One such legal minefield covers the viewing of what are termed ‘indecent’ images. As often happens with deserving causes which over time become corrupted, the original justification for introducing legislation was well intentioned, in that it sought the protection of children against those who were clearly seeking to harm or exploit them. The original source of these measures was contained in a Private Members Bill sponsored by the Conservative MP Cyril Townsend which became the Protection of Children Act 1978. It was prompted by a nationwide petition against the sexual exploitation of children organised by the anti-pornography campaigner Mary Whitehouse.
In a parliamentary debate Mr Townsend outlined the reasons why he considered new legislation was needed to protect children. He believed that the photographing of children in Britain for ‘pornographic purposes’ was on the increase, but that the police were ‘inhibited’ from taking action by the then state of the law. He claimed that ‘sophisticated operators, well versed in the law’s confusions’ were able to photograph children engaged in sexual activity and escape prosecution with impunity, since ‘they are not so stupid as to lay a finger on a child’ themselves. He further added that ‘careful research shows that to all intents and purposes those who take obscene photographs of children, without assaulting them or touching them, are not being prosecuted, because of the great uncertainty of the law.’ Mr Townsend recognised that the vast majority of child pornography on sale in Britain was imported from abroad, and that it was not sold openly but ‘under the counter’. Nevertheless, he claimed that home produced material of this kind was on the increase and thus it was necessary to tackle the problem.
With regard to the wording of the Bill Mr Townsend believed that it was right that ‘the courts should decide what is indecent rather than that Parliament should attempt to define that word too precisely’. Unfortunately, this highly unsatisfactory vagueness of definition would ultimately lead to serious problems and injustices. Nevertheless, Mr Townsend did have a stab at defining indecent himself ‘as anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting’, adding that ‘I do not think for a moment that a jury would apply those words to the sort of shot that a grandmother might take of a grandchild on a rug before the fire. Of course, I have nothing against nudity as such’. Such optimism about the reasonableness of those enforcing the law on this subject would in time prove to be utterly groundless in the face of the hysteria that has grown over paedophilia, and of the paranoid zealots with a self appointed mission to combat it wherever the panic might take them.
Mr Townsend’s bill did not criminalize the possession of child pornography or indecent images of children, however defined. The wording of the Bill was that a criminal act would be committed only by any person who takes an indecent photograph of a child, or who possesses such material ‘with a view to production’, which in the Act itself was changed to ‘with a view to their being distributed or shown by himself or others’. So it is clear that the intended target of this legislation was not individuals who obtained this material for their own personal use, but instead those who were engaged in the production and/or distribution of it to others. Thus the Act would catch not only those who produced such material in this country, but also anyone caught distributing items smuggled from overseas, the main source according to police. The maximum penalty for any offence under the Act was three years imprisonment, which Mr Townsend considered to be a heavy one sufficient to deter those who might be tempted into the production or distribution of this material. The definition of a child was anyone under the age of 16, as this was the age of consent.
During the parliamentary debate the Home Office minister expressed a degree of scepticism over the need for the proposed legislation. He pointed out that under the Obscene Publications Act, the importation of ‘hardcore’ material could be seized by HM Customs, and anyone caught distributing it could receive a three year prison sentence. The minister did however acknowledge that ‘obscenity’ had a much higher threshold than ‘indecency’ and that the legality of ‘soft pornography’ involving children was somewhat unclear. However, he concluded that cases of pornography involving children where no criminal charges at all are possible were likely to be rare, and he rejected the widespread public assumption ‘that there is no law protecting children from exploitation in this way’. Finally the minister acknowledged that the power of search and seizure being proposed was much wider than that granted to the police in other legislation, and recognised that MPs would be ‘always concerned with the infringement of personal liberties and are certainly concerned about such powers from the civil liberties point of view’. The minister’s optimism over MPs concerns on individual civil liberties would not be sustained by events once the great paedophile panic moved into gear.
During the debate one MP summarised the objectives of the Bill as enabling ‘all those who had taken the photograph, reproduced it, distributed it and retailed it would become liable’ to prosecution. So no talk here of criminalising the person who purchased it. Several MPs questioned whether there was ever likely to be a public consensus on what might be considered ‘indecent’. A female Labour MP attempted a definition of indecent as’ ‘anything that is likely to impair the natural development of a child's sexuality and to impose on it a degree of precociousness or false development, (which) clearly precludes the baby on the mat or children on beaches. Indeed nudity is not necessarily sexual in context’.
