply, he stated that the government believed that the user of such material would have ‘no difficulty in recognising pornography’ and that extreme images would be “recognisable” or “easily recognisable”. However, the committee remained unhappy about ‘the vagueness of the definition of the offence’, noting that ‘an assessment of whether an image is or is not ‘extreme’ is inherently subjective and may not, in every case, be, as the government suggests, “recognisable” or “easily recognisable”. 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.’ They concluded: ‘We look forward to the government bringing forward an amendment to make the scope of the new offence more precise.’