The Internet has been the most
spectacular communications development
in the last 10 years. It is enhancing all our
lives by making direct contact between
people much easier and, with a few clicks
of the mouse, allowing access to all kinds
of information which was previously
unavailable to us.
The Internet provides opportunities to
communicate, learn and shop; and helps
UK businesses to compete internationally.
But the internet can also be misused, for
example, by circulating indecent and
abusive images of children. And we have
put in place laws – with stringent penalties
– to combat the making, distribution and
simple possession of this material.
There is now also considerable public
concern about the availability of extreme
pornographic material featuring adults. We
are not referring to what might be called
mainstream pornography or to the kind of
material classified for sale in licensed sex
shops by the British Board of Film
Classification. By “extreme” we mean
material which is violent and abusive,
featuring activities which are illegal in
themselves and where, in some cases,
participants may have been the victims of
criminal offences. We believe most people
would find this material abhorrent. It is
already illegal to publish it under the
Obscene Publications Act 1959 and in
Scotland, the Civic Government (Scotland)
Act 1982, but the global nature of the
Internet means that it is very difficult to
prosecute those responsible who are
mostly operating from abroad.
This pornographic material was available
in the past but never so easily or in such
quantity as it is now. The nature of the
Internet requires us to take a different
approach if our controls on this kind of
material are not to be undermined.
We are determined to act against
publishers where we can but we believe
that individuals also need to take greater
responsibility. So we are proposing to
strengthen the criminal law in respect of
possession of a limited category of
extreme material featuring adults. This will
mirror the arrangements already in place in
respect of child pornography. The
intention is to reduce the demand for such
material and to send a clear message that it
has no place in our society.
i
FOREWORD
by the Parliamentary Under Secretary of State Paul Goggins MP
and Scottish Executive Minister for Justice, Cathy Jamieson MSP
This consultation paper contains four
options for creating a new offence to
help tackle this misuse of the Internet.
Because the law applies offline as well as
online, the proposal will apply to the
possession of this material in whatever
form it is held. We know that this is a
worldwide issue and are raising it in our
discussions with other governments, but
we believe that closing a gap in our
domestic law and discouraging the
possession of this material in the UK will
help reduce demand for it and lessen the
human cost in its production.
Details of how to contribute to the
consultation process are set out in
the Executive Summary. We welcome
your views.
ii
Page
Executive Summary 1
Introduction 5
Background 5
Current Legislation 7
Recent Consideration of the Current Legislation 8
Possession of Indecent Photographs and Pseudo-Photographs of Children 9
Evidence of Harm 9
The Proposals 10
The Options 12
Penalties 14
International Position 14
Human Rights Considerations 15
Annex A – Consultation Questions 17
Annex B – Current Legislative Framework 18
Annex C – Partial Regulatory Impact Assessment 21
Annex D – Consultation Code of Practice 25
Annex E – Responses: Confidentiality and Disclaimer 27
iii
CONTENTS
1
This consultation document seeks views
on a proposal to make illegal the
possession of a limited range of extreme
pornographic material featuring adults.
The proposal will mirror the arrangements
already in place in respect of indecent
photographs of children, possession of
which is already an offence.
There has been increasing public concern
about the availability of this extreme
material, highlighted by the case of a
young woman who was murdered by a
man who had been accessing extreme
pornographic websites. This document
sets out options for creating a new offence
of simple possession of extreme
pornographic material which is graphic
and sexually explicit and which contains
actual scenes or realistic depictions of
serious violence, bestiality or necrophilia.
The material in question would be illegal
to publish, sell or import here under our
existing obscenity legislation (the Obscene
Publications Acts (OPA) 1959 and 1964
and in Scotland, the Civic Government
(Scotland) Act (CG(S)A) 1982 but it is not
currently an offence to possess it other
than for gain in England and Wales or, in
Scotland, with a view to sale or distribution.
The material depicts activities which are
illegal in themselves and the participants
may in some cases have been the victims
of criminal offences. It goes well beyond
what is available for sale in licensed sex
shops, classified R18 by the British Board
of Film Classification. Thus our
mainstream entertainment industry, which
works within the obscenity laws, would not
be affected by the proposals in this
document.
The issue arises due to the wide range of
extreme pornography available via the
Internet which cannot, in practice, be
controlled by our existing laws. Extreme
pornography featuring violent rape, sexual
torture and other abusive non-consensual
acts existed in various forms before the
internet but the publication and supply
could be controlled by the OPA, the
CG(S)A and by Customs legislation (the
Customs Consolidation Act 1876 and
Customs and Excise Management Act
1979). Closing down sources of supply
and distribution obviated the need for a
possession offence. However, the global
nature of the internet makes this approach
much more difficult. We are determined to
act where we can against publishers but
require the individual to take greater
responsibility if we are to maintain our
controls on illegal material. We believe the
material which is under consideration
would be abhorrent to most people and
has no place in our society.
Our intention in proposing a possession
offence is to try to break the demand/
supply cycle and to discourage interest in
this material which we consider may
encourage or reinforce interest in violent
and aberrant sexual activity.
As to evidence of harm, conducting
research in this area is complex. We do not
yet have sufficient evidence from which to
draw any definite conclusions as to the
likely long term impact of this kind of
material on individuals generally, or on
those who may already be predisposed to
violent or aberrant sexual behaviour.
EXECUTIVE SUMMARY
1 By “serious violence” we mean violence in respect of which a prosecution of grievous bodily harm could be brought in
2 England and Wales or in Scotland, assault to severe injury.
EXECUTIVE SUMMARY
It is not our intention to penalise anyone
who accidentally stumbles across the
material specified in the proposal, or who
has it sent to them without their consent,
or has a legitimate reason (such as assisting
law enforcement) for dealing with it.
Our proposals to strengthen controls on
extreme pornographic material are based on:
n a desire to protect those who
participate in the creation of sexual
material containing violence, cruelty or
degradation, who may be the victim of
crime in the making of the material,
whether or not they notionally or
genuinely consent to take part;
n a desire to protect society, particularly
children, from exposure to such
material, to which access can no longer
be reliably controlled through
legislation dealing with publication and
distribution, and which may encourage
interest in violent or aberrant sexual
activity.
The proposals would close a gap in
existing legislation which has developed as
technology advances to circumvent the
controls already in place.