Many MPs considered that the focus of this legislation should be the ending of ‘loopholes’ in the law which appeared to allow the photographing of children engaged in sexual activities. Some MPs deplored the increase in the availability of pornography during the previous decade and the rise of ‘permissiveness’, and were reassured that ‘British laws on obscenity are already more rigorous than those in nearly every other Western nation, and certainly tougher than those on the Continent.’ All the MPs who spoke supported the aims of Mr Townsend’s Bill. However, none of them advocated the criminalising of individuals possessing this material for their own personal and private use, or that the definition of ‘indecency’ should include innocent depictions of nudity.
The first major tightening of the law on ‘indecent’ images of children came with the Criminal Justice Act 1988 when the simple possession of such material became a criminal offence. In a parliamentary debate on the Bill the Home Secretary Douglas Hurd justified this measure on the ground that ‘child pornography victimises the children who are exploited by it, and I am afraid that it feeds the instincts which give rise to sexual abuse. It is already an offence to take, show or distribute indecent photographs. We are persuaded that it would be justified to criminalise simple possession in the hope of stamping out this degrading trade.’ The maximum fine for possession under the Act amounted to about £5000 in today’s money.
Predictably, the Home Secretary provided no evidence to back up his claims. There was no mention of the infringement of personal liberties which Home Office ministers had previously been concerned about, as they had now been converted from a position of scepticism over the need for this kind of legislation, to one of outright support to strengthen it. In so doing they handed to the police an enormous power to invade the private domain of citizens, considerably eroding their civil liberties as individuals. The number of people involved in production and distribution of this material is likely to have been very small, but the numbers who risked being investigated for possession could be huge, given the vague and open ended definition of ‘indecent’. The Bill included a significant number of other criminal justice measures that appeared at the time to be of much more concern to MPs. During the debate only two MPs raised this issue, voicing their support to criminalise possession, both motivated by the publicity arising from furore over numerous false sexual abuse medical diagnoses in Cleveland, before the true facts emerged in the subsequent inquiry and report.
A proposed amendment to define indecency as ‘a photograph of a child shall be deemed to be indecent for the purposes of this Act where its production appears to the court to have involved the exploitation for sexual purposes of a child’ did not make it into the Act. It might have saved a lot of trouble if it had. During the parliamentary debate a Home Office minister declared that ‘for a decade we have had a law dealing with indecent photographs, films and videos, and there is no evidence that it has caused the courts any problems… of interpretation of the word indecent. There has certainly never been any suggestion that an individual member of a family has ever been prosecuted or persecuted in any way for taking innocent snapshots of his children’. However, this hopelessly naive and simplistic outlook ignores the fact that this legislation related to production and distribution and thus would only have affected a very tiny minority, an illegal activity in which an ordinary family would be most unlikely to ever become involved in, unlike possession of a very broadly defined ‘indecent’ image.
From 1994 it became an offence to possess a so called ‘pseudo photographs’ of a child, defined as ‘an image, whether made by computer-graphics or otherwise howsoever, which appears to be a photograph’. From 2001 the maximum sentence for possession of an indecent image increased from six months imprisonment to five years, and for production and distribution, to ten years. In 2003 the definition of a child was raised from 16 years to 18 years. From 2010 it became illegal to own any picture, including cartoons, depicting a child participating in sexual activities, or depictions of any sexual activity in the presence of a child. By any rational standard all of these measures are clearly either paranoid, invasive, oppressive, crackpot or draconian, or a combination of these.
This legislation charts the position of the Home Office, from one in which there was scepticism over the need to target producers and distributors, to one in which the most vindictive sentences and gross invasion of individual privacy is warranted against those who do no more than view an image deemed by the prosecuting authorities to be ‘indecent’. What is puzzling, and an indictment of our society, is that with only a few honourable exceptions, neither conservatives, nor liberals, nor those in the ‘middle ground’, nor the intelligentsia, nor the great mass of ordinary people, seem in the least bit concerned about the enormity of this invasion of individual liberty and privacy, which in practice has done absolutely nothing to protect any child from harm or exploitation. They will only wake up when they get an early morning knock on the door as did the hapless and hypocritical Patrick Rock, one time advisor to David Cameron, who discovered to his horror that the legal monstrosity he had helped create, suddenly attacked and devoured him. He forgot to remember that the authorities prosecuting sexcrimes are only interested in obtaining convictions, not justice.