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| C_A_A_N |
You can see this leaflet online at:
http://www.spannertrust.org/documents/possession...
lifted from this thread:
http://www.informedconsent.co.uk/boards/activism...
NB There seems to be a lot of concern regarding Spanners opinion re cached images... could we stress that it is a legal opinion and that people bear in mind the Disclaimer at the bottom of it.
| prettyname wrote: Latest from Spanner Is your PORN collection still legal? In May 2008 the Criminal Justice and Immigration Act 2008 was passed by the UK parliament. This new law makes it illegal in the UK to possess certain types of sexually-explicit imagery. This email contains important information about the new law and how it affects you. WHAT DOES THE NEW LAW SAY? The new law makes it an offence punishable by up to three years in prison for someone to possess what it calls “extreme images”. The date when this provision becomes effective has not yet been fixed but is probably 1 January 2009. The law affects images in your possession after this date. An “extreme image” is defined as one which portrays in a realistic way any of: An act which threatens a person's life An act which results in or is likely to result in serious injury to a person's anus, breasts or genitals A sexual act with a corpse or an animal (but we will not be addressing these categories here) and the image... Is grossly offensive, disgusting or otherwise of an obscene character Has been produced solely or principally for the purpose of sexual arousal It is claimed that only a small number of images are intended to be caught by this law (“images” means both still photographs and video but excludes drawings and works of art). Unfortunately many of the terms used in the Act are vague and open to interpretation. So until some unfortunate people end up in court and a jury decides, it is difficult to give absolutely definitive advice on what the Act means and how it will be enforced. In addition, police investigations, seizure of computers etc can cause disruption and damage to people's lives even if no charges are brought. However, based on the way cases involving possession of child pornography have been decided in court we are able to give some advice. FIRST OFF – DON'T PANIC! Images of bondage, fetish wear, role play, watersports, sexual intercourse and domination/submission are not “extreme”. Images of corporal punishment, whipping and flogging, needle play, cutting, heat play or medical scenes involving areas besides the anus, genitals or breasts are almost certainly safe to possess (though the activities themselves may be illegal due to the Spanner ruling - see below). In fact the list of images which are certain to fall under the law is very small compared to the wide range of BDSM, kink and fetish images available. If there's no injury to the areas of the body mentioned above or threat to life the image is almost certainly legal to possess. But there are grey area activities as well which are detailed below. WHAT DOES “POSSESSION” MEAN? In the age of the Internet and digital media, possession of images has needed to be refined in law. Clearly if you own a physical photograph or a DVD or video tape then you possess it. But images on your computer are a different matter. For a start just viewing an image or video on a web site does not constitute “possession”. So you can browse the Internet quite legally. Your web browser may keep a temporary copy of the web pages and images you browse on your hard disk (the “cache”) but this too does not constitute possession. Nor do unsolicited images received by email as part of a message. However, if you actively save or download an image or video to your computer or other device from a web page or email, or move or copy the files from the cache then case law has established that this does constitute possession. As, obviously, does printing out such images. WHAT TYPES OF IMAGES WILL IT BE ILLEGAL TO POSSESS? If the image or video shows a serious injury to breasts, anus or genitals or the activity is life threatening and the image is produced for sexual arousal it will be illegal to possess it. WHAT IS SERIOUS INJURY? “Serious injury” is not explicitly defined in law and it is up to the jury to decide. As a result of the Spanner trials (see below) it was established that “serious injury” when part of sexual activity was anything beyond “transient or trifling” which are equally subjective terms and open to interpretation by a judge or jury. Breaking limbs, disfigurement, castration and other lasting disabling injuries are very likely to be included. Images of a whipping, beating or cutting of breasts, genitals or the anus which leaves cuts and bruises may be illegal to possess too. Genital modification and medical scenes involving catheters, needles, sounds etc are a grey area but see the Defences section below. A video or series of images which shows that any injuries healed quickly may be a defence to the charge that the injuries were serious. But again this is up to the court. WHAT IS LIFE THREATENING? This too is a grey area. Putting a plastic bag over someone's head, tying a cord around their neck, forcing smoke into their lungs, water immersion, breath control, holding a gun or knife to their head can all be life threatening in the context of a real non-consensual kidnap or torture scene. Where these activities take place during a consensual BDSM scene the intention is clearly not to threaten or endanger life. However taken in isolation it may not be obvious from the image whether