Any new offence would apply only to
pornographic material containing explicit
actual scenes or realistic depictions of:
i) intercourse or oral sex with an animal;
ii) sexual interference with a human corpse;
iii) serious violence in a sexual context;
iv) serious sexual violence.1
We have considered arguments both for
and against several options: adding a
possession offence to the Obscene
Publications Act 1959 and the Civic
Government (Scotland) Act 1982; adding a
possession offence limited to the category
of material we have set out but under the
umbrella of the OPA and the CG(S)A; a
new free standing offence in respect of the
category of material we have set out (our
preferred option); and doing nothing.
We consider that creating a new freestanding
offence to operate alongside the
OPA 1959 and the CG(S)A offers the
most flexible and effective approach. On
the question of penalties, we propose a
penalty for possession of the material
specified of up to 3 years. In order to
maintain the distinction in seriousness
between publishing and possession, we
propose increasing the current OPA and
CG(S)A penalty from a maximum of 3
years to a maximum of 5 years.
We are aware that these proposals will
generate considerable interest and wish to
ensure that there is an opportunity for
comments from as wide a range of
interests as possible.
You are invited to send your views by
Friday 2 December 2005 to:
Consultation on Possession of Extreme
Pornography
Criminal Law Policy Unit
2nd Floor, Fry Building
2 Marsham Street
London SW1P 4DF
Tel: 020 7035 6981
Fax: 0870 336 9141
Email:
CLPUconsultations@homeoffice.gsi.gov.uk
For additional hard copies please contact
us at the above address. Electronic copies
of this document are also available at:
http://www.homeoffice.gov.uk/
inside/consults/
You should also contact the Criminal Law
Policy Unit should you require a copy of
this consultation in any other format,
e.g. Large Font or Audio.
3
A summary of the responses received
will be published within 3 months of the
closing date for this consultation, and will
be made available on our website.
Scotland
The Scottish Parliament would legislate
separately to create any new pornography
offences in Scotland because this is a
devolved issue. If you respond on behalf
of a UK-wide organisation, a copy of your
response will be sent to the Scottish
Executive. If you live in Scotland or your
organisation is based in Scotland, please
send your views to:
Consultation on Possession of Extreme
Pornography
Criminal Justice Division
Justice Department
Scottish Executive
Regent’s Road
Edinburgh
EH1 3DG
Tel: 0131 244 3348
Fax: 0131 244 2623
Email:
extremepornography@scotland.gsi.gov.uk
4
Introduction
1. The purpose of this consultation
document is to seek as wide a range of views
as possible on a proposal to strengthen the
criminal law in respect of possession of a
limited range of extreme pornographic
material featuring adults. The proposal will
mirror the arrangements already in place in
respect of indecent photographs and
pseudo-photographs of children,
possession of which is already an offence.
2. The proposal touches on many issues
which are of interest and concern:
freedom of speech, protection of the
vulnerable, the impact of the Internet on
the consumption of violent pornography
and wider moral questions about whether
some material is so violent, degrading and
potentially harmful that its possession
should be controlled.
3. We welcome responses to the
questions which have been posed in the
document and any further contributions
or suggestions which you may have.
Background
4. This document sets out options
for creating a new offence of simple
possession of extreme pornographic
material which is graphic and sexually
explicit and which contains serious
violence towards women and men. This
material goes far beyond what is classified
for mainstream cinema by the British
Board of Film Classification (BBFC)2 and
beyond the material classified by the BBFC
for sale only in licensed sex shops in the
R18 category. We believe the material in
question would be illegal to publish, sell or
import here under our existing obscenity
legislation. Thus our mainstream
entertainment industry, which works
within the obscenity laws, would not be
affected by the proposals in this
document. Neither should those who
currently lawfully produce and distribute
pornography. The issue arises due to the
wide range of extreme pornography that is
now available on the internet which in
practice cannot be controlled by our
existing laws.
5. It is not possible in a public
document like this to give a great deal of
graphic detail or description of the
material in question. However, we can say
that there are hundreds of internet sites
offering a wide range of material featuring
the torture of (mostly female) victims who
are tied to some kind of apparatus or
restrained in other ways and stabbed with
knives, hooks and other implements.
These acts are usually presented in a
sexually explicit context so that it is clear
that the purpose of the material is sexual
gratification, although the violence itself
may not be sexual. For example, some
material contains sexualised images of
women hanging by their necks from meat
hooks, some with plastic bags over their
heads. There is also extensive availability of
sites featuring violent rape scenes. Within
this category there is a growing trend for
scenes purporting to be filmed in real time
which heightens their impact. Depictions
of necrophilia and bestiality are also
widely available.
2 For details of BBFC classification criteria go to: www.bbfc.co.uk 5
INTRODUCTION
6
6. Internet take-up has accelerated
rapidly over the last few years. According
to a major research study published in
April 2005 (UK Children Go Online3)
75% of 9-19 year olds surveyed had
accessed the Internet from a computer at
home and 57% of all 9-19 year olds
surveyed who use the Internet at least
once a week had come into contact with
pornography online. The study did not
distinguish between types of pornography
but did reveal that most contact was
accidental, for example via unsolicited
emails or pop-up adverts but that a
minority in this age group (10%) actively
sought out pornography. According to the
same study, figures produced by the Office
for National Statistics4 show that 58% of
UK adults (aged 16+) had used the
Internet by February 2004 (up from 49%
in 2002 and 54% in 2003). By far the
largest user group are young people aged
14-22 in full time education, as found in
the Oxford Internet Survey5. The Survey
also found that most users (93%) accessed
the Internet from home.
7. The issue of accidental or legitimate
contact with pornography of the kind
described in this document will concern
many people. It is not the intention to
penalise people who accidentally stumble
across the material specified in the
proposal, have it sent to them without
their consent, or have a legitimate reason
(such as assisting law enforcement) for
dealing with it. The proposal will mirror
the arrangements already in place in
respect of indecent photographs and
pseudo photographs of children,
possession of which is already an offence
(as set out in the current legislation section
in paragraphs 24-25 below).
8. As the studies mentioned above show,
the Internet is transforming our lives,
offering unparalleled opportunities to
communicate, to discover and to learn.
Alongside these benefits, the Internet also
brings challenges for, amongst other
things, the regulation of potentially illegal
pornographic material which is readily
accessible, often without payment, from a
huge range of providers.
9. Illegal material has always been
available and those who sold it risked
prosecution under the Obscene
Publications Act 1959 (OPA) and in
Scotland, the Civic Government (Scotland)
Act 1982. But there is some evidence that
the boundaries are being pushed back and
that even more extreme images are now
being sought after and provided. In
addition, this material has never been
available so easily or in such quantity. In
pre-Internet days, individuals who wished
to view this kind of material would need
to seek it out, bring it into their home or
have it delivered in physical form as
magazines, videos, photographs etc, risking
discovery and embarrassment at every
stage. Now they are able to access it from
their computers at home (or from their
place of work) with relative ease.
