See also Religious Watch Forum

Harvey    [27137.   Posted 13-Aug-2010 Fri 17:23] View Near Messages
@ pbr,

I tend to think the biggest trouble will be with prisons, rather than the courts.

Harvey    [27135.   Posted 13-Aug-2010 Fri 17:09] View Near Messages
@ pbr

Well legal aid was being squeezed even before the government`s finances got so out of shape. But I take your point that when the budget gets slashed, there will be less justice to go around.


Although... the slashing of budgets at the MoJ could work to prevent the CPS spending money on such nonsenses as the tiger porn man`s case. So it`s swings and roundabouts.

Harvey    [27133.   Posted 13-Aug-2010 Fri 16:46] View Near Messages
pbr, IanG

re: McLibel.

I think the facts of the McLibel case also bear on the ruling. It was McD who sued Steel & Morris. They were not seeking legal aid to bring a case of their own, but to defend themselves in an action brought against them. AND it was a very unequal struggle between a wealthy multi-national and two individuals of limited income. So while the ECHR upheld the claim of the McLibel 2, that in their case they had been denied a fair trial, that`s far from being a ruling that the discretionary awarding of legal aid is in conflict with article 6.

But in the recent comparable and notorious libel action against Simon Singh by the British Chiropractic Association I don`t think he got any legal aid to defend himself. Though the BCA eventually dropped the case, he was left with a legal bill well into six figures. Singh wasn`t denied a fair trial. He just had to pay for it. But then the BCA probably paid a similar amount, if not more to exercise their right.

Harvey    [27125.   Posted 12-Aug-2010 Thu 16:32] View Near Messages
IanG, AFAIK there is no general entitlement to legal aid for civil cases. Though the ECHR does say that to ensure the right to a fair trial there should be legal aid for criminal proceedings AND to determine civil rights.

Other claims are assessed on merit, and even then any legal aid is means tested. Even with a strong case, you have to be virtually destitute to qualify for anything. Taking a simple case to the High Court to get a judicial review could cost you anything up to £10k in fees and lawyers charges.

Harvey    [27123.   Posted 11-Aug-2010 Wed 19:17] View Near Messages
Civil cases involve individuals or parties who each fund their own cases as far as court and if applicable the losing party may have to pay some or all of the costs of the other. The state acts as judge and in some cases there is a jury. It is almost impossible for an individual to get state funding to bring a civil action.

In criminal cases it`s an individual up against the state itself. If the state prosecutes you, it will provide legal aid to cover the basic costs of hiring lawyers to defend yourself. If you lose, you will be sentenced to jail or a fine or other punishment, but you won`t be handed the bill for the costs of the prosecution.

So in prosecuting criminal cases there is a sense in which the state, with its vast resources, can always "have a go". It knows it will cost the same to fight you and lose as to win so the only decision is whether to fight the case against you rather than any other case. The only sanction would be that you could sue the police for malicious prosecution. You would need to show malice or a malign motive and as it`s a civil action, you`d only need to show that malice was more likely than not rather than beyond reasonable doubt. But... you`d need to raise the money to bring the case in the first place - it being almost impossible for an individual to get state funding to bring a civil action. If you win you`d be awarded damages. I know of at least one Ore case where a the police are being sued for malicious prosecution. http://www.watfordobserver.co.uk/news/4769650.Photographer_to_get_retrial_over_child_pornography_damages_claim/ It`s still winding it`s way through the legal morass.

Beyond that, if the police actualy falsify evidence or lie or withhold material they know would help you defend yourself, they could be open to criminal charges themselves of perverting the course of justice, perjury, misfeasance in a public office or contempt of court.

Harvey    [27118.   Posted 10-Aug-2010 Tue 10:14] View Near Messages
emark [27115]

In the OPA case I think you`re referring to (Girls Scream Aloud), yet again the prosecution offered no evidence. So we can only guess what may have happened in the trial.

The press were reporting that the issue was concerning who may have been likely to read the story and the court may have allowed an expert to unravel the workings of the internet and the story site where the article was posted for the benefit of the judge and jury.

Harvey    [27113.   Posted 9-Aug-2010 Mon 18:39] View Near Messages
Would he have been allowed to call experts to testify that the image was not pornographic? I would expect the court to say it was a matter for the jury to decide and that they could be expected to do so purely by looking at the image itself. There was similar argument as to the admissibility of expert testimony in relation to the apparent age of a person featured in an image. The Appeal Court ruled that it was a matter for the jury alone to decide if it was a child.

"In R v Land (1997), the Court of Appeal held that a jury is as well placed as an expert (e.g. a paediatrician) to assess any argument addressed to the question whether the prosecution had established that the person depicted in a photograph was a child, and in any event expert evidence would be inadmissible: expert evidence is admitted only to assist the court with information which was outside the normal experience and knowledge of the judge or jury." [http://www.inquisition21.com/pca_1978/#_int_age_unk]

The whole point being that if the courts accept that it takes an expert to decide, how could any ordinary person, reasonably know whether any image they possess is of a child (or indecent or pornographic or extreme)? Though I admit that the way the DPA is worded expects the jury to decide on the motivation of the person who made the image, I`m sure the courts won`t torpedo the whole offence by admitting it takes an expert to decide.

So, I still believe they planned to run a specific defence (most likely that the image had been sent without him having requested it) and that`s the reason why the prosecution folded. But because it was never actually tried, it is possible for both the prosecutors and the defence to make all kinds of claims about what would have happened if it had been and we are left wondering exactly why the CPS bottled out.

Harvey    [27111.   Posted 9-Aug-2010 Mon 09:43] View Near Messages
pbr [27107]

Yes, the decision will be made on behalf of the DPP by someone lower down the food chain. But that doesn`t mean the buck stops anywhere else, but with Kier Starmer. He takes home the pay-packet, so he carries the can for the blatant nonsense of giving his consent to charging someone when there was no evidence to bring to court.

It`s an angle Backlash could use in their campaign. Perhaps by asking those in Parliament who had opposed the DPA during the passing of the legislation to start asking awkward questions at the DoJ about the consent given in the Holland case or by making the general issue of the CPS coming to court with "no evidence" something which one or other of the Select Committees would like to investigate.

Harvey    [27110.   Posted 9-Aug-2010 Mon 09:25] View Near Messages
emark [27108]

Although strictly speaking the question of whether an image is "pornographic" and "extreme" (according to the wording of the DPA) is only able to be decided by a jury, the return you get for pleading not guilty is a stiffer sentence should the jury decide otherwise as there would be no consideration given for you having entered a guilty plea. That could mean going to jail rather than getting a fine or community payback. So faced with the decision to plead guilty or not, an accused person would have to think there was a more than reasonable chance of a jury deciding in their favour before they`d take that gamble.

But you are quite right that if the nature of the image really was in dispute, it should have gone to a jury trial in both cases.

The reason why I think there was no such dispute in Holland`s case is that the news reports refer to him "having a defence". Now, there are specific defences available to someone charged with possession under the DPA. One of those defences is that the image was sent to the accused without him requesting it and that he had not seen or did not know it was an "extreme" image. Again, I`m guessing that this was Holland`s defence. Because, if the issue had been about whether the image was in fact "pornographic" and/or "extreme" the newspaper reports would not have referred to him "having a defence".

In Holland`s case, he was probably advised first by someone who was not familiar enough with the DPA and was possibly confused having previously dealt with indecent image cases, where downloading is usually charged as "making", for which there is no similar defence. In Nelson`s case it sounds like he`d made enough admissions (probably in interview *before* consulting a solicitor) that he couldn`t resort to that defence. He could have entered a not guilty plea and put his future in the hands of a jury to decide whether a video clip of "genital mutilation" is a) "pornographic" and b) "extreme", but if they decided it was both, he could now be cooling his heels in prison rather than scrubbing graffiti. He may well have got quite sensible advice that given his admissions, damage limitation was better than being a martyr to the cause of individual freedom in the face of bogus claims of harm and of grieving mothers wanting to believe that their daughter didn`t die pointlessly.

Harvey    [27106.   Posted 8-Aug-2010 Sun 17:23] View Near Messages
pbr, emark

Not just good news, but fantastic news regarding Andrew Holland. A lot of credit should go to Backlash.

And again - YET AGAIN, we have the spectacle of the prosecution deciding to charge someone and when they plead not guilty, turning up in court and offering no evidence. Parliament needs to take a serious look into this as it`s becoming a ritual. Charging practice demands that the prosecution believe there is a reasonable liklihood of obtaining a conviction. How can that be possible when they are not prepared to put any case before the court when someone stands up to the browbeating and doesn`t roll over and plead guilty?

The details of Holland`s ordeal are no surprise to any of those who`ve been hit by the truck of an indecent image allegation as hundreds were during Op Ore. I`m sure there were people here who thought it was an exaggeration to claim that just an allegation could lead to loss of employment, and separation of familes for up to a year. Let this example prove that it`s no exaggeration at all. If things wee running to form he`d have been told the only way he`d see his child again was if he admitted his guilt, because that`s what happened to plenty of people I know when they were hit by Ore. And although he walks from court an innocent man, there`ll be no compensation offered to Holland, and no help in trying to put his life back together, though I hope Backlash will continue to keep in touch with him and offer advice, now that the legal process is concluded.

We all spent ages both here and at seenoevil.org arguing the infinitessimal detail of the proposed law - the definitions, the exceptions and the assumptions. But look at what happens even when there is no evidence.

And don`t forget that the DPP has to authorise each and every prosecution under the DPA. All honest citizens should be writing to ask him how on earth he can do that - twice in the case of Mr Holland - when there`s NO EVIDENCE.

Lastly... Backlash - please publish the names of the individual police and prosectors who staged this outrage.

emark [27101]

Re: the Sunderland case, if the remarks attributed to Nelson are correct, he hung himself once he admitted that he could have deleted the video from his phone, but didn`t. (Which is why he was asked that question, of course) Then the advice would almost certainly have been that he`d pissed on his one possible defence - that the image had been sent to his phone without his knowledge and he didn`t know or suspect it to be an indecent/extreme/prohibited image. In the one statement he`s admitted possession and knowledge - so it went to Mags Court and the solicitor is left making a statement in mitigation. The golden rule is, when arrested and interviewed, say NOTHING. If they have evidence, they`ll be charging you anyway. The only reasons for them to interview under caution is either that they don`t have sufficient evidence they can take to court and want you to give it to them, or that you might admit to more offences than the one they`re already investigating. Remember- you are not obliged to say anything. The time to defend yourself against an allegation is in court, if it gets that far, not in the police interview room, where all you can possibly do is make a bad situation much worse.

Sad for the young guy involved, but he is not the first and won`t be the last. Ask yourself how many other copies of this "sick porn" video are being sent around the mobile phone network. Hundreds, maybe thousands, and the comments of the District Judge suggest that if Nelson had admitted sending the video to anyone else, he`d be looking at a spell in jail instead of community payback.

Harvey    [27084.   Posted 3-Aug-2010 Tue 18:42] View Near Messages
pbr [27076]

The cartoon porn law has only been in effect since April, so it`s still early days in respect of prosecutions getting into the courts. Even if/when prosecutions do get into the courts we`ll only know if reporting is accurate. I can imagine that in many cases it will not be, and reports will just refer to possession of "child porn", whether it be photographs, pseudo photographs or drawings/CGI. The only clue that it was "cartoon porn" might be that a person convicted, but sentenced to less than 2 years jail, would not be required to "sign the Sex Offender`s Register".

Harvey    [27052.   Posted 26-Jul-2010 Mon 08:39] View Near Messages
Rapist struck after viewing violent porn

http://www.southwalesargus.co.uk/news/gwentnews/8290111.Rapist_struck_after_viewing_violent_porn/

Wasn`t the DPA supposed to stop people being raped as a result of the rapist watching videos? The law has been in place for over a year yet somehow rapists are still going around attacking people. How is this possible? Doesn`t the rapist know that merely possessing a video could land him in jail?

BTW, no mention of any charges for possession of the video, so was this "violent rape" porn of such a type to be caught by the DPA? Get ready for cries demanding that the police couldn`t prosecute him because of a "loophole" in the law.

Also BTW, he received an indeterminate sentence for the rapes, with a minimum tariff of 11 years, which in my view is absolutely right.

Harvey    [26953.   Posted 23-Jun-2010 Wed 16:59] View Near Messages
pbr [26949]

Yet again we find a person charged and hauled into court only to find the prosecution offer no evidence. NO EVIDENCE.

I wish judges would be more condemning of prosecutors for bringing charges before looking to check that the evidence stacks up as it seems to be happening more frequently. And the CPS fuckwits who do decide to prosecute should be named so we can see who they are and whether they are just dumb or are serial offenders. No surprise that this was, yet again, Kent police and prosecutors, who have form when it comes to "enhancing" the evidence, prosecuting first and asking questions later.

Harvey    [26859.   Posted 28-May-2010 Fri 13:55] View Near Messages
bleach [26855]

The Digital Economy Bill has already been passed. It cleared all its remaining stages in the wash-up at the end of the last Parliament and is now the Digital Economy Act 2010.

The LibDems opposed it in the last Parliament and said they would repeal it. However, it isn`t mentioned specifically in the coalition government`s agreement. It may be that the provisions on copyright infringement could be included in the "Great Repeal", though.

Harvey    [26831.   Posted 15-May-2010 Sat 18:09] View Near Messages
Just a note in passing...

The following government appointments are of interest to us.

Edward Garnier has been appointed Solicitor General and Lord Wallace (of Miller/Wallace amendment fame) has been appointed Advocate General for Scotland.

Along with Ken Clarke at MoJ, the LibDem Lord McNally is also there as Minister of State which gives me hope that the commitments to scrapping ID cards, extending Freedom of Information and the rest as detailed in an earlier post are not there simply as window dressing, but will actually be carried through.

Harvey    [26829.   Posted 13-May-2010 Thu 12:31] View Near Messages
DarkAngel [26827]

In Scotland DNA and fingerprints of unconvicted people are not retained unless they are charged with a sexual or violent offence, in which case even if the charges are dropped or the accused is acquitted, they are retained for 3 years. If they think they have a good reason to do so, the police are able to apply for that period to be extended by 2 years.

That is not unreasonable, but personally I`d like to have seen some more detail. i.e. even when the DNA *profile* is retained, will the original biological samples be destroyed. And will the same rules on lifetime retention be applied to those convicted as juveniles as well as adults.

They are also proposing chasing people who were convicted before the taking of DNA samples to have them added to the database. If they are in prison you know where they are, but who would want the job of tracing and extracting DNA samples from all the people who were convicted of shoplifting or D&D in the 1970`s but have done nothing wrong since then. Picture the Daily Mail`s reaction to police turning up at the home of a now 80yr old granny to drag her down the nick to be swabbed because she has a 50yr old conviction for nicking a packet of biscuits from the Co-op.

Harvey    [26823.   Posted 12-May-2010 Wed 09:14] View Near Messages
pbr, emark

re: the "wanker" poster, the Met police would say they gave advice and the poster was taken down... They cited the Public Order Act but of course as nobody was arrested or charged, it`s not clear whether any offence was committed.


freeworld

Ken Clarke at MoJ seems pretty fair to me.

Harvey    [26804.   Posted 7-May-2010 Fri 17:04] View Near Messages
Re: Fun in the US Supreme Court in obscene language case
http://www.melonfarmers.co.uk/inus10b.htm#Freedom_of_Fucking_Speech_4621

Great article....



...from "The Onion".
http://www.theonion.com/articles/supreme-court-upholds-freedom-of-speech-in-obsceni,17372/

Harvey    [26803.   Posted 7-May-2010 Fri 16:41] View Near Messages
@emark "Everytime people moan about a hung Parliament, I ask them for an example of a law which wouldn`t pass..."

Well, to be fair being in power isn`t just about having the ability to pass laws. It`s mostly about the *process* of government and the taking of decisions which don`t require the making of new laws. let alone the scrapping of existing ones.

The moan usually made by people about a hung Parliament is because the party they voted for ends up agreeing to compromise on some or other policy in order to form a coalition, based on other policies which they hold in common. In the real world that process is called "politics", but people used to one or other party winning outright seem to think it`s a betrayal or unprincipled behaviour and has them vowing never to vote X, Y or Z again.

The LibDems have a chance to show that making a deal can result in a long lasting and stable government and that a hung Parliament is not necessarily such an awful outcome. If they flunk that, and instead decide to merely allow the Conservatives to run a minority government there will have to be another election sooner rather than later. But then, having passed up the chance to make one work when it was offered, it will be difficult for them to continue to argue for any change in the electoral system which made future hung Parliaments more likely.

Harvey    [26798.   Posted 7-May-2010 Fri 02:51] View Near Messages
I`m also glad to see the back of Vera Baird and Jacqui Smith. Though it has to be said they were kicked out not because of their femi-nazi record, but for other reasons.

Plus, I think it`s very satisfying to see Esther Rantzen rejected by the voters in Luton South, who can obviously see there is more to being an MP than being labelled as a single issue "campaigner".

And did you see how well the "Christian Party" polled? Roughly on a par with the Monster Raving Loony Party.

emark - "There`s still enough Conservative and Lib Dem MPs to outvote Labour, too."

Conversely there will probably be enough Labour and LibDem MPs to outvote the Conservatives.... :)

Anyway, my recollection is that the dog-whistle lawmaking and moralising stances are not taken right away by new parties coming into government, but usually happens if/when they get re-elected for second or third terms.

Harvey    [26786.   Posted 4-May-2010 Tue 04:32] View Near Messages
emark [26782]

"there`s a chance that they will consider it"

Really? I mean REALLY????

I`d urge a massive amount of caution about a "policy" which only sees the light of day during the last few days of an election campaign, floated by a party which wants to broaden its appeal. And as an "electors dream policy" the Great Repeal looks like a classic. Because we all have ideas about what laws we`d like to repeal, and so we can all imagine that they`d be included in the Great Repeal of 2010. Perhaps a Tory Government would repeal the DPA, but since they didn`t vote against it when they had the chance, I thinks it`s legitimate to ask why they should suddenly change their minds.

And be careful what you wish for. Laws repealed without proper consideration can create as much damage as laws introduced on the same basis, and there could be several babies thrown out with the bathwater. Hannan/Carswell would certainly want to include the Human Rights Act in the Great Repeal bonfire.

Harvey    [26764.   Posted 28-Apr-2010 Wed 12:48] View Near Messages
pbr [26760]

Well, my gut instinct is that they think they can`t lose any way up.

For even if they lose in court on the OPA, it will "prove" the existing law to be inadequate and thus create calls for a new law to criminalise "extreme pornographic text" to stop the wicked paedos being so wicked online.

Harvey    [26763.   Posted 28-Apr-2010 Wed 12:31] View Near Messages
IanG [26756]

"is there a specific clause in the POA which defines "religiously aggrivated alarm, harrassment and distress"?"

Yes, there is. They are not just making it up.

The Crime and Disorder Act 1998 created "racially aggravated" offences including public order offences. http://www.opsi.gov.uk/acts/acts1998/ukpga_19980037_en_4#pt2-pb1-l1g31

That law was amended by the Anti-terrorism, Crime and Security Act 2001, where “racially aggravated” was replaced with “racially or religiously aggravated”. http://www.opsi.gov.uk/acts/acts2001/ukpga_20010024_en_5#pt5-l1g39


MF (Dave)

I think Mr Taylor was well aware of what he was *actually* charged with and deliberately threw the comments on religious hatred into the mix to provoke exactly the response he achieved.

Harvey    [26753.   Posted 26-Apr-2010 Mon 15:57] View Near Messages
pbr [26751]

You forgot to mention that the Register also says:

"The individual is also charged with two offences of making indecent images of children and four of possessing indecent images of children."

So the context is quite clear... and presumably they think they can squeeze out a guilty plea on the obscenity charges because the so far unnamed individual will want to avoid standing trial on account of the CP. (And as Ozimek points out, it`s Kent)

The question is what does "online chat" actually refer to? Was it private messages passed between two individuals or amongst a select group? Or was it material broadcast more generally so that it really could tend to deprave or corrupt those who might be likely to read it.

Harvey    [26752.   Posted 26-Apr-2010 Mon 15:31] View Near Messages
IanG [26749]

"so what was Taylor charged with?"

From the quoted report, http://www.telegraph.co.uk/news/newstopics/religion/7624578/Atheist-given-Asbo-for-leaflets-mocking-Jesus.html Mr Taylor was charged with "three counts of causing religiously aggravated harassment, alarm or distress"

That sounds as though it`s offences under the POA (which uses that form of words) rather than the Racial and Religious Hatred Act, which uses a different form of words to define the offences of hatred against persons on religious grounds.

So I`m guessing that in reporting the report, MF jumped to a conclusion, and I`m suggesting maybe it was a wrong conclusion. I stand ready to be corrected if my own conclusion jump turns out to be wrong - Dave??


"The POA "alarm, harrassment or distress" clause is not about causing `offence`, it is about threatening behaviour toward another PERSON - stalking, prank calls, breaking windows, pouring paint in the letter box, scratching the car etc. etc."

I guess that was the pretext. Preventing disorder. But with the possible exception of prank calls (in a public place??), all you describe would be caught by other laws.

