back to article Scotland bans smut. What smut? Won't say

The Scottish legal authorities have no time for criminals who – unsportingly – try to change their behaviour in order to avoid committing criminal acts and ending up in court. That is the strange conclusion that follows from a reply we received last week from the Crown Office and Procurator Fiscal Service, which is responsible …

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  1. Anonymous Coward
    Big Brother

    What's in your camera today sonny...

    Hadrian built a wall in a sensible location about 125 AD, for the good reason that he reckoned the inhabitants North of the wall were a little wild and off their trolly. Looks like time to restore this historic monument.

    1. Greg J Preece

      Errr

      ....we had an extreme porn law first. Did no-one tell you? If you're into BDSM, that kind of thing, this isn't the best time to be living in England. Strange as it may sound to people not into it/not previously exposed to it, violent sex, including rape-play and knife-play, is what turns some people on.

      This law is, I presume, to protect against pornography created where one or more participants are being forced into it, but how do you tell that from a picture? The extracts given in the article appear to make no leeway for genuinely produced erotica, even if it contains the common preamble of the actors giving consent/discussing the video's content. That is what concerns a lot of people, myself included.

      1. Anonymous Coward
        Anonymous Coward

        More ridiculously

        If you and your other half are into that kind of thing, that's fine go ahead and do it. But if you dare take a few photos of it, you risk being done for breaching the shiny new law!!!!!!

        So pretending to pin your wife down and screw her is fine, but if you video it then the prosecution can decide it's rape based solely on the vid.

        Scary

        1. da'squid

          Wrong

          Nope, see if you actually read the law, you'd see that what you have written here is simply untrue. A legitimate defense is if you directly participated in the act, and it was in fact, consensual. See section 51c.

          So... all you have to do is show up in court, make sure the jury identify yep it's you on the tape, and then have your wife there too, to let them know it wasn't actually rape. Mmm... sounds like a fun day out doesn't it?

          1. Anonymous Coward
            Joke

            Title 1

            Yes M'lud, that is a pineapple

            Yes I did give permission for her to put it where she did

            Can we go now?

            ..... Oh shit, it's on public record that my wife and I play with pineapples????

          2. Anonymous Coward
            Anonymous Coward

            Re: Wrong

            Suppose AC and his wife gave me their home video tape before they emigrated and I lost contact with them.

            What on the tape has changed to suddenly make it illegal for me to possess?

  2. nickrw
    Heart

    An important issue

    While I agree this is an important issue I fear that I must, ashamedly, draw your attention to the following extract:

    "discussion of homosexuality far beyond its original mandate"

    That is all.

    1. Ammaross Danan
      Boffin

      Misinterpretation of statement

      "...may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold"

      I think El Reg has simply misunderstood the statement, and simply not asked more precisely. The authorities seem to be stating that they have a "grey" area where those on the border of violating my not be prosecuted, but there's a certain threshold that one can pass (perhaps actual cutting in BDSM depicted, as opposed to simple restraints?) at which point they'll aggressively persue charges, but for simple restraints they wouldn't.... This line is likely what they are saying they won't disclose, rather than details of what constitutes violation of the (proposed) law.

      1. Francis Boyle

        Yes, of course that's what they are 'saying'

        What there saying, however, may be a little different.

        I suspect the author's reading skills are a little better than yours.

  3. Alpha Tony

    huh?

    "We do not publicly disclose our prosecution policy in relation to specific offences as to do so may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold."

    I see. Will they also be removing all speed limit signs in Scotland and expecting motorists to guess those as well?

    1. Mike Shepherd
      Thumb Up

      What an excellent analogy!

      What an excellent analogy!

      1. Danny 14
        Pint

        hmm

        sounds like sedition to me.

      2. Steven Jones

        @Mike Shepherd

        Of course removing the speed limit signs is not an exact analogy. The analogy would be the police not declaring just how far you have to be over a speed limit before they will prosecute. So, for instance, it may be policy not to prosecute those travelling at 44mph in a 40mph zone, but those policies can change, and they don't want everybody driving to the limit of what the the authorities would tolerate.

        Of course there's a problem in interpretation of the law as this is not such a cut-and-dried situation as a speed limit. The problem here is that nobody is quite sure where the boundary will be, and neither will the prosecuting authorities until there are some test cases.

        1. ElReg!comments!Pierre

          @Steven Jones

          >The analogy would be the police not declaring just how far you have to be over a speed limit before they will prosecute.