10. Particular concern has been raised
recently about the accessibility of extreme
pornographic material. This has been
heightened by a recent tragic case where a
young woman was murdered by a man
who had been accessing such sites on the
Internet. During the trial it was revealed
that he had visited these sites prior to and
after the victim’s death6.
11. The material under consideration
does not depict consensual sexual activity,
nor even the milder forms of bondage and
humiliation which are common place in
pornographic material. It depicts suffering,
pain, torture and degradation of a kind
which we believe most people would find
abhorrent. The underlying premise of this
document is that this material should have
no place in our society. The fact that it is
widely accessible over the Internet does
not legitimise it.
3 UK Children Go Online, Sonia Livingstone and Magdalena Bober, April 2005: www.children-go-online.net
4 Office for National Statistics. www.statistics.gov.uk
5 Oxford Internet Survey. www.oii.ox.ac.uk
6 R V Coutts [2005] EWCA Crim 52.
7
Current Legislation
Obscene Publications Acts 1959 and
1964 – background
12. The principal control on published
works, including material published via the
Internet, is the Obscene Publications Act
(OPA) 1959. The OPA, as amended, says
that an article shall be deemed to be
obscene if its effect, when taken as a
whole, is such as to tend to deprave and
corrupt persons who are likely to read,
see or hear it. There is also a public good
defence to ensure that genuine works of
science, literature, art or learning are not
penalised. Publication, as defined in the
Act covers a range of activity including
giving, hiring, lending and selling but
simple possession of an obscene article
is not an offence.
13. The ‘deprave and corrupt’ test has
been controversial since its inception, and
has both supporters and critics. Its
strengths are said to be that it is flexible
and capable of interpretation by juries in
line with changing moral standards. Its
focus is on the effects or the harm done
by the material in question. The present
test is consistent with our obligations
under Article 10 of the European
Convention on Human Rights, which
guarantees freedom of expression and
was incorporated into UK law in the
Human Rights Act 1998. The perceived
weaknesses of the test are the reverse
of its strengths. Its flexibility and the
subjective judgements required of juries in
every case are considered by some to be its
greatest drawbacks.
14. There have been several attempts to
reform the OPA. In recent years, Gerald
Howarth MP introduced a Bill in 1987 and
Lord Halsbury introduced Bills in 1996
and again in 1999. However, these Bills
failed to make progress and there was no
consensus on a way forward.
15. The number of prosecutions under
the OPA has fallen from 309 in 1994 to
39 in 2003. However, the number of
prosecutions under the Protection of
Children Act 1978 (as amended) or section
160 of the Criminal Justice Act 1988,
which make it illegal to make, distribute,
possess, etc. indecent photographs of
children, has risen markedly from 93 in
1994 to 1,890 in 2003. It may be that the
reduction in prosecutions under the OPA
in part reflects a higher priority being
given to combating the increasing
availability of indecent photographs of
children through the Internet.
16. The Obscene Publications Act 1964
added the offence of possession for gain
to the 1959 Act, with the same penalties,
i.e. a maximum of 3 years’ imprisonment
or an unlimited fine, or both. There are
also restrictions on the sending of
indecent and obscene material by post in
section 85 of the Postal Services Act 2000
that was closely modelled on section 11 of
the Postal Services Act 1953. The Customs
and Excise Management Act 1979 also
gives Customs’ officers the power to take
action against those who import prohibited
goods which includes material that it is an
offence to possess for gain under the OPA.
The Law in Scotland
17. In Scotland, section 51 of the Civic
Government (Scotland) Act 1982 makes it
an offence to publicly display, publish, sell
or distribute any obscene material. It also
makes it an offence to make, print, have or
keep any obscene material with a view to
its eventual sale or distribution. The
maximum penalty on indictment for these
offences is 3 years’ imprisonment. The Act
has been amended on a number of
occasions to include broadcasting of
obscene material, to increase the maximum
penalty and to ensure that the term
“publishing” includes transmitting
electronic data.
18. The term “obscene” is not defined in
the Act, however, courts will apply the
common law test of whether the material
is calculated to deprave and corrupt
persons open to depraving or corrupting
influences. This is a slightly different test
of obscenity from that used in England
and Wales but has the same advantages
and disadvantages of flexibility discussed
in paragraph 13.
19. Both the Postal Services Act 2000 and
the Customs and Excise Management Act
1979 (see paragraph 16) apply to Scotland.
Recent Consideration of the
Current Legislation
20. We believe the type of extreme
material specified in the proposals would
contravene the OPA and in Scotland, the
CG(S)A.
21. We have considered the position of
the OPA and the CG(S)A in the light of
technological change. Despite the
criticisms often made of the general test of
obscenity, we are satisfied that it continues
to provide a benchmark for society’s
tolerance of certain material at a given
time, as expressed through the courts,
which is generally understood by the
publishing and other media, and their
regulators. It offers a threshold below
which publishers, broadcasting regulators
and others can establish their own
standards of what is acceptable to the
public. The OPA and the CG(S)A, have
also been used successfully in respect of
material published via the Internet, where
necessary links with publishers here have
been made to enable a prosecution to be
brought. The case of R v Perrin7 is a
recent example in England. This case
involved a French national based in the
UK who was publishing from abroad
(in the USA). He was arrested and
successfully prosecuted when he came to
the UK. This judgement stated that the
mere transmission of data constitutes
publication and endorsed the decision in
the case of R v Waddon, a Court of
Appeal decision delivered on 6 April 2000
which states that publication on the
Internet occurs when the images are
uploaded and when they are downloaded.
22. We believe that very little potentially
illegal pornographic material found on the
Internet originates from within the UK.
The Internet Watch Foundation (IWF)8
received no reports of UK-hosted material
in 2003 or 2004. The lack of UK-hosted
material might be as a result of the
deterrent effect of the OPA and the
CG(S)A. The challenge now arises from
the ease of circulation of this material
from abroad and this requires a different
approach.
23. As indicated above, it is not an
offence simply to possess obscene
material, although it is an offence in
England and Wales to have an obscene
article for publication for gain or, in
Scotland, to have obscene material with a
view to its eventual sale or distribution.
When the present laws were passed, it was
possible to cut off sources of supply of
illegal material in the form of books,
photographs and later, films, videos and
DVDs, by taking action against publishers
operating within the UK. Physical
importation from abroad was prohibited
by the Customs Consolidation Act 1876
and the Customs and Excise Management
Act 1979, and gave Customs’ officers the
power to seize illegal material. Closing
down sources of supply and distribution
obviated the need for a possession offence.