And the POA says the behaviour does not have to be threatening. It can be merely "insulting" and the intention simply to cause "distress" rather than any more serious harm. So it catches people like Harry Taylor, who doesn`t come over as a particularly likeable individual - intolerant - but is he really a criminal?

Tory law though but. (if it was the POA)

Harvey    [26747.   Posted 25-Apr-2010 Sun 14:41] View Near Messages
pbr [26746]

Unfortunately, sections 4 & 5 of the POA can be used in all kinds of situations and often are. It`s the same law which apparently prevents golliwogs being displayed in public.

In this case, the jury would have been instructed that if they thought the cartoons were insulting and believed Mr Taylor intended to cause distress by placing them where he did, they should find him guilty. The prosecution don`t need to prove that any public disorder resulted, or was likely to result.

Let`s see if Mr Taylor appeals against his conviction or the terms of his ASBO.

Harvey    [26745.   Posted 25-Apr-2010 Sun 07:21] View Near Messages
re: Threatening to Make a Mockery of Justice

Are we sure that Mr Taylor was convicted of an offence under the Racial and Religious Hatred Act?

The reports suggest the offence was that of intentionally causing harassment, alarm or distress, which would be under Part 1 of the Public Order Act 1986.

4A Intentional harassment, alarm or distress

(1) A person is guilty of an offence if, with intent to cause a person harassment, alarm or distress, he—

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

thereby causing that or another person harassment, alarm or distress.


It is not necessary for there to be a racial or religious aspect to the offence, but if it is racially or religiously aggravated, it becomes triable in Crown Court and the maximum sentence is increased from 6 months or a fine to up to 7 years.

The Blair government added the "racially aggravated" aspect in 1998 and extended that to include the "religiously aggravated" offence in 2001, but the POA was introduced by the Thatcher government.

So, it`s not really fair to blame NL entirely. The basic offence of causing offence - by intentionally causing alarm or distress - was created by those traditional lovers of freedom of expression - the Tories.

Harvey    [26737.   Posted 23-Apr-2010 Fri 11:49] View Near Messages
From inquisition21:

"The Operation Ore appeal is delayed
Posted by: Editor on 04/15/2010 10:45 AM
Because of a last minute exchange between the two main parties in the appeal, the hearing has been postponed for at least one week. On Wednesday April 28 the judges are expected to announce the new date."

http://www.inquisition21.com/

Harvey    [26591.   Posted 12-Mar-2010 Fri 04:58] View Near Messages
Janus17 [26584]

"Also bear in mind that, in order to ascertain whether or not a girl has been forced, coerced etc, you really need to be in the position of the punter."

Even then, it`s not going to be easy for a punter to know for sure, one way or the other.

The flip side is that is not going to be easy for the police to get evidence to prove that a person was threatened or coerced, either. If it was, they would have been bringing prosecutions in such cases under the existing law against those doing the threatening.

Similar law in Finland. http://www.profeministimiehet.net/node/181

Harvey    [26543.   Posted 4-Mar-2010 Thu 18:43] View Near Messages
IanG [26542]

"It`s 10 years since the High Court ruled that hardcore porn was not a danger to children."

Err... not quite.

The 2000 ruling was that the *sale* of hardcore porn videos in licensed sex shops was not harmful because the *risk of them being seen* by children was insignificant.

If someone had suggested that Spartacus should be broadcast at a time and place where there was a liklihood that children would be watching, Pattison might be making a valid point. But they aren`t - so she isn`t.

Harvey    [26509.   Posted 25-Feb-2010 Thu 04:29] View Near Messages
Melanie_H

Welcome to the board.

I`m a bit confused about your post...

"The last date for submissions to the proposed amendment to the Scottish Police Bill is Thursday 25/02, though it seems these may still not be accepted - the clerk has judgement as to what is new evidence, and therefore what should be passed to the committee."

Any MSP can lodge an amendment during the committe stage of the bill. There isn`t a special process or cut-off date for `submissions`. You can write to the members of the committee and put your point of view. You don`t need to have `new evidence`.

"It has been tabled late as a minor amendment, and therefore does not require proper scrutiny. It could almost go through with just a few minutes mention."

An amendment is an amendment. There are no special categories of "late" or "minor" amendments that somehow become law without anyone noticing. All amendments on the list require scrutiny and need a vote in committee to become part of the Bill.

Harvey    [26499.   Posted 22-Feb-2010 Mon 11:55] View Near Messages
Parody?

From the start it has been clear that there are people who really do think that a picture can be dangerous to posses.


The lawyer might have actually said "images portraying in a realistic and explicit blah, blah... an act which was life threatening or likely to cause injury... blah blah" but the reporter just thought "dangerous" summed it up in a lower word count. I`m sure the press reporting is likely to be losing something in translation. I know people who have read a press report and didn`t initially recognise it was a report of their own trial!

Harvey    [26497.   Posted 21-Feb-2010 Sun 14:08] View Near Messages
phantom

You would hope that if the images didn`t satisfy the requirements of the DPA, Mr Wilson would not have been advised to plead guilty. You would hope ...

Don`t be surprised that this is how cases get reported. Clearly it`s not an accurate discription of the offences, so I doubt if the report of what happened in court is any more accurate. But wait until sentencing. "12 occasions" probably means 12 separate counts on the indictment and each count can relate to many images. Wilson is clearly going to jail for the images of children and consequent to that he will be "ordered to sign the sex offenders register". For reasons only known to themselves the local rag have him labelled as the `animal porn` man, and that`s how they`ll report it. Maybe they think readers are bored with reading about child pornsters.

Harvey    [26492.   Posted 18-Feb-2010 Thu 15:46] View Near Messages
A clue to the reason the guy was searched.

Child porn... which he denied.

http://www.getsurrey.co.uk/news/s/2064102_man_pleads_guilty_to_extreme_porn_charges

"Charges to lie on file" is court-speak for the fact that they were not proceeded with by the prosecution because the court directed it. Probably because of no evidence. The EP was clearly a back up charge to try and make it look as though it wasn`t a complete waste of everyone`s time. It will go down as a win for the CPS and as a crime solved for the police.

This also answers the puzzle as to why the case took nearly a year and got as far as Crown Court. In the absence of the child porn charges, a £1000 fine could/should have been handed down in Mags court in return for a guilty plea.

Harvey    [26490.   Posted 18-Feb-2010 Thu 14:38] View Near Messages
Re: Extreme Piercing

It`s pretty clear from the press report that the offences related to the four counts of possessing the 188 bestiality images.

The prosecution might describe the bondage as being "severe", the piercing as being "extreme" and/or "likely to cause injury", but unless these were included on the indicment it`s probably just a case of the prosecution "sexing up" the charges and they are nothing to do with the "crime". However, a casual reader could get the impression that possessing images of severe bondage or extreme piercing could land you in court.

Furthermore, he pleaded guilty, so we have no idea why he became a subject of a search in the first place.

The judge also says that "making" such images must be discouraged...

But "making" extreme porn isn`t an offence, yet.

Harvey    [26473.   Posted 15-Feb-2010 Mon 10:41] View Near Messages
For those who have been following the saga...

"The Operation Ore appeal is listed for hearing in the High Court in London on 27 and 28 April 2010."

http://www.inquisition21.com/

Harvey    [26430.   Posted 22-Jan-2010 Fri 08:14] View Near Messages
IanG [26427]

Yes, injunctions are another way that people who can afford it can use the law to restrict what`s written about them.

But we are in danger of getting several different things confused here. Essentially defamation is a tort and quite separate from the criminal law. In a libel case the court isn`t looking to find someone guilty, rather it is seeking to identify and find redress for a wrong. Also, (civil) libel is part of our "common law". It has evolved from precedents made by judges rather than by statute in an Act of Parliament, although until recently there was a separate law which did define criminal libel as an offence.

In civil cases there is a dispute between two private parties. The state is not involved. The court has to find in favour of one or other of the competing claims and is trying to resolve the dispute in an even handed way. It does not favour one party or other, so there is no presumption of innocence or any equivelent and it`s not really valid to compare a libel action with what might occur in a criminal case.

Harvey    [26426.   Posted 21-Jan-2010 Thu 09:33] View Near Messages
Shaun [26424]

"AIUI it seems you can write anything about anyone. However if they take offence and decide sue you, then *you* (rather than they) have to prove the truth of it in order to defend yourself."

Yes, that`s how I understand it too - basically. But in an earlier post you wrote "the onus is on the accused to prove their case, NOT (my emphasis) on the person libeled to show they really have suffered damages." And that`s where my understanding is different, because AIUI, the person bringing the libel action must first show that their reputation has been damaged by the statements made. If they can`t do so there is no need for anyone to prove whether the statements were true or not.

So, to say that if a person THINKS they`ve been defamed by you, the onus is on you to prove that your statements were true is to put the cart before the horse. If anything, the onus is on the person bringing the libel action to show damage, only then is it necessary for you to show that what you wrote was true, or "fair comment".

"Fair comment" means you can make statements that are based on fact, are made in good faith and without malice, even if you can`t definitively show them to be true.

Now I think you could broaden that definition of "fair comment" to include reasonable criticism where the facts are disputed.

One of the main faults of the current process is that the mere threat of bringing an action can stifle debate by forcing a retraction, EVEN IF the statements are true. That`s not because of the burden of proof, but because the cost involved in defending a libel action is beyond the means of most ordinary people. So the libel law becomes a tool for the rich and powerful to use against those who might show them in a bad light, even where being shown in that light is absolutely justified.

Harvey    [26421.   Posted 20-Jan-2010 Wed 05:28] View Near Messages
Shaun

IANAL, either.

As I understand it the law allows a person to bring a case where defamation is alleged. But I`m not sure about this: "the onus is on the accused to prove their case, not on the person libeled to show they really have suffered damages."

It IS up to the accuser to show that the statement made about them has damaged their reputation. However it is a DEFENCE for the defendant to show that the statement was true or that if not demonstrably true it was fair comment.

The reform proposed by Index on Censorship and others would place the onus on the accuser to show the statement was false. The intention being to raise the bar against those rich or powerful companies or individuals who currently use the threat of a libel action to curtail free speech.

I`m not so sure about that particular change because I think there is a general difficulty in proving a negative. For example, let`s say someone publishes an article where they claim; "Harvey is a liar and a thief". I consider this has damaged my reputation, and I can show that since the article appeared nobody will employ me, blah blah. But can I prove I`m not a thief and I`m not a liar... that I have never, ever stolen anything and never, ever told an untruth? Even to a standard of "on the balance of probability" it would be a tough task.

Most of the other sugested reforms - lowering the costs for bringing actions, expanding the definition of "fair comment", introducing a requirement that a significant proportion of the publication occurred in the UK and that public bodies and corporations claiming defamation should need to show malicious intent, rather than just negligence are all very sensible, IMO.

Harvey    [26414.   Posted 17-Jan-2010 Sun 10:09] View Near Messages
pbr -

The suggestion that wanting to be naked indicates a desire to abuse children is not part of the reason why Gough keeps finding himself in prison. The Scottish Courts repeatedly prosecute him for breach of the peace and when he emerges from prison without clothes he is immediately arrested and charged with the same offence.

Steve has been urged to appeal against the convictions on the grouds that simply being naked is not in itself a breach of the peace. He has so far refused to do that preferring to fight a different battle the he knows he can`t win.

Harvey    [26384.   Posted 6-Jan-2010 Wed 15:44] View Near Messages
emark - "the police will ignore any restrictions written in the law and apply it as broadly as possible"

Most people will not know the law in such detail as those who have followed it as closely as we have done. That includes most solicitors as well as most police. I image they thought he would simply plead guilty at Mags and cop a fine.

Harvey    [26380.   Posted 4-Jan-2010 Mon 19:18] View Near Messages
pbr - the role of the DPP is working EXACTLY as intended.

In what manner could the DPP be considered non-partisan in respect of the decision to bring charges? He`s the chief prosecutor, FFS! The clue to his role is in his job title.

Harvey    [26377.   Posted 2-Jan-2010 Sat 07:58] View Near Messages
pbr - quite!

I`m still struggling to imagine what kind of image looks like explicit, offensive and disgusting pornography with the sound tuned off, but an obvious joke with the sound turned on. And remember this isn`t just a case of a wet behind the ears CPS lawyer taking a new law for a spin as it required the consent of the Director of Public Prosecutions himself to allow the charge to be brought.

We don`t know what the judge said, but it`s becoming increasingly common for charges to be brought only for the prosecution to turn up in court and offer no evidence, so he might have thought it such a commonplace event that it required none.

Harvey    [26373.   Posted 1-Jan-2010 Fri 07:09] View Near Messages
Re: Tiger porn man.

Obviously excellent news for the guy concerned, but there are lessons here.

The first is that he stood his ground and was determined to plead not guilty to all the charges. Not for the first time the prosecution comes to court and offers no evidence. Let`s just remind ourselves that before taking the serious step of charging someone, the CPS is supposed to have enough evidence to provide a "realistic prospect of conviction". "We didn`t have the sound turned on." FFS!

The second is to see the way it was initially reported in the local rag and the national press with what is now clearly accepted by both sides as a "joke" image of a talking tiger being presented as "an extreme pornographic image which portrayed a person performing an act of intercourse with a tiger which was grossly offensive, disgusting or otherwise of an obscene character".

Let`s see if the "serious injury" image stands up any better to the scrutiny of a jury.

Harvey    [26369.   Posted 31-Dec-2009 Thu 13:30] View Near Messages
Phantom [26366]

"The fact remains that downloadable equals published does represent a farce in law."

It can seem so... unless you are the one who is defamed online, I suppose.

"The idea that English law can claim supremacy over anything published online anywhere in the world, be it in criminal law or the private law courts, is preposterous."

But it isn`t actually claiming supremacy, is it? And even if it was, look at all the cases where the UK courts grant an injunction against publication, but the material still gets posted on the net, the UK courts are powerless to act and everyone in the UK can read it anyway. Again, whether you think that is a good or a bad thing depends whether you are the subject of what has been published.

"Yes, globalisation in general can throw up interesting challenges to the law, be it with the NatWest Three, or with McKinnon."

The law in both those cases was challenged and right up to the ECHR the decision was that the accused should be tried in the US. It seems to me that if you think in terms of natuaral justice it was the right decision, given that the harm or alleged harm occurred in the US. Within Europe there is a convention (Brussels Convention?) which states pretty much exactly that - that civil actions should be brought in the courts of the place where the alleged harm took place.

"The idea of jurisdiction seems to have gone awol, merely in the back of English law struggling to come to terms with the emergence of the internet."

Its not just an issue with English law, though. A family member in the UK recently had a problem wth a cataract operation which went wrong. The replacement lens was from a faulty batch and many hundreds of NHS patients were affected. The manufacturer was in the US, so despite the fact that the contract to supply the lenses was between the US manufacturer and the NHS, the patients took action against the manufacturer, as a group, in the US. The manufacturer accepted they were at fault and the matter of compensation was eventually settled by a judge sitting in California whereas if they had individually sued the NHS they would probably have received little or nothing. Again, I think some kind of natural justice was achieved although to get it the patients had to sue outsisde the UK even though the harm had occurred here. The lawyers were able to use the the law to get the right result, but if the door to "jurisdiction shopping" had been closed it probably wouldn`t have been possible.

Harvey    [26365.   Posted 29-Dec-2009 Tue 09:23] View Near Messages
cor [26364]

"the perfect solution" - Not really perfect. It can only work IF the country in question wants to co-operate in lieu of an extradition process, it could only work for acts which like those done on the internet are committed across international borders and even then the country where the accused person happened to be at the time might not be the best place for a trial because of availability of witnesses and other evidence.

"except he is not a voluntary visitor" No, but it`s not a direct consequence of being extradited then tried and found guilty of an offence. He then went on to voluntarily commit another offence for which he was again tried and found guilty.

"the basis of authority for our legal system is that we the people created and maintain it through a democratic process" Yes. But... FIRSTLY we also say that the law should apply to all equally, even if they are not able or willing to participate in the democratic process. A US national does not get to participate in elections in the UK but it must be right that he is subject to UK law when he commits an ofence in the UK. I could also point out that young people under 18 don`t get to vote but we still think it`s right that they can wind up in court if they break the law. SECONDLY, if we stick to the principle of duality, the EXTRADITION only happens where the act in question is an offence in BOTH countries.

It seems to me that as long as it respects the principle of duality AND the relevant justice systems satisfy the test of being fair, extradition is a reasonable way of trying to acheive natural justice whilst respecting individual rights. So, although I can see your point about people only having to answer for the laws of the land of their nationality, the consequence would be that foreign nationals would be selectively immune from prosecution when they travelled around the world and the whole concept of jurisdiction would be thrown up in the air.

I think you have to clearly separate the two concepts of extradition - whereby countries co-operate to return suspects to face trial in the place where an offence is alleged to have taken place - and that of an "appropriate forum" where the act is alleged to have occurred across national boundaries.

Harvey    [26363.   Posted 29-Dec-2009 Tue 02:31] View Near Messages
cor [26362]

There is a basic principle that within a jurisdiction the law applies equally to everyone, so in the UK the same law applies to nationals, visitors, refugees, asylum seekers... There are some diplomatic immunities but apart from that if you commit an offence within the jurisdiction you can expect to be punished whatever your nationality.

In the case you raise of the extradited fraudster who goes on to murder while serving his original sentence in the US, his case is really no different from a (voluntary) visitor to the US who commits a murder there. UK or other nationals visiting or resident in the US have no immunity from US laws and that includes the death penalty in the US states which apply it. Clearly the US and UK judicial systems are different and the US system with its jury selection and use of plea bargains seems odd to people familiar with what happens in the UK. But then the rules of evidence, non-statutory codes and the lack of equivelent constitutional rights in the UK would be unnacceptable in the US.

There is some protection though, in the extradition arrangements which should stop a country extraditing a person for one offence and then prosecuting them for another, different one. i.e if the person you refer to was extradited to the US for an alleged fraud, the US courts cannot use the opportunity to then prosecute him for a *pre-existing* rape or murder offence.


I think it`s stretching the point to suggest that the lack of an extradition arrangement with the UK confers some kind of advantage on people from Iran, but you are right that extradition is a reciprocal arrangement and all kinds of places are effectively beyond the reach of the UK courts. I think my point still stands though - that the law should apply where the act takes place and that an internet theft from a UK bank should be able to be prosecuted in the UK. Clearly though, that can only actually happen where extradition applies, but that can happen where the perpetrator voluntarily puts himself in a country which does have an extradition arrangement with the UK. So if he was from Iran it is not just the UK he has to be wary of travelling to, but also most European countries, and from the US, Japan and Australia to Iceland and Uzbekistan... a huge list of places which do have extradition arrangements with the UK.

Remember also that the Iranian internet crook who steals from the UK bank could still be prosecuted in Iran if the Iranian courts chose to and the UK authorities co-operated by supplying the necessary evidence. But, by bringing in issues around extradition, we seem to have drifted quite a long way from the question of internet publishing and what`s wrong with the UK law of libel.

Harvey    [26361.   Posted 28-Dec-2009 Mon 23:54] View Near Messages
cor [26360]

1, No. The principle of duality should apply whereby extradition is allowed ONLY if the act was an offence in BOTH countries. The principle should apply generally and not just to internet or other cases where technology is used to cross borders. e.g. adultery is a crime in India, but not the UK. So a person in the UK who had committed the act of adultery in India would not be extradited from the UK back to India. The duality priciple was quietly abandoned for certain types of offence in relation to the European Arrest Warrant and associated extradition process. This has led to the German authorities being able to issue an EAW for the arrest of a person in the UK for the offence of holocaust denial - which is an offence under German law, but not UK law. Of course in the case of the girl posting the nude pic on line, while she wouldn`t be extradited (does the UK even have an extradition treaty with Iran?) if she subsequently went to Iran for any reason, she`d be fair game for their legal system to deal with. That was Perrin`s mistake, he was probably safe in the US where he could point to his rights under the first amendment. It was only when by his own choice he came to the UK, that he found himself arrested and prosecuted.

2, Certainly in the case of the death penalty, the UK will not allow extradition where the person faces the possibility of a death sentence should they be found guilty. Otherwise, where a person faced any other disproportionate or inhumane punishment he would have a good case to make that the extradition was a breach of his rights under the ECHR.


"how can we guarantee a speedy and fair trial for our citizens...?"

We can`t - directly. But the UK should only be agreeing to extradition (for ANYONE, not just it`s own nationals) to countries which have judicial systems which require the process to be fair. If that isn`t seen to be the case, the country concerned might find that the reciprocal arangements for extradition were terminated.

Harvey    [26359.   Posted 28-Dec-2009 Mon 17:02] View Near Messages
phantom [26358]

I`d be surprised if any ruling in R v Perrin was a precedent for cases of libel in the English Courts.

Most obviously Perrin was charged with a criminal offence whereas a libel action is a heard in the civil court. Even in criminal law I think Perrin is not the case law regarding jursdiction. AFAIK, it wasn`t one of the grounds of his appeal so there wasn`t any judgement made on it.

Straw is at least right about one thing - the libel law is in the wrong place, but the issue of jurisdiction and the internet are only a small part of the problem. Wealthy people and powerful organizations would rather sue in the UK rather than elsewhere because the current UK law is stacked in their favour. It is not because the UK defines publication on the internet markedly differently to, say, the US. Many of these libel tourism cases have actually involved print publication rather than just the internet anyway.

