Does the law in England and Wales provide adequate regulation of extreme pornography and other forms of pornography related offences?

Does the law in England and Wales provide adequate regulation of extreme pornography and other forms of pornography related offences?

Abstract:

This research intends to investigate and analyse the existing laws on the regulation of extreme pornography and whether the existing laws enacted are adequate enough in preventing possession (and distribution) of extreme pornography. The key aim of this research is to assess the existing laws on extreme pornography and consider whether the laws are sufficient enough in protecting against possession of extreme pornography and if not, what more could be done to generate greater protection. There will also be an insight into computer law with regards to computer pornography and also child pornography. A demonstration of how the law deals with each area will be provided as this will show the connection between extreme pornography and computer crime.

Introduction:

Prior to 1995, the US and the UK (along with other countries) were unaware of the relatively ease of access of extreme pornography through the means of the internet.[1] An article published in ‘The Time’ magazine[2] highlighted the findings of a study of online pornography. An investigator of the research study found that there was a major change in the types of images demanded by consumers.[3] ‘Marketing Pornography on the Information Superhighway’[4] is the study carried out by an American University. The research showed that the distribution and consumption of extreme pornography is “one of the largest (if not the largest) recreational applications of users of computer networks.”[5]

Research studies are not the sole indication of the harm extreme pornography may impose. There have been many cases in the past relating to the possession of extreme pornography which provides a real indication of the potential harm imposed by the availability of explicit pornography. For example in the case of R v Coutts[6] a woman was murdered as a result of an extreme violent sexual act. It was found that Coutts had a history of visiting websites which contained extreme pornographic material from the internet prior to and after the victim’s death.[7] He was also found to have possessed a computer disk which contained violent images against women downloaded from his computer.[8] As a result of the case, the victim’s mother initiated a national petition to ban websites which contained sadistic material.[9] Subsequently, in 2008 the government introduced Part 5, sections 63 to 67 of the Criminal Justice and Immigration Act 2008 (CJIA 08) which made it an offence to be in possession of an extreme pornographic image.[10] If the image is to be regarded as extreme pornography then it must be pornographic[11] which means that it is either grossly offensive, disgusting or of an obscene character.[12] There are 5 further requirements whereby the image portrays an act which threatens a person’s life; involves sexual interference with a human corpse; the act results or is likely to result in serious injury to person’s anus, breast or genitals; a person is performing the act of sexual intercourse or oral sex with an animal (whether dead or alive) and that a reasonable person who views the image would believe that any such person or animal is real.[13] The issue here is that the provisions of the CJIA 2008 provided sections which are already available under the Obscene Publications Act 1959 (OPA) which provides that it is an offence to publish an article which is obscene, and its effect is to deprave and corrupt those likely to read see and hear the article.[14] The OPA also provides that the publication of an obscene article can be done through the means of transmitting data stored electronically[15], thus making reference to the use of the internet.

Research Objectives:

To investigate the history on the law of obscene pornographic material in light of current legislation and understand the evolution of the law taking into account the development of the internet.
To analyse other areas which are closely connected to extreme pornography. For example, child pornography and other sexual offences and highlight any discrepancies within and between the legislations.
To investigate computer crime, its history and development and its status today. Also consider the problems with the internet in that it is difficult to control extreme and child pornography by creating national law as it is a global problem, and thus consider the various forms of internet regulation such as The Internet Watch Foundation, the private non-governmental organisation.
To assess the law in another country and analyse how well it works by investigating an eastern country, one which has a different culture and understand the effect of viewing pornography has on individuals.
To scrutinise the existing laws in the UK on extreme pornography and find any strengths and weaknesses of the legislations and to create an insight into case law judgments and further views of academics.
To assess whether there are any inconsistencies in the current laws and consider the arguments for and against the effectiveness of the current law along with any arguments for reforms and calls for further internet regulation.
To conclude whether it is believed that the current law is sufficient in protecting against extreme pornography, whether it is under regulated, or unnecessarily over regulated and discuss whether there can be any improvements with government legislation and non-governmental internet regulation.