However, the global nature of the Internet
makes this approach much more difficult.
7 Stated by the Court of Appeal in two decisions: R v Waddon (unreported, 6th April 2000) and R v Perrin [2002] EWCA
Crim 747.
8 The Internet Watch Foundation – www.iwf.org.uk. The IWF is the body funded mainly by industry to which the public can
make complaints about potentially illegal material online (principally indecent photographs of children and obscene and 8 racist material).
9
We are determined to act where we can
against publishers but require the
individual to take greater responsibility if
we are to maintain our controls on illegal
material. Accessing extreme pornographic
images, particularly on paid-for sites, fuels
the demand/supply/demand cycle. We
believe that an offence of possession of a
limited category of extreme adult material,
may help to break this cycle.
Possession of Indecent Photographs
and Pseudo-Photographs of Children
24. A similar approach has been taken in
respect of criminalising simple possession
of indecent photographs and pseudophotographs9
of children. In England and
Wales the Protection of Children Act 1978
made it an offence to take, make and
distribute indecent images of children
under 16. Ten years later Parliament
decided, in passing section 160 Criminal
Justice Act 1988, that it should also be an
offence to simply possess such images.
The Sexual Offences Act 2003, amended
the 1978 Act so that both it and the 1988
Act apply to indecent photographs of
children under 18. Possession of such
material is an offence under the 1988 Act
carrying a maximum 5 year penalty, while
offences of taking, making and
distribution are covered under the 1978
Act and carry a maximum 10 year penalty.
25. In Scotland, taking, making,
distributing, showing or advertising
indecent photographs and pseudophotographs
of children is an offence,
by virtue of section 52 of the Civic
Government (Scotland) Act 1982. The
Criminal Justice Act 1988 made it an
offence to possess such images, by
inserting section 52A into the Civic
Government (Scotland) Act 1982. The
Protection of Children and Prevention of
Sexual Offences (Scotland) Act 2005 will
make these offences apply to images of
children under 18, rather than 16 as at
present. Like England and Wales, the
maximum penalty on indictment for
possession of such material is 5 years’
imprisonment and the maximum penalty
on indictment for taking, making,
distributing, showing or advertising such
material is 10 years’ imprisonment.
26. The primary purpose of this
legislation is to protect children both from
direct abuse and from the continued
circulation of images of their abuse.
Merely downloading an image from the
Internet is regarded as a serious matter
because to do so feeds the market for this
kind of material, so increasing the
likelihood of further abuse, to create
further images. Although the arguments
are less clear cut in respect of violent and
abusive adult pornography, we believe that
a possession offence will send a clear
message about this material, will make it
easier to combat it and may reduce
demand for it.
Evidence of Harm
27. As previously stated, we believe that
the material under consideration in this
document has no place in our society and
people should be prohibited from
possessing it. We believe from the
observations of the police and others who
investigate it, 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. We consider that 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.
Q. Do you think that the challenge
posed by the Internet in this
area requires the law to
be strengthened?
9 “Pseudo-photograph” means an image, whether made by computer graphics or otherwise howsoever, which appears to
be a photograph. (Criminal Justice and Public Order Act 1994).
28. There is a substantial body of
research which explores the effects of
pornography on attitudes, beliefs and
behaviour. There are many studies
examining the impact of both mainstream
and sexually violent pornography on
individuals and society, which have been
conducted since the 1970s and 1980s
when the threshold of tolerance of
pornographic material rose in many
countries. These studies take different
forms. Some of this research comprises
empirical studies conducted to measure
emotional, attitudinal and behavioural
effects with different samples of males
from the general population. There is also
research with sex offenders which has
attempted to learn how they may have
been influenced by pornographic material.
In addition, there are studies which involve
rape victims and battered women to
determine the part pornography may have
played in the offences committed against
them. Studies of volunteers’ reactions to
pornography have been conducted in
laboratory conditions. There have also
been a few large studies which have
attempted to investigate whether there is a
correlation of availability of pornography
with rates of sexual offending.
29. The interpretation of the findings of
this research has been the subject of
reviews commissioned by governments in
the US, UK, Australia and elsewhere over
several decades, and the subject of public
debate often coloured by a moral or
political outlook. This has made it difficult
to get a clear picture and understanding of
the possible harmful effects of pornography.
30. Ethical considerations prevent
research which involves exposing people
to the extremely violent and degrading
material which is under discussion in this
document. This places certain limitations
on the kinds of studies which can be
conducted. Many of the available studies
are therefore cross-sectional or
retrospective; many are concerned with
short term effects, for example in
laboratory conditions, rather then the long
term effects of exposure to material which
examines the duration of effects and
whether repeated exposure has cumulative
effects. It is difficult to replicate, in
laboratory conditions, the obsessive and
repeated exposure to this material which
may occur in real life situations.
31. Given the many different approaches
to conducting the research and framing the
questions, as well as differences in the
nature of the material examined, we are
unable, at present, to draw any definite
conclusions based on research as to the
likely long term impact of this kind of
material on individuals generally, or on
those who may already be predisposed to
violent or aberrant sexual behaviour.
The Proposals
Public policy rationale
32. Technological and social
developments, including the widespread
use of the Internet, mean we can no
longer rely on national norms of
behaviour or understanding, or on border
controls to limit the kinds of material
consumed within the UK. We also cannot
ignore the fact that international
enforcement of national standards in this
area is highly problematic. We must
consider whether further controls on
particular forms of material that are made
available for public consumption are
necessary and justified.
Q. In the absence of conclusive
research results as to its possible
negative effects, do you think
that there is some pornographic
material which is so degrading,
violent or aberrant that it should
not be tolerated?
10
11
33. As set out earlier, we believe that
there is a small category of pornographic
material which is so repugnant that, in
common with child abuse images, its
possession should not be tolerated.
34. Our proposals to strengthen controls
on extreme pornographic material are
therefore based on:
n a desire to protect those who
participate in the creation of sexual
material containing violence, cruelty or
degradation, who may be the victims of
crime in the making of the material,
whether or not they notionally or
genuinely consent to taking part;
n a desire to protect society, particularly
children, from exposure to such
material, to which access can no longer
be reliably controlled through legislation
dealing with publication and distribution,
and which may encourage interest in
violent or aberrant sexual activity.
35. The proposals would thus close what
can be viewed as a gap in existing
legislation which has developed as
technology has advanced to circumvent
the controls already in place.
