Inquisition 21
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More UK ‘Pinhead’ legislation
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Arthur Blair warns of further inroads into individual UK liberties
More UK ‘Pinhead’ legislation
Our UK correspondent, Arthur Blair, reports on the continuing expansions in the already draconian UK child porn measures, and on their ridiculousness.
Pinheads operating
On 10 November 1999, the Court of Appeal published its reasons for upholding the conviction of Jonathon Bowden on charges of ‘making indecent photographs of children’. Bowden had downloaded images from the Internet. Prior to this decision, it was commonly thought that downloading such images was covered by section 160 of the Criminal Justice Act 1988, leaving the Protection of Children Act 1978 to deal with aspects of child pornography above and beyond simple possession. However, in saving the images on his computer, Bowden had ‘made’ copies of them -- he had ‘caused copies of photographs to exist’, which amounted to an offence contrary to section 1(1)(a) of the Protection of Children Act 1978.
Unfortunately, Parliament had not defined a defence to this ‘Making’ offence -- and so any police investigation that involved creating copies of a defendant's disks would itself involve the police committing the same offence. The police -- always ones to uphold the law -- were not deterred in the slightest by this: in pursuance of justice, they continued to break the law.
But on 20 November 2003, the Sexual Offences Act 2003 received royal assent. The Act amends the Protection of Children Act to include a defence to charges of making an indecent photograph of a child where it was necessary to make the photograph ‘for the purposes of the prevention, detection or investigation of crime, or for the purposes of criminal proceedings, in any part of the world’. Now the police no longer need to abuse children in the course of their investigations
Child abuse
The UK's 'child pornography' laws are both extended and watered down by this Act. They are extended in that a photograph of someone doing something rude is now defined as an indecent photograph of a child where its shows a person under 18, and watered down in that they define a defence where the child was over 16 and the defendant and the child were married, or living together as partners in an enduring family relationship, and the photograph was not shown to any third person.
Whatever moral force these laws had is being whittled away. The standard justification of actions against child porn is that every image shows a crime being committed. According to the NSPCC, a child pornography image shows ‘a real child who has suffered immense trauma and pain’. [1]
When announcing the arrest of over 200 people as part of Operation Ore, Detective Inspector Bob Stirling of Thames Valley Police said ‘It is worth repeating that every image involves the abuse of children’. [2]
But the ‘child pornography’ laws have always been given the widest possible interpretation [3]. The appellant in R v Graham-Kerr [4] had been convicted of taking an indecent photograph of a young boy. On appeal the conviction was overturned - the photograph had shown the boy nude in the changing rooms of a public swimming bath. Hardly pornographic.
More recently, in R v Graham Westgarth Smith [5], the Court of Appeal upheld a conviction on one count of making an indecent pseudo-photograph of a child - the police found an email on Smith's computer with attachments showing a naked girl called Eva, apparently taken by her mother, an internationally renowned photographer. Presumably the girl was Eva Ionesco and the photographs were taken by her mother Irina - in which case, the book Eva: Eloge De Ma Fille by Irina Ionesco, to be published by Alice Press in October 2004, will also count as child pornography, and UK customers should be careful not to buy it from Amazon.com.
So it has never been the case that EVERY photograph ‘involves the abuse of children’, nor that every image even counts as child porn.
(Editor's note. In response to a query from the publisher of the new book, Arthur Blair stresses that he does not regard
Eva Ionesco's work as pornographic or anything other than beautiful)
But now that the children in such photographs can be over the age of consent, the photograph might even be pornographic (in the normal sense of the word) and still not show a child being abused. The Sexual Offences Act also defines some rather absurd defences where the person taking (or making) a photograph and the child shown in it are married or living together as partners in an enduring family relationship, and the child is 16 or 17. This husband or husband substitute can photograph his partner doing things that are perfectly legal, but another person would face jail for taking the same photographs.
The law now implicitly declares not only the act being photographed to be harmless, but also the act of photographing it. What matters, and what is criminalized, is impropriety. The law clearly embodies a particular viewpoint about what it is acceptable for people to do sexually -- for example, two people can have sex, but not more -- but also wishes to combine this with a politically-correct acceptance of non-standard relationships, hence use of the phrase ‘an enduring family relationship’. What is the justification for these amendments?
