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Days prior to yesterday:
Harvey [30456. Posted 29-Oct-2014 Wed 19:12]
"In that regard it is indeed easy to stay on the right side of the law."
Well, that is all that is necessary for the clarity which legal certainty requires.
As you have said yourself, you can stay the lawful side of s.63 by not possessing anything which is pornographic. In saying that, what you are actually contesting is not that the DPA is unclear, but that because of the uncertainty about what is "extreme", it is unneccesarily restrictive.
phantom [30455. Posted 29-Oct-2014 Wed 14:47]
I`m not quite sure of the point you`re making, Harvey.
If the only legal certainty of not offending the DPA is not to look at pornography (or controversial pornography for that matter), then the only legal certainty of not offending traffic law is not to drive a car.
In that regard it is indeed easy to stay on the right side of the law.
But the fact is, nobody would say the above about driving.
In the case of the DPA the law however is so vague, even a man in a tiger suit can lead to prosecution.
I think people on here will be among the best informed folks on the DPA around. Yet, I do not think any of us would be able to show any degree of certainty on any even remotely controversial imagery.
If the police and the CPS think a man in a tiger suit might breach the law, it merely shows how far out to sea this legislation is.
"Not really. IMO points 1 and 2 would be easily dismissed as grounds for making a declaration of incompatibility. The law is clear enough to be able to stay on the right side of. There is no need for the DPP to provide any additional guidance."
I`m working from the above statement of yours.
If the law is clear enough, then how come the problem of not being able to achieve any degree of certainty occurs, irrespective of how well informed you seek to be?
If the DPP itself thinks a man in a tiger suit is an offence under the DPA, do they really not need to tell us a little more about their thinking?
Harvey [30454. Posted 29-Oct-2014 Wed 09:37]
"To tell these people, simply to stay away from it, not because it is illegal, but because it could potentially be found to be, seems unreasonable."
Unreasonable, certainly. The entire effect of the law is unreasonable, because mere possession of an image causes no harm.
But the issue raised was one of legal certainty.
phantom [30453. Posted 29-Oct-2014 Wed 08:44]
"Nevertheless, you can recognise which images are "controversial", so you can stay the right side of the law by not possessing them. i.e. the law is clear enough that you can regulate your behaviour thereby."
Is it? I`m still not really sure.
Especially where sexuality - and the sexual imperative - enters into it.
People will be drawn to imagery if it is `their thing`.
This is undeniable.
To tell these people, simply to stay away from it, not because it is illegal, but because it could potentially be found to be, seems unreasonable.
So yes, technically one can simply `stay away from it` (albeit that one only knows if a picture is controversial if one has already seen it!).
But sexuality is not a lifestyle choice.
And to ask people to voluntarily curb their legal sexual preferences in order not to expose themselves to risk seems unreasonable.
The law seems to cut across common human drives. More so, across legal ones. Good old Aristotle`s motto, `there can be no morality without practicality`, rises up from the dust yet again.
People are drawn to pornography. To claim otherwise is pure folly.
Some pornography may be banned. Child pornography is a perfect example of the fact that this does not suddenly switch off paedophiles.
Why then would a risk of unforeseeable, potential illegality switch off those who are drawn toward this controversial imagery?
We know it will not. Moreover, to even expect it, is to deny the human condition.
I make no secret of the fact that I do not agree with the law.
But if a law there must be to satisfy the morality of some, so be it.
The least one can ask, however, is that the law is clear. That people can know what is banned and where the line is.
I`ve been involved since the proposal of this law. I still cannot say I could differentiate a legal from an illegal image with any degree of certainty. If I cannot, who possibly can?
Can you say categorically, Harvey, that you can keep with any degree of certainty an illegal from a legal image under this law?
We both know a clearly legal image (man in tiger suit having sex with woman) from a clearly illegal one (woman with lacerated genitalia).
But where pretence enters the field, terms such a `realistic` throw up massive problems. As does the `likeliness` for serious injury. Not because we`re being contrary and argumentative, but simply because they do.
And in BDSM practices with piercings or needle play, whippings or bondage, or simple role playing, very quickly huge questions arise.
To those people drawn to this material, `staying away from controversial, legal imagery` may just not be practicable - without effectively giving up viewing images of their fetish per se.
To top it all, if the law enforcement agencies and the courts even think a man in a tiger suit may be in breach of this law, then, pray, where do we stand?
Clearly the understandings and interpretations of this statute are laughable. They are so as a consequence of the nature of the law itself.
If even the law enforcement agencies can so wildly differ in their interpretations of the law, how could anyone know what a jury might decide?
This law simply cannot be administered justly. Not least, as, in essence, it represents an opinion.
Or is there anyone who thinks that, after a run-in period of these last five years or so, it will now be plain sailing, because the law is better understood? The issue of wildly differing interpretations will simmer down?
I very much doubt it.
Harvey [30452. Posted 29-Oct-2014 Wed 03:31]
"I still think it is pretty impossible when confronted with any controversial picture to decide whether it would fall within this offence or not."
Nevertheless, you can recognise which images are "controversial", so you can stay the right side of the law by not possessing them. i.e. the law is clear enough that you can regulate your behaviour thereby.
The "chilling effect" would become an issue if the definition of "extreme" was so vague that, in order to stay the right side of the law, the consequent inabiliy to possess such "controversial" images interfered with the right to a private life or right to free expression. Given the margin of appreciation which the ECtHR allows, I think challenging s.63, on the basis that it is incompatible with Article 8 or 10, wouldn`t succeed.
If you agree that the law, as it stands, is clear enough, the need for the DPP to give further guidance falls away.
What remains is the fact of 5,500 cases going before the courts. One interpretation of that is that *even if* s.63 is clear and is not imcompatible with the ECHR, the definition of "extreme" has caught far more than the images (30 cases per year) which the government intended. So I think you could get a court to at least consider that the *process* (of converting their intention into a workable law) was faulty to the point where it is unjust and therefore, unlawful.
JR is the means by which a process can be challenged, but the application to JR has to be made withn 3 months. Clearly an application made now to JR the process of enacting s.63 would be rejected as it happened in 2008, so you need to find a backdoor way of doing it. I am guessing that`s what Backlash/Jackman are up to.
Melon Farmers (Dave) [30451. Posted 29-Oct-2014 Wed 02:36]
The Telegraph is having a bit of fun at the expense of the CPS