36. Against this background (which
would not itself be set out in any
legislation) we set out a number of options
below: in two of these options (including
our preferred one) we propose making it
an offence to possess limited types of
extreme pornography against which, in
particular, we believe action is needed.
Although we have stressed the challenge
posed by the technological developments,
the offence would apply equally to offline
pornography as it would to material
accessed via the Internet or through other
technologies such as mobile telephones.
Pornography
37. The intention is that any new offence
would apply only to pornographic
material. In other words, material that has
been solely or primarily produced for the
purpose of sexual arousal. It is not the
intention to capture medical or scientific
material, educational, artistic, mainstream
broadcast entertainment, or news footage.
Explicit actual scenes or realistic depictions
38. The offence would be limited to
explicit actual scenes or realistic depictions
of the specified types of material. By
“explicit” we intend the offence to cover
activity which can be clearly seen and is
not hidden, disguised or implied. The
intention is also only to cover actual
images or realistic depictions of the
activities listed (but not, for example, text
or cartoons). By realistic depictions we
intend to capture those scenes which
appear to be real and are convincing, but
which may be acted. This follows the
precedent of the child pornography
legislation and is in part necessary to avoid
the need to prove the activity actually took
place, as this would be an insuperable
hurdle for the prosecution, particularly if
the material comes from abroad. In
addition, there is no requirement that the
activity is real in the OPA or the CG(S)A.
Content of material
39. We propose restricting the offence to
explicit pornography containing actual
scenes or realistic depictions of:
i) intercourse or oral sex with an animal;
ii) sexual interference with a human
corpse;
iii) serious violence in a sexual context,
and
iv) serious sexual violence.
40. In (c) above, “serious violence” will
involve or will appear to involve serious
bodily harm in a context or setting which
is sexual – for example, images of
suffocation or hanging with sexual
references in the way the scenes are
presented. In (d) above “serious sexual
violence” will involve or will appear to
involve serious bodily harm where the
violence is sexual.
41. By “serious bodily harm” we mean
violence in respect of which a prosecution
of grievous bodily harm could be brought
in England and Wales or in Scotland,
assault to severe injury.
42. Therefore the activities in a) and b)
and the qualification of “serious bodily
harm” in c) and d) bring this material
within the scope of the OPA, and in
Scotland, the CG(S)A, and ensure that
what could be categorised as mainstream
pornography (such as that classified R18
by the BBFC) is not included.
The Options
43. The options are:
Option one – adding a general offence of
possession of “obscene” material to the
Obscene Publications Act 1959 and in
Scotland, the Civic Government (Scotland)
Act 1982;
Option two – adding a possession offence
limited to the category of material we have
set out but under the umbrella of the OPA
and in Scotland, the CG(S)A;
Q. Do you believe there is any
justification for being in
possession of such material?
Q. Do you agree with the list of
material set out in paragraph 39?
Option three – a new free standing
offence in respect of the category of
material we have set out; and
Option four – do nothing.
44. We have considered the strengths and
weaknesses of all the options.
45. Option one would be the simplest,
retaining the general test of obscenity and
amending the 1959 Act and, in Scotland
the CG(S)A section 51, to add an offence
of possession. However, it would cover a
wide range of material and there are
difficulties in squaring the purpose of the
OPA with a simple possession offence.
46. For example, under the OPA in
England and Wales, whether material is
obscene depends on whether it would
deprave or corrupt “those likely to read,
see or hear it”. This has been interpreted
by the courts to mean that the threshold
of obscenity can be lower if the likely
audience or recipient is a child. We
consider that the test of obscenity for a
possession offence would probably have to
be defined by reference to whether it
would deprave or corrupt the person
possessing it. Hence the degree of
vulnerability of the person possessing the
material might be a factor in determining
its criminality and whether they were
committing an offence. A young or
naïve person might be at more risk
of conviction than a more hardened
consumer of pornography, which seems
a rather perverse consequence. The
alternative might be to say that the
question is whether the material would
deprave or corrupt an adult of ordinary
sensibilities, though this raises its own
problems, given the varying responses
individuals can have. In Scotland, the
common law test of whether material is
obscene is whether the material is
calculated to deprave and corrupt persons
open to depraving or corrupting
influences.
12
13
47. This proposal would significantly
extend the scope of the OPA and the
CG(S)A but would not achieve the clarity
which would help individuals to identify
material which was clearly illegal, when
making personal decisions about viewing
pornography.
48. Option two would offer greater clarity
by limiting the material to be covered by
the possession offence to the most
extreme, such as material which showed
(or purported to show) serious sexual
violence, bestiality and necrophilia. This
could be linked to the OPA and, the
CG(S)A, so that it formed a sub-set of
material. However, as for option one, there
would be a mismatch between the purpose
of the OPA and the amendment. In
addition, there would be the possibility of
confusion for the courts. The scope of the
OPA and the CG(S)A might gradually
become limited in practice by reference to
the list of proscribed material, so that,
over a period of time, only material falling
within that defined category would be
considered obscene by a jury. The
flexibility of the test of obscenity which
currently allows the Acts to deal with
material featuring extreme violence (not
necessarily with sexual overtones), drug
taking, animal cruelty, scenes of
coprophilia, urolagnia, etc. would be lost.
49. Option three, (our preferred option)
would preserve the flexibility of the OPA
and the CG(S)A to deal with the
publication of a range of material and to
develop a new, free-standing offence for
possession of the limited categories of
material described above. (Anyone
publishing or distributing this material
within the UK would also be prosecutable
under the new offence since they would
necessarily also possess it.) Defences
would be included to protect those whose
exposure to the material was accidental
and those who had a legitimate reason for
possessing it, such as the prosecuting
authorities. We would consider the current
arrangements in respect of indecent
photographs of children in drawing up the
defences.
50. Possession will be construed as it
is in respect of indecent photographs of
children. Viewing material accessed via the
Internet on computers or mobile phones
will therefore be covered. The offence
would not generally be relevant to
broadcast material since we already have
controls in place to prevent such material
from being available on television.
Broadcasting such material on television
would already be an offence under either
the OPA or the CG(S)A. The Department
for Culture, Media and Sport also has the
power to issue a Proscription Order to
deal with any such material broadcast from
elsewhere in Europe.
51. As indicated above, the offence would
be limited to explicit pornography
material, that is material produced solely or
primarily for the purpose of sexual arousal
or gratification. It is not the intention to
impinge on the freedom of the media in
respect of news coverage, or of analysis or
documentary footage of real events,
including atrocities committed in other
countries.
52. Option four, doing nothing, would risk
sending a message that we considered
accessing such material was harmless, or
not worthy of attention. But although we
recognise that accessing such material does
not necessarily cause criminal activity, we
consider the moral and public protection
case against allowing this kind of material
sufficiently strong to make this option
unattractive.