Hypothesis/Main reason of the Research

The main purpose of this research is to scrutinise the laws regulating extreme pornography, child pornography and pornography depicting other sexual offences accessed via the internet. There seems to be many flaws in the provisions incorporated into the CJIA 2008 regarding extreme pornography. For example there is a lack of clarity as ‘serious injury’ is not defined. Therefore the key aim of this research is to determine how well the current law is in regulating extreme pornography along with child pornography and other sexual offences. The influence of pornography needs to reflect the harm it is potentially imposing as it is believed to be normalising sexual offences.[16] The research will attempt to understand the purpose which extreme pornography and child pornography has in society. The research will also determine whether the current law in the CJIA 2008 takes into account the issue of the potential ‘harm’ which is derived from pornography and whether it is successful in covering a situations.

Methodology:

A various number of sources will be gathered in order to assist with the formulation of this research and combined together it will provide the core argument in support of the regulation in England and Wales and arguments which oppose the regulation of pornography that is deemed extreme and indecent of children. The sources will also provide the research with a perception of how the current laws in place work and help evaluate whether they work harmoniously or whether there are inconsistencies and if so, whether reforms should be considered.

Case law will enable the research to illustrate the history of pornography and analyse its development to the current law. For example R v Hicklin & Another[17]is a dated case in which it was held that the defendant was in possession of and found to be distributing material which under the OPA 1857, was deemed obscene and thus prohibited. In this case Lord Cockburn C.J provided the test for obscenity and stated that it is, ‘whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences…’[18] Although there have been some amendments, the ‘deprave and corrupt’ requirement is still present in the current form of the OPA 1959.

The CJIA 2008 along with other legislations such as the OPA 1959, the Protection of Children Act 1978 and the Sexual Offences Act 2003 etc. will be subjected to scrutiny. There will also be an analysis of the Government Review on the ‘Sexualisation of Young People’ which touches on the regulation of extreme pornography.[19]

Journal articles written by academics will be analysed as many provide a critique of the current law and propose reforms whilst some may support the current law and disregard any arguments against the current regulation. The dissertation will not include interviews, surveys, questionnaires etc.

Primary Sources:
Legislation:
CJIA 2008
OPA 1959
Sexual Offences Act 2003
Protection of Children Act 1978
Computer Misuse Act 1990
Council of Europe-ETS No.185-Convention on Cybercrime
Case Law:
R v Graham James Coutts [2005] EWCA Crim 52: The decision in this case led to Part 5 of the CJIA 2008 being introduced in order to make specific acts prohibited.
R v Hicklin [1868] LR 3 QB 360.
R v Perrin (Stephane Laurent) [2002] EWCA Crim 747.
R v Alban Fellows [1997] 1 Cr. App. R. 244.
R v Costi [2006] EWCA Crim 3152.
R v Neal [2011] EWCA Crim 461.
R v Miller [2010] EWCA Crim 2883.
R v Ping Chen Cheung [2009] EWCA Crim 2965.
R. v Anita Debnath [2006] 2 Cr. App. R. (S.) 25.
Secondary Sources:
Journals:
McGlynn & Rackley, ‘Criminalising extreme pornography: a lost opportunity’ [2009] Crim. L.R. 245.
Murray, ‘The reclassification of extreme pornographic images’ [2009] M.L.R. 72.
D.Selfe, ‘Extreme pornographic images – mens rea and defences’ [2011] Crim. Law. 4.
Foster, ‘Possession of extreme pornographic images, public protection and human rights’ [2010] Cov. L.J. 21.
Gillespie, ‘Indecent images, grooming and the law’ [2006] Crim. L.R. 412.
Books:
Lilian Edwards & Charlotte Waelde, Law and the Internet, (3rd Edition, Hart Publishing, Oxford, 2009).
Reed & Angel, Computer Law: the Law and Regulation of Information Technology, (6th Edition, Oxford University Press, Oxford, 2007).
Lloyd, Information Technology Law, (5th Edition, Oxford University Press, Oxford, 2008).
Bainbridge, Introduction to Information Technology Law, (6th Edition, Longman, Harlow, 2008).
Rowland & Macdonald, Information Technology Law, (3rd Edition, Cavendish, London, 2005).
Internet Sources:
‘When does kinky porn become illegal?’ 2008, http://news.bbc.co.uk/1/hi/7364475.stm (accessed April 12th 2011).
‘Longhurst mother demands porn ban’ 2004, http://news.bbc.co.uk/1/hi/england/3542811.stm (accessed 20th April 2011).
‘Mother wins ban on violent porn’ 2006, http://news.bbc.co.uk/1/hi/england/berkshire/5297600.stm (accessed 13th April 2011).
‘Online Erotica: On a screen near you’ 1995, (accessed 19th April 2011).
‘Cyberporn’ 1995 (accessed 19th April 2011).
‘Marketing Pornography on the Information Superhighway’ (1995), (accessed 19th April 2011).
‘Sexualisation of Young People, review’ [2010], (accessed 5th May 2011).
Chapters:

Introduction:

The opening of the dissertation will provide an insight into the public awareness of the rise of pornography. It will provide a brief history of the existence of pornography and its primary sources. It will also demonstrate the aims and the conclusions that are to be achieved and a brief summary of the contents of each chapter.

Chapter 1:

The first chapter will provide an analysis of the history of the law regulating pornography, from its existence, its development to its current form (including the formation of Part 5 of the CJIA 2008 and arguments for and against the regulation of extreme pornography). It will also show an understanding of how the laws have developed to adapt with the increasing harm of pornography. Case law will also be provided to demonstrate evolution of crime regarding pornography.

Chapter 2:

The second chapter will carefully scrutinise the provisions of the legislations mentioned above. An explanation to the different acts that are prohibited by law will be provided and demonstrate the connections they have with each of the other legislations. For example, child pornography and the Protection of Children Act will be compared along with the Sexual Offences Act.

Chapter 3:

This chapter will consist of an examination of the development of the internet, from its existence to its current form. An analysis will also be made with regards to how the internet has evolved and assisted with the development of pornography whether it is extreme or depicting indecent images of children etc. An examination of how well the alternative to governmental regulation works will also be made with regards to internet regulation by non-profit organisation, The Internet Watch Foundation. Also an assessment of the law on prohibited pornography of an eastern country will be made to understand how well it is regulated.

Chapter 4:

The fourth chapter will examine extreme pornography, child pornography and other acts of violence such as rape along with cybercrime. It will discuss what the effect of having such material available on the internet has on the viewer. It will also consider the argument that pornographic material normalises the acts of those viewing them.[20]

Chapter 5:

Having analysed all the relevant legislations, this chapter will determine their effectiveness as to their aims and assess whether they work harmoniously and if not, draw out any inconsistencies. This chapter will also examine the strengths and weaknesses of the previously analysed laws and provide a summary of any proposed reforms.

Conclusion:

This will provide a brief summary of the whether it is believed that the current control is sufficient enough in regulating extreme pornography and child pornography or whether it is under regulated and in need of reform.

Schedule of Work:

June 2011: Complete all research and start introduction.

July 2011: Complete chapter’s 1&2 and start chapter 3. Hand drafts to supervisor.

August 2011: Make amendments to chapter’s 1&2 in accordance to feedback from supervisor. Hand in chapters 3&4 and start chapter 5.

September 2011: Make amendments to chapter’s 3&4. Complete chapter 5 and conclusion and hand entire dissertation in to supervisor.

September-October 2011: make final amendments.

October 28th 2011: Submission.

Bibliography
Primary Sources
Case law:

R v Alban Fellows [1997] 1 Cr. App. R. 244.

R v Anita Debnath [2006] 2 Cr. App. R. (S.) 25.

R v Costi [2006] EWCA Crim 3152.

R v Graham James Coutts [2005] EWCA Crim 52.

R v Hicklin [1868] LR 3 QB 360.

R v Miller [2010] EWCA Crim 2883.

R v Neal [2011] EWCA Crim 461.

R v Perrin (Stephane Laurent) [2002] EWCA Crim 747.

R v Ping Chen Cheung [2009] EWCA Crim 2965.

R v Porter (Kye James) [2006] EWCA Crim 2857.

Legislations:

Computer Misuse Act 1990.

Council of Europe-ETS No.185-Convention on Cybercrime.

Criminal Justice and Immigration Act 2008.

Obscene Publications Act 1959.

Protection of Children Act 1978.

Sexual Offences Act 2003.

Secondary Sources:
Journals:

D.Selfe, ‘Extreme pornographic images – mens rea and defences’ [2011] Crim. Law. 4.