When it comes to purely internet cases where the UK law of libel has been used successfully, there are several notable ones which predate R v Perrin. The first one appears to date from 1993/4 (Godfrey v Hallam-Baker) which was settled out of court - so although the offending article had been posted to the internet from outside the UK the question of jursisdiction was left unresolved. At least the claimant, Godfrey, was resident in the UK. For a case of true internet libel tourism see Lewis and Others v King http://www.hmcourts-service.gov.uk/judgmentsfiles/j2844/lewis-v-king.htm where both parties were resident in the US and also the offending articles were on a site hosted in the US. Yet it was still held to be in the jurisdiction of the UK courts. In fact all parties agreed that "a text on the internet is published at the place where it is downloaded". The contention was whether the UK courts were the "appropriate forum" for the action. Something similar was claimed on behalf of Gary McKinnon the Pentagon "hacker" and that because he was resident in the UK, if there was any offence he should be tried in the UK rather than be extradited to the US. All the courts right up to the ECHR have ruled against blocking his extradition on those grounds and although I feel desperately sorry for McKinnon, it seems hard to argue that the US is not the most appropriate forum for his case to be heard because that is where his actions had their effect.

The bottom line here is that people have to realise that what they say and do on the internet crosses international boundaries, just as communication by letter, telegraph, telephone, radio, etc have done in the past and if someone, say, steals money from your (UK) bank account surely the the theft occurs in the UK and so should be able to be prosecuted through the UK courts, even if the thief was working from a computer in the US?

Harvey    [26326.   Posted 14-Dec-2009 Mon 08:02] View Near Messages
freeworld [26325]

>> "real" seems rather stronger than merely "realistic."

The question was whether the DPA specifically excludes drawings.

I was only pointing out that the definition of "image" in the DPA is identical to that in the definition of "image" in s.65 of the Coroners and Justice Act. http://www.opsi.gov.uk/acts/acts2009/ukpga_20090025_en_5#pt2-ch2-pb1-l1g65, that is: "a moving or still image (produced by any means)..." which would include drawings, cartoons, etc.

Would a drawing of David Beckham having sex with a horse qualify as an "extreme pronographic image" under s.63 of the Criminal Justice and Immgration Act (DPA)?

Well, first, although it is a drawing it IS an image according to s.63(8)

Next... Is it "pornographic"?

s.63(3) says: "An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal." A jury will have to decide, but I don`t see how this definition of "pornographic" would specifically exclude images which are drawings.

Next... Is it an "extreme" image?

s.63(6) says that an extreme image is an image which—

(a) falls within subsection (7), and

(b) is grossly offensive, disgusting or otherwise of an obscene character.

So if a drawing is "an image" and "pornographic" and "grossly offensive, etc", it WOULD be an extreme pornographic image IF it falls within subsection (7).


Now... subsection (7) says:

(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—

(a) an act which threatens a person’s life,

(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,

(c) an act which involves sexual interference with a human corpse, or

(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),



A drawing of David Beckham having sex with a horse would fall under (d). The question would be whether the act was depicted in an explicit and realistic way. I`m suggesting that even if it is not "photo-realistic" a drawing or cartoon can DEPICT an act explicitly and realistically.

Finally to satisfy subsection (7):

"and a reasonable person looking at the image would think that any such person or animal was real."

The question for the jury is: do they belive a reasonable person looking at the drawing would think David Beckham was a real person (and the horse was a real horse)? They are specifically NOT being asked to decide whether the act depicted in the drawing was a real act.

I`m suggesting a jury might belive that a reasonable person, looking at the drawing would think that David Beckham was a real person... and convict.

Harvey    [26297.   Posted 29-Nov-2009 Sun 09:02] View Near Messages
emark [26296]

All we know about Hoque is that he was indicted for possession of indecent pseudo-photographs of children and a jury found him guilty. According to the law, a pseudo-photograph is an image which appears to be a photograph. I don`t think you can read across from that case to the DPA which defines "image" quite differently.

The DPA definition of "image" is exactly the same as that in the Dangerous Drawings Act. i.e. a moving or still image (produced by any means). No mention of the *image* being realistic or photo-realistic or anything else, so "image" clearly includes drawings, cartoons, etc.

It is the definition of "extreme" which revolves around whether an act is portrayed in a realistic way.

I know people have looked at the word "realistic" and assumed that it meant the image itself had to be a photograph, film, video or something created by cgi which was lifelike or photo-realistic. But that`s not how the law is written. I think it`s quite possible to *portray an act in a realistic way* by means of a drawing.

It`s how you understand the word "realistic" to be used in that context. Does it really mean that the portrayal must be lifelike or photo-realistic? Or could it simply mean that the portrayal must have certain other qualities of the real act such as being anatomically correct? Realistic as opposed to abstract.

Who knows whether a prosecutor could make this argument stick. I`m just wary of saying that the DPA excludes drawings until someone makes a ruling that is the case.

Harvey    [26294.   Posted 28-Nov-2009 Sat 21:57] View Near Messages
emark [26293]

I think it was pointed out that the DPA would criminalise the possession of extreme pornographic images which would include cgi, cartoons and drawings as well as photographs and videos. I think your impression of the campaign against the DPA is correct. The focus was on BDSMers taking photos of each other and downloading BDSM porn from the internet rather than people drawing cartoons. There was some discussion in the debates as to whether certain paintings could be caught by the DPA. The CPS have given some advice, specifically on whether Leda and the Swan is an extreme porn image. They decide not, on the basis that it would not meet the explicit and realistic test http://www.melonfarmers.co.uk/gch09a.htm#Dangerous_Prosecutions_5345 but don`t say that such an interpretation would necessarily cover ALL drawings and paintings.

In the case of Hoque, the cartoons were found to be pseudo-photographs. A pseudo-photograph is something which is not a photograph but "appears to be" one. The new law in the Coroners and Justice Act does not require the cartoon to be photo-realistic, so will include many more cartoons and drawings.

Harvey    [26292.   Posted 28-Nov-2009 Sat 19:46] View Near Messages
emark [26290]

"If it`s a drawing, how would the image be realistic, and enough so that a person would think the person was actually real?"

Well... firstly, we have to be careful not to assume that "realistic" is synonymous with "lifelike". And it`s not the *image* as a whole which must be realistic (and explicit), but *the way in which the act is portrayed*.

As to whether a drawing can depict a "real" person, let`s say I have a drawing of David Beckham. I show it to a jury and ask them to decide whether a reasonable person would think the person portrayed in it was real.

Now imagine I show them a drawing of Becks having sex with a horse... is it an "extreme" image?

Now, could you do the same thing with a drawing of some unknown person having sex with a horse? Maybe...

The jury will decide, but the DPA does not specifically exclude drawings so they are free to decide that it is an extreme image if they think it meets the definitions in the Act. Whereas... The PCA originally related only to "photographs" rather than "images". So possessing anything other than an photograph was not an offence. Hence the amendments, first to include "pseudo-photographs" (i.e. something which appeared to be a photograph), then further amendments to include images derived from photographs (or pseudo-photographs). In the new Coroners and Justice Act the definition is:
(2) “Image” includes—
(a) a moving or still image (produced by any means), or
(b) data (stored by any means) which is capable of conversion into an
image within paragraph (a).

i.e the same as the definition in the DPA. But then, in order to preserve the pre-existing law, it adds ...

(3) “Image” does not include an indecent photograph, or indecent pseudophotograph, of a child.

Harvey    [26289.   Posted 28-Nov-2009 Sat 17:43] View Near Messages
emark [26284]

...why isn`t he being prosecuted?

The images were found on two computers and the most recent offence dates back to September 2008 when the council IT staff examined the second PC. That was prior to the commencement of the DPA.

If the images had been discovered since commencement of the DPA, there`s not much doubt it would have been investigated by the police rather than simply being a disciplinary matter of misuse of the computer by the Council.


"The DPA doesn`t cover drawings"

The choice of definition in the DPA was "image" (rather than photograph and/or pseudo-photograph). A drawing which portrays an act involving a person/animal in "a realisitc and explicit way" and one for which a reasonable person would think the person/animal was real would satisfy the definition of "extreme".

Harvey    [26270.   Posted 26-Nov-2009 Thu 12:43] View Near Messages
DarkAngel [26269]

I don`t think it`s a question of looking at introducing amendments. Clause 17 of the Digital Economy Bill as drafted already has these wide ranging "Henry VIII" powers over copyright law.
http://www.publications.parliament.uk/pa/ld200910/ldbills/001/10001.13-19.html#j164

ISPs are opposed to most of the anti-piracy provisions in this Bill and it stands virtually no chance of becoming law before this Parliament has to end before a general election.

However, although they are opposed to what the Bill proposes on subsidising commercial broadcasting, the Tories support government`s proposals to amend copyright law. So even in the event the general election results in a "regieme change" we could see much the same appear in a new Bill in the next or subsequent Parliament. A draconian new anti-piracy law is something the Tories new best friend Rupert Murdoch has been demanding.

The Times quotes Jeremy Hunt the Shadow Culture Sectretary: "The Government is cutting it very fine if it is going to get this Bill through before an election. If it was really serious about sorting out issues like piracy we would have seen some action much sooner. We support much of what the Bill proposes but I’m not sure even our help will get the Bill passed. It would have a much better chance if proposals to use public cash to fund regional news were dropped."

http://www.timesonline.co.uk/tol/news/politics/article6924246.ece

Open Rights Group are campaigning on this:
http://www.openrightsgroup.org/blog/2009/mandy-and-me

Harvey    [26222.   Posted 16-Nov-2009 Mon 17:28] View Near Messages
IanG, hobo

Re: the sawn off shotgun found in a garden... of course this is what you get when a strict liability offence is created.

Not only that guilt was inescapable, there is also the fact that conviction carries a mandatory minimum 5 yr sentence unless there are particular "exceptional" circumstances.

But the story itself sounds odd. According to the defendant, he rang up the Cheif Superintendent and asked if he could "pop in to see him". He arranged an appointment and only then did he take the gun to the police station. So it sounds very much as though the find of the gun wasn`t "reported" at all and the police knew nothing about it until the chap strolled in with it under his arm. I would hope that if he had called the polce and said "I have found a gun in my garden" and asked the police what he should do rather than deciding for himself to take it to the station, his "possession" of it would not have resulted in him being charged.

Having said all that, surely it must be reasonable that a jury can look at the facts and decide, rather than having their hands tied by the legislators. Likewise that the judge should retain some discretion rather than being bound to a minimum sentence.

Harvey    [25925.   Posted 12-Sep-2009 Sat 06:26] View Near Messages
IanG [25922]

Of course you are right that people plead guilty to offences for all sorts of reasons.

But in law "obscenity" is just a test, an opinion - performed by a particular group of 12 people on a particular day, having been subjected to varying degrees of persuasion by opposing sets of lawyers and selective use of evidence.

In this case, we cannot know if we would find the material obscene or not because we will never have the chance to see it ourselves. And we cannot even know whether the defendants thought the material was obscene. All we know is that when charged with the offence, they made guilty pleas and a jury wasn`t needed to test the evidence.

You say admissions of guilt don`t prove anything. That of course is true, but in the Criminal Justice system that isn`t the purpose of making a plea. It`s just a deal, a bargain which says "if you don`t trouble us to go to the extent of proof, we`ll allow you a discount on your guilt". Most people faced with the offer will take it, if they think they will be found guilty. But that is rather different to them believing they are guilty or that certain facts can be proved or not.

I think it`s mistaken to see the law court as an experimental lab where competing hypotheses are tested to destruction to get at "THE TRUTH". Instead it`s much more like a trading floor where guilt and innocence are just commodities to be bought and sold and traders use all kinds of ruses to hide the real quality of their goods.

And the thing is, everyone says that they would NEVER admit to something they hadn`t done... until they are the article whose guilt and innocence is being traded.

Harvey    [25919.   Posted 11-Sep-2009 Fri 10:05] View Near Messages
IanG [25917]

"If these guys had been peddling `extreme porn` then surely they`d have been charged for possession"

I strongly suspect that, as they have been sentenced only recently, their arrest predates the enactment of the DPA.

"To claim these two guys were peddling obscene materials without having them declared obscene by a jury is utterly specious - its a LIE!"

The pair admitted the offences, so they admitted the material was "obscene". We will never know what any particular jury on any particular day might have decided had they not plead guilty.


DoodleBug [25918]

"I think now is the time that distributors need to get some unrated material onto the shelves"

Any licensed sex shop would be crazy to accept unrated material. Even if they managed to sell it all before the VRA is put back on the rails, they could kiss goodbye to any future licence.

Harvey    [25916.   Posted 11-Sep-2009 Fri 05:55] View Near Messages
phantom [25915]

"What is interesting in the BBC link above is the use of the words `soft intelligence`."

If the barring was based only on "hard" intelligence - convictions for a relevant offence - it would not have barred Ian Huntley from getting his job as a school caretaker.

THE WHOLE POINT of the Bichard recommendations was to broaden the rules to include allegations and suspicions.

The vetting and barring scheme is now being portrayed as a disproportionate measure or an unwarranted intrusion, but it is EXACTLY what was being demanded in the aftermath of the Soham murder case. It`s conventional to blame the politicians, but on this issue at least they have acted to do precisely what was asked for.

Harvey    [25914.   Posted 11-Sep-2009 Fri 03:23] View Near Messages
pbr [25910]

"The police "know" you bought obscene material... which is of course... not a crime"

Unless it`s "extreme", where buying is not an offence, but possession is.

Even if nothing could be proved to have been possessed, a credit card transaction could be construed as "incitement to distribute".

Of course once you have a pretext to go and search, who knows what you might find.

Harvey    [25908.   Posted 9-Sep-2009 Wed 15:32] View Near Messages
emark [25907]

The deprave and corrupt test was not considered because the two men admitted the offences with which they were charged.

Whether it was a quarter of the "5 lorry loads" of material seized or just 1%, as their defence solicitor claimed, there was enough that they thought a jury would find obscene to prompt them to plead guilty.

Whether or not it was actually "obscene" or legitimate R18, they probably still stood to be found guilty of supplying material without a license.

Quite apart from that even if it was not R18 stuff but just "Mary Poppins", the report suggests that they were copying and flogging bootleg DVDs in any case, so hardly paragons of virutue whichever way you stack it.

The interesting thing is that along with prosecuting the two money makers, the police are also bragging about seizing their cash pile and their "client database containing thousands of names". Anyone here bought any DVDs by email lately?

Harvey    [25669.   Posted 11-Jul-2009 Sat 14:15] View Near Messages
phantom, sergio.

"It`s law introduced by the same brilliant minds which invented the DPA"

I think the BBC are being slapdash with the detail and the detail is important. It was a different bunch in 1986 and AFIK the pair were convicted under the 1986 Act for publishing written material with the intention of stiring up racial hatred and NOT for incitment to racial hatred.

phantom, you don`t see anything that amounts to an offence. Fair enough, and at the pair`s first trial, the jury couldn`t do so on some of the counts either. It took a second trial to get the convictions on 5 of the 6 outstanding counts. Some counts of possesion failed apparently because the prosecution screwed up the evidence.

Harvey    [25663.   Posted 11-Jul-2009 Sat 01:46] View Near Messages
phantom [25661]

"And sure, the five year sentence for one of them seems to reflect their absconding to the US after being found guilty, unlike what has been reported on BBC news on TV."

Sheppard was sentenced to 4 1/2 years, and Whittle 2 years for the offences of publishing and possession with intention to publish or distribute.

They both got an additional 4 months for skipping bail and absconding to Los Angeles.



"I really can`t quite comprehend what they are supposed to have done, other than express offensive opinions."

Section 19 of the Public Order Act 1986.

It is not the expressing of offensive opinions which got them convicted. It`s that they were found guilty of doing so with either the intention to stir up racial hatred or that it was likely racial hatred would be stirred up.

The website itself at heretical.com is still available for anyone to go and read.

One of the counts on which they were convicted was publishing a comic/cartoon book called "Tales of the Holohoax". http://www.heretical.com/holohoax/index.html

Oddly enough, the print version seems to be avaialable from various on-line bookstores, including WH Smith. http://www.whsmith.co.uk/CatalogAndSearch/ProductDetails-Tales+of+the+Holohoax+-9781901240177.html

Harvey    [25613.   Posted 3-Jul-2009 Fri 04:55] View Near Messages
sergio [25611]

"Your homework for today:
Can you find any other `loopholes`?"

In the UK it`s an offence to possess a handgun... but it`s not an offence to possess a photograph of one. A clear and dangerous `loophole` in the law.

Harvey    [25491.   Posted 17-Jun-2009 Wed 07:00] View Near Messages
axis45 [25490]

"Police Chief Colin Port,what a sanctimonious prick,why is he not in jail for directly disobeying a court order?"

Because the original order didn`t specify a date by which the siezed material had to be returned. He escaped on the technicality that he hadn`t actually defied the court - he just said he would.

For more interesting information on this guy, why not Google "Colin Port Rosemary Nelson" and see what turns up. It might turn out that NCP parking attendant might be aiming a bit high for a future career move.

Harvey    [25487.   Posted 16-Jun-2009 Tue 16:20] View Near Messages
Exposure of the flaws in Operation Ore inches closer.

Police chief escapes jail for refusing to hand over seized material

http://www.guardian.co.uk/politics/2009/jun/16/police-chief-colin-port-cleared

"In their judgment Lord Justice Stanley Burnton, Mr Justice Wilkie and Mr Justice Calvert Smith criticised Port for attempting to smear Bates in a series of newspaper articles "all of which were directed to bring Bates into disrepute as a result of suggestions that there was salacious material which he had on computers otherwise than for purely professional purposes"."

Harvey    [25486.   Posted 16-Jun-2009 Tue 16:18] View Near Messages
pbr [25484]

Difficult to comment on DPA prosecutions until we have some documented cases. In particular, some instances of the sentences handed down.

The article in the Register is vague at best. It suggests the DPA possession offence is being used to side step the deprave and corrupt test in the OPA.

But it doesn`t ring true. Firstly, the DPA has it`s own subjective tests (disgusting/of an obscene character, etc) Secondly, the selling of unclassified DVDs can be prosecuted under the Video Recordings Act, regardless of whether the material contains bestiality, obscenity or other "extreme" images.

Harvey    [25367.   Posted 26-May-2009 Tue 16:40] View Near Messages
Re: Bates

As if by magic The Times features this story on its front page today.

http://business.timesonline.co.uk/tol/business/law/article6368314.ece

Lo and behold, the Operation Ore link is finally revealed.

Someone, somewhere must have Chief Constable Port`s knackers in a vice, because by openly defying the High Court like this, he has just kissed what`s left of his career goodbye.

Expect more Ore news soon (my lips are unfortunately, sealed) they would not be hanging him out to dry like this unless they knew the shit was close to hitting the fan.

Harvey    [25365.   Posted 25-May-2009 Mon 09:06] View Near Messages
emark [25364]

This case is not about defence teams not being able to see evidence in child porn cases. Unless I`m completely mistaken, the defence is entitled to see any evidence whether or not it is relied on in court. In fact there is a duty on the prosecution to disclose to them anything which might be helpful to their client. They can also apply to the court to have an independent examination of computers disk drives and so on, as guilt is related not just to the images, but also the means by which they came to be there. Defence lawyers or experts acting under instruction will not be committing offences of possession, but when a person ceases to be under instruction, clearly they cannot continue to possess the material.

In this case, Mr Harris, the defendant, was deprived of the services of his appointed experts as a result of police action taken at the very last minute. I understand that he will appeal on the basis that he did not get a fair trial.


What is in contention is the simple matter of whether the police have the right to sieze things in a search, where they have no warrant or that warrant has not been properly applied for. It might be dressed up in the reporting or by the frankly odd utterances of the Chief Constable as something more complex, but legally, that`s all there is to it. The CC may say that the disks might contain child porn, but he has nothing to support that suspicion. If he had anything more than mere surmise, he could have applied for a search warrant on that basis and he would not be left looking like a dumbfuck.


On images in court, where it`s neccessary for them to decide whether they are indecent images of children, the jury will see the images. They are not put on display for the benefit of the rest of the court let alone the public gallery!!! But where the fact of whether they are indecent (etc.) is conceded by the defence, there will be no real need for the jury to see them and as they will usually find it distressing, juries will not ask to see them. They may, however, be described by an investigator in giving their evidence and that evidence will be heard by the press and public.


There is a whole subtext to this case, as Jim Bates has been a long time critic of the Operation Ore investigation. You might be forgiven for thinking that the way he is being treated is in some way related to that and that something contained on those disk drives could be problematic for the police if/when it eventually becomes public. I would only point out to the police that other copies might exist... ;-)

Harvey    [25342.   Posted 21-May-2009 Thu 06:18] View Near Messages
freeworld [25341]

"My own instinct is to object to laws which people can`t invariably know they are breaking,"

My instinct too. The Tory party seems to have caught up with us.

"but one fears over someone merely lax ("reckless") in finding out if a person was being forced against their will being jailed for years if strict liability was removed"

Someone (I think it was Chakrabarti or another representitive of Liberty) did go through this during the committee stages. Making an offence one of strict liability is at one end of a spectrum. It would be possible to make a person liable if they were merely negligent, or perhaps going further, reckless, in not determining that a person was being forced into prostitution. At the other end of the spectrum would be the need to prove knowledge and intent.