Penalties
53. There would need to be an
appropriate maximum penalty for the
offence, which should be consistent with
the penalties available under the OPA and
the CG(S)A. At present the maximum
penalty for offences under section 2 of the
OPA and section 51 of the CG(S)A is 3
years’ imprisonment or an unlimited fine
or both. There would clearly be difficulty if
the penalty for possession of material was
greater than that for distribution of the
same material, or if the penalty for
possessing images of what may be an
offence exceeded the penalty for
committing the offence itself. (In England
and Wales the offences of bestiality and
necrophilia carry maximum sentences, of 2
years’ imprisonment. In Scotland, these are
common law offences so the penalties are
not prescribed by statute.) On penalties
therefore, we believe the options are:
n to impose a maximum penalty for
possession less than the current OPA
and the CG(S)A penalty of 3 years, or
n to impose a penalty for possession of
three years and increase the penalty for
OPA offences and offences under
section 51 of the CG(S)A, to maintain
the distinction, to 5 years. (Arguably, the
maximum penalty for possession of
material in a) and b) could not exceed
2 years, the maximum penalty in
England and Wales for bestiality and
necrophilia, so there might be a need to
differentiate within the new offence for
different types of material.)
Q. Why do you think this option is best?
Q. Which option do you prefer?
54. It may also be relevant to note that
the maximum penalty for possession of
indecent photographs of children is 5
years’ imprisonment. In sentencing,
various factors are taken into account
including the severity of the images.10
International position
55. International co-operation is essential
for effective action against the production
of extreme material. However, there is
considerable variation in the approaches
and law regarding publication of adult
material within the international
community. The majority of western
countries (including the other G8
countries) have controls based on
distribution of material deemed to be
obscene by the courts, similar to the
position in the UK; others have controls
aimed solely at preventing children from
seeing potentially corrupting material. We
are not aware of any western jurisdiction
which prohibits simple possession of
extreme material.
56. Given this wide disparity in the law
regarding publication, the chances in the
short term of achieving an effective
international agreement covering
publication of extreme pornographic
material are limited. This makes it more
important that we act against possession
domestically in the interim.
Q. Which penalty option do you think is preferable?
14 10 R V. Oliver, Hartrey and Baldwin (2003) 2 Cr App R28: (2003) Crim LR 127.
15
Human Rights Considerations
57. The proposal which we have set out
will impact upon the freedom of individuals
to view what they wish in the privacy of
their own homes. However, the material
which we intend to target with this new
offence is at the very extreme end of the
spectrum and we believe most people
would find it abhorrent. There will be no
restriction on political expression or public
interest matters, or on artistic expression. It
is not the intention that this offence should
impact upon legitimate reporting for news
purposes, or information gathering for
documentary programmes in the public
interest and, in drafting the offence, we will
give careful consideration to the best means
of ensuring this. In the light of this, we
have considered whether there are
implications for our obligations under the
European Convention on Human Rights
and our view is that both our domestic
courts and the Strasbourg court will find
our proposal compatible with Article 10
(freedom of expression) or Article 8
(private life) if that is raised.
16
Current Legislation (Page 7)
1. Do you think the challenge posed by the Internet in this area requires the law to
be strengthened?
Evidence of Harm (Page 9)
2. In the absence of conclusive research results as to its possible negative effects, do you think that there is some pornographic material which is so degrading, violent or aberrant that it should not be tolerated?
Content of Material (Page 11)
3. Do you agree with the list of material set out (in paragraph 39)?
4. Do you believe there is any justification for being in possession of such material?
Options (Page 12)
5. Which option do you prefer?
6. Why do you think this option is best?
Penalties (Page 14)
7. Which penalty option do you prefer?
17
Annex A
Consultation Questions
18
The test for obscenity is set out in section 1(1) of the Act – “for the purposes of this Act an article shall be deemed to be obscene if its effect, or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.” Under section 1(3) of the Act a person publishes an article who distributes, circulates, lends on hire, gives, lends it or offers for sale for letting on hire. Publication also includes showing, playing, projecting or transmitting.
On summary conviction – up to six months
imprisonment or a fine (level 4).
On conviction on indictment – up to
three years imprisonment or an unlimited
fine, or both.
Publication of an ‘Obscene’ article.
Section 2(1)
Note – S2(1) was amended in 1964 to
include possession of an obscene
article for gain.
Obscene Publications Act 1959 and 1964
On summary conviction – up to six months
imprisonment and/or a fine.
On conviction on indictment – up to 10
years imprisonment or a fine or both.
Taking, making, distributing, showing,
possession for distribution, publishing or
advertising indecent photographs or
pseudo-photographs of children. (Section 1)
The term ‘indecent’ is not defined in the Act
and is a matter for the courts.
Protection of Children Act 1978
On summary conviction – up to six months
imprisonment and/or a fine (Level 5).
On conviction on indictment – up to five
years imprisonment or a fine or both.
To have any indecent photograph or pseudophotograph of a child in your possession.
(Section 160 (1))
Criminal Justice Act 1988
Annex B
The current legal framework in England and Wales
19
Civic Government (Scotland) Act 1982
On summary conviction – up to six months
imprisonment and/or a fine (Level 5) or both.
On conviction on indictment – up to five
years imprisonment or a fine or both.
Possession of indecent photographs etc
of children Section 52A
To have any indecent photograph or pseudophotograph of a child in your possession.
On summary conviction – up to six months
imprisonment or a fine or both.
On conviction on indictment – up to 10
years imprisonment or a fine or both.
Indecent photographs etc of children
Section 52
To take or permit to be taken, distribute or
show, possess with a view to its being
distributed or shown by himself or others an
indecent photograph or pseudo-photograph
of a child, or to publish or cause to be
published any advertisement likely to be
understood as conveying that the advertiser
distributes or shows such an indecent
photograph or pseudo-photograph, or
intends to do so.
The term “indecent” is not defined in the Act
and is a matter for the courts, who apply the
same test as for “obscene”.
On summary conviction – up to six months
imprisonment or a fine or both.
On conviction on indictment – up to
three years imprisonment or an unlimited
fine or both.
Obscene material Section 51
To display obscene material in a public place
or where it can be seen publicly, or to
publish, sell or distribute, or with a view to
its eventual sale, make, print, have or keep,
any obscene material.
The term “obscene” is not defined in the Act
and is a matter for the courts, who apply the
common law test of whether the material is
calculated to deprave and corrupt persons
open to depraving or corrupting influences.