          I think you'll find the analogy WOULD be to remove the signs indeed. In your example what is illegal is clear: driving above 40. 40 being the limit. 39.9 is legal, 40.1 is illegal Whether you get done for driving at 40.1 is another problem.

          In the extreme pro0n law case, there is no pre-set limit, no way to tell what exactly is illegal UNTIL you get done. That's completely different, and that's exactly like removing all the speed limit signs and passing a law saying "it is illegal to drive dangerously fast".

          1. corestore

            Which used to work very well in Montana...

            ... where until 1995 the speed limit law read:

            "A person . . . shall drive the vehicle . . . at a rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation . . . so as not to unduly or unreasonably endanger the life, limb, property, or other rights of a person entitled to the use of the street or highway."

            They introduced fixed speed limits, accidents doubled. Go figure.

          2. Steven Jones

            @ElReg!comments!Pierre

            Nope - you are quite simply wrong. The question was asked of the Crown Office and Procurator Fiscal Service under what conditions they would prosecute. Whilst they will only do so if there's a reasonable chance of a conviction, it is not they that decide whether the law has been broken. With a law of this type, where the boundaries are subject to interpretation, only a court can decide and establish the case law.

            So if you will, the speed limit sign is there, it's just not that easy to work out where the limit is, and only when case law is established will that become clearer. However, the prosecuting authorities may have other conditions they use to work out what cases are to be prosecuted. For instance, they might decide that it is not in the public interest to prosecute people with just a couple of suspect videos if they have not come to the attention of the police for related offences.

            It's about time the great British public learnt the difference between what the role of public prosecutors and that of courts.

    2. Ken Hagan Gold badge

      Re: removing speed limit signs

      If they removed speed limit signs, the national limit of 70mph would apply. No need to guess.

      Of course, you'd still have to drive "safely" but you already have to guess what that means so in fact you've picked exactly the wrong car analogy.

      1. Anonymous Coward
        Stop

        Not quite

        Apart from where the national limit is 60, 50, 40 or 30, depending on the type of road, existance and spacing of streetlights and type of vehicle you're driving?

  4. Ken Hagan Gold badge

    Is this a problem?

    Prosecutors neither made the original law, nor have the final say in what it means. Anyone who gave more weight to prosecutors than to judges or the law itself would be rather foolish.

    Even if the law is unclear, a clear statement from prosecutors isn't going to help. It will merely give the illusion of clarity for the ill-advised. A bit like covering a pothole with a rug.

    1. Just Thinking

      Practicalities

      If you know which images will or won't result in prosecution, you can at least avoid being prosecuted (by the prosecutors, anyway).

      If you have "safe" images you are unlikely to end up in front of a judge in the first place. It doen't matter what the judge might think.

      If you have "unsafe" images you risk prosecution, which could destroy your life even if you are eventually found innocent.

    2. Anonymous Coward
      Unhappy

      @Is this a problem?

      The problem is that guidelines are used by the courts to decide whether a real offence (as against just a technical infringement) has been committed. For example, a strict reading of the law says that it is illegal to drive at 31mph in a 30mph limit. However it is acknowledged that car speedometers are only accurate to 10% (the accuracy is also specified in law) hence there are guidelines that set limits above which the courts will always kick your butt, an below which they may ignore (or let you off with a stiff lecture).

      The danger that Scottish prosecutors have here is that without clear guidelines as to what constitutes "extreme porn", potential perps may be able to get off by simply saying "how am I to know I was breaking the law when the Scottish Excutive won't say where the law's boundaries are".

      Just to make clear, I am more than happy with baning "extreme porn" so long as we have a clear definition of what we mean. Otherwise we will, sooner or later, see someone prosecuted for having a copy of Mayfair or whatever.

      1. Graham Marsden
        Thumb Down

        @alannorthhants

        "without clear guidelines as to what constitutes "extreme porn", potential perps may be able to get off by simply saying "how am I to know I was breaking the law"

        You are exceptionally naiive if you think that is going to happen! As has already been shown in England (eg with the "Tony the Tiger" case) prosecutors will push to the limits of the law (and beyond) in order to get a conviction, their argument will simply be "ignorance of the law is no defence" (the fact that they were ignorant of what the law says because it stipulates that someone should consider an animal to be *real* or that it was a *joke* wasn't important to them!)

        PS As for "someone being prosecuted for having a copy of Mayfair, it could happen simply because before the last Government changed the law, it was legal to print porn showing girls who were aged 16, but now the law says that the definition of a child is age 18, so some back issues have been rendered illegal.