Harvey    [25340.   Posted 21-May-2009 Thu 04:34] View Near Messages
freeworld [25339]

"this new proposed law can, in its revised form, I think, potentially jail those found guilty for years."

Is that correct? I thought it was only try-able in Mags Court and a fine was the max sentence.


At least the offence has been changed so that it applies to those paying for sex with a prostitute "subjected to force, deception or threats..." rather than "controlled for gain". This was as a result of a government amendment, but that was in turn only as a result of the pressure brought by Dr Harris and significant othetrs.

"I wonder if this fact means an amendment in the Lords to remove strict liability has more of a chance of getting into the final law"

I hope we will see an amendment to that effect, and it was good to see so many Tories in the Commons voting for Dr Harris` amendment, after they had earlier accepted the principle of a strict liability offence when this was dbated in committee.

Harvey    [25218.   Posted 17-Apr-2009 Fri 10:07] View Near Messages
phantom [25215]

There is a good summary of the Pirate Bay saga on TorrentFreak.

http://torrentfreak.com/the-pirate-bay-trial-the-verdict-090417/

"But from what I understand, Pirate Bay are merely the search engine enabling you to find what it is you want to download. The crime is then still yours to commit (i.e. to knowingly breach copyright)."

This was essentially the defence which was put forward. But the court appears to have decided that while not actually guilty of breach of copyright themselves, the 4 defendants had facilitated such copyright breaches by others - as you say, on a massive scale. I assume they will appeal.

"Is the management of Google in danger of imprisonment, like the Pirate Bay crew"

I think that is exactly the idea. The next target could well be YouTube, so the management of Google could be in the dock sooner than you think.

"can Melonfarmers be found guilty regarding a link to another site which somewhere on its pages may have illegal content, of which Melonfarmers may not even know?" As to whether simply providing a link to a site containing copyrighted material is now a crime (in Sweden, at any rate) you`d need to tease the ruling apart, and the *intent* of the four Pirate Bay defendants to facilitate the illegal distribution of copyrighted material seems to have been crucial.


If this verdict stands up to an appeal, it`s probably the end for sites like PirateBay. No doubt we will see a new model develop because I can`t see the demand for free access to copyrighted movies, music, games and software just withering away - just that it will be more difficult for the middlemen to operate in countries like Sweden.

It was always on the cards that the Pirate Bay 4 would be found guilty. But the shock is that 1 year prison sentences as well as damages/fines were handed out.

Harvey    [25151.   Posted 4-Apr-2009 Sat 16:15] View Near Messages
emark [25146]

"I`d have no problem if there were higher age restrictions on working in porn (which is what the usual argument people make for it), just as there are age restrictions on many jobs."

Eh??? Of course there are restrictions on 16 & 17yr olds working in porn! Criminal laws, in fact!

The law relating to child prosititution and pornography defines a child as U18. Sexual offences Act 2003 s.47 to s.51 http://www.opsi.gov.uk/acts/acts2003/ukpga_20030042_en_4#pt1-pb12

So while the child isn`t comitting an offence anyone causing, inciting, arranging or facilitating child pornography or controlling a child involved in pornography, is. "Pornography" for the purposes of these offences is defined as recording an indecent image of the child.

Actually producing pornography involving a child (taking or making photographs) is dealt with in the Protection of Children Act 1978, as ammended, by other Acts.

Harvey    [24996.   Posted 11-Mar-2009 Wed 07:53] View Near Messages
emark [24995]

"On the plus side, it looks like they have restricted the law to images that would be illegal under Scotland`s equivalent of the Obscene Publications Act? The image must be "obscene"

Though Scotland`s law doesn`t define "obscene" as the OPA does, with a deprave and corrupt test.

Harvey    [24982.   Posted 9-Mar-2009 Mon 20:27] View Near Messages
IanG [24980]

"I`d love to know why George wants to label me a paedophile and throw me in jail for drawing a picture of myself and my first `proper` girlfriend having sex for the first time when we were both 16."

Because he thinks (and I really do think he and a significant proportion of the population sincerely believes this) that only a "paedophile" would want to have a drawing of children having sex. Of course the arguments you make could just as easily be applied to a photographic record of your teenage shagfest. And if you had kept that, unless the two of you "lived together as partners in an enduring family relationship", you can go to jail right now.


"So why I wonder must I or anyone else be prevented from sharing pictorial depictions of such harmless and natural events with others?"

Howarth was responding to Garnier who had introduced an amendment which would make you a criminal for doing exactly that. He has since withdrawn it... ;-)

Harvey    [24981.   Posted 9-Mar-2009 Mon 19:54] View Near Messages
phantom [24979]

"Let`s gas some Jews."

OK... well, I notice that at least you haven`t said; "Let`s gas all the Jews."

That would be an extreme view.

Harvey    [24978.   Posted 9-Mar-2009 Mon 18:42] View Near Messages
emark [24974]

"whilst I understand the idea of withdrawing amendments to leave it to later on, I don`t understand not trying at all. They only voted to remove the clause entirely, which is surely the one that would be least likely to pass."

As I remember, the Miller/Wallace amendment which sought to introduce the OPA definition of obscene, was put to a vote - which was lost. Otherwise I agree with you that the drafting of the amendments wasn`t great generally.

They did also have a vote to remove the clause completely. Of course it was not likely to pass, but finally when you reach the end of the line in debating things and want to record your opposition to something, there is a case for forcing a vote then. I think that is what phantom is saying should always happen for their to be a point to any opposition. I just question the sense of getting to that stage far too early in the process.

Harvey    [24977.   Posted 9-Mar-2009 Mon 18:00] View Near Messages
phantom [24969]

"Frankly, I can`t see any concessions having been wrung out of the government in this case, can you? They tabled amendments in order to mention their concerns, which they then withdrew straight away."

No, but the law hasn`t passed yet has it?

In the case of the DPA, Harry Cohen tabled amendments in committee which were used to create a debate, but ultimately withdrawn in exactly the same way. He later said he was pleased with the government`s own amendments, limited though they were. He got much of what he wanted - a result. If he`d forced a vote on his own amendment, in all probability he would have got nothing at all.

For what it`s worth, I think Garnier was just flying some rather odd kites. Willott, on the other hand has obviously looked behind some of the assumptions being made on behalf of prohibiting cartoons and drawings, and is questioning them through her choice of amendments.

Either inside or outside of Parliament, you don`t change people`s opinions by forcing them to either agree or disagree with you, or by threatening them. Every MP who gets a constituent`s letter phrased; "If you don`t do X, I won`t vote for you again" will probably just bin it. On the other hand a reasoned argument, with no threats or demands of complete agreement with the proposition might just make them stop and think a bit and maybe ask a few more questions.

Why is it assumed that calling people names or writing to them in green ink, with lots of superlatives, IN CAPITALS with exclamation marks!!!, is the way to do it? Has anyone here ever got a result from that kind of approach?

Harvey    [24967.   Posted 9-Mar-2009 Mon 07:35] View Near Messages
"We can indeed claim that their backing down is a mere matter of parliamentary convention."

I don`t say that. It`s not just "convention" or ritual. The point is that you force a vote on something when you get to the bitter end. When all discussion is over. This Bill still has plenty of stages to go through.

"There is no record of their opposition."

What would you rather have, an awful law which a few members of the opposition had formally voted against, or a slightly less awful law which they`d achieved through debate and discussion? The DPA is slightly less awful than the original Bill proposed, but do you really think that if a vote had been forced on day 1 of the debate, it would have been defeated? True, there would be a record of the few souls who had voted against it, but what is that, set against an awful law? It was the process of discussion and debate on the various amendments which were proposed, but never voted on, which wrung those few concessions out of the government.

Harvey    [24961.   Posted 8-Mar-2009 Sun 22:15] View Near Messages
phantom, "Not sure what the point of that comment was."

You asked what was the point of being an opposition MP if they introduce an amendment to legislation, but don`t put it to a vote.

The point is to put an opposing argument, if there is one. Usually it`s fairly obvious from the discussion and debate where people stand on things and not much doubt about which way people would vote. In that case, what is the point of a formal vote? Withdrawing an amendment doesn`t imply acceptance of the Bill as it stands, and makes complete sense in the context of an ongoing debate. What makes no sense is forcing a vote on a point where you still hope the government might eventually change it`s mind. Boxing them into a corner by forcing them to vote can close the debate down completely.

Maybe you think they`d be a better representative if they took opposition to the cartoon porn law to a formal vote on every possible occasion, including in committee, but that`s to ignore the way in which discussion and debate works in Parliament.

Harvey    [24959.   Posted 8-Mar-2009 Sun 19:44] View Near Messages
"I believe the Paedofinder General was a Monkey Dust creation"

So he was! :)

Harvey    [24956.   Posted 8-Mar-2009 Sun 15:49] View Near Messages
emark [24955]

Sure, nothing wrong with criticism. You don`t have to agree with the majority.

It`s the character attacks, silly name calling, and accusations of cowardice directed at politicians which I think are counter-productive.

I`m sure you`re right that majority opinion is "don`t really care" because of the way the issue is presented. But the majority of people probably find the Brasseye "Paedofinder General" a hillarious spoof rather than a chilling reality.

There was argument in committee, though, wasn`t there? Though I think Willott made a much better case than Garnier did, they were all free to make their points. The record is there for all to see, but not many will bother to look. The issue is whether, having made their respective points, by not forcing a vote on their amendments, the politicians are cowards or duplicitious or just plain useless.

Personally, I think they went as far as they could, given the political realities they have to operate within in Parliament, in their party and with their constituents. My challenge was open to anyone else to do more, given those same realities. Saying; "Ah, but, it`s never successful to stand on a single issue" is to miss the point in a spectacular fashion, because representitive democracy means having a view on more than just one issue.

Harvey    [24954.   Posted 8-Mar-2009 Sun 14:47] View Near Messages
pbr [24952]

I`m not accusing anyone of hypocricy.

But does the view expressed here at MF actually represent a majority opinion amongst those who elect Mr Garnier, or even Ms Willott?

My point is that before you can expect them to act differently, you need to change the views of the people who elect them. Hurling insults and accusations at the policticians is nothing more than shooting the messenger.

You need to change "hearts and minds". Once you do, you`ll be surprised how the politicians change their tune.

Harvey    [24951.   Posted 8-Mar-2009 Sun 09:39] View Near Messages
pbr, phantom,

"If in the face of unmitigated stupidity they always meekly back down, then what precisely is their purpose?"

Stand for Parliament then, if you can do better.

Put your case and see how many votes you get.

Harvey    [24947.   Posted 8-Mar-2009 Sun 07:30] View Near Messages
pbr [24942]

"Impressive political cowardice."

...or just pragmatism?

You never know when these things will come back to bite you. As Ms Harman discovered when she read today`s Telegraph.

http://www.telegraph.co.uk/news/newstopics/politics/labour/4949555/Harriet-Harman-under-attack-over-bid-to-water-down-child-pornography-law.html

Harvey    [24931.   Posted 5-Mar-2009 Thu 18:35] View Near Messages
emark,

Sorry, but that`s a really lame petition. As it relates to child pornography, the petitioners don`t feel able to state that the law is flawed and should be done away with or even altered. They just ask, meekly, that it shouldn`t be enforced in such a way that their comics get caught by it.

They don`t appear to realise, that some of their comics are EXACTLY what the law is aimed at. So I don`t even think the petition spreads much awareness of the law.


phantom [24929]

Opposition has to work in the situation where the government, by design, has a built-in majority at every stage of the process. And in our Westminster system, the government usually consists of a single party.

There will be laws which opponents will make a stand on, and force a vote, even in the knowledge that they will lose. That`s all very fine and principled, but given the nature of the machine, the only way to actually change a government Bill is to persuade sufficient members of the *government`s* party to vote against it. And you don`t do that by being beligerent or forcing votes on convoluted amendments or questioning every last detail of every single Bill.

The cartoon porn law is not and never conceivably will be a measure which Tory or LibDem MPs will lay down their lives for, or, even miss a plate of scones in the tea-room for.

So, it depends if the opposition really wants to be able to affect change where it can, as it did over 90-day and then again over 42-day pre charge detention, or whether it simply wants to be able to say; "Well, you can`t blame me, I voted against it".

Harvey    [24927.   Posted 5-Mar-2009 Thu 12:30] View Near Messages
No problem. No confusion.

It`s actually fairly usual for amendments not to be voted on.

They are made as a device on which to hang a discussion or line of questioning. The person making the amendment knows he will not be pushing it to a vote. It`s not cynical. It`s just procedure to allow a debate to take place.

OTOH the Miller/Wallace amendments to the DPA were a genuine attempt to change the law.

Harvey    [24924.   Posted 5-Mar-2009 Thu 12:02] View Near Messages
phantom [24922]

Perhaps you are more cynical than is STRICTLY necessary, but I can understand why you feel that way. ;)

I think Garnier was opposing simply for the sake of opposing, for that, after all is his role.

"Logic and reason seem to be held in contempt and all that matters is emotive caterwauling."

To be fair, there is a good deal of sensible debate in committee, but that is hardly ever reported by the press which is mostly interested in political "characters", power struggles, crises and "gaffes" rather than paying much attention what is being legislated for in the day-to-day work of Parliament, in the minutiae of clauses, amendments and procedure.

The law has always been a tool for regulating behaviour according to the prejudice of the lawmakers, whether it was the King or Parliament. It is not a recent phenomenon, still less a uniquely "New Labour" one. It is what politics is for. If it were simply a question of seeking for an objective truth on which to regulate affairs, we`d have no need for political parties and philosophies.

"After all, what harm in making them vote on it, pull party ranks and make it a matter of record that they voted against an amendment?"

In opposition, you have a limited amount of political capital, you have to think wisely about how to spend it. Garnier would not want to be labelled as having opposed closing the loopholes in the law concerning child pornography. Garnier is a lawyer - a QC, but Eagle is a professional politician, read PPE at Oxford, then a researcher and press officer for the health service workers union, then elected to Parliament. She has no other "trade" or occupation.

freeworld,

I understand the point Garnier is making: "Harm" only comes into it if images result in committing an offense against a real child.

But where would that principle put his party on having a "tough" law on carrying a knife in public? The knife, after all, is only harmful when it is used to threaten or wound someone. Mere possession is itself "harmless", so why make possession an offence?

I would have preferred it if he had actually joined Jenny Willott in addressing the question of whether a drawing is capable of causing harm, or even discus the tendency for such drawings to be used to reduce harm.

Harvey    [24920.   Posted 4-Mar-2009 Wed 22:55] View Near Messages
pbr [24917]

The proceedings are just a clause by clause record of the result of the committee process. Amendments are either moved, formally and then agreed to or they are withdrawn, formally. Or they may be simply discussed (not called) together with another amendment which has been moved, or not even discussed (not selected).

When all the amendments moved formally and agreed to have been made to a clause, the clause itself is agreed to (stand part).

At the end of the "Committee" process, the resulting Bill goes back to the full House of Commons for "Report". There is then chance for more amendments to be made and voted on, before it goes to "Third Reading".

If it passes Third Reading, the resulting Bill goes to the Lords where the whole process of First and Second Reading, clause by clause debate in Committee, Report and Third reading is repeated.

Some Bills start in the Lords, then go to the Commons, but whatever the order both houses must agree on the identical Bill before it can become an Act.

Uberbob [24919]

I don`t think it`s a case of things being taken for granted. Jenny Willott made some very valid points during the debate which suggested she didn`t take things for granted. However, the essential points of principle she questioned were established in the Acts created variously in 1994, 2003 and 2008.

I must admit I was left completely baffled as to the point of the amendments made by Edward Garnier. He seemed to be suggesting that there was no harm caused by a person simply possessing an image of the kind described although accepted that showing the image to a child could/would be harmful if it was to groom the child.

But why the need to define this frankly odd "publication" offence, which by his own admission is not aimed at publishing but "showing to a child", and then have to go off on a complete tangent to provide defences to the offence of publication to cover various kinds of real publication as opposed to simply "showing". Mad! But it did provide a diverting discussion I suppose.

Harvey    [24900.   Posted 27-Feb-2009 Fri 12:23] View Near Messages
pbr,

you are right, of course. The present system gives one of the two largest parties absolute control on the basis of sometimes less than 40% of the votes cast. They only enjoy that power whilst their opponents are unpopular, though.

It`s always easy to portray a change of voting system as tinkering with the details while there are much more pressing and important things to deal with. And that`s before you get bogged down in details of the various alternatives. But I do hold out some hope, that the Scots experience of a government elected on a more proportional system might show that things can be different, and one or two instances of inconclusive Westminster elections could prompt a change or two to the creaking edifice.

Looking only a few years into the future, if the Scots get independence, it will tip the balance significantly against Labour, as their majority in Westmister depends crucially on their Scots MPs. They might then be prepared to have a share of power in the remainder of the UK under PR, rather than being shut out for a generation or two.

And how long can we continue with the unelected monstrosity called the House of Lords. Any solution to that problem is bound to raise the question of how representive the Commons has to be to claim a supremacy over an elected second chamber.

So the status quo is not guranteed by any means. In fact the next Westminster election might be the last we have where members are elected on a first past the post system.

Harvey    [24898.   Posted 27-Feb-2009 Fri 09:08] View Near Messages
Democracy plays a part in the process, but only up to the point that Parliament is elected. With first past the post elections for MPs and no elections at all for members of the House of Lords, it`s almost inevitable that governments will operate with a minority of popular support.

Once elected (or not), under the UK`s constitutional arrangements, Parliament has the right to pass whatever rediculous, stupid laws it likes.

We all moan at what the government does, but until we`re prepared to consider changing the rules by which they operate, nothing will change.

Harvey    [24895.   Posted 26-Feb-2009 Thu 17:43] View Near Messages
emark [24894]

You can just email it to Parliament.

But you will have to get your skates on. As you say, the Committee stage of the Coroners and Justice Bill is due to end next week, and that is the deadline for evidence to be submitted.

There is guidance on submitting evidence here including the address to send it to. http://www.parliament.uk/documents/upload/061206wsubsguidance.pdf You don`t have to be a lobbyist or an organisation.


Bear in mind there was consultation on the need for a cartoon porn law. You might want to refresh your memory on the points made at that time. http://www.justice.gov.uk/docs/consultation-non-photographic-response.pdf

Bear also in mind that since that process was undertaken we have already had the CJIA, which we all know got Royal Assent last May, implementing the DPA. But along with that it also implemented a partial extension of the law in the area of non-photographic images, to include drawings or tracings derived from indecent photographs or pseudo-photographs.

Harvey    [24875.   Posted 24-Feb-2009 Tue 08:02] View Near Messages
pbr[24874]

*which includes images of child abuse*

Child abuse? Really?

The way the law defines "indecent", an image of a 8yr old being beaten senseless with a baseball bat would be accessible to 100% of UK broadband consumers.

Whereas the IWF would probably claim that an image of a topless 17yr old was "indecent", so covered by the PCA and add it to their blocked list.


The poor minister was either misquoted, or he hadn`t read the script. The correct and approved phrase is spelled out by the IWF:

*Please note the IWF use the term child *sexual* abuse content to accurately reflect the gravity of the images we deal with. They are also commonly referred to as: Child Pornography, Child Porn, Child Porno and Kiddie Porn. http://www.iwf.org.uk/police/page.22.htm

Harvey    [24730.   Posted 10-Feb-2009 Tue 15:36] View Near Messages
Dave, boys and girls...

I would not want you to think I`m being rude, but there are developments on the Operation Ore front. So while I`d like to continue discussions here at MF, I`m afaid I`m going to have to give it a break.

Harvey

Harvey    [24729.   Posted 10-Feb-2009 Tue 15:22] View Near Messages
axis,

"I think you have been a little over generous with yourself here,you stated that she supported "strict liability" when she was clearly opposed.There is no grey area here.Her use of the words "having difficulty" is polite commons committee speak for saying she was opposed."

Maybe. Although at the risk of decending into pedantry, I said she found it "acceptable", rather than that she "supported" it.

Yes, it was a polite criticism, but she is not bound to be so polite and could have used much stronger language. Liberty have done so before, as she did in relation to 42 days, for instance. But I will happily agree that she she does not actually support the offence being one of strict liability.

Harvey    [24728.   Posted 10-Feb-2009 Tue 15:08] View Near Messages
Janus [24726]

I think axis puts his finger on it.

It really is not important how or why someone is controlled, but there must be co-ercion at least. The appeal court was stating that control could mean more than just control by physical force, including control by threat or intimidation.

There is a quite newsworthy case coming up later this year where several people who ran an escort agency are charged under s.53 of the 2003 Act. The case is newsworthy because one of the escorts was at the same time a serving policewoman, so there is a Daily Mail drool factor. Nevertheless it will be interesting to see if and how the prosecution goes about proving that those who ran the escort agency were controlling the escorts on their books, including how the judge directs the jury. http://www.thenorthernecho.co.uk/news/3995945.WPC_allegedly_working_as_high_class_prostitute_appears_in_court/

Trial date is July.


The strict liability element is a serious problem though, and I`m disappointed the Tories on the committee haven fallen so meekly into line on that point.

Harvey    [24716.   Posted 10-Feb-2009 Tue 08:45] View Near Messages
Janus, axis, freeworld.