“Publishing” includes playing, projecting or
otherwise reproducing, or, where the
material is data stored electronically,
transmitting that data.
Legal Framework in Scotland
20
21
1. Purpose and intended effect
(I) Objective
The objective of this proposal is to consult
with key stakeholders on the creation of a
new offence of simple possession of
extreme pornographic material which is
graphic, sexually explicit, and which
contains serious violence or sexualised
violence towards women and men. In
particular, explicit actual scenes or realistic
depictions of the following activities will
be covered:
i) intercourse or oral sex with an
animal;
ii) sexual interference with a human
corpse;
iii) serious violence in a sexual
context, and
iv) serious sexual violence.
(II) Background
Illegal pornographic material has always
been available and those who sell it risk
prosecution under the Obscene
Publications Act 1959 (OPA) and in
Scotland the Civic Government (Scotland)
Act (CG(S)A) 1982. There is now some
evidence that the boundaries are being
pushed back with more extreme images are
now being sought after and provided. In
addition, due to the development of new
technologies, which are increasingly
available to everyone, access to this material
has never been available so easily or in such
quantity. In pre-Internet days, individuals
who wished to view this kind of material
would need to actively seek it out, bring it
into their home in physical form
(e.g. magazines or video-tapes) or have
it delivered, risking discovery and
embarrassment at every stage. Now they
are able to access it from their computers
at home (or from their place of work) with
relative ease.
The material under consideration is of
an extreme nature; it does not depict
consensual sexual activity, nor even the
milder forms of bondage and humiliation
which is available in legal pornographic
material. It depicts suffering, pain, torture
and degradation of a kind which we
believe most people would find abhorrent.
The underlying premise of the
consultation is that this material should
have no place in our society and the
proposal seeks to tackle its circulation.
(III) Risk Assessment
It is difficult to quantify accurately the
financial impact of the new offence
although it is felt to be low – due to the
extreme nature of the material involved
and its limited attraction for most
individuals. The material covered will
already be illegal to publish or distribute
under the OPA and CG(S)A, so the only
new area of criminality will be its
possession. Prosecutions under the OPA
1959, for the publication of such material
(and also some further types of material
not covered by the present proposals,
except for option A) have fallen over
recent years from 131 in 1999 to 39 in
2003, although this may be in part due
to the police focus on tackling child
pornography and tolerance, expressed
through the courts, of material which
10 years ago would have been found
to be obscene.
Annex C
Partial Regulatory Impact Assessment
The main risk addressed is that possession
of extreme pornographic material is part
of a cycle of supply and demand,
encouraging the production of such
material which may lead to the harm of
the individuals involved in making it,
whether or not they consent to participate.
Developing technology also enables the
easier distribution of such material, the
vast majority of which comes from
abroad, thus evading current controls.
The new offence will help close the gap
in existing controls and tackle demand
at source.
2. Options
Option one – adding a possession offence to
the Obscene Publications Act 1959 and in
Scotland the Civic Government (Scotland)
Act (CG(S)A) 1982.
Option two – adding a possession offence
limited to the category of material we have
set out in the Consultation Paper but
under the umbrella of the OPA and the
CG(S)A.
Option three – a new free standing offence
in respect of the category of material we
have set out in the Consultation Paper.
Option four – do nothing.
3. Benefits
For options one to three our proposal to
strengthen controls on extreme
pornographic material will:
(i) help to protect those who participate
in the creation of sexual material
containing violence, cruelty or
degradation, who may be the victims
of crime in the making of the
material, whether or not they
notionally or genuinely consent to
taking part;
(ii) help to protect society, particularly
children, from exposure to such
material, to which access is
increasingly difficult to control;
(iii) enable the enforcement authorities
to take action against individuals
who, by procuring such material by
whatever means, encourage its
further production.
With regard to Option 4 – do nothing –
there will be no additional benefit.
4. Costs
Option one would be the simplest, but
possibly the most costly approach,
retaining the general test of obscenity and
amending the 1959 Act and the CG(S)A
section 51 to add an offence of
possession. However, this would cover a
wide range of material and there are
difficulties in squaring the purpose of the
OPA with a simple possession offence. For
example, under the OPA whether material
is obscene depends on whether it would
deprave or corrupt “those likely to read,
see or hear it” and this has been
interpreted by the courts to mean that the
threshold of obscenity can be lower if the
likely audience or recipient is a child. This
proposal would significantly extend the
scope of the OPA and the CG(S)A,
possibly leading to an increase in
prosecutions, but would not achieve the
clarity which would help individuals to
identify material which was clearly illegal,
when making personal decisions about
viewing pornography.
Option two would offer greater clarity by
limiting the material to be covered by the
possession offence to the most extreme as
set out, such as material which showed (or
purported to show) serious sexual
violence, bestiality and necrophilia. This
could be linked to the OPA and, the
CG(S)A so that it formed a sub-set of
material covered by the “deprave and
corrupt” test. However, as for option one,
there would be a mismatch between the
purpose of the OPA and the amendment.
In addition, there would be the possibility
of confusion for the courts. The scope of
the OPA and CG(S)A might gradually
become limited by reference to the list of
22
23
proscribed material, so that, over a period
of time, only material falling within that
defined category would be considered
obscene. The flexibility of the test of
obscenity which currently allows the Acts
to deal with material featuring extreme
violence (not necessarily with sexual
overtones), drug taking, animal cruelty,
etc. would be lost. It is believed that, in
view of the nature of this material there
would only be a small number of
proceedings, but, in the light of the issues
above these could be time-consuming and
costly proceedings.
Option three, would preserve the flexibility
of the OPA and the CG(S)A to deal with
the publication of a range of material and
to develop a new, free-standing offence for
possession of a limited category of
material. (Anyone publishing or
distributing this material within the UK
would also be prosecutable under the new
offence since they would necessarily also
possess it.) The offence would be limited
to pornographic material, that is material
produced solely or primarily for the
purpose of sexual arousal or gratification.
It is not the intention to impinge on the
freedom of the media in terms of news
coverage, or of analysis or documentary
footage of real events, including atrocities
committed in other countries. It is believed
that, in view of the nature of this material
there would only be a small number
of proceedings and the cost would be
“de minimus”.
Under Option 4 – do nothing – there will
be no additional cost but there is a risk of
sending a message that we considered
accessing such material was harmless, or
not worthy of attention. In addition, the
benefits from the proposals would not be
realised, which carries a human cost for
individuals and society.
5. Sectors and groups affected
Business
It is our belief that no business sector in
the UK should be adversely affected by
these proposals. The material covered by
the new offence is already illegal under the
Obscene Publications Act 1959 and the
Civic Government (Scotland) Act 1982.
