Section 63 of The Criminal Justice and Immigration Act 2008 - Arguments

Arguments

The government consultation stated that "the material may often cause serious physical and other harm to those involved in making it; in some cases the participants are clearly the victims of criminal offences". The consultation did not attempt to estimate the frequency of these events, and there is no evidence that such content is being distributed at all. The law would cover images (whether or not the participants consented), and would include not only images where extreme violence is taking place but also fictitious images (where people are role-playing such violence).

Material is considered extreme pornography only if the main purpose of creating it was to produce sexual arousal. This rules out most mainstream films, documentaries, war footage or instructional videos (regardless of content), although these would be included if images were extracted from them for the purpose of sexual arousal. Textual material or cartoon depictions are also excluded, regardless of theme or detail.

The consultation stated "it is possible that such material may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole", but that they do not have "sufficient evidence from which to draw any definite conclusions as to the likely long term impact of this kind of material"; there was an "absence of conclusive research results as to its possible negative effects".

The consultation cited the case of Graham Coutts (who killed Jane Longhurst), suggesting a link between violent pornography and the murder. Coutts had previously accessed websites that offered such pornography (although he had been practicing erotic asphyxia for five years before exposure to such material), and had told psychiatrists in 1991 that he feared his thoughts might lead to criminal behaviour.

The government also wished to criminalize possession of the material, to reduce the risk of children coming into contact with it. The consultation cited a study which reported that "57% of all 9-19 year olds surveyed who use the Internet at least once a week had come into contact with pornography online", but did not distinguish among forms of pornography; the government had no plans to criminalize all pornography for the same reason.

In discussing the 2006 quashing of Coutts' conviction (Jane Longhurst's purported killer), a barrister supporting the Backlash stance observed:

Lord Hutton's judgment points out that Coutts had engaged in breath play sexual games with previous partners years before he started to use internet porn. The Judge commented that if the same Defendant guilty of the same conduct been tried before the same jury, but without the evidence that he used internet porn, the jury would have been very likely to accept that he did not intend to kill. It is hard to escape the conclusion that the Judge thought the evidence that Coutts used porn prejudiced the jury and led to unfounded assumptions about Coutt's intent. What this judgment shows is that the obsession with criminalizing the users of porn will further prejudice juries and lead to miscarriages of justice.

In September 2007 the government published a Rapid Evidence Assessment by Catherine Itzin, Ann Taket and Liz Kelly, investigating "the evidence of harm relating to exposure to extreme pornographic material". This was criticised (in a statement signed by over 40 academics) as being "extremely poor, based on contested findings and accumulated results. It is one-sided and simply ignores the considerable research tradition into "extreme" (be they violent or sexually explicit) materials within the UK's Humanities and Social Sciences".

The law has been criticised as probably breaching Articles 8 and 10 of the European Convention on Human Rights. The government acknowledged this, but believes "this is justified as being in accordance with the law, and necessary in a democratic society for the prevention of crime, for the protection of morals and for the protection of the rights and freedoms of others".

The Government has conflated the issue with participants being abused in the production of such images, with Martin Salter claiming the existence of snuff films where women are raped and murdered on camera in Guatemala. However, no such examples of images have been shown to exist and the sites referred to by the government are instead those produced in the UK and US with consenting actors (see "Sites labelled as 'extreme pornography'", below).

The law has been criticised for criminalising images where no crime took place in their creation. In the House of Lords debates Lord Wallace of Tankerness stated, "Having engaged in it consensually would not be a crime, but to have a photograph of it in one's possession would be a crime. That does not seem to me to make sense". The law has also been criticised for covering images of consenting adults—for example, including some forms of BDSM or bondage pornography.

In 2009 the organisation Comic Shop Voice said that the law may result in the ban certain comic books, such as Watchmen, Batman: The Killing Joke and several collections of manga. They said in a statement: "Because this is a minefield for the law it then falls on the Police to enforce it, and it is their judgement that could lead to a prosecution. We COULD get to a point where the police could legitimately visit your home or workplace, and sanctioned by an un-elected magistrate or judge go through your collection and if they find any comic book that they feel will cause sexual arousal or displays extreme violence then they could arrest you."

In 2010 a group of King's College London students produced a film, Hanging Perverts, debating the perils and moral issues behind the law. It includes interviews with several public and political figures, such as Baroness Sue Miller of the Liberal Democrats, bondage photographer Ben Westwood (son of Vivienne Westwood) and people working in the industry (such as hardcore BDSM pornographic actress Masie Dee).