Firstly, axis, as I didn`t have the text in front of me, I was paraphrasing Chakrabarti from memory, rather than quoting, or indeed misquoting her. So thanks for the actual quote. She did not go as far as to support the clause, as it stands, but on the other hand the criticism only went as far as suggesting it was a difficulty in the context of a sexual offence. Maybe my suggestion that she thought it "acceptable" was not quite right, other than that the penalty was in line with the norm for offences of strict liablity.

"Interestingly if Croaker is now saying this,why bother with a new law on "controlled for gain" as it is already on the statutes is it not?"

Coaker. The existing law makes it a criminal offence where a person "intentionally controls any of the activities of another person relating to that person’s prostitution", for gain. In clause 13 of the Bill the offence is defined where payment is made to a person who is "controlled for gain". That offence is new. Several of the amendments removed the words "controlled for gain" and replaced them with other formulations. We will see whether this was simply to provoke a discussion about what, exactly, "controlled for gain" was intended to cover.

"Gain" is defined in section 54 of the 2003 Act, being;
(a) any financial advantage, including the discharge of an obligation to
pay or the provision of goods or services (including sexual services)
gratuitously or at a discount; or
(b) the goodwill of any person which is or appears likely, in time, to
bring financial advantage.

"Control" is not defined beyond its normal meaning, but in relation to the existing offence in the 2003 Act, there is a significant ruling from the Court of Appeal in R v Massey, and it is this which Coaker refers to as case law. http://www.bailii.org/ew/cases/EWCA/Crim/2007/2664.html


Janus,

you are right it is a big IF. It is the strict liability element which I object to. In fact it is the element which I had imagined the opposition would object to as well. In fact we saw in committee that Mr Ruffley supported a strict liability offence.

But it is strict liability only in the sense that there is no need for the prosecution to prove knowledge or intent. They still have to prove the facts that the prostitute was "controlled", "for gain", and that is not straightforward. When questioned on the matter, in the Home affairs Committee, the representative of the Met Police came as close as he could to saying the new offence was unenforceable.

"You only have to look at the characters of the people who have championed this cause to be in little doubt as to the true motives behind it."

As I have said, the people who have championed this originally demanded a law on the Swedish model and their motivation was clearly to outlaw all paid for sex. What they have got is a law which would only catch transactions where the prostitute is controlled for gain. Why is that?

If you feel unsafe, you should look at the ruling in R v Massey, to try to understand what the law would consider to be "control" in this context. Can you can be sure that your transactions aren`t with women who are "controlled".

Harvey    [24711.   Posted 9-Feb-2009 Mon 19:27] View Near Messages
phantom [24710]

"What the public think I believe is hardly deemed relevant by those in the driving seat."

On the contrary. When the government toyed with this and even suggested legalising brothels and zoning red-light areas, it was the public reaction which changed their course.


"It`s like saying that some folks` ordeal hardly matters if they `only` got unjustly cautioned as part of Operation Ore."

Well, of course the key word is "unjustly". The fact that evidence was contrived, falsified to attempt to prove a crime, where the offence had not, actually, been committed. I wouldn`t condone such false evidence being used to convict anyone, of any crime, whatever the penalty.


"Surely anyone of good conscience who has sought to stay within the law should not be rendered a criminal by matters beyond his control."

That of course, is quite right. I cannot disagree, but what I actually wrote, was that where someone did, knowingly, pay for sex where co-ercion was involved, a fine on the scale proposed is not a severe penalty. It is others (e.g.Chakrabarti, giving evidence to the committee) who have suggested that strict liability is acceptable, given that the penalty is not severe. I have said I understand the argument being made, but I would still argue strongly that the P4P offence as defined in clause 13 should not be one of strict liability, however small the penalty.


"It all just doesn`t chime with me, Harvey."

Can I suggest that if the offence wasn`t one of strict liability - that it would only exist where a person knew or could reasonably be expected to have known of the co-ercion, yet pays, nevertheless - there is not much of substance between us.

Harvey    [24709.   Posted 9-Feb-2009 Mon 16:21] View Near Messages
phantom [24707]

"How big a percentage can the possibility of a punter knowingly visiting a coerced prostitute really apply to? Surely the figure is risible."

I`m sure the percentage figure is very small. But if they do so, knowingly, surely a fine on the same scale as viewing a TV without a license, is not a very severe penalty?

There is a case to be made against a law, where a punter is duped into honestly beliving a pro is not co-erced, yet is caught by the strict liablity of the offence. But (at the risk of invoking Godwin) "not knowing" was the defence put forward by those accused of war crimes. So the case is not as strongly made where a punter merely ignores or conveniently chooses to ignore whether co-ercion is involved.

"If a proof exists that a prostitute is coerced then a law is already being broken with no need for this law at all."

Sure. But the law requires proof of control - for gain. The gain only arises where a payment is made. It`s difficult to argue that the punter is merely incidental to the breaking of the law, whe he is actively participating.


I don`t suggest that the new law will make much difference to the number of prostitutes being trafficked or forced to work. And it has to be said that an alternative, of a regulated sex industry can probably deliver much more safety for women than criminalising P4P. But that alternative isn`t on offer. There was a moment, about 4 or 5 years ago, where it could have been, but public opinion wasn`t ready to accept it.

In our confrontational political system politicians are not encouraged to lead, but to follow public opinion. It`s convenient always to blame the politicians, but if we accept the winner takes all approach in order to get "strong" government, we can hardly be surprised when the politicians adapt and conform.

Harvey    [24703.   Posted 9-Feb-2009 Mon 10:38] View Near Messages
phantom [24701]

Well, on the one hand we have the characterisation of prostitutes as either drugged and pimp controlled or trafficked, and on the other as a group (a "collective" of workers) with legitimate careers in the sex industry. Clearly you could find examples of both, but when it comes to "rights", surely the primary consideration is the right of an individual - any individual - not to be exploited or co-erced, let alone threatened or harmed. I accept that protecting the rights of providers might mean that some of the "rights" of punters would be restricted.

It`s true that "controlled for gain" could be defined nore narrowly, but would that really result in a better law? The point of Ruffley`s intervention was to determine how, in practice, it would be interpreted by the courts under the proposed P4P offence. After all it has been an offence to control a prostitute for gain for nearly 5 years. If it really was the case that such a definition would "cover most prostitution" you`d expect to see rather more convictions under the 2003 Act than have actually occurred.

I take the view that the status quo, where despite the 2003 Act there is trafficking and co-ercion of prostitutes, isn`t acceptable. And although some people would say that payment itself amounts to co-ercion, I would stand up for the right of people to have a commercial transaction where the sex was consensual but I don`t think you can ignore the behaviour of the punter in the transaction and absolve them from all resposibility in situations were there is co-ercion or anything other than a completely consensual transaction.

It is the case that every law restricts behaviour in some way or other. So the question is never one of opposing every small further restiction, no matter what. It is always a question of proportion and neccessity, as to whether a restriction placed on one person is justified by the protection given to another.

So, I think the proposed law is pitched about right. I`d argue strongly against the strict liability element, but can understand why it`s there. The maximum penalty has been set relatively low, as a consequence.

As I say the interesting thing is that the option of following the Swedish model has somehow been resisted.


MF [24702]

I think you might be referring to Philip Hollobone (a Tory, as if it matters) who tabled such an amendment to our favourite CJI Bill, last year. To be fair to him, his approach has always been from the point of view of protecting the women involved, but he could reasonably be described as being at one with Baird/Harman.

Like Harman, I doubt he`d be satisfied completely by clause 13. But as to whether he will table an amendment, it depends if he thinks it would help or hinder his ultimate objective of outlawing all paid for sex.

I don`t think you can read anything into the bare fact that he hasn`t tabled an amendment yet. He`s not a member of the standing committee. Perhaps his vanity will get the best of him and he will table an amendment when the Committee stage is complete and we get to report/3rd reading.

Harvey    [24700.   Posted 9-Feb-2009 Mon 07:30] View Near Messages
freeworld [24699]

Yes, again, you are right about the effect of the amendments.

I don`t suggest any duplicity on the part of Mr Ruffley any more than Dr Harris. My point is that the amendments were not made with the intention of forcing a vote. The intention is to scrutinise why "controlled for gain" was being used to define the offence, just as assurances were sought that alternative formulations had been considered as options to making the offence one of strict liability. In short, they are doing their jobs as Parliamentarians. To some extent it is simply going over old ground as "controlled for gain" was established in relation to prostitution in the 2003 Act.

We will have to see how the debate concludes. I supect the clause will stand part of the Bill without amendment and without those amendments being forced to a vote.

I seriously doubt whether either the Tories or the Lib Dems who tabled amendments actually intended to scupper the government`s plan. Perhaps when you write, you can ask if that was their intention.

I did also doubt whether the offence would be left as one of strict liability, but there seems to be a consensus that with the difficulties of proving intent, recklessness or negligence and as the judicial penalty is set relatively low, that it is appropriate.

To be honest, I don`t see the P4P law as an example of the state trampling individual liberties. The status quo is that men (predominanly) can purchase sex from (predominantly) women without having to care too much about why the woman is selling herself. It is true that the new law will make criminals out of people who pay for sexual services where the provider is being "controlled". This might make people who do pay more careful about who, ultimately, they are paying. And if it does, that, I think, would be A Good Thing.

Politics is not about taking a stand of "none shall pass" and fighting to the death on every last issue. It`s about recognising where and when you can influence things. I think it`s fair to say that Harman/Baird favoured a law on the Swedish model. That we have a new law proposed which does not go that far means that somewhere in the Home Office, someone has sucessfully argued against it on the basis of a compromise which was do-able and maybe, even, enforceable. So if a P4P law in this form was scuppered, you can be sure that Harman/Baird would be back saying "I told you so" and demanding a new Swedish style ban on all payments for sex, which might, paradoxically, stand a much better chance of getting passed.

Harvey    [24693.   Posted 8-Feb-2009 Sun 17:17] View Near Messages
freeworld[24684]

You are right that Conservative members (Brokenshire/Ruffley) did table amendments which would have defined "controlled" fairly narrowly as either "trafficked" or otherwise by force or co-ercion. But it was clear from the debate in committee that they didn`t do so other than to provoke a discussion. To quote Ruffley;

"Let me say at the outset that Her Majesty’s Opposition are supportive of the general thrust of this clause. We do not intend to seek to divide the Committee on the amendments to which I am about to speak; they are probing amendments."

Ruffley was seeking assurances that although the offence had been flagged as a measure specifically against "trafficking" it would apply to other situations where a prostitute was forced or co-erced, but not where another person, such as a maid or receptionist, is merely associated with the prostitute.

It`s a tactic. Watch what happens next week when the debate on clause 13 concludes. Ruffley will withdraw each and every amendment he has tabled. Eventually, when Campbell comes back, having considered the definition of "controlled for gain" he will say a few soothing words but the government will leave the offence itself unchanged.

Harvey    [24678.   Posted 7-Feb-2009 Sat 08:11] View Near Messages
phantom, IanG

Irrespective of whether juries are the last bulwark of common sense or merely the instruments of an oppressive state...

They won`t have a say in P4P cases. As clause 13(4) of the Bill makes it an offence punishable on summary conviction only. i.e. a trial in a magistrates court.

I expect the most forward thinking regions are already getting their orders of rubber stamps.

Harvey    [24677.   Posted 7-Feb-2009 Sat 07:58] View Near Messages
freeworld [24671]

I think Janus17 has reported it accurately. The remarks by Vernon Coaker were in committee proceedings on the 5th Feb. http://www.publications.parliament.uk/pa/cm200809/cmpublic/policing/090205/pm/90205s01.htm

Almost the entire session was taken up with clause 13, and was still not finished by the time the session was adjourned.

I agree that Dr. Evan Harris is often a fairly lonely, sane voice on matters such as this. The amendments in his and his LD colleague Paul Holmes` name seek to remove the strict liability element of the P4P offence, and tighten the definition of "controlled for gain".

The amendments by James Brokenshire and David Ruffley would actually extend the offence to not only those who make or promise payment, but those who know that someone else has made or promised payment. Of the other 3 Tories, neither Julie Kirkbride nor Nadine Dorries even attended the committee when clause 13 was debated, though Dorries in particular has written about the effect of the law on "working girls" and might have something to say about clause 20, in respect of closure orders.

Dr. Harris was, as I said, a lone voice in committee. No other Opposition member spoke to criticise the creation of a strict liability offence, so it`s not really surprising Vernon Coaker made the comment he did. Like me he was probably expecting a rougher ride, and you can almost feel the relief in his words. I didn`t think the Tories would be quite such a push over. Having said I doubted the offence would be created as one of strict liability, I now revise that, and can see it sailing through without much more discussion.

One thing Coaker is right about, is that if that happens it will be a seismic shift in the way prostitution is viewed by the law.

Harvey    [24622.   Posted 3-Feb-2009 Tue 04:46] View Near Messages
re: spankeefinder

MichaelG asks; "Why then, did the creator feel the need to have to do this?"

Why not write and ask?

Harvey    [24523.   Posted 27-Jan-2009 Tue 04:17] View Near Messages
freeworld [24520]

I think you`re right to point out that the trend of censorship is not as a response to a specific public outrage or a right wing press campaign.

The problem is that once a proposal is made, the mainstream press generally accepts it uncritically either as a limited and necessary closure of loophole, or an extension of the law to deal with new technology.

e.g. The Telegraph`s response to the cartoon porn law, when announced, is virtually an imprint of an MoJ press release. http://www.telegraph.co.uk/news/newstopics/politics/lawandorder/2041131/Child-pornography-loophole-to-be-closed-with-cartoons-and-drawings-ban.html

The Sun: http://www.thesun.co.uk/sol/homepage/news/article1215296.ece

BBC: http://news.bbc.co.uk/1/hi/uk/7422595.stm

Harvey    [24518.   Posted 26-Jan-2009 Mon 16:35] View Near Messages
pbr [24514]

Hats off to you for watching the debate!

A word or two of caution, though. Second reading debates are not very meaningful insights into MP`s attitudes. More an opportunity for a few to have time on their soap boxes.

It might appear that an MP is ignorant, but most of the time it`s simply a good act. Thy know exactly what they want, and elide fact, fiction and "flexible" logic in the service of their cause, so don`t expect ANYTHING sensible on child images. MP`s put a lot of effort into getting elected, they are not about to piss it up the wall defending something which the media will enthusiastically label as indefensible.

Incidentally, I hope some who regularly post here, in terms, that all this nonsense will end once a Tory regime takes over, will take notice that more often than not, when it comes to censorship it is Conservative members who seem most keen to push the boundaries further than even this government wants or dares to.

The measures on secret inquests and data sharing will have a fairly easy passage. The changes to defences to murder are part of a process, and not terribly controversial. Anything labelled "child porn" will be rubber stamped. There are two areas which are more contentious - the creation of a new offence of paying for sexual services and the government`s response to the ruling on anonymity of witnesses, and it`s those two areas where there will have to be some accommodations made. Paying for sex with a controlled prostitute might become an offence, but not an offence of strict liability. Anonymity of witnesses would allow prosecutions where there is genuine liklihod of intimidation, but runs the risk of significant miscarriages of justice, and it`s that, rather than the extension of censorship which I find most troubling part of the Bill.

Harvey    [24335.   Posted 9-Jan-2009 Fri 06:54] View Near Messages
sergio [24333]

Thanks for the heads-up. They did discuss the numbers.

Not just the often quoted 80% trafficked number, but the 80,000 prostitutes number. They interviewed the woman who was the source of the 80,000 value who described how she had derived it, and then said how amazed she was that anyone could use it with any certainty at all.

Harvey    [24303.   Posted 5-Jan-2009 Mon 10:39] View Near Messages
phantom [24293}]

I just get the feeling that the P4P offence is Harriet Harman`s own piece of work, slotted into a Home Office Bill. We`ll see who else (apart from Jaqui Smith or her Home Office junior) speaks up for it. It has its second reading in the Commons on the 19th Jan.

At the "consultation" stage, all the noises were about copying the Swedish law. Obviously, since we have this "if controlled for gain" element, for some reason that wouldn`t fly. You have to assume that there was not enough support for it.

My guess is that the strict liabilty aspect will be no easier to get through Parliament, than an absolute offence would, and will have to be changed. But it`s just my guess - we`ll see what actually happens.


BTW, I think I might have misled, about the extra-territorial aspect of the offence. 13(2)(a) says that it is irrelevant "where in the world the sexual services are to be provided and whether those services are provided"

Which I take to mean that a person in England or Wales would be committing an offence by paying or promising to pay for sex, anywhere. i.e the sex can be provided anywhere, but the payment or promise of payment (which is the offence) must happen in England or Wales. I think that`s right, but check with a lawyer. :)

Harvey    [24292.   Posted 4-Jan-2009 Sun 11:51] View Near Messages
Spider

The way the law has been written it is PRECISELY the case that EVEN IF a person claims he didn`t know, and EVEN IF the prosecuctors accept that he couldn`t POSSIBLY have known, or have had ANY WAY of knowing that the person he was paying or agreeing to pay for sex was being controlled... He is committing an offence. The law says any such knowledge is IRRELEVANT. That is what is meant by STRICT LIABILITY.


Janus,

Happy New Year.

It follows that with such a law, whatever an escort might claim on her web page (and some claim to be 20yr old dusky sex goddesses, apparently) it will matter not a jot, should prosecutors be able to show that another person (C) was directing or helping them with the expectation of some kind of reward reward.



The strict liability is just so unreasonable, I can forsee a lot of opposition to it. I can`t see the Home Affairs Committe reporting favourably on it, for one thing. So there might well be a change. One change could be to change the wording so that a person (A) commits an offence of paying or agreeing to pay a person (B) who they know or could reasonably believe to be controlled for gain.

That would require the prosecutor to show evidence that (A) knew or could reasonably believe...

Or the offence could be left substantially the same, but where it says irrelevant etc., it could say; It will be a defence for (A) to show that he had a reasonable belief that (B) was NOT controlled for gain. Reversing the burden of proof.

If that was the case, maybe (A) could cite (B)`s website claim as evidence of his reasonable belief. But a jury would ponder on how reasonable it is for someone to conveniently state/believe whatever they write/read on a website.

The third possibility is that the whole controlled for gain element is removed, and it is made an offence to pay anyone for any sex, as in Sweden. In that case I can see another suggestion that websites claim that any sex is entered into without an agreement to pay and any money that changed hands is merely a gift or maybe "Yes yer Honour, Chantrelle was just looking after the £180 for me while I took me suit to be cleaned". Ha!

Harvey    [24285.   Posted 4-Jan-2009 Sun 08:35] View Near Messages
Tim Worstall makes the point that the facts surrounding trafficked women in prositution are being spun.

But then he spins himself, claiming that the law as proposed will not deal with same sex sexual services. Not true. The law relates to "person" only, there is no homo/hetero distinction.

He accuses the proponets of the law of "inflating" the problem, and then quotes Dr Belinda Brooks-Gordon: "As for trafficking, the only official report from the police operation Pentameter 1 shows a tiny proportion, just 0.11 per cent, of people in the sex industry have in fact been trafficked. A subsequent operation, Pentameter 2, found 167 trafficked people, which is still only 0.21 per cent."

But the Pentameter figures, don`t show the proportion of people in the sex industry who`ve been trafficked, do they? They show the numbers the police found and had evidence for from investigations and raids on a small part of the sex industry.

If you did the same thing for figures on speeding motorists, you`d conclude only a tiny percentage of motorway drivers exceeed the speed limit, when the fact is, most do, but only a small proportion are caught, because the police don`t know, don`t care or can`t collect evidence.



And he`s way out of date on the current law. It is no longer "living off immoral earnings" but in the 2003 Act "Controlling prostitution for gain". EXACTLY the same definition as the new law proposes. That being the case, why was he not in such an uproar about THAT law change - extolling the benefits of the kind, protective, entrepreneurial and benevolent pimp he now describes.


It`s a shame he spoils the good and valid points by not researching his subject properly and sticking to facts. That is what he`s complaining about, after all.

Harvey    [24274.   Posted 3-Jan-2009 Sat 11:51] View Near Messages
Dave,

Not sure about that idea, although I see the intention.

Your ISP would be eating more bandwith and that would raise costs and slow down the connections for genuine requests.

In addition, if there was nothing to distinguish the browser-spider`s actions from genuine ones, you might have a job explaining your way out of a random hit on a dodgy terror/paedo site.

Instead, what about a browser extension which creates an encrypted tunnel to a proxy server? Or a world-wide network of proxy servers?

Anyway, it`s not "hiding your trail", it`s "protecting your privacy".

Harvey    [24271.   Posted 3-Jan-2009 Sat 09:56] View Near Messages
I.D.I.O.T [24261]

"Don`t do on line banking, hardly ever shop on line, never ever store personal data on my pc"

Very sensible.

But the point here is that even if YOU never ever store any personal data on your PC, other people do, the other people being the websites you access. They store files on your PC, and the files can contain almost anything, usernames, real names, addresses, search histories, past purchases, viewed pages, etc, etc. The files are called cookies. On the one hand, because the data is retained on your computer between sessions, they allow websites like Google to track your activity over a considerable period of time. On the other hand, anyone getting access to your computer can easily find lots of interesting information in those files.

Deleting cookies every time you close your web browser is one way of avoiding either of those things happening. It`s no more a symptom of paranoia than locking the door behind you when you leave the house.