        1. Anonymous Coward
          Anonymous Coward

          @Graham Marsden

          >it was legal to print porn showing girls who were aged 16, but now the law says that the definition of a child is age 18, so some back issues have been rendered illegal.

          I believe it's worse than that and it is more along the lines of images which depict children whether male or female in a sexual manner, the actual age of the model is immaterial.

          So if you have any pictures of an eighty year old granny dressed up as a schoolgirl posing provocatively you'd better get rid of them quick.

          As I've mentioned in posts many moons ago, I wouldn't be at all surprised if the St. Trinian movies fall foul of the new obscene porn laws.

          1. nobby

            @Chris w

            Re: "I wouldn't be at all surprised if the St. Trinian movies fall foul of the new obscene porn laws."

            Please.

            Please.

            Please.

          2. Steven Jones

            @Chris W

            Films with certificates are exempt.

            1. Graham Marsden

              @Steven Jones

              Yes, films with certificates are exempt, but a clip taken from a film with a certificate may not be if it is adjudged that "it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal."

              Which is one of the stupidest things ever to appear on the Statute Books...!!

              1. Ted Treen
                Boffin

                @Graham Marsden

                Graham old lad, things which appear on the statute books are put there by politicians, who are generally either professional politicos or mediocre ex-lawyers.

                It is therefore my expectation that pretty well EVERYTHING that appears on the statute books is extremely stupid; this being ensured by the pedigree of said legislators.

            2. Anonymous Coward
              Anonymous Coward

              @Stephen Jones

              That sounds like it was added on as an after thought, probably to appease the film industry.

              However it does raise a few questions.

              What is the status of the film before it receives certification?

              If some scenes are considered beyond the pale and need to be cut from the released version what will happen to the scenes left on the cutting room floor and will the makers of the film be open to prosecution?

      2. Danny 14

        The title is required, and must contain letters and/or digits.

        unfortunately magistrates are not quite as nice as you think. They can pretty much ignore ACPO guidelines if they want. I know of two people prosecuted for 31 in a 30 zone. Absolute offences are absolute.

        In this case im sure ECHU will sort this out with a "wouldnt tell me what was illegal".

        1. Steven Jones

          @Danny 14

          It is not magistrates that decide whether somebody is proescuted or not. That decision is made before the case arrives in court. The magistrates job is essentially to decide on guilt and what any penalty might be. If you are doing 31 mph in a 30 mph zone then, unless there is some doubt or unusual circumstances the magistrate will have not choice but to find you guilty.

          1. Dave 15 Silver badge

            but in this case

            This law would be the same as the magistrate that deciding if 31 was illegal on that stretch of road or not, there will be no signs or indications of what the speed limit is

  5. The Dark Lord
    WTF?

    We do not publicly disclose our prosecution policy

    "We do not publicly disclose our prosecution policy..."

    This is beyond scary. Alternative translations include:

    - we want the freedom to make it up so as to be able to prosecute whomsoever we want

    - we haven't decided yet

    - our people are so capricious it's impossible for us to pin them down to a consistent application of the law

    I'm figuring that #1 is in effect.

    1. peter 45
      Big Brother

      alternative translation

      Don't ask us cos we don't have a fugging clue either. We were just planning on prosecuting people at random and let the courts decide.

    2. Dave 15 Silver badge

      and we also make our release policy on the hoof as well...

      Especially if you are a terrorist and there might be an oil deal in the offing...

  6. Anonymous Coward
    Joke

    This is an outrage

    "... (and any sex at all with animals)"

    In Scotland this amounts to banning sex with local 'lassies' altogether.

  7. Vince Lewis 1

    is it a case of..

    ... what you don't know can't hurt you?

  8. Just Thinking

    I see where they are coming from

    Its like parking tickets. If you specify that the ticket is valid for one hour, you would get people parking for exactly 59 minutes then driving off. Now parking for 61 minutes risks a fine, the same fine as parking there all day. Why should someone who parks for 59 minutes, which is almost as bad as parking for 61 minutes, which carries the same punishment as parking there all day, get away with it by playing the system?

    Much better to keep the time limit secret. If you park here too long you will go to jail, but we won't tell you how long that is. That way, everyone will sit quietly in their homes and the world will be a better place.

    1. ph0b0s

      So more power to the parking attendants?

      I understand your point, but if you have to keep a law secret otherwise it does not work, then it is not a very good law. I cannot see anyone wanting to give parking attendants the power to decided when you have parked for too long?