Foster, ‘Possession of extreme pornographic images, public protection and human rights’ [2010] Cov. L.J. 21.

Gillespie, ‘Indecent images, grooming and the law’ [2006] Crim. L.R. 412.

McGlynn & Rackley, ‘Criminalising extreme pornography: a lost opportunity’ [2009] Crim. L.R. 245.

Murray, ‘The reclassification of extreme pornographic images’ [2009] M.L.R. 72.

Books:

Bainbridge, Introduction to Information Technology Law, (6th Edition, Longman, Harlow, 2008).

Lilian Edwards & Charlotte Waelde, Law and the Internet, (3rd Edition, Hart Publishing, Oxford, 2009).

Lloyd, Information Technology Law, (5th Edition, Oxford University Press, Oxford, 2008).

Reed & Angel, Computer Law: the Law and Regulation of Information Technology, (6th Edition, Oxford University Press, Oxford, 2007).

Rowland & Macdonald, Information Technology Law, (3rd Edition, Cavendish, London, 2005).

Internet Sources:
‘Cyberporn’ 1995 (accessed 19th April 2011).

‘Longhurst mother demands porn ban’ 2004, http://news.bbc.co.uk/1/hi/england/3542811.stm (accessed 20th April 2011).

‘Marketing Pornography on the Information Superhighway’ (1995), (accessed 19th April 2011).

‘Mother wins ban on violent porn’ 2006, http://news.bbc.co.uk/1/hi/england/berkshire/5297600.stm (accessed 13th April 2011).

‘Online Erotica: On a screen near you’ 1995, (accessed 19th April 2011).

‘Sexualisation of Young People, review’ [2010], (accessed 5th May 2011).

‘When does kinky porn become illegal?’ 2008, http://news.bbc.co.uk/1/hi/7364475.stm (accessed April 12th 2011).

[1] Lilian Edwards & Charlotte Waelde, Law and the Internet, (3rd Edition, Hart Publishing, Oxford, 2009) 623.

[2] Matt Mahurin, ‘Cyberporn’ (Magazine cover of the Time magazine, issued 3rd July 1995) accessed 19th April 2011.

[3] Philip Elmer-DeWitt, Hannah Bloch, Wendy Cole & Sharon E, ‘Online Erotica: On a screen near you’ (Magazine article, issued 3rd July 1995) accessed 19th April 2011.

[4] Marty Rimm, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2000 Cities in Forty Countries, Provinces and Territories’ (1995), Georgetown Law Journal, 1849. accessed 19th April 2011.

[5] Marty Rimm, ‘Marketing Pornography on the Information Superhighway: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in over 2000 Cities in Forty Countries, Provinces and Territories’ (1995), Georgetown Law Journal, 1849. accessed 19th April 2011.

[6] R v Coutts [2006] UKHL 39.

[7] R v Graham James Coutts [2005] EWCA Crim 52 at 39.

[8] R v Graham James Coutts [2005] EWCA Crim 52 at 92.

[9] ‘Longhurst mother demands porn ban’, BBC News, (8th March 2004), accessed 20th April 2011.

[10] Criminal Justice and Immigration Act 2008 s.63.

[11] Criminal Justice and Immigration Act 2008 s.63 (2).

[12] Criminal Justice and Immigration Act 2008 s.63 (6)(b).

[13] Criminal Justice and Immigration Act 2008 s.63 (7).

[14] Obscene Publications Act 1959 s.1 (1).

[15] Obscene Publications Act 1959 s.1 (3)(b).

[16] Clare McGlynn & Erika Rackley, ‘Criminalising extreme pornography: a lost opportunity’ [2009] Crim. L.R. 245 at 249.

[17] The Queen, on the Prosecution of Henry Scott, Appelant v Benjamin Hicklin and Another, Justices of Wolverhampton, Respondents [1868] LR 3 QB 360.

[18] The Queen, on the Prosecution of Henry Scott, Appelant v Benjamin Hicklin and Another, Justices of Wolverhampton, Respondents [1868] LR 3 QB 360 at 371.

[19] Dr Linda Papadopoulos, ‘Sexualisation of Young People, review’ [2010], accessed 5th May 2011.

[20] Gillespie, ‘Indecent images, grooming and the law’ [2006] Crim. L.R. 412 at 418.