But even where you don`t leave a cookie trail, websites can still track you via your IP address. If you have a static or "sticky" IP, they can do that over a considerable time and build a history. It`s like being fitted with an electronic tag so that every time you went into Waterstones, or McDonalds or Ann Summers they made a note of what you`ve bought, eaten or browsed and kept it in their files. And what`s so wrong about wearing a tag while shopping if you don`t have anything to hide, eh?

Using an anonymising proxy server is no more paranoid than declining to be fitted with an electronic tag.

I agree that in a "freeworld" you shouldn`t have to do these things. But it isn`t, so even though you think you have nothing to hide, maybe you should.

Harvey    [24254.   Posted 2-Jan-2009 Fri 17:50] View Near Messages
I.D.I.O.T [24249]

"Like I`ve said in a "freeworld" why should one have to unless they have something to hide, I never have nor will I sneak around the net bollocks to the nanny state."

The reason for being careful on the net, is that there are bad people out there, and they are not all working for the government.

You wouldn`t (I hope) give personal data like your name, address, DoB, etc to a person you just met in the pub. You wouldn`t go out of the house and leave your front door unlocked... would you?

Using a proxy where appropriate, encryption if necessary, scanning for spyware, viruses and clearing private data and cookies from your browser cache is just sensible behaviour, even in a "freeworld".

Otherwise, why not simply send a copy of your hard drive to the mafia? After all, if you have nothing to hide...

Harvey    [24242.   Posted 31-Dec-2008 Wed 13:35] View Near Messages
Re: No New Year Fun in Norway

That Google article says: "Finland introduced a similar law in 2006, while Scotland also criminalised the purchase of sex in 2007."

The Finnish Parliament specifically REJECTED a law which would have criminalised the purcase of sex in general. The law in Finland only relates to purchasing sex from a victim of trafficking. But unlike what`s proposed in England, Wales and NI, it is for the prosecutors to show that the purchaser knew the prostitute was being forced to work. So far there has been a grand total of ZERO prosecutions under the law in Finland.
http://news.bbc.co.uk/2/hi/europe/5103132.stm

As for Scottish law criminalising the purchase of sex, and likening it to Sweden or Norway, that is just plain wrong. The Scots changed the law to make it an offence to solict or loiter in a public place for the purpose of obtaining sexual services. Kerb crawling.

Harvey    [24233.   Posted 28-Dec-2008 Sun 21:47] View Near Messages
I.D.I.O.T [24200]

"I was some what dismayed at what I found at the end of Harvey`s link given the issues we have already discussed he of all people ought to see the dangers as this could itself be perceived as a request could it not. I`m sure it won`t be long before the danish authorities are made aware of the breech and take action to remove it."

Indeed it is BECAUSE I of all people see the danger in a so-called list of child abuse sites.

As a result of the list of links being posted on Wikileaks, people have been able to point out that the Danish list, like the Finnish one, and probably the IWF list contains non-sex sites and legal adult sex sites, as well as sites containing images which would be illegal to possess.
http://www.melonfarmers.co.uk/eu.htm#Barely_Legal_Blocking_7825
Far from being difficult to access, some of those sites might be ones which contributors here frequent.

You will remember that in the UK, police claimed that they had 7000 named individuals who had all subscribed one or more sites on a list of child porn websites. That list numbered around 400 sites. 4 years later, at the time accusations were being made, most of those sites had ceased to exist so nobody was able to confirm what they had contained in 1999. The list was never made public, but I have a copy which shows alleged site names as well as URLs. All we know is that 12 definitely did contain child porn, and a similar number definitely did not. Nevertheless, several hundred people who did not actually possess any indecent child images, but who had a subscription logged to any of the sites on the list were accused of inciting the distribution of child porn. Most received a caution, a few were prosecuted and convicted. All were placed on the sex offender`s register, and have a criminal record which will be flagged up through the rest of their lives.

THAT was Operation Ore and THAT is the danger of unaccountable people making lists. Today they may use it to stop you accessing Wikipedia. Tomorrow they may be using it to accuse you of being a terrorist or a paedophile.

Harvey    [24193.   Posted 23-Dec-2008 Tue 17:34] View Near Messages
I.D.I.O.T

If MF prefers not to let the URL of the Wikileaks article appear here, it`s not so important. Anyone can find it easily by going to Wikileaks.

"I must ask http://lapsiporno.info/ does the info represent a users guide to pedophile activity or is it aimed at educating public awareness to the dangers of exposure etc, or perhaps highlighting inconsistency"

It`s inconsistency, at the very least. It would be best if you read the English resume on the actual site, but since you cannot bring yourself to do so, MF permitting, here`s a link <<shock!>> to an article in "The Register" about it.

http://www.theregister.co.uk/2008/02/18/finnish_policy_censor_activist/

Harvey    [24189.   Posted 23-Dec-2008 Tue 11:30] View Near Messages
IanG

It looks quite likely that the Aus govt will not get its mandatory filtering plan to fly. The ISP`s are not keen. Not because they are principled champions of a free internet, but because they think the filtering process will slow down the net, piss their customers off, and cost them $$$$$.

Harvey    [24188.   Posted 23-Dec-2008 Tue 11:06] View Near Messages
Sorry I.D.I.O.T, but the link I placed was to a Wikileaks article.

MF copied and pasted, and provided the links to a similar Wikileaks article about a secret list of sites censored in Thailand. http://www.melonfarmers.co.uk/in.htm#FACTs_about_Blocking_3715

In either case, what is wrong in knowing what other countries (including supposedly free countries) are blocking access to and, more importantly, the secret unaccountable mechanism which is being used. The articles themselves contain nothing contentious. Secret, maybe, but not contentious. However, they do provide links to the blocked sites.

But again, if people want to download the list and look for themselves, to see if any of the sites they have been to are being flagged as "potentially illegal", what is wrong with that?

If some idiot (sorry!) goes and actually visits the sites listed, because they think they will find child porn there - then they run the risk of being caught and punished. I wouldn`t recommend it, but even that, surely, is their choice to make for themselves, and not yours to make for them.


"Perhaps if the list had been edited prior to disclosure, it maybe in the public interest in it`s current form no way."

You really don`t see the glaring flaw in that logic, do you?

Censored, er sorry - edited... by whom?

The case of Matti Nikki, is very relevant. He lives in Finland, and by building a search bot he was able to track down most of the sites being blocked through many Finnish ISPs by the Finnish Police. When he went and looked at the sites, getting around the blocking mechanism, he found the majority of them contained nothing contentious at all. Many were not even sexual, and those that were, were almost all related to legal adult porn rather than child sex. There were even Finnish sites on the list! That is sites which the Finnish Police allowed to exist in Finland, but still blocked access to. Go figure!

Anyway having queried all this with the police and been rebuffed, he went public with his claims, posting the list of sites on his own site. Guess what? His own site, which contained nothing but a list of links, was added to the Finnish Police blocked list! And he got himself arrested.

Fortunately Matti`s site is not blocked here in the UK. http://lapsiporno.info/

Careful - "lapsiporno", means "child porn" in Finnish.

And in case your Finnish ain`t that great, he has a brief resume in English, here: http://lapsiporno.info/english-2008-02-15.html

And if you are still scared of going to look, maybe you`ll feel safer reading the YLE (Finnish BBC) article in English, about the censoring of Matti`s site, here: http://www.yle.fi/uutiset/news/2008/02/police_censor_porn_website_279365.html

Or the article in Helsingin Sanomat (Finnish national newspaper) in English here: http://www.hs.fi/english/article/1135234057449

If you are too scared to stand up and fight this nonsense, then you deserve every bit of censorship you get, frankly.

Harvey    [24182.   Posted 23-Dec-2008 Tue 07:55] View Near Messages
Denmark: 3863 sites on secret censorship list

Posted on Wikileaks

[Edited by ChiefCensor to restore peace and goodwill to Christmas]

Harvey    [24175.   Posted 22-Dec-2008 Mon 03:25] View Near Messages
I.D.I.O.T

My relationship with the legal system is as a client.

I got caught up in the Operation Ore fiasco, along with several hundred other innocent people. I was not damaged as much as many others were, but it came within a hair`s breadth of completely destroying my life.

It made me realise that not only is ignorance of the law no defence, it can seriously damage your health. It also made me realise how easy it is for someone to become falsely accused.

The problem with things like terrorism, child pornography, or, as you say bestiality. Is that we all have our own understanding of what those things mean, but no commonly accepted definition of what is and isn`t terrorism, etc. So while the law talks about an "indecent photograph", the press call it "child pornography", the IWF insist it must be described as "images of child sexual abuse", and the public in general see it as a rather tasteless 1970`s album cover - they are all looking at the same thing.

Similarly Child Abuse. Ask anyone if they approve, and you will get a near universal response. Of course everyone is against Child Abuse. But is the smack given to a 5 yr old, Child Abuse. Is smoking in the same room, Child Abuse. Is providing a diet of junk food, Child Abuse? In fact, is buying Egyptian cotton sheets, Child Abuse? Investigate beneath the prestigious packaging and you will find that most Egyptian cotton is produced by family growers and only possible using child labour, including exposure to pesticides, which would be completely unnacceptable in the UK.


"That`s because they can`t you either did it or you didn`t"

The development of the law in respect of the offence of "making" an indecent photograph, is an interesting one. It`s quite clear that in 1978, Parliament`s intention was to create a specific offence where a person was involved in creating child pornography. So the offence was defined as "taking", or permitting another to "take" an indecent photograph of a child. So far, so, good. "Taking a photograph" has an everyday meaning, and the act of taking a photograph is so well understood (isn`t it?) that Parliament saw no need to insert the word "intentionally", as it was difficult so see how a photograph could be taken any other way.

It wassome time after the creation of child porn was made illegal, that possession was made an offence. Parliament realised that the "either you did it or you didn`t approach" was flawed, because a person could unwittingly or accidentally "possess" a photograph. e.g. if it was sent to them without them requesting it. So they included a specific defence for such a situation. They also made the penalty for possession less than that for ceating an image.

Now we move on to the 1990`s and the advent of digital images, capable of being processed without any need for a photograph to be "taken". Parliament revisits the 1978 Act, and amends it. Henceforth the offence will be defined as to take or to permit to be taken, or to make, an indecent photograph or pseudo-photograph. Where a pseudo-photograph is an image which is not a photograph but appears to be a photograph. The word "make" is inserted because whilst photographs are taken, pseudo-photographs are "made". Again, so far so good, the essence of the offence is to address the creation of such images, and there is still no need to use the word intentionally.

Now along comes the internet, and digital images can be transferred from one computer to another. Perhaps Parliament should have revisited the issue of indecent images and created an offence of downloading an indecent image. If they had, they would hopefully have recognised that rather like possession, downloading can be done unwittingly or accidentally, by virtue of the way that file servers, web browsers and image caches work. Unfortunately, they didn`t do that, and instead left it up to the courts to interpret downloading as if it was "making", i.e creating, an image. They did this by giving the word "make" its normal everyday meaning of to cause to exist, and to decide that when something is downloaded or even viewed in a web browser, a new image file is caused to exist on the user`s computer. Hence that image file has been "made" by him.

Now, aside from the fact that in the original offence, "make" applies only to pseudo-photographs and not photographs, this extends the creation offence to cover an act which most people would think of as viewing rather than creating child porn. Yet there is no specific defence to the offence in the case of this viewing being accidental or unwitting.

There are some people who would sy that it`s typical behaviour of a facist state to create such laws. But I think it`s in part the result of a muddle and more generally because Parliament finds it so difficult to address these issues cooly and calmly. Maybe there should be a specific offence of viewing indecent images (over a network, or broadcast) which recognises that accidental or unwitting viewing is possible and doesn`t criminalise in that case. But we will never get such a law because the baying mob will claim that this is being "soft" on paedophiles.

You could repeat this kind of legal tour in all kinds of areas where legislation has been piecemeal and/or a kneejerk reaction to some kind of moral panic. Prostitution being a case in point. I don`t doubt Parliament`s ability to legislate sensibly, I just doubt that they ever will whilst they feel the need to play to the audience.

Harvey    [24170.   Posted 21-Dec-2008 Sun 11:03] View Near Messages
phantom [24168]

The rhetoric may be about trafficking, but the law is clearly about pimping. In this regard we are not best served by the media, who will report on the proposed offence as if it was about trafficking, because they don`t bother to enquire much behind the press releases from the Home Office.

Having said that, "controlling", in it`s everyday sense would appear to have a much more restricted meaning than the 1956 offence, which included aiding and abetting as well as compelling.

I don`t think anyone should be "controlled" to the extent they are coerced or compelled to prostitute themselves. So that while I agree there may be relatively few trafficked women who are controlled for gain, there could be thousands of others, who either came to this country legally or even illegally, but willingly, or were born here, but have fallen into the clutches of an oppressive pimp. So I really don`t have a problem with the law as it stands with regard to controlling prostitution for gain, as it has existed since the 2003 Act.

It follows that where a person knows that another is being controlled/coerced/compelled, yet pays them as a prostitute, they are at least complicit in, if not encouraging the pimping. So as far as the new offence would criminalise such a person, I have no problem with it. I might actually go further and suggest a court should have the option of imposing a custodial sentence, as to my mind, the offence is not much short of rape or sexual assault.

But even in the offence of rape, a distinction is drawn between a person who penetrates another in the resonable belief that they consent, and one who knows, or could reasonably be expected to believe there was no consent.

[24169]
There is a case to be made for locking-up fewer people, especially where a custodial sentence is for a relatively short time. There are alternatives which can be more effective and less costly. The Scottish government has recently proposed that they will do exactly that. There are stats which show that those given a short custodial sentence are more likely to re-offend than those given a community sentence. But those stats could be skewed if the courts are actuaklly identified the liklihood of re-offending, and handing down more custodial sentences to those more likely to re-offend.

Harvey    [24167.   Posted 21-Dec-2008 Sun 05:26] View Near Messages
Shaun [24166]

Shaun, I agree. The police could do more, but they could do more to prevent and/or investigate losts of other crime, too. They need to re-invent themselves as a 21st century organisation. There are too many senior officers, not enough troops, they are bound up in form-filling, and a lot of that is generated by their own antiquated systems, and worst of all they are driven by targets which look mainly at recording crime and convicting criminals, rather than enforcing the law. Having said all that, whatever they do to reform themselves there would still be a need to spend more money on the police if you want significantly more crime prevented or investigated.

I agree with you too about "pimps". Outside of blatant sex slavery, pimps gain footholds in pros lives because the women are vulnerable. They are vulnerable because while prostitution itself is legal, much of the associated activity, brothel keeping, kerb crawling, soliciting... isn`t.

In another context, "controlling for gain" could be more neatly described as "employing". We wouldn`t think of banning employment outright, just because some employers treat their "employees" as slaves. But when the "employment" is such that the "employee" might well be acting illegally, it`s awfully difficult to frame a law to only trap the oppressive pimps.

It would be much better if the activities surrounding prostitution were de-criminalised. That brothels should be allowed if they are licensed and regulated. That prostitutes can get health checks, pay taxes and have the same employment and workplace rights as anyone else. Regulation would also allow brothels to be sited where they don`t cause problems to residents.

Having read a lot of the comments elsewhere in response to this proposed law, ISTM that a majority of the public would prefer some mix of de-criminalisation and regulation, rather than yet another new criminal law, which they guess is more of a political statement than a real attempt to deal with sex trafficking. Odd then, that no politicians seem brave enough to suggest it.

Harvey    [24164.   Posted 21-Dec-2008 Sun 02:36] View Near Messages
IanG [24163]

"IF the police were doing their job properly there would be no one working as a sex slave under the control of a pimp."

Sorry, but that`s rubbish. The police can`t prevent people breaking the law.

"WHO in their right minds believes creating yet another anti-prostitution offence is going to curtail what is already an illegal trade?"

Me, for one. If punters who knew or suspected that the prostitutes they were using were sex slaves, thought they might be fined if they were caught, they would find another prostitute.

But in most cases, the punter will not and cannot reasonably know whether a prostitute is being controlled by a pimp. To criminalise them is no more reasonable than criminalising someone who buys fake designer jeans, but doesn`t and cannot reasonably know that they have been produced by child labour in Delhi.

Harvey    [24162.   Posted 20-Dec-2008 Sat 20:07] View Near Messages
phantom [24161]

Firstly, that definition comes from an offence in the old 1956 Act, which was repealed in 2003.

In the currently applicable law in the 2003 Act, "controlling" is not further defined, so unless some case law exists which limits it, you would expect it to have its normal everyday dictionary meaning.

I have no real problem with the controlling for gain part of the offence. It should be an offence for a person to command, direct or rule that another person provide sexual services for their (the controller`s) gain.

And if a third person, pays for a sexual service, knowing or reasonably suspecting that the person providing the service, is being controlled in this way, I don`t have any objection to that being an offence also.

My objections are limited to the strict liability aspect of the offence and the extra-territoriality. There is nothing in this proposed new offence to distiguish between a person who knows or could reasonably suspect that there is a controlling influence, and a person who could not reasonably suspect it.

Harvey    [24156.   Posted 19-Dec-2008 Fri 18:27] View Near Messages
freeworld,

You are right. Whatever the novelty of the phrase, unless a person can reasonably ascertain whether a person is or is not "controlled for gain", they have no way of avoiding committing an offence by paying them for sex.

There will be a fight about this. Harman might get her law, but not as an offence of strict liability. Don`t forget that she has another controversial Bill on equality to push and there will be horse trading behind the scenes on that one.

Harvey    [24154.   Posted 19-Dec-2008 Fri 17:15] View Near Messages
sergio [24152]

The intention was probably;

"...controlled by C for, or in the expectation of, gain.."

for gain
OR
in the expectation of gain

The difference being whether the gain is actually realised or just anticipated.

There is already an offence of controlling prostitution for gain in the Sexual Offences Act 2003:
http://www.opsi.gov.uk/Acts/acts2003/ukpga_20030042_en_4#pt1-pb13-l1g53

In the earlier 1956 Act there were separate offences for a man living on the earnings of prostitution and a woman exercising control over a prostitute. In that offence "It is an offence for a woman for purposes of gain to exercise control, direction or influence over a prostitute’s movements in a way which shows she is aiding, abetting or compelling her prostitution."

http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1956/cukpga_19560069_en_3#pt1-pb8-l1g31

So "controlled for gain" is not really a new phrase in this area.

Harvey    [24147.   Posted 19-Dec-2008 Fri 11:40] View Near Messages
"I know that NONE of them do the job they do against their will, so my consience is clear!"

It is not a matter of whether they are willing or not.

They may be working quite willingly, but "controlled for the gain" of another person.

Harvey    [24143.   Posted 19-Dec-2008 Fri 09:19] View Near Messages
I didn`t suggest the precendent was relevant. Just that when it comes to riding roughshod over principles, you can`t claim the P4P law is "exceptional".

I have no desire to protect terrorists, or paedophiles, but as soon as you make an exception for laws against terrorism and paedophilia, you create a precedent for more of the same even where the mischief involved is far less serious than terrorism. After all, this proposed offence is not even serious enough that the govt want to see a custodial sentence. A fine, at most and a maximum of £1000 puts it on a par with being a noisy neighbour, rather than an international terrorist.

We have even seen this offence equated with rape, yet even the serious offence of rape requires that the prosecution show that the defendant did not have a reasonable belief that the other person consented. So what is wrong with the prosecution having to show that the defendant did not have a reasonable belief that the other person is not being "controlled for gain"?

I would expect to see amendments proposed along those lines. I just don`t see this getting passed as a strict liability offence. The police don`t think they can enforce it, the Home Affairs Committee is sceptical and public opinion is more closely aligned with decriminalising prostitution.

Harvey    [24141.   Posted 19-Dec-2008 Fri 07:26] View Near Messages
I`m sure the legal eagles who drafted this are well aware of other legislation. For instance, if they want a precedent for a totally extra-territorial offence, regardles of nationality of the person involved, they could point to certain terrorist offences which apply to acts carried out outside the UK by non-UK nationals.

OTOH, I wonder what the govt would do if Ireland made its criminal law relating to abortion extend to abortions carried out in the UK? Harman would be throwing a tantrum at the very prospect, even if it only related to Irish nationals.

Harvey    [24139.   Posted 19-Dec-2008 Fri 06:58] View Near Messages
phantom [24136]

The provisions for child sex offences committed abroad do apply to UK residents. BUT... only if it is also an offence in the country where it`s committed.

http://www.opsi.gov.uk/acts/acts2008/ukpga_20080004_en_9#pt5-pb2-l1g72

It`s possible that the scope of the P4P law could be aligned with that.

i.e.

UK nationals - P4P4Gain illegal anywhere.
UK residents - P4P4Gain illegal if also illegal where committed.
Everyone else - P4P4Gain illegal if committed in England, Wales or NI.

Harvey    [24137.   Posted 19-Dec-2008 Fri 06:52] View Near Messages
"So if in three years time someone is found with some residual evidence of pictures on his hard drive and states categorically that it is from files deleted prior to the enactment of the law, then it will be for the CPS to prove otherwise, or else it will be accepted as a given?"

He doesn`t even need to state it categorically.

If a prosecutor turned up in court with a lot of deleted files, and nothing to support the case that they had been in the defendant`s possession after commencement of the Act, the judge would instruct the jury to find him not guilty. He would probably have some harsh words to say to the prosecutors too.