      When you make a law you put a line in the sand, you are either over that line or not. There maybe some leeway if you are only just over that line, or there are mitigating circumstances, but that is at the discretion of the authorities. But not telling people where that line, is not on.

      "to do so may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold."

      This is my favourite part of this magic quote. And the most scary. Either you are making a law to stop people behaving in a certain way. Or you are trying to catch them out. The statement above leaves you in no doubt that they want catch people out rather than change behaviour. In fact they don't want you to have the chance to change your behaviour else they will not get the chance to catch you. That tells me about all I need to know about where our justice system is going.

    2. ph0b0s

      Sarcasm detector obviously needs a reboot....

      And yes my initial post did miss the inherent sarcasm in your post, sorry.

  9. Blofeld's Cat
    WTF?

    Pornography?

    Does this mean it will now be illegal to describe the fate of William Wallace north of the border?

    The poor bugger was hung, drawn and quartered in a particularly grisly manner, and then had his tar-dipped head stuck on a pike over London Bridge.

    As if that wasn't enough, 690 years later he was portrayed by Mel Gibson in Braveheart.

    1. Steven Jones

      @Blofeld's Cat

      Only if you have a video of the event, and only if the action was designed to provoke sexual gratification. One of the ridiculous things about this law is that you can have a video depicting all sorts of nasty physical acts, but it's only illegal if it's to provoke a sexual reaction. So a video depicting a murder in a realistic way is legal whilst the same is not true of a rape scene. That's unless its gained a certificate, in which case it is all irrelevant.

      1. da'squid

        A good point well made...

        Ad to expand on this point a little:

        It's bothered me for some time that it's apparently totally OK to depict gratuitous violence in media, and yet consensual sex is somehow considered 'dirty' and should either not be shown, or obfuscated. It's apparently more OK for our children to see violence vs sex. What's that about?

  10. Anonymous Coward
    Anonymous Coward

    What?!?

    "We do not publicly disclose our prosecution policy in relation to specific offences as to do so may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold."

    What you mean, it may allow citizen to ensure they are law abiding?

  11. Anonymous Coward
    Joke

    Does that mean

    that my UpKilt website pictures are now illegal?

    1. Anonymous Coward
      Anonymous Coward

      Please

      We can only hope...

  12. Ventilator
    Unhappy

    Ignorance, eh? Don't come that, laddie!

    So, this proposal takes 'ignorance of the law is no defence' and expands it to make 'it ignorance of the law is no defence even if you're ignorant of what it is you're ignorant of within the law that you're ignorant of, you ignoramus'.

    I can see 'Scot free' disappearing as a phrase altogether, soon. I'm so glad my ancestors had the sense to leave Scotland and settle in Manchester many generations back.

    No doubt the Scots feel the same!

  13. Cameron Colley

    Wow, they really are guttless, prudish, pathetic, arseholes.

    Seems they just want an excuse to go after everyone who has something they don't like or who pisses them off. Nobody who actually cared about justice would be part of such a farce.

    Heck, even the Taliban attempt to announce their rules.

  14. Mike Shepherd

    Anyone for Kafka?

    "...people cannot be expected to adhere to a law they do not understand"

    Surely it's even simpler than that. We cannot be expected to adhere to a law which we are not allowed to know until we arrive in court.

  15. Anonymous Coward
    FAIL

    This is so full of fail it could have come from Yes Minister

    The government of Scotland said "may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold"

    FAIL - unless their behaviour has ALREADY reached the prosecution threshold, they are NOT offenders; doubly so if the criminalising act hasn't even been passed yet. I know government officials are supposed to be as thick as shit, but this is unbelievable.

    FAIL - adapting or restricting behaviour to conduct which falls short of the prosecution threshold is known to people in the real world as "Obeying the Law" and considered good practice rather than bad practice.

    FAIL - when a new law is proposed that makes something illegal that wasn't before, it is generally considered a requirement of natural justice that people be told what they will no longer be allowed to do, especially when mere possession of something, however immoral, is to become an actual crime.

    The entire statement reeks of bigoted prejudice against what people are doing, rather than the calm unemotional behaviour one should be able to expect of lawmakers.

    I don't live in Scotland, have never possessed any illegal porn, have never possessed porn that could possibly be illegal under this new law even if I did live north of the border, nor do I condone any act of non-consensual sex with anybody (whether minors or not). However, I am posting this AC because the Government has it's head so far up it's ass that it would get prosecuted for that if it lived in Scotland.