or not there is a real threat to life. If the image is part of a sequence or a video which shows the consensual nature of the activity and that the recipient of the activity was not harmed then that could provide a defence should the images be seized, particularly if you are a participant in the activities. ARE CLASSIFIED FILMS AND VIDEOS OK? If a film or video has a certificate from the British Board of Film Classification then it is legal to possess it. However if you take stills or clips from the film to make pornographic material then you could be prosecuted for possessing that material if in isolation it falls under the category of “extreme pornography”. WHAT ARE THE PENALTIES? If found guilty under this section of the Criminal Justice and Immigration Act you could be sent to prison for up to three years or fined (or both) and be put on the sex offenders' register if you receive a prison sentence of over two years. ARE THERE ANY DEFENCES? The law provides two relevant defences. That you did not know you possessed the image, or that you had not requested it and that you did not keep the image for an unreasonable time after becoming aware that you possessed it. So if someone emails you illegal images you should delete the That the owner of the image directly participated in the acts shown and that there was no non-consensual harm. So in theory it is legal to possess images which show you or a play/partner's activities even if they show serious injury to breasts, anus or genitals. HOWEVER Under the current law in England and Wales consent is not a defence to a charge of assault if the sexual activities cause injuries which are more than “transient or trifling”. So even though you and your partner have actually consented, that consent is not legally allowed as a defence to either a prosecution for possession of the images or prosecution for the activities themselves. HOW CAN I PROTECT MYSELF? Do not download or save images from web sites you visit if you think there is a risk that you could be prosecuted for possessing them Clear your web browser's cache regularly or set it to keep images in the cache for as little time as possible (even for no longer than until the end of a browsing session). Do not take photographs or videos of your own BDSM sexual activity if they show serious injuries to breast, anus or genitals. It may be illegal to possess those images and if you can be identified in the photos or videos you could be prosecuted for the activities themselves If you have pornographic images which show activities which appear to be life threatening make sure you know who the participants are and that you can be sure there was no real threat to life If you take pictures or videos of legal consensual SM activity it will help defend any prosecution if you can prove that you participated in the activities (include your face or tattoo or something identifiable, even if just reflected in a mirror) HOW CAN I BE SURE IMAGES ARE PROPERLY DELETED FROM MY COMPUTER? Deleting images on a computer usually just moves them to a Recycle bin (in case you made a mistake). So the first thing to do is regularly empty the Recycle bin (or configure your computer to do it automatically). However the physical space on your hard disk where the deleted files lived may still contain a “ghost” of the files which could be recoverable using special software. To make sure that no trace of the files exists you should download and install a utility usually called a “file shredder” (check Google for where to find one). This will overwrite unused areas of the disk (sometimes to military standard) so that neither you nor anyone else can recover the images you have deleted which might be illegal. WHAT IS “THE SPANNER RULING”? In the late 1980s a group of 16 men were charged with various counts of assault as a result of consensual SM activity. The prosecutions were the result of a police investigation called “Operation Spanner”. The men were under the impression that their consent to the activities was a valid defence. But this was rejected by the High Court and by subsequent appeals made as far as the European Court of Human Rights in 1996. In England and Wales consent is not a defence to a charge of assault where injuries caused during sexual activity are more than “trifling or transient”. WHAT IF I NEED LEGAL ADVICE? You can contact these solicitors David Clark 020 7433 1562 email: office at davidclarkandco.co.uk John Lovatt 020 7247 9336 email: john.lovatt at btinternet.com You should also inform the Spanner Trust if you are investigated or prosecuted under this new law. REMEMBER THAT IF YOU ARE ARRESTED OR QUESTIONED BY THE POLICE YOU SHOULD NOT MAKE ANY STATEMENTS WITHOUT CONSULTING A SOLICITOR FIRST. WHAT CAN I DO TO HELP? Make sure as many people as possible are aware of the law. Put a link to the online version of this document on your web site. Forward this email to other people who might be concerned or affected by this new law. Visit the Spanner Trust web site and make a donation to help support our work. ABOUT THE AUTHORS The Spanner Trust – protecting the legal and human rights of those involved in BDSM Backlash – the campaign against this new law SM Gays - a social and educational group for gay men DISCLAIMER The Spanner Trust always tries to ensure that all information provided is accurate and up-to-date. However, the law can change and is open to interpretation. Before relying upon any statement made in this document you should take your own independent legal advice and the Spanner Trust cannot accept any liability whatsoever.