In preparation for the commencement of the Human Rights Act 1998, the Legal Secretariat to the Law Officers sent out guidelines [6] ‘for those prosecuting on behalf of public authorities’ so that they might ‘be able assist the courts with clear and reasoned argument in relation to statutory provisions’ called into question under the Human Rights Act. These points for prosecutors suggest that ‘the test for indecent photographs of children is presumably to protect the subject children in the photograph (whoever and wherever those children may be) and protect other children in the United Kingdom from adults developing any sexual interest in children’. Where the subjects of a photograph can consent to the activity photographed, the activity is legal and they are not being protected from crime.
It has never been unlawful to have a sexual interest in children-- criminal behaviour consists in sexual conduct. Therefore, sexual interest in children of 16 or 17 can hardly be worrisome. Under these circumstances, the proposed amnesty for those downloading indecent photographs of children from the Internet takes on more of a sinister character than it already had.
Such an amnesty becomes the State's confession box.
Forgive me copper, for I have sinned!
Donald Findlater, deputy director of child protection charity the Lucy Faithfull Foundation, suggested that an amnesty for people who are concerned about images they have accessed on the internet would be a good idea. [7] “This proposal is aimed at people who have knowingly downloaded child pornography but not distributed it or abused children,” he said. “The intention is to encourage those who know they have a problem to come forward by sparing them the humiliation of a court appearance. They would be assessed by a psychiatrist, a psychologist or a probation officer while the police would investigate their computers.”
This view was shared by John Carr, internet advisor to the charity NCH Action for Children. “If there are men locked into a pattern of downloading abusive images of children who are on the cusp of raping their own daughter, anything that might help them come forward for assessment and treatment should be seriously considered,” he said.
Carr said the proposal will be submitted to the Children's Charities Coalition for Internet Safety, which includes the NSPCC, Barnardo's, the Children's Society and NCH, later this month. The coalition will then formally propose the scheme to the police.
Findlater said that, when people who download child pornography face prosecution and demonisation by the media, they will be prevented from seeking help for their sexual inclinations. When you consider that all of the people one might approach are ‘professionally bound’ to inform the police of any threat they perceive to a child, you can understand such reticence. [8] Consider, for example, the fate of Paul Weiser, [9] a young American man who sought professional help for his attraction to young girls, wrote to ‘Dear Abby’, but was turned-in to the police.
Findlater went on to say that “This is not about being soft on internet paedophilia. This problem is far bigger than the authorities can cope with. The police and social services are struggling to deal with those cases known to them. But there are thousands of others out there and we want to reach them before they turn their sexual fantasies into reality.”
Now that Sexual Offences Act has increased the age of the subjects of 'Internet child-pornography' from 16 to 18, there will be millions more potential child abusers out there who the authorities will want Findlater and his ilk to reach out to before they turn their sexual fantasies into reality -- but now they will be potential abusers who have sexual fantasies that it would be legal for them to enact!
The Association of Chief Police Officers (ACPO) said it would carefully consider Mr Findlater's proposal. Stuart Hyde, ACPO's spokesman on combating child abuse on the internet and assistant chief constable of the West Midlands, said: “Whilst anything that can be done to protect children should always be considered, any such proposal needs to look beyond the removal of hardware, at the potential for such individuals to have been involved in actual child abuse.”
Rachel O'Connell, the blonde director of the Cyberspace Research Unit at the University of Central Lancashire (ex Preston Polytechnic), who spent five years investigating internet paedophile rings, shared Hyde's concerns. “Much online paedophile activity is based around exchanging fantasies about child abuse and role playing abusive scenarios, and grooming activity - where they befriend children with the aim of meeting up with them to abuse them. So the police would also need to check for evidence of these activities.”
This is presumably what Findlater means when he says that a confessant would be assessed by a do-gooder while the police investigate their computer. But what would happen where images found by the police are insufficient to support criminal charges? Will the do-gooders release their claws from the confessant, who will have committed no crime? Or will they take the confession itself as sufficient justification to class them as a paedophile?
John Carr suggests that Findlater also wants to reach out to people who have yet to break the law but fear they are on the brink of doing so. [10] Such people would of necessity be confessants who had committed no crime -- as indeed Carr says when he says that for them to ring up the police would be pointless because no offence has been committed. In this case, and in the case of someone who has confessed but been found to have sinned insufficiently indecently, the police should not be able to issue a caution -- they can only caution when they believe there would be a good likelihood of achieving a conviction.