    1. Alpha Tony

      @AC

      'I...have never possessed porn that could possibly be illegal under this new law even if I did live north of the border'

      How do you know if they won't tell you what they consider to be illegal? That picture of you doing the gardening could come under 'vegetable exploitation porn' for all you know! ;)

    2. BristolBachelor Gold badge
      Coat

      @AC

      "have never possessed any illegal porn"

      You say that today, but next year will be different. Someone else will be an MP with ideas from the Victorian age, and ankles will be taboo. Some of your family photos will suddenly be "obscene" and you will be publicly flogged.

      The fact that it was legal when you took the photos, that no-one was even upset by the taking or viewing of your family photos does not matter, nor the fact that there was no detriment to society nor any person. You will be burned at the stake.

      1. El
        Paris Hilton

        But...

        Some people get turned on by flogging... will pictures of him being publicly flogged also be considered "extreme porn"? I'm pretty sure it wouldn't be consensual...

        1. Steven Jones

          @El

          Of course flogging can be consensual. Whether it's considered to be "extreme porn" or not is dependent on it being considered likely to cause serious injury to certain defined parts of the body (genitalia, breasts, anus) - at least in the English version of this law. Now quite what serious injury means in practive, who knows? Requiring hospital treatment? Permanent injury? Bruising? What about drawing blood on somebody's back as that doesn't seem to be included.

          Also, this rule applies to "realistic images", so a fairly convincing bit of CGI might fall foul of this which places this firmly as a though crime. However, you can write pretty well whatever you like, you just can't turn it into images.

          The whole area is fraught with issues of interpretation, and some unlucky souls are going to find themselves the guinea pigs for this as the prosecuting authorities try their luck.

          1. Intractable Potsherd

            R v Brown is relevant here.

            You can't consent to flogging in England and Wales. R v Brown made that very clear. You do not have the right to consent to any injury other than that for medical purposes (e.g. surgery), body piercing, tattooing, and branding (the latter made clear in R v Wilson), and injury sustained in the line of sport (their Lordships didn't want their enjoyment of boxing and rugby to fall foul of the law).

            I get very angry by this every time I teach it, but I'm being calm today.

            1. Steven Jones

              Depends how you define injury

              That case depended on how extreme the injury was. I guess there has to be some limit - nobody can give consent to being killed for instance. However, that was a rather odd case.

  16. Anonymous Coward
    Anonymous Coward

    scot free

    >I can see 'Scot free' disappearing as a phrase altogether, soon. I'm so glad my ancestors had the sense to leave Scotland and settle in Manchester many generations back.

    Pedantry alert - the "scot" in "scot free" doesn't refer to Scotland: it's the name of an old tax.

  17. Christoph

    So what happens in court?

    Members of the jury, your job is to find the defendant guilty of breaking the law. We're not going to tell you what that law is because then you might try to judge on the actual facts, and you might find the defendant innocent.

  18. Graham Marsden
    WTF?

    "We do not publicly disclose our prosecution policy"

    Paging Mr Kafka, Mr Kafka to Scotland...

  19. Argh!
    Flame

    But.. wait... what?

    This is the stupidest thing I've seen in quite some time. "We can't tell you what the law is because then you might obey it"? I was under the impression that the object of law was not to trap people into prison, thugh I suppose that might account for the overcrowding.

    Oh and "extreme" by *who's* definition? because there's never been problems with THAT before... I seem to remember Queen Victoria having some interesting ideas on extreme sexual behaviour for example.

    It's so daft that this seems appropriate:

    http://imgs.xkcd.com/comics/porn.png

    Talk about flaming mad.

  20. Anonymous Coward
    WTF?

    how can you be an offender

    and restrict your actions to adhere to the law?

  21. Anonymous Coward
    Coat

    I used to be into S&M, necrophilia and bestiality...

    ... until I realized I has flogging a dead horse.

    I know... getting my coat.

  22. Anonymous Coward
    Anonymous Coward

    fking uselss brits

    Whom ever is responsible for this idiocy needs sacked, stripped of my public funds obtained and publicly flogged.

    What a twat!

  23. Anonymous Coward
    Anonymous Coward

    Calm down

    I live in Scotland. I seem to recall a 70s television program which regularly featured extreme scenes of large farming animals being 'fisted' by a Scottish gentleman resident in the north Yorkshire area. If any television station happens to show re-runs of 'All creatures great and small' after the law comes into force, I will certainly be paying a visit to my local police station to make a complaint.

  24. Anonymous Coward
    Grenade

    Blank BLANK ! OMG it's Blank.

    So pictures of deep fried Mars Bars? Smut? Super smut?