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Edited Fri 8 Aug 08, 9:46 AM by C_A_A_N
| 8 Aug 08, 7:19 PM Qwoin  UK(S), 10 yrs |
Thanks for your efforts I will read properly later. Don't be afraid of dying, be afraid of not living. |
| 20 Aug 08, 4:27 PM Degenerate UK(M), 5 yrs   |
ok this is what CAAN has to say at this stage following ongoing research: Regarding the Kinky porn ban commencing in January: See the text of it here: http://www.opsi.gov.uk/acts/acts2008/en/08en04-g... Criminal Justice and Immigration Bill, Part 5: Criminal Law, Section 63: Possession of extreme pornographic images. The reality of the new porn laws is going to be about risk. Mostly risk to individuals in the bdsm community. But rather than worrying endlessly about what the Law "means", perhaps it is time to start looking at risk in a slightly more level-headed way. 1. Is my porn likely to break the new Law? This is the obvious question and, in many, many cases, is wholly unknowable until the Law starts to be applied. Solicitors and barristers can help. However, most of that help is likely to be about little more than analysing the text of the new Statute. That is not necessarily how the courts will apply it. Government assurances are mostly worthless - because they are not strictly relevant in court. Far more relevant - and not yet published - will be CPS guidelines as to what will fall foul of the law and the various levels of offence that will need to be present for the police to bother taking action. Much material may - or may not - be theoretically actionable. But it will depend on whether the DPP believes it is in the public interest to clutter the courts up with dozens of minor cases that will determine whether prosecution will follow. 2. Am I likely to be investigated? Far more relevant - and before anything at all happens in the courts - individuals need to be identified and sucked into the judicial system. You are only likely to be sucked up by the Police where you come to their attention for other matters, or where you are a member of some community that is clearly borderline as regards the type of image at issue. Of course, it will be denied that this law will be used to "punish" individuals who canot be prosecuted under other laws. But the suspicion will remain. If you are a political activist or a journalist, be extra careful. Be careful, too, if you are coming to the end of a relationship, and the split is not amicable. (False) accusations are a favourite way in for the Police. It goes without saying that any allegations of sexual impropriety are also likely to lead the police to your door. Don't go surfing for images at work - you are likely to be caught. However, it is unlikely that a second Operation Ore will occur. For that to happen, individuals in this country would need to be caught visiting a site full of images that were illegal in the country that hosted those images. Because the UK Law is going to be so far out of kilter with the rest of the West (especially the US), chances are you won't ever have that honour. All of the above will also reflect the answer to question (1). The Police are likely to want to pick the "low-hanging fruit". If the DPP sets stringent guidelines, they are much less likely to go after this material on the off chance of picking up a conviction. 3. How serious will the consequences be for me? There are all manner of consequences that can follow from being picked up for this sort of offence, and individuals need to be aware of them, and be prepared. Over time, it is in this area that networks like CAAN and Backlash are likely to prove very helpful. First, it is very likely that you will be outed. The Police have a habit of dropping hints to local journalists. Is that a social problem? Will your neighbours shun you? Will your parents never speak to you again? Do you care? More seriously, how will it impact your job? Since the passing of the Safeguarding Vulnerable Groups Act 2006, there are something like 14 million jobs in the UK that could end up being barred to anyone with a conviction for possessing "extreme images". If you're a self-employed entrepreneur, this probably does not matter. If you're a teacher, it may matter very much. What is likely to hit the self-employed far harder is the loss of computer and work on hard drives as police impound same for periods of up to 18 months. If you have essential information on computer, be prepared to keep a copy in a safe place far from your home, possibly with a solicitor. Don't expect to ever get your computer back in one piece. The record of so-called police experts is that they can be very clumsy when it comes to handling hard drives. Accidentally on purpose deleted? Of course not! The other serious consequence to consider is the impact on family. In respect of other sexual allegations, it has been known for social services to have parents removed from the family home whilst a matter is being investigated. Apart from the disruption, this can place enormous emotional strain on relationships and children. If you're single, don't need the computer for work, and don't work in a regulated profession, you're laughing. Otherwise, you should think about consequences in advance. 4. How can I protect myself? Apart from not having any dodgy material - as the authorities would no doubt advise - there are a number of practical things you can do. Don't store any images you absolutely don't need to store. And when you have deleted them, use a disk washer/disk scrubber package to ensure they are gone. Police forensics may be able to crack even the most sophisticated of such packages - but most would never bother applying the time and effort to do so. Be prepared. Think about consequences: decide, in advance, how you would react to being raided. Have your business backed up. Talk to your partner: understand their reaction. One point already raised by lawyers is that within a household in which two or more parties regularly access the pc to go on to bdsm sites the possibility of a "cut-throat defence" may exist. That is, each party may argue that it was the other that downloaded the images. This is not for the faint-hearted, and would require serious legal advice beforehand. However, it is worth considering. Whatever else you do, don't plead to anything without having taken legal advice. Do not accept a caution at the Police station. This is the equivalent of a conviction - and enough to have you barred from all manner of jobs for life. If the Police wish to charge you, make them: a fairly common finding by solicitors is that Police are keen to offer a caution where they know their case is shaky. Very often, refusal to accept a caution is the end of the matter. But take legal advice! Stay in touch with the various networks. Now, more than ever, you need to have handy a phone number that will give you quick access to people who understand the law and who will kick up a fuss. Fair enough if you would rather go quietly: but if you intend to go down kicking and screaming, let others know - and you may find demonstrators prepared to attend your police station and trial to provide moral support. The sooner the police realise that we are not cowed, but angry, the better. From CAAN Consenting Adult Action Network http://consentingadultactionnet.spaces.live.com If you want to take action against the kinky porn ban join us on Friday 22nd August in London, or join a future advice seeking mission, or join in from home. See action notice here: http://consentingadultactionnet.spaces.live.com/...
ACTION NOTICE 22nd August LONDON - http://www.informedconsent.co.uk/weblogs/C_A_A_N... - COME WITH US OR JOIN IN FROM HOME! - CJIB Wiki and Seenoevil forum: - http://www.seenoevil.org.uk - The times they are a-changin' http://www.youtube.com/watch?v=lZ_XwLSN45I - FREEDOM NOW! |