There would therefore be no impact on
the legitimate UK adult film, video or
computer-game industry. The mainstream
broadcast entertainment sector would also
be unaffected as would those with a
legitimate reason to posses the material.
Similarly there would be little impact for
British Internet Service Providers. It is
recognised that ISPs act as transporters of
information across the internet but that
they are not responsible for the data itself,
as they are unaware of what is being
transmitted. (Regulation 19 of the
Electronic Commerce (EC Directive)
Regulations 2002 that ISP’s are protected
from civil or criminal action in respect of
the unlawful activity of which they have
no knowledge). UK ISPs already work
with the Internet Watch Foundation, an
industry funded body, in removing material
which is considered to be in breach of the
Protection of Children Act 1978 or the
Obscene Publications Act 1959 or the
Civic Government (Scotland) Act 1982.
We will clearly seek the detailed views of
the Internet and entertainment industries
during the course of the consultation
about any concerns they may have about
the proposed offence.
Citizens
In recent years there have been a declining
number of arrests under the OPA 1959
and information is not available about the
ethnic background of those arrested. It is
not apparent to us that the proposed
changes in the law will have any adverse
effect on black and minority ethnic (BME)
groups but as part of the consultation,
numerous organisations, including BME
groups will be asked for their views.
With regard to gender, the vast majority, of
small number of defendants (in 2003, 38
defendants out of 39 proceedings) who
are prosecuted under the OPA 1959 are
male. Anecdotal evidence would suggest
that the vast majority of those who may be
forced to participate in the production of
the material involved in the consultation
are female, but the proposed offence does
not distinguish between the gender of the
“participants”.
6. Small Firms Impact Test
Small businesses should not be adversely
affected by this proposal as the
commercial distribution of such material
within the UK is already illegal, although
the offence may make it easier for
legitimate businesses to distinguish
between legal pornography and clearly
illegal obscene material. Where the offence
takes place on work premises – ie material
is downloaded on an employer’s PC, it is
the intention of the offence to apply to
the staff involved, who would be regarded
as being in possession. Many firms already
have Internet access polices, prohibiting
the downloading of such material in the
workplace but smaller employers are less
likely to have internet policies. It is clearly
good practice for employers to have
internet access policies and, it would appear
to us, that there would be minimal cost in
doing so. We will liaise further with the
small business sectors to ensure that they are
consulted on this issue. But, as with other
areas of the criminal law, the proposals
contain no requirement on businesses to
put such mechanisms in place.
7. Competition assessment
A competitive filter has not been
completed because the proposal concerns
material which is already illegal.
8. Enforcement, sanctions and
monitoring
Options 1 – 3 will require primary
legislation and enforcement of any
legislation will be the responsibility of the
UK enforcement agencies. Under Option 4
no further enforcement would be required.
9. Monitoring and Review
A scheme to monitor and review the
effectiveness of any change in legislation
will be put into place after a preferred
option has been identified.
10. Consultation
(I) Within Government
Department for Culture Media and Sport
Department for Trade and Industry
Department of Health
Crown Prosecution Service
HM Revenue & Customs
Scottish Executive
Northern Ireland Office
National Assembly of Wales
(II) Public Consultation
A number of stakeholders have been
identified for involvement in the public
consultation process. The list includes the
Association of Police Authorities, the
Association of Chief Police Officers, the
Association of Chief Police Officers in
Scotland, the British Board of Film
Classification, representatives of the
entertainment industry, representatives of
the Internet industry and the wider
business community.
The list is not complete at this point and
the identification of further contacts is
being investigated.
11. Summary and Recommendation
This partial RIA identifies that there will
be a risk of (small) increased enforcement
activity for all UK enforcement agencies
and the courts but the circulation of
extreme pornographic material should be
inhibited. The costs and risks to business
are difficult to quantify but seem very low.
The consultation process should help
develop the evidence base for the options
outlined in the proposal.
24
25
This consultation follows the Code of
Practice on Consultation the criteria for
which are set below.
The six consultation criteria
1. Consult widely throughout the
process, allowing a minimum of 12 weeks
for written consultation at least once
during the development of the policy.
2. Be clear about what your proposals
are, who may be affected, what questions
are being asked and the timescale for
responses.
3. Ensure that your consultation is clear,
concise and widely accessible.
4. Give feedback regarding the
responses received and how the
consultation process influenced the policy.
5. Monitor your department’s
effectiveness at consultation, including
through the use of a designated
consultation co-ordinator.
6. Ensure your consultation follows
better regulation best practice, including
carrying out a Regulatory Impact
Assessment if appropriate.
The full code of practice is available at:
http://www.cabinetoffice.
gov.uk/regulation/Consultation/
introduction.htm
Consultation Coordinator
If you have any complaints or comments
about the consultation process, you should
contact the Home Office consultation
coordinator Pio Smith by email at:
pio.smith31@homeoffice.gsi.gov.uk
Alternatively, you may wish to write to:
Pio Smith
Consultation Coordinator
Performance and Delivery Unit
Home Office
3rd Floor Seacole
2 Marsham Street
London, SW1P 4DF
Annex D
Consultation Code of Practice
26
27
The information you send us may be
passed to colleagues within the Home
Office, the Scottish Executive, the
Government or related agencies.
Furthermore, information provided in
response to this consultation, including
personal information, may be published or
disclosed in accordance with the access to
information regimes (these are primarily
the Freedom of Information Act 2000
(FOIA), the Data Protection Act 1998
(DPA) and the Environmental
Information Regulations 2004).
If you want the information that you provide to be
treated as confidential, please be aware that,
under the FOIA, there is a statutory Code
of Practice with which public authorities
must comply and which deals, amongst
other things, with obligations of
confidence. In view of this it would be
helpful if you could explain to us why you
regard the information you have provided
as confidential. If we receive a request for
disclosure of the information we will take
full account of your explanation, but we
cannot give an assurance that
confidentiality can be maintained in all
circumstances. An automatic
confidentiality disclaimer generated by
your IT system will not, of itself, be
regarded as binding on the Department.
Please ensure that your response is marked
clearly if you wish your response and
name to be kept confidential.
Confidential responses will be included in
any statistical summary of numbers of
comments received and views expressed.
The Department will process your
personal data in accordance with the DPA
– in the majority of circumstances this will mean that your personal data will not be disclosed to third parties.
Annex E
Responses: Confidentiality & Disclaimer
28
© Crown copyright 2005
Published by the Home Office Communication Directorate
August 2005