Harvey    [24134.   Posted 19-Dec-2008 Fri 06:39] View Near Messages
"I think such legislation exists in several countries regarding child sex tourism."

It applies in English law that certain sexual offences committed outside the UK can be prosecuted in an English court. So a person having sex with a 15 yr old in France is committing an offence in English law. But... it only applies to UK nationals.

A similar recent P4P law in Norway also applies to the purchasing of sexual services outside Norway, by Norwegian nationals.

I think at the very least there will need to be an ammendment restricting the application of the new English law to UK citizens. But the really problematic part is the strict liability nature of the offence.

Harvey    [24130.   Posted 19-Dec-2008 Fri 06:28] View Near Messages
phantom [24123]

"If it is beyond doubt that a person owned an image, but the image was owned and deleted before the date of enactment, then to whom does the burden of proof fall that the latter was so?"

Firstly it`s "possessed", not "owned".

Strictly, it is for the prosecutor to prove that the image was possessed AFTER the commencement of the DPA. The state of the image BEFORE commencement of the Act, whether deleted or not is irrelevant.

Compare with; "It is beyond doubt that the car was travelling at 36 m.p.h. at some point prior to the commencement of the 30 m.p.h. limit."

Er... so what?



OTOH, if it is beyond doubt that an image was deleted AFTER commencement of the Act, the burden of proof will be on the defendant to prove that it had been sent to him without him requesting it and that he hadn`t kept it for an unreasonably long time.

Harvey    [24128.   Posted 19-Dec-2008 Fri 06:01] View Near Messages
No kidding.

Read it for yourself...

http://www.publications.parliament.uk/pa/cm200809/cmbills/007/09007.12-16.html#j038dgb

I can`t imagine a German citizen visiting England would actually be arrested and prosecuted for something he had done legally, in his own country. But that`s what the law would allow.

Harvey    [24126.   Posted 19-Dec-2008 Fri 05:44] View Near Messages
Well here is the relevant P4P clause from the Policing and Crime Bill, published yesterday.

13
Paying for sexual services of a controlled prostitute: England and Wales

After section 53 of the Sexual Offences Act 2003 (c. 42) insert—
“53A Paying for sexual services of a prostitute controlled for gain

(1) A person (A) commits an offence if—
(a) A makes or promises payment for the sexual services of a
prostitute (B), and
(b) any of B’s activities relating to the provision of those services
are intentionally controlled for gain by a third person (C).

(2) The following are irrelevant—
(a) where in the world the sexual services are to be provided and
whether those services are provided,
(b) whether A is, or ought to be, aware that any of B’s activities are
controlled for gain.

(3) An activity is “controlled for gain” by C if it is controlled by C
for or in the expectation of gain for C or another person (apart from
A or B).

(4) A person guilty of an offence under this section is liable on summary
conviction to a fine not exceeding level 3 on the standard scale.”


So there we have it. Even Dutch nationals promising to pay for sex in the Netherlands would be committing an offence under English law if the prostitute is being controlled for gain.

Harvey    [24122.   Posted 19-Dec-2008 Fri 05:08] View Near Messages
IanG [24120]

The DPA doesn`t have an equivelent offence of "making" an EP image, so the only possible charge would be of possessing an EP image, for which there are specific defences against accidental or unwitting possession.

Having said that, it`s still a very valid question to ask why the IWF will not block access to "potentially illegal" EP images hosted outside the UK. Downloading it accidentally may not be an offence itself, but to avoid being convicted of possession, the onus is still on the person affected to destroy any copies which they have, and then to go to court to prove it.

I suspect the IWF know that virtually everything which will be caught by the DPA will be from legal, and more importantly, commercial websites, and they and their ISP clients will not want to tangle with commercial lawyers.

I`m not clear whether we should be cheering the IWF for not "censoring" things or booing them for not "protecting" the casual surfer who bumps into a site containing EP images.

Harvey    [24119.   Posted 18-Dec-2008 Thu 17:55] View Near Messages
phantom, I.D.I.O.T

Material possessed prior to commencement of the DPA should be beyond the scope of the Act. To bring a charge, the prosecution would have to show that anything which has been deleted, was possessed at some time after the Act comes into force.

So if anything is possessed now, deleting it prior to the end of Jan should be all that`s necessary. The courts have judged that using the delete function of an OS can put the data beyond the control of the owner of the computer, therefore no longer in his/her possession. So deleting should be enough to stay the right side of the law. But it might be prudent to overwrite the data on the disk, as well.

To see where the the burden of proof lies you have to look at the offence as drafted. In the case of the DPA, under section 64 it is for the prosecutor to show that a) an image is pornographic, b) that it is an "extreme" image, c) that it is not exempt (e.g. BBFC certified) and d) that the defendant possessed it (at a time when the Act was in force). Under section 65, it is for the defendant to prove he was sent the image without prior request, or had a legitimate reason for possessing it, etc. Similarly under section 66, it is again for the defendant to prove he paticipated in the acts depicted and that they were not non-consensual.

Reversing the burden of proof is problematic enough, running against the principle that it is for the prosecutor to prove his case. But proving a negative is even more difficult. To take advantage of the defence in section 65(2)(b) of the CJIA, a defendant has to be able to prove, beyond reasonable doubt, that he had NOT seen the image, or in section 66(2)(b) to prove that the acts did NOT involve the infliction of non-consensual harm.

The lack of a defence of accidentally or unwittingly "making" an indecent image of a child is probably because Parliament didn`t forsee that images could be accidentally or unwittingly "made". The law was written in 1978, when the taking or making of a photograph implied a direct involvement with the child subjects of it.

Harvey    [24114.   Posted 18-Dec-2008 Thu 09:42] View Near Messages
I.D.I.O.T [24109]

In principle... you have a defence to the offence of possessing an indecent image of a child if it is sent to you without you requesting it, and you don`t keep it for an unreasonably long time. You would have the same defence against possessing an extreme porn image.

BUT...

1) The burden of proof would be on you, in either case, to show that the image was sent to you without you requesting it. If you download things from newsgroups which, by your own admission are "plagued with spammers who post indecent material" you might get away with doing it the first time. If you go back again and again, the defence of ignorance of what might be there wears thin - very thin, even if it existed at all.

2) In the case of indecent images of children, there is an offence of "making" an image. Courts define downloading from the internet as "making" an image. Unlike the possession offence, there is NO defence of accidental or unwitting "making". The liklihood would be that you would be convicted for making any indecent images you have downloaded in the way you`ve described. Many, many, many others have been. You might think its unfair, because you didn`t intend to download child porn, but it happened as a direct consequence of what you decided to do. Just as if you agreed to take a package through customs for a friend. If it turned out to contain drugs, you would be held liable for your actions.

Harvey    [24108.   Posted 18-Dec-2008 Thu 06:15] View Near Messages
freeworld [24106]

"Without the physical presence of image(s) in the defendant`s possessions to show, how can anyone be prosecuted under the DPA?"

A case for possession could stand up if there is enough evidence to show that an image had been in the defendant`s possession, at some time. e.g. an access log showing that a particular file had been requested and downloaded or e-mailed to him. If prosecutors can obtain a copy of the file from elsewhere, they can offer it as evidence that it is an EP image.

In a case for attempting to possess, an email, or text could be enough to implicate someone. The image itself may never actually be recieved.

In law, possession is usually held to mean "under the control of", rather than "owned by", so in principle the far flung server could be under the control of a person, and therefore be possessed by them. But while the distance might not be a problem for prosecutors, the jurisdiction might be. A person might possess files on a distant server but if that server was in a foreign country the possession offence might not be justicable in a court in England, Wales or NI.

Harvey    [24101.   Posted 17-Dec-2008 Wed 14:15] View Near Messages
PrisonUK

I have no idea. It could be that the law just sits unused on the staute book.

OTOH, some of the more zealous of the constabulary could decide to leave no stone unturned until every corner of the land is cleansed.

I don`t think much will happen initially. But eventually there will be some spark - another horrific murder case where porn is linked, to raise alarm and fear.

Some have said at first only stone cold cases will hit the courts, but where the law is uncertain it`s just as likely that a prosecutor will throw many more borderline charges around just to determine haw far the law can be stretched.

Harvey    [24098.   Posted 17-Dec-2008 Wed 13:39] View Near Messages
In relation to the discussion on removing image files, it probably is the case that anything more than an overwrite of the data with zeros and/or random bytes, is overkill.

But it`s important to remember that even a complete obliteration of an image file only deals with part of the problem. That is of EP image files which you know you have now, but will erase/nuke before Jan 2009.

There remains the problem of any EP image files you don`t know, or have forgotten that you possess. Files stored in odd places on your hard drive. Files in backups, zipped archives, etc. And what about the last time you upgraded your computer. Is the old HDD sitting at the bottom of a cardboard box in your loft/garage?

The law says if you don`t know you have the image, or don`t know or suspect it to be an EP image, you can`t be found guilty of possessing it - But the burden of proof would fall on you to convince a jury of that, and you will be amazed how in a prosecutors hands, that dusty old forgotten HDD in your garage suddenly becomes a stash of sickening porn, deliberately concealed by a devious pervert.

Then there are the people who won`t nuke any of their image files before Jan 2009, because they don`t think or guess that any could be EP in the first place.

Prosecutors don`t necessarily need to find you in possession of an image to be able to bring a case against you. Even if you do completely obliterate the image file itself, there might still be enough evidence in to form of access logs, etc to bring some kind of charge. P2P fileshares present particularly rich pickings.

And even if all files and all such traces are obliterated so that no evidence of possession of an image can be found, there could still be a charge of attempting to possess one, or encouraging the possession of one. In very many of the Ore cases, there were no images found. People were charged with inciting the distribution of images, based solely on data found on a server thousands of miles away.

Harvey    [24055.   Posted 13-Dec-2008 Sat 08:52] View Near Messages
Shaun [24051]

Agreed. The current definition of "indecent" probably catches too much material which is distasteful rather than abusive.

Although the police and some MPs were making arguments that raising the age of a child from 16 to 18 in rlation to indecent images would remove grey areas, I think the real reason for the change was because of the UN Declaration on the Rights of the Child, which contains a protocol on child prostitution and child pornography where 18 is the definition. But although they changed the law on indecent child images, AFAIK, the UK government haven`t actually ratified the protocol.

Harvey    [24047.   Posted 12-Dec-2008 Fri 13:22] View Near Messages
Shaun [24043]

"Are you sure you have this the right way round ?"

I`m not sure I have! But what I mean to say is that it shouldn`t be the case that a person could ever be prosecuted for simply possessing something which is legal to publish.

"If the law was clear, then people would KNOW for sure what was allowed and what wasn`t"

Wherever you try to draw the line, there will be some degree of interpretation. Your latest definition contains the words `posing`, `explicit`, `aroused`, etc which are open to a degree of interpretation. But the law in general is full of such words like `reasonable`, `reckless`, `undue`, `intentionally`, etc, etc which we con all understand, but cannot guess, with certaintly, how anyone else would interpret them.


When it comes to blocking things, we`ve discussed before that the process the IWF have adopted is at the same time indicriminate and ineffective. It doesn`t have a legal basis, but ISPs simply choose to block sites on the IWF list.

Harvey    [24039.   Posted 12-Dec-2008 Fri 10:21] View Near Messages
Shaun [24037]

"The legal status of this kind of picture of a child would be then beyond dispute."

Well, of course it wouldn`t be beyond dispute, would it? The area of dispute might have moved, but there would be arguments about what was "provocative" and what was "innocent", whether something could be at the same time both provocative and innocent, etc, etc.

There is never going to be a clearly defined boundary where all agree on which side any given image falls. There will always be a grey area of doubt and disagreement, whatever the definition used. The problem you are faced with is not which images to absolutely outlaw and which to absolutely permit, but where to set a test to catch a reasonable amount of that which you absolutely need to prohibit, without catching too much of that which you don`t.

The case against the current definition of "indecent" (especially as interpreted by the police and the IWF) is that while it might catch virtually everything we need to restrict, it catches an excessive amount of that which we don`t.

I would also say that in general, the test of what should be allowed to be merely possessed or viewed on a website should be more stringent than the test for what can reasonably be allowed to be published. One of the nonsenses of the DPA is that material which would almost certainly not breach the OPA test for publication, probably would breach the new definition of "extreme pornography".

Harvey    [24028.   Posted 11-Dec-2008 Thu 13:18] View Near Messages
sergio, what the IWF actually said in relation to this one particular image on wikipedia, was:

"Any further reported instances of this image which are hosted abroad, will not be added to the list. Any further reported instances of this image which are hosted in the UK will be assessed in line with IWF procedures."

http://www.iwf.org.uk/media/news.251.htm

So, basically, yes. It`s only instances where it is hosted in the UK where they will deal with it at all.

But the far more important point for the casual wiki surfer is that the IWF and their police advisers remain of the view that the image would be in contravention of the PCA if it was downloaded... from wherever, and that arrest, criminal charges and "sick paedo snared in web" tabloid stories could ensue.

Given that all the furore has generated a massive spike of nearly a million hits to that one wiki page, and that a significant proportion of those will be folks in the UK, the IWF have just created thousands and thousands and thousands of "sick paedos". A stunning acheivement, by any standards.

Stats on the wikipedia Virgin Killer page: http://stats.grok.se/en/200812/Virgin_Killer

Harvey    [24026.   Posted 11-Dec-2008 Thu 10:46] View Near Messages
Bod, IanG, pbr

IanG, I know it`s confusing but the muddle is not about which sites the image could be downloaded from legally.

The IWF is saying that in their opinion the image could possibly contravene the PCA if anyone in the UK possesses or downloads it. The location of the site it was downloaded from is not relevant to that.

The issue as to whether it`s hosted within the UK or not, is that if it is within the UK, UK law enforcement can take some action to remove it. Outside the UK, they can`t assume that it will be removed so they add it to a list which ISPs in the UK block access to.


BOD,

"I`m a little confused if an image itself isn`t illegal then how can possession or simply downloading be?"

In the same way as a bottle of scotch isn`t illegal... but selling it without a license, or selling it to someone under 18 is an offence.


pbr, as you say, obscenity is a matter of fact, and it would be difficult to see a public interest in not prosecuting where an image was obsene.

It happens that the image concerned isn`t being considered obscene by the IWF, but indecent.

Harvey    [24020.   Posted 11-Dec-2008 Thu 06:34] View Near Messages
BOD, it`s even more muddled than that, because I don`t think the IWF can give the OK to anything, legally or morally.

Part of the problem is the "potentially", in their assessment of what an image is. But the other part of the problem is that an image itself is not illegal. It is the act - of downloading it, or publishing it, or possessing it, which is illegal.

So while you or I might be comitting an offence if we possessed certain images, a doctor, who had them in his medical textbook, might not. In law, he can claim he has a legitimate reason for having them.

When you look at it from this point of view, you can see that it`s ludicrous to try and control what should and shouldn`t be PUBLISHED, using the criteria for what (some) people are (potentially) prohibited from POSSESSING.

If the IWF want to put something on their blocked list, so that ISPs will block access to it, they should only be doing so if it is illegal to publish under UK law (the OPA). Unless that`s the case, the publishers of the material aren`t committing an offence and shouldn`t have to put up with having access to their sites blocked from within the UK. Clearly the OPA would cover the publication of any conceivable child abuse image, but it would surely have stopped the IWF short of putting something like the wikipedia page on its list in the first place, and having to make the rather unsatisfactory and unconvincing explanation for removing it.

Harvey    [24017.   Posted 11-Dec-2008 Thu 04:57] View Near Messages
sergio [24016]

If they find that content reported to them which is "potentially illegal" is hosted in the UK, they will issue a `notice and takedown` to the host ISP on the one hand and notify the police on the other. Once it`s taken down, there is nothing to be blocked.

If it`s a child abuse image, hosted outside the UK, they add it to their blocked list and inform the police or other responsible authority in the foreign country concerned.

The logic in having a blocking mechanism for material hosted outside the UK, is that there is no direct mechanism for the IWF or UK law enforcement to have material removed from a foreign hosted site. Although the IWF might inform them, the foreign law enforcers might not take action, and in any case the hosted material might not be in contravention of any law in that country.

The flaw in the logic is obviously where material which is deemed by them to be "potentially illegal" isn`t actually illegal to possess in the UK. The IWF have removed the wikipedia site from their blocked list, but they still maintain that the image in question is "potentially illegal".

This is odd because their appeals process suggests that it is their assessment (and that of CEOP managers or the Met Police) of whether material is "potentially illegal" which is final.

They also made that very clear in answer to a question from Shaun via MF, back in 2004.

"We have an appeals process in place for anyone wishing to request for their website/URL to be removed from the database. We would ONLY remove it if it was PROVED that it no longer potentially breached the Protection of Children Act." (my CAPS)

http://www.melonfarmers.co.uk/arop04b.htm#Blocking%20Human%20Rights

In the case of wikipedia, they still say the image DOES potentially breach the PCA, but nevertheless have removed it from their database. What sort of logic is that?

Harvey    [24010.   Posted 10-Dec-2008 Wed 13:09] View Near Messages
freeworld [24005]

Oh I`m soooo sorry.

Please use this space to explain what your "jokey" remark about Vaz DID refer to.

And if it`s the case that you HAD listened to what he actually said, rather than what was reported, then I take back the suggestion that you obviously hadn`t.

And if you will point out the impolite remarks you refer to I will apologise, but I can`t see anything impolite, let alone explicit or offensive in anything I`ve written.

Harvey    [24001.   Posted 10-Dec-2008 Wed 08:40] View Near Messages
freeworld [23999]

"Now, I wonder why our little buddy may have some reservations about "Hatemen`s law?""

You can`t resist it can you?

FYI, as you obviously didn`t listen to the evidence given to the committee, David Davies made some equally, if not more sceptical comments, including making a very good point about criminalising persons who give money to traffiked child beggars on the street.

Are you also suggesting that Mr Davies is only sceptical because he frequents brothels?

Harvey    [24000.   Posted 10-Dec-2008 Wed 08:03] View Near Messages
I think it`s harsh to describe the people who oppose a change in the law as self righteous.

It`s very dangerous ground to go charging around on. There are vulnerable people who might not be suffering a drawn out and painful death, but who feel they are a burden on their loved ones. Legislation which allowed them to seek help (encouragement?) in ending their lives might create a situation where families are actually left bereft of any love and dignity at the ending of a life.

The present situation where the law is clear and explicit, but prosecutors are entirely unwilling to prosecute is probably pragmatic and sympathetic. But the law is brought into disrepute and those who do chose to end their lives with the help of their family may well leave this world feeling apprehensive that theur actions might leave those family members liable to be prosecuted.

Though pragmatic, that`s not a desirable state of affairs IMO. Although I did hear the Conservative Edward Garnier on the radio today, describe this muddle as "delicious". I hope he reflects and regrets having described it in this way.

Harvey    [23998.   Posted 10-Dec-2008 Wed 07:37] View Near Messages
freeworld [23995]
"Telegraph article-Harriet "Hatemen"
Brilliant-and obvious when you think about it!"

I have to point out that it wasn`t the fine upstanding Daily Telegraph which put Ms Harman on the spot. It was Keith Vaz, when he told her: "(Commander Gibson) says it is very difficult to enforce a situation where a man is expected to ask a prostitute whether or not she has been trafficked and even if he gets a negative answer he is still to be prosecuted. The police themselves... feel that the new proposals are unenforceable."

That would be the same Keith Vaz who was so recently a pet hate figure on this very forum.


Listen for yourselves. The audio recording of the oral evidence given to the committe is here:
http://www.parliamentlive.tv/Main/VideoPlayer.aspx?meetingId=3040

It is obvious Keith Vaz is a tad sceptical of the reported extent of the problem of traffiking. Even Mr Salter is heard asking some sensible questions.

As usual, while it`s the HoC bunfight called Prime Minister`s Questions which excites the media, it`s the discussions in committee which actually reveal something of value.

I have mentioned before on here that I don`t think the gov will outlaw prostitution per se. I still think that`s the case. The very problem Commander Gibson raises will get in the way of an offence of strict liability. Ms Harman might get her new offence in law, but there will have to be a requirement to show that a person has knowingly paid a person who is being controlled. i.e. effectively the same law which exists in Finland.

Harvey    [23997.   Posted 10-Dec-2008 Wed 07:27] View Near Messages
Today`s Daily Mail is full of anguish that a snuff movie is going to be shown on a prime time TV channel this evening. They say it has been condemned as being "grotesque" and "dangerous".

Dominica Roberts of the Pro-Life Alliance said. `It is both sad and dangerous to show this kind of thing on the television.

`It is sad because any suicide is sad. It is dangerous because it could have a copycat effect. The point of the laws are to protect vulnerable people.`

Martin Salter might wish to note that nobody from Guatemala is featured.

Harvey    [23993.   Posted 10-Dec-2008 Wed 04:20] View Near Messages
Tis bollocks, true.

But this bit in particular: "There is a procedure whereby the website owner of any blocked URL has the right of appeal." is preeminent doublespeak, as neither the website owner, nor, indeed the host, is informed by either the IWF or ISPs that their site is being blocked.

And any "right" to an appeal is just a buzzword in the heads of the people who write this trash. They have no legal right, and no contractual right to "appeal". The "appeal" is determined by the very same body who made the original decision.