    We need to know what we're not supposed to have piccy's of.....

    Still obviously the SNP spokes person was bit muffled...I'm sure it's hard to give a press briefing when your both talking out of and stuffing your own head up your orifice. Kudos for trying though.

  25. Anonymous Coward
    Anonymous Coward

    who cares

    The law itself is abhorrent, and no amount of "clarification" will make it any more palatable to thinking people. It is in fact above and beyond state censorship, it is the states direct intervention into your personal sexual gratification and fantasy.

    But the masses are for the most part sub human, and politicians little more than media puppets dancing on the strings of who ever shows them in the best light. There is no politics any more, simply media circus.

    Why do I say who cares? Well there isn't a damn thing thinking human being can do about it, we can prattle on but nobody will listen, at best your ignored, at worst you attract labels of deviant and find yourself on the sharp end of an investigation.

    This particular plague of state intervention in peoples lives is now gaining traction across the western world. Despite evidence showing the opposite of what the moral sub standard would have you believe. Just look at Japan a land of filth, where now over 20% of males under 20 are not interested in real sex, and 45% of females. So instead of turning young people into sex mad rapists it seems that people get bored of the notion of sex (which I could say is also bad particularly for western nations as our birth rate drops ever faster and our populations continue to age.)

    Anyway I'm going to have a coffee. Then go home, and watch Melody of Oblivion.

    1. Anonymous Coward
      FAIL

      Fail

      "it is the states direct intervention into your personal sexual gratification and fantasy."

      It doesn't block your personal fantasies. Just prevents you from photo-documenting them. Or borrowing anyone else's photos. Or drawings/moldings/statues/etc likely. Perhaps you wouldn't mind so much if it was your sister (or wife, lover, etc, whatever) that was kidnapped and abused to produce such candids, due to demand for such, but no one willing to volunteer for the job of content creation? That's the thing about extreme porn: someone has to be in them, consenting or not. And just like snuf films, there's an element that will commit collateral crimes to produce them. Blocking the content consumers (theoretically) will prevent such related crimes.

      Whether this line of thinking is correct or not is not the point. The point is that this is likely what the politicos are thinking.

      1. Graham Dawson

        A leap

        The bit where you jumped from personal photodocumentation to kidnapping sort of proves that the law is dumb. Kidnapping and rape, and the documenting of said acts, are already illegal.

      2. Intractable Potsherd

        Also...

        ... there is absolutely no evidence that a true "snuff film" has ever been made. It seems to be just another tabloid fiction that has made its way into the mainstream.

  26. Ken 16 Bronze badge
    Megaphone

    Why no?

    Just gunnae no!

  27. Badbob
    Coat

    No sex with animals?

    It's going to take an awfully big prison to contain all the web-browsing residents of Aberdeen!

    Mine's the sheepskin one!

  28. Anonymous Coward
    Anonymous Coward

    Puzzling

    >"We do not publicly disclose our prosecution policy in relation to specific offences as to do so may allow offenders to adapt or restrict their behaviour to conduct which falls short of our prosecution threshold."

    That's like having speed limits but not saying what they are just in case motorists adapt their driving to avoid a speeding ticket, so I assume there are no speed limit signs on Scottish roads.

    And I always thought the legal system in Scotland was more sensible than the English one.

    1. da'squid

      Not at all

      Now what you've written here Chris is crap. See, it's not like that at all. What they're saying is yes there are speed limits, here's what the limits are, but no, we're not going to tell you how far over the limit you can go before we'll take the time to prosecute.

      Big difference.

      1. Anonymous Coward
        Anonymous Coward

        @da'squid

        Muppet.

        Itś exactly as Chris wrote it. Remove all limits, law says it's illegal to drive dangerously fast but we won't tell you what we consider dangerous because you might adapt.

        It is EXACTLY why the speed and alcohol limits are actual numbers, not abstract notions.

        But wait, it gets better! In reality, it is much more vicious . It is like putting up 40 speed limit signs and passing a law saying that owning pictures of cars going UNDER 40 but over an undisclosed limit can get you done.

      2. Anonymous Coward
        Anonymous Coward

        @da'squid

        >Big difference

        I would agree with you if it weren't for the propensity of current law enforcement agencies to equate limit and threshold, hence the difference is nonexistent.

        Also my example may have been too black or white. When it comes to classifying an image there isn't the same mathematical precision that can be applied so to refuse point blank to give any guidelines or indication as to what is or is not legal is unacceptable.

  29. Anonymous Coward
    Anonymous Coward

    lets just bin them (all)

    Who the fck do the scottish governent think they are??

    Beyond pics of those below age engaging in sexual acts, anything private between two consenting adults is of no concern to law makers, police, friends, neighbours, family members, etc.....

    1. Peter Gathercole Silver badge

      Consenting adults

      Is it the consent, or the adult part that you think protects you from prosecution?

      God forbid that you engage in sex with a consenting 17 year and 11 month old partner, and take some pictures, because although the act is legal, the pictures aren't!

  30. Anonymous Coward
    Thumb Down

    Back to pre-Hammurabi timess...

    125 AD? Try 1728 BC.

    http://en.wikipedia.org/wiki/Hammurabi

    So our justice system is comparable to those from 3700 years ago.

  31. da'squid
    Stop

    All but one of you is dense...

    ... and that includes the article's author.

    The suggestion here is the Scottish authorities are refusing to disclose the law. That's simply bollocks. The law was actually referenced in the article, though it seems only one commentator above may have actually read it. The law is stated in black and white, it's not hidden, secret, or anything else. What the authorities are refusing to say is how far over the threshold one needs to be before they will actually prosecute. So, taking the 30mph speed limit analogy... if you do 31mph you are breaking the law, you are an offender. But you may not be prosecuted until you do 30+x mph, and it's 'x' the authorities are declining to disclose because as they quite rightly observe that would encourage potential offenders to go above the legal threshold while remaining under the prosecution threshold. Jeez, it's not rocket science folks!

    I'm on the side of the authority's decision here. As to whether I agree with the law itself is not something I'm sharing to be clear about that.

    1. Graham Marsden
      FAIL

      @da'squid

      Nobody here is dense but you.

      As with the English version of the law there are a vague and ill-defined set of stipulations that:

      "An image is extreme if it depicts, in an explicit and realistic way any of the following—

      "(a)an act which takes or threatens a person’s life,

      "(b)an act which results, or is likely to result, in a person’s severe injury,

      "(c)rape or other non-consensual penetrative sexual activity,"

      The first problem here is that just because it is "realistic" does not mean it is *real*! Consequently a staged photograph which was actually taken will every possible safety precaution observed could *still* fall foul of this law because it is "realistic".

      The second problem is what "threatens a person's life"? This is entirely subjective and relies on someone's *opinion* of what it looks like is happening in a picture, instead of what *actually* happened.

      Look at some Goth imagery and you'll often see pictures of young ladies in erotic poses in floaty white dresses who are being threatened with knives of have apparently had their throats or wrists cut because they're covered in (fake) blood. Now again if that looks "realistic" it could be covered by this law even though nobody was harmed in the making of that picture.

      The same goes for "severe injury" which, in the Scottish case is even broader than the English law which at least only covered injury to the "Breasts, Genitals or Anus", meaning that a picture of someone who has (consensually) been caned leaving bruises and raw skin on their buttocks could be adjudged to be of someone who has sustained "severe injury".

      Finally the "rape" clause has the same problem in that if it *looks* like rape, it's illegal, no matter that, again, its a staged act between consenting adults.

      Consequently what you have is a law where what is or is not illegal is *not* in any way clearly defined, so it's not a case of "how far over 30mph you are" it's a case of "Yes, M'lud the defendant was, in my personal and entirely subjective opinion, driving too fast, so he's guilty."

      PS You're right that it's not rocket science. Rocket science deals in precise statements and accurate measurements, not "how fast do we need the rocket to go?" "I don't know, let's just see what happens when we try to launch it..."

      1. Anonymous Coward
        Anonymous Coward

        @Graham Marsden

        You are missing the point.

        The Prosecutors Do Not Make The Law. Prosecutors cannot give guidelines on what is legal or not -- that's for the government and the courts to decide.

        They are right to refuse to answer the question as posed.

        Here are some questions that would be declined on the same grounds:

        1) How fast do I have to go above the speed limit before you'll charge me with speeding?

        2) How many times can I punch someone and get off with a police caution rather than landing up in court?

        3) How many ecstasy tablets can I carry around to sell at a party before I'm carrying enough to be done with "possession with intent to supply".

        Or, at the risk of being distasteful...

        Dear Mr Prosecutor,

        There's this burd that I fancy but she won't sleep with me. What is the threshold of evidence below which I can force myself on her without risk of you referring it to court?

        Thanks!

        1. Intractable Potsherd
          Stop

          But, AC, ...

          ... they are *exactly* the type of things that the prosecutors should be telling us, or at least giving guidance on. If there is a "margin of appreciation", we have the right to know it so that we can be sure what the consequences will be. At the moment, they are just saying, "Well, you know, it sort of depends on who it is, whether the newspapers might pick it up, and whether we need a PR coup at the time. We don't give a fuck whether these are really relevant to the pursuit of justice, we just want to make sure that it works to our advantage. After all, if it is one of us, or one of our paymasters that is caught, we don't want to have to do anything, but if it is some teacher somewhere, so that our staff can get their faces on TV, we want every possible chance to do that".

        2. Anonymous Coward
          Anonymous Coward

          @AC, RE: Graham Marsden

          "1) How fast do I have to go above the speed limit before you'll charge me with speeding?"

          This information is already public. The CPS wanted to change the numbers a few years ago and it went to public consultancy. See

          http://www.speedlimit.org.uk/faq.html or this from 2004: http://news.bbc.co.uk/1/hi/talking_point/4054373.stm

          "2) How many times can I punch someone and get off with a police caution rather than landing up in court?"

          That is a matter for the Police, not the CPS. In actual fact it is a matter for the police officer(s) who attend the initial claim of punching.

          "3) How many ecstasy tablets can I carry around to sell at a party before I'm carrying enough to be done with "possession with intent to supply"."

          (a) there are already guidelines regarding drug possession and what is treated as personal use and can be dealt with under a caution, depending on a number of factors.

          (b) the phrase "to sell" will make it possession with intent to supply regardless of the amount. Some guy got 3+ years in pokey cos he and his 2 mates were in a club and he went and bought 3 tablets from a dealer - on being arrested he admitted two were for friends so they banged him up for intent to supply.

          (distasteful)

          Again, you use the phrase "force myself on her" which indicates either a pre-admission of attempted rape or an admission of conspiracy to rape. So case closed.

        3. Graham Marsden
          Boffin

          @AC

          No, you are failing to understand the point. To answer your questions:

          1) In order to ask this question you first have to know what the limit *IS*. The Scottish law effectively simply says that the limit is "too fast".

          2) You say "the prosecutors don't make the law" but then you give an example which seems to suggest that the Police do! (They don't of course)

          3) There are Home Office Guidelines on the amount of drugs above which someone can be classed as having "possession with intent to supply".

          4) This is not just distasteful, it is stupid and irrelevant. The offence is you forcing yourself on someone else without their consent, that is the limit which is clearly defined in law, unlike the definition of so-called "Extreme Porn" which is *not* defined.

  32. Dave 15 Silver badge
    WTF?

    What a mess

    So a law that you could be breaking without knowing because you have no idea what the border line is? Its a bit like saying 'theres a speedlimit on this road, we won't tell you what it is but we will lock you up if you break it"

    Clearly the obvious answer is to publish a website with the banned images on it so people can look and see what is considered naughty - they could print it into magazine form as well.

  33. zhub
    Linux

    To paraphrase Ogden Nash

    Smite, Crown Office, smite for Scot.

    Grit your molars and do your lot.

    Gird up your loins, smite hip and thigh.

    We'll all be Scotland by and by.

    .

    The Crown Office is an institute

    Not to be bribed with pelf.

    Who's to say what

    Defines it as smut

    Is known but by itself.

    .

    Smite, Scot

    Be rugged and rough.

    Smut, if smitten,

    Is front-page stuff.

    1. unitron
      Pint

      A salute from Smoot!

      Nice to know there's a fellow Nash-manian in the crowd.

  34. King Jack

    Blake's 7

    Reminds me of an episode of Blake's7. The Prison Ship officer gives the induction speech. Then says '...there are other rules, but you'll find out what they are when you break them'.

    Now it's a real law. I'm glad that I'm mortal.

    1. Anonymous Coward
      Thumb Up

      My School

      Thanks for the Blake's 7 reference. There aren't enough of them. We need more Blake's 7 references.

      As for being left in the dark about what the rules are until you break them, it reminds me of the state comprehensive I attended (in England), back in the eighties. They had the same policy.

      IIRC, the same teacher who told us this also told us how lucky we were to be living in a free country, because we didn't have to pretend to be happy.

  35. serviceWithASmile
    Thumb Down

    someone please tell me

    that we will get a straight answer *before* they start hauling people up for it?

    ask a stupid question....

    1. Graham Marsden

      @serviceWithASmile

      Given the nonsense that's happened with the English law (the Tony the Tiger case for example) what do you think...?!

  36. Boris the Cockroach Silver badge