Similarly, ACPO's reaction is a little strange: Stuart Hyde, assistant chief constable of West Midlands Police, should know from his own force's experience whether such a scheme is worthwhile -- West Midlands have tried something similar before, ‘Caution Plus’, which lacked only the voluntary element of Findlater's proposal. Maybe West Midlands Police has the answer -- it was also involved from an early stage in another confessional scheme.
Operation Pin
Operation Pin was announced at a news conference in London on 18 December 2003. As part of this operation, police will set up Internet sites that claim to contain child porn images. [11] The web sting has been set up by the UK's National Crime Squad working with the FBI, Interpol, the Royal Canadian Mounted Police and the Australian Hi-Tech Crime Centre. [12] At the news conference, the police stressed they would not be posting pornographic images on the websites, but insisted that they would be designed to look like the real thing to ensnare as many offenders as possible. Visitors will be given the choice of proceeding through a series of web pages that ultimately lead to a law enforcement site where they will be informed that their personal details have been recorded and that they could be prosecuted.
If the website does not actually contain pornographic material, what will visitors be prosecuted for? They certainly will not have downloaded anything illegal, so the only possibility is Operation Ore's hoary old 'incitement to distribute'. There are inherent flaws with this charge -- not least that it is impossible to incite a computer. Since most websites are operated by a computer, to charge a person with this offence on the basis of simply having accessed the website is to charge them with an offence that it is impossible to commit; just to do so is an a priori violation of that person's human rights.
And why are the police so keen to point out that their site will not contain pornography? It certainly isn't that they are embarrassed to entrap people by operating a website that distributes child pornography -- the American police continued to operate the Landslide site after the arrest of its original operators. Perhaps the police want to draw attention away from the fact that Operation Pin is itself fundamentally unlawful -- article 1(1)(d) of the Protection of Children Act 1978 makes it an offence to publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs or intends to do so.
If Operation Pin's website is to ensnare as many offenders as possible, that is if it looks like the ‘real thing’, then surely this must be understood as conveying that indecent photographs are shown. To commit this ‘advertising’ offence it is necessary neither to have indecent photographs of children nor to show them.
The UK's Internet Watch Foundation has identified the commonest search terms used when trying to access child pornography and the police have used this information and worked with the major search engines so that when people use these terms, the sting site will appear in the search results. [13]
This means that companies such as Google are no longer mere innocent indexers of porn whose computers unfortunately pick information on the location of child porn as they sweep the web, but co-conspirators with the police in an sexual offence against children. [14]
A crucial feature of Operation Pin is said to be that details of advice lines will be provided to the individuals accessing its website so that they can seek appropriate treatment. One such advice line is the Home Office's Stop It Now! helpline, which aims to prevent abuse by urging people to confess inappropriate thoughts about children.
We are back once more to the confession box. Indeed, the development of the Stop it Now! organisation is being led by the Lucy Faithfull Foundation, of which Donald Findlater is deputy director.
Through a glass darkly
Operation Pin may or may not have a functioning website to go with it -- it may be that the whole point of the exercise is actually to make people who might search the web for child porn consider their ways and make a confession of their sexual interest in children. Or it may actually entrap people and record their private details so that they might be given the ‘option’ of a caution and treatment. Whatever it is, we seem to be moving towards a situation where more public money is going to be spent on tackling the problem of child abuse. Either one of Findlater's ‘amnesty’ or Operation Pin could lead to a huge increase in the number of people ‘seeking’ a place on a sex offender treatment programme.
This will avoid clogging up the courts with possession, incitement and making cases and lead to a huge cash bonus for organisations like the Lucy Faithfull Foundation and its Stop It Now! collaboration with Barnardo's, ChildLine, NCH, NOTA, NSPCC and - West Midlands Police!
At least Operation Pin demonstrates the truth of the cliche that porn offenders are drawn deeper into offending behaviour: the police started out inadvertently breaking the law by making copies of indecent photographs -- even they didn't know it was an offence until the Bowden decision ‘clarified’ the law; now they have progressed to openly flaunting the fact that they are breaking the law [15]. And we are supposed to be happy that this is part of ‘an active crime preventative strategy that seeks to disrupt the processes surrounding paedophile activity on the Internet.’
For footnotes, follow link at top of article.
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