I hope Wickipedia take this further and make a claim in the UK courts against one or other of the ISPs who`ve implemented this blocking of their site. Then we might see some application of the law brought into this process and real rights asserted.

Harvey    [23986.   Posted 9-Dec-2008 Tue 16:20] View Near Messages
Shaun [23982]

"The thing is, I don`t think this is a picture of child abuse is it?"

Said the boy.

And then suddenly all the people gathered there could see for themselves - that the Emperor had no clothes at all.

Harvey    [23980.   Posted 9-Dec-2008 Tue 11:59] View Near Messages
jimmy

"So still considered illegal in the UK?"

So they say. But by unblocking the URL, and stating that they will not block it where and whenever it appears on a site hosted outside the UK, they are failing to protect the folks who are the users of their client ISPs from inadvertently accessing it.

Aren`t they?

Harvey    [23976.   Posted 9-Dec-2008 Tue 09:52] View Near Messages
phantom [23793]

Re: objects being inserted into the anus, life as often, proves stranger than fiction. http://tinyurl.com/vicar-potato

His story is that the vegetable became inserted when, having removed his clothing for the purpose of hanging a pair of curtains, he suffered a nasty fall.

Nothing odd about that at all. But as the A&E nurse said:

"it`s not for me to question his story. He had to undergo surgery to have it removed."

She advised anyone tempted to use such objects in sex games to think again.

"It can be very dangerous and potentially life-threatening," she said.

So there you have it, from an experienced medically trained person... Though why she should mention sex games in relation to the poor vicar`s curtain hanging accident, is not made crystal clear.

Because if it was a sex game involving a partner, and photographs had been involved. Being "life threatening", under the DPA, it might be..... curtains for the pair of them.

<gets coat>

Harvey    [23971.   Posted 9-Dec-2008 Tue 05:19] View Near Messages
spoonbender [23966]

You can`t state that quite so categorically.

The Nan Goldin/Elton John image in the Baltic exhibition clearly displayed the genitals of a young child. Yet the CPS did not attempt to prosecute anyone either under the OPA, PCA or the CJA.

Which is lucky for the BBC, because during the furore, they got a copy of the photograph, set it up on an easel outside the gallery and asked passers by to give their view. If it was indecent, they would have found it difficult to argue their way out of charges of both possessing and showing the image.

UK law does not specify that to be indecent a photograph must include genitals, other body parts or even nakedness. A fully clothed child in a sexually provocative pose could in some cases be considered indecent.

And it`s interesting to note that of the URLs which the IWF do put on their list, a significant proportion are directed to servers in the USA, where the law is, as you say quite stringent. So why is this material not taken down and/or hosting companies prosecuted by the US authorities. Could it possibly be that it is not, in terms of even the stringent US law, "pornography"?

Harvey    [23969.   Posted 9-Dec-2008 Tue 05:00] View Near Messages
emark [23964]

To be fair to the IWF, it is not them, but the ISPs using the BT Cleanfeed servers, who are rerouting traffic.



sergio [23966]

"they blurr the genitals - is that still `child porn`?"

What like the Telegraph did? http://www.telegraph.co.uk/news/newstopics/celebritynews/3683066/Wikipedia-page-on-rock-band-the-Scorpions-blocked-over-child-pornography-concerns.html

They may not consider the original to actually be "a child sexual abuse image", but have pixellated it because they didn`t want to offend their readers.

But as you said in relation to the Guardian, they must have had possession of the original, so if it is as the police and IWF claim "a child sexual abuse image" someone in their office should expect to be arrested and questioned.

Or maybe, when it comes to arrresting the employees of large media companies, the police`s definition of the image is different.

Harvey    [23959.   Posted 8-Dec-2008 Mon 19:18] View Near Messages
Shaun [23957]

The IWF already claim a remit to deal not only with child abuse images, but as a place to notify racial hatred and obscenity, if it`s hosted within the UK.

http://www.iwf.org.uk/public/page.103.htm

They say they are not censoring - They are protecting you...

"As sexually abusive images of children are primarily hosted abroad, we facilitate the industry-led initiative to protect users from inadvertent exposure to this content by blocking access to it through our provision of a dynamic list of child sexual abuse URLs."

And they rail against "unacceptable" use of the "P" word:

"Please note that "child pornography", "child porn" and "kiddie porn" are not acceptable terms. The use of such language acts to legitimise images which are not pornography, rather, they are permanent records of children being sexually abused and as such should be referred to as child sexual abuse images."

You have been warned!

I can see the logic in writing to the Charities Commission, but hey, the IWF`s charitable status is not really the problem here is it? The IWF are funded by industry to the tune of millions per annum, and even if they were forced to become a not-for-profit non-charity, the money would still be rolling in from Virgin, BT, the BBC, etc and they would still be doing their thing.

Remember that whatever they claim for their remit, their *purpose* is to be the industry`s "self-regulator" and stave off attempts to make ISPs in the UK legally responsible for what they host.

So rather than writing STRONGLY WORDED letters to quangos, I suggest a more suitable gesture would be to vote with your wallet - choose an ISP who does not use the IWF list to block your access to the net, and advise all your friends to do the same. If a large number of Virgin subscribers, packed their bags and went elsewhere, citing censorship as the reason, I would lay good odds that Virgin, BT and the rest would soon be "reviewing" their support for the IWF.


There was nothing much wrong with the IWF`s original remit. To act as a point of contact for people finding questionable material and a body to notify ISPs on the one hand and law enforcement on the other. They overstepped the line once they appointed themselves as unaccountable arbiters of what can and cannot be accessed.

Harvey    [23956.   Posted 8-Dec-2008 Mon 17:11] View Near Messages
BOD [23954]

Against a charge of possession of an indecent image, there is a defence if the defendant can show a legitimate reason for possessing it.

But if you download it, apart from possessing it, you will also have "made" a copy of it. There is no "legitimate reason" defence against "making" an indecent image. Remember that most web browsers will download a copy of the image to a cache, and in any event a copy of the image has to be "made" simply for the browser to render the image on screen.

The place the defendant acquired the image from is irrelevant.

So, no. It doesn`t depend in what context the image is displayed.


emark [23955]

Spot on!

The IWF have said they will be adding "extreme porn" images to its blocked list as soon as that law is in effect. It will be they and their police advisers who will decide what is and isn`t "extreme porn".

Harvey    [23950.   Posted 8-Dec-2008 Mon 12:17] View Near Messages
BOD

Actually it`s not the image itself but the act - of publishing, of making, of possessing it - which can be "illegal".

The IWF says it is "potentially illegal to possess", and they come to that conclusion having consulted the police.

First point: If it is concerned about the legalities, the IWF should be consulting legal professionals - not the police.

Second point: Even if an image is "illegal", the mechanism they have adopted appears to be completly useless. As has been mentioned on this forum before, the process of blocking access to specific URLs is on the one hand, overkill - it blocks access to everything at that URL, not just the image. Yet on the other hand it fails to adequately "protect" those ISPs who choose to use the blacklist, because the actual material can still be accessed by bypassing the URL using fairly trivial tools. Or even, as in this case, as laughably simple as it might seem, by Googling for it!

At the same time both draconian and impotent - some feat!

So, as we see on this occasion, not only has the image been blocked but the text on the same page, as well. And as an unintended consequence, by routing all Wikipedia traffic through the Cleenfeed proxy, many contributors have been unable to access Wikipedia through their ISP. The proxy strips the orginator out of the IP header, so Wiki loses the ability to detect and confirm the individual IP addresses of contributors.

Let`s see what happens if the IWF try that sort of shit with someone like Amazon. Imagine the gazillions which they will claim in damages if customer transactions are disrupted by ISPs feeding their traffic through a proxy.

Harvey    [23947.   Posted 8-Dec-2008 Mon 11:02] View Near Messages
MF (Dave)

Logically, having included the wikipedia site, there can be no good reason for the IWF not adding the Amazon site, and Google images to their blacklist.

Except, of course, that unlike Wikimedia, Amazon has bundles of cash, lots of smart American lawyers and will sue the arse off the IWF, if they even hint at disrupting their income stream.

Harvey    [23946.   Posted 8-Dec-2008 Mon 10:54] View Near Messages
BOD

I`m confused by your statements:

[23944] "The point and real question is just how many arrested and convicted are actually pedophiles and not just victims of trumped up bullshit like this."

and

[23933]"Can people please refrain from linking to illegal images,"

Is this image "illegal" or "not"?


sergio, it looks as though the Guardian are only prepared to show a part of the image.

Harvey    [23925.   Posted 7-Dec-2008 Sun 10:59] View Near Messages
IanG [23908]

As far as possession or downloading of an image is concerned, it is illegal if it "indecent" and "of child". Whether or not it is "Pornography", as defined in the DPA.

Whether a particular image is or is not "indecent" and "of a child" will be facts to be determined by a particular jury on a particular day, when judging a particular image.

The IWF clearly believe that the Wikipedia images they are blocking access to would be so determined. The ISPs involved clearly must think so too, and they will have taken legal advice before moving to block access to such a popular site. That alone should give you some idea of the kind of images which are being prosecuted in the courts in this country.

It also puts into perspective some of the claims made previously by the IWF about the quantity of sites they encounter which contain "child abuse images".


MichaelG [23923]

You`ll remember the guy in Finland, Matti Nikki, who compiled his own version of the Finnish police CP blocked list, by the relatively simple means of writing a bot to trawl the web and record the sites which returned the "blocked page" report. When he found that the majority of what was being blocked contained nothing dodgy at all he went public, and published the list on his web site. He was arrested.

Harvey    [23889.   Posted 4-Dec-2008 Thu 08:09] View Near Messages
Ah. Cross posting with pbr.

There is nothing strange about a superior court coming to a different judgement than a lower one.

The HRA simply makes it possible for UK courts to make rulings in HR cases. It does not make UK law subject to rulings by the ECHR.

Harvey    [23888.   Posted 4-Dec-2008 Thu 08:02] View Near Messages
The ECHR judgement says that the applicants` rights (under Article 8) are being infringed by the retention of their DNA and fingerprints. As they put it - "a disproportionate interference with the applicants` right to respect for private life and cannot be regarded as necessary in a democratic society".

Regarding compensation, the court awarded the applicants their costs in bringing the case, but not the £5000 each in damages which the applicants had claimed for the stress and anxiety caused by having their DNA and fingerprints retained.

The judgement effectively overturns that made by the Lords when the applicants brought their case under the HRA. So the courts in England and Wales should base any future case brought under the HRA on the judgement made today in Strasbourg. The police should also respond to any application to have data removed from the database, in the same light. To fail to do so would invite appeals or (in the case of the police) a judicial review. The judgement doesn`t say that the Home Office, or the police are breaking any law. Simply that they are infringing the applicant`s rights under the convention.

There is no question of anyone being prosecuted for retaining the applicants` DNA and fingerprints.

The ECHR ruling obliges the UK to comply and so it`s likely that Parliament will amend the law as it applies to England, Wales and N Ireland, and change its practice so that DNA and fingerprints aren`t retained in such a way as to be a "dispoportionate interference", etc. To fail to do so would invite a series of copy cat applications from others, under the HRA, and eventually the courts issuing a declaration of incompatibility.

Harvey    [23883.   Posted 4-Dec-2008 Thu 06:17] View Near Messages
freeworld [23881]

politics.co.uk seems to have its wires crossed.

What they have published appears to be the QS from 2004!!! There are references to the UK`s forthcoming presidency of the EU and G8 in 2005 and the Queen looking forward to visiting Canada in that year.

Other proposals mentioned are Bills to introduce ID cards and establish the Serious Organised Crime Agency both of which are already Acts!


Try here: http://www.direct.gov.uk/en/Nl1/Newsroom/DG_173092

The relevant measure would seem to be the proposed Policing and Crime Bill, which would:

"Protect vulnerable groups, particularly women and children by tackling demand for prostitution and strengthening arrangements around sex offender prevention orders and foreign travel orders."

Harvey    [23882.   Posted 4-Dec-2008 Thu 06:09] View Near Messages
This is an exceptionally strongly worded and unanimous ruling by 17 judges.

In light of the judgement, as it applies to all 3 categories of data (fingerprints, DNA profiles and cellular samples) where does this leave the proposed National Identity Register, which would rely on the retention of fingerprints of everyone entered on it.

Harvey    [23872.   Posted 3-Dec-2008 Wed 07:49] View Near Messages
spoonbender

IANAL, so I couldn`t state what are the pre-requisites for the CPS to indict for "procuring".

Also, given the usual standards of press reporting, we can`t be precise about the exact charge or statute involved. It may well be that he was charged under the Sexual Offences Act 2003 with "causing prostitution for gain", rather than "procuring".

As I mentioned below, not being part of "the scene" it`s difficult to see things from a BDSM point of view. One view of the lifestyle is that the domme/sub relationship is just a fantasy - an exciting charade - that in reality both are fully consenting and both completely in control of their choices.

Fair enough... But from the outsider`s viewpoint (and that is where the law and the courts see it) what is the material difference between a situation where the sub is "given" to others as part of the fantasy - for excitement - and one where real sexual exploitation is involved?

As I say, I find it hard to defend lifestyles which claim to be about fully consensual sexual relationships, but where "bitches" are "given" to third parties and proponents talk about "consensual non-consent".

Crying "rape", after the fact, is not limited to dom/sub relationships. As for a contract, if a jury is able to be convinced, by the testimony of the accuser, that a perpetrator has raped them, would they find it that difficult to be convinced the same person could use coercion to get their signature on a contract?


The BDSM lifestyle will no doubt come under attack in the popular press as has happened before when notorious cases have generated enough heat. But as to new laws, legislators have become obsessed with images, so a move to ban the written word would be a big step. There is the forthcoming trial under the OPA of a written piece (Girls Scream Aloud), and it will be significant if the jury convict on that one.

Harvey    [23869.   Posted 3-Dec-2008 Wed 07:11] View Near Messages
The journalism is standard Daily Mail fare. I alludes to the "sex cult" and plants an image in the reader`s mind that it`s the "sickening" "sex cult" lifestyle which has resulted in Thompson being jailed.

Was he pimping? Well, if any guilty plea in any trial can be analysed as being a "plea bargain", you could never be sure about the real guilt of anyone. I`m as critical as almost anyone about the way some prosecutions are conducted, but "plea bargaining" of the kind which is commonplace, established practice in the US, is not a fixture in prosecutions in the UK. I`ve no doubt that in some cases, there are kinds of unofficial plea bargains made, but it`s more along the lines of limiting the number of counts, or dropping charges for minor offences in return for a plea on the substantive one.

So taking all that into account, either he WAS pimping, or he has some kind of yearning for a diet of prison food.

On the wider issue, I`ve seen BDSM`ers writing about some of their sexual relationships in terms of "consensual non-consent". Now, I`m sure they know what they mean by that, but it leaves me, as a non-BDSM`er, in something of a quandry when it comes to defending their right to their lifestyle. ISTM that unless a relationship is fully and unequivocally consensual, there is a danger that one party is going to be exploited by the other. And that`s something I could not defend in any way at all.

Harvey    [23866.   Posted 3-Dec-2008 Wed 05:48] View Near Messages
spoonbender [23863]

"As long as its consensual what the hell has it got to do with the criminal justice system?"

Quite!

But this guy`s lifestyle, and the "wierd sex cult" tag applied to him in the Daily Mail reporting are not what he`s being jailed for. What he was actually charged with, and pleaded gulty to, was "procuring". Pimping, in other words. Forcing a woman to have sex with other men against her will. The guilty plea means the woman involved was not required to give evidence against him in court, but the charge would not have stood up unless she had come forward and been prepared to do so.

So, while consensual domme-sub relationships are fine, using one as a cover for pimping women is not. I`m glad the woman involved in this case was brave enough to come forward and be prepared to give evidence.

Harvey    [23860.   Posted 2-Dec-2008 Tue 11:24] View Near Messages
"Has anyone considered NL`s first manifesto lie?"

Yes.

But despite the lies, they were re-elected in 2005. Hardly a deterrent to them continuing to lie, by promising a referendum on the the EU constitution, and that the requirement to have an ID card would be "voluntary".

You`d have to conclude that not enough people give a shit. (or, that they do give a shit but think that voting for someone else is not a remedy for the election of governments which lie).

Harvey    [23751.   Posted 20-Nov-2008 Thu 20:49] View Near Messages
Spider [23749]

Thanks for that interesting post. I`d be wary of making assumptions about the Muslim population in general on the basis of what`s said by a politically active group.

I`d also suggest not running away with the idea that there is such a thing as "free speech" in British culture, let alone under British law. For example, Section 4 of the Public Order Act does impinge quite significantly on the so called "right" to free speech, making it an offence for a person, with intent to cause another person harassment, alarm or distress,to use threatening, abusive or insulting words or behaviour, or disorderly behaviour, or to display any writing, sign or other visible representation which is threatening, abusive or insulting.

It stops short of making it a criminal offence to simply offend someone... but not that far short. And freeworld might like to note that it was the Thatcher Conservative government who enacted that particular gem.

The Major regieme went further and introduced an additonal offence under section 5, where the "threatening, abusive or insulting words" are not made with the intent and don`t actually cause another person any harassment, alarm or distress, but are made in the sight or hearing of a person LIKELY to be caused harassment, etc, thereby.

Now, I can see the need for criminal sanctions to prevent situations which would cause disorder or violence, and that was pretty much the justification for this Act. But as usual, the loose wording leads to unintended consequences. It was section 5 of this Act which led the police to investigate and demand that a shopkeeper remove golliwogs from his shop window.

Section 5 also came in handy when police wanted to arrest a student who had commented to a mounted officer; "Excuse me, do you realise your horse is gay?" Although he was arrested and charged, THAT case was dropped, but not before the student had spent a night in the cells. http://news.bbc.co.uk/1/hi/england/oxfordshire/4606022.stm

Harvey    [23628.   Posted 6-Nov-2008 Thu 07:28] View Near Messages
Spider.

Are you confusing Blears with someone else?

There was a ministerial aide, called Jo Moore who sent an email about burying bad news on 9/11. She later had to resign, but I can`t recall the chipmunk Blears saying anything similar.

Harvey    [23610.   Posted 3-Nov-2008 Mon 19:15] View Near Messages
RussP

"If anyone sees something that could be considered offensive to a 39yr old, white male, who likes computers, sports cars and gadgets can they let me know, so that I can complain to somebody."

http://tinyurl.com/62nueo

Harvey    [23502.   Posted 23-Oct-2008 Thu 07:12] View Near Messages
pbr

you are quite right about the 2006 Act. Images which could render a person to be barred from working with children or vulnerable adults includes depictions which would not be within the scope of any existing criminal law or the DPA.

However, the mechanisms for barring aren`t yet running. Originally the Independent Barring Board was to start work in 2008. It will not be fully up and running until the end of 2009, and with a not so subtle name change, it will be called the "Independent Safeguarding Authority".

http://www.isa-gov.org.uk/

This bureaucratic process will probably mean many more people are barred from working with vulnerable adults and children. But inevitably, it will also mean that many more will feel inhibited from working or even volunteering in activities for which the vetting process will apply.

But sooner or later, there will be a case where a person properly checked and registered by the ISA is found to have committed a serious offence against a child or vulnerable adult. Then the hunt will be on for someone (other than the offender) to blame. Backs will be covered, politicians will express their horror and some more knee-jerk legislation will be on the way.

Harvey    [23497.   Posted 22-Oct-2008 Wed 16:45] View Near Messages
Spider

I make an important distinction between "hands on" adult sex offenders (including those "having an affair" with a 13 yr old) and internet porn downloaders.

Nearly as big is the distinction I make between child porn downloaders and the collectors of cartoon stories.

AFAIK, the SOTPs in the UK don`t make the victims confront their abusers. It would be traumatic for the victim to even be reminded of the abuse, let alone be forced to re-live it.


Salter and his claims are a distraction to the main event which will be played out in police cells and law courts over the next few years. If investigators and prosecutors decide to go heavy on the enforcement of the DPA, there could be wreckage all over the place. Salter will by that time probably be an ex-MP and his rediculous comments will be long forgotten. The reality will be the fate of people facing charges and prosecutions and tendency of the pop press to hype things out of all recognition without any prompting by media hungry MPs.

Harvey    [23493.   Posted 22-Oct-2008 Wed 15:02] View Near Messages
emark [23485]

>>The problem here is that someone can be criminalised for fictional material in the first place.

Quite!

BTW, in the case of the "Internet Blogger" charged under the OPA, he was in court today. No plea was entered and the trial date has been set for March 16th 2009. http://news.bbc.co.uk/1/hi/england/tyne/7684327.stm

>>I can`t help wondering what sort of crap they have on an "internet sex offenders treatment programme"...

Group sessions or one-to-one programmes run by the probation service. Intended to bring the offender to admit the harm caused by their offending and prevent recidivism.

http://www.probation.homeoffice.gov.uk/files/pdf/PC92%202005.pdf

For this kind of offence involving making or possessing thousands of indecent images of children, a community punishment + a SOTP would be considered a lenient sentence versus the alternative of a custodial sentence of 6 months to a year. In addition, because it is a non-custodial sentence, the requirement to notify as a registered sex offender lasts for 5 years rather than 7.

So, really, he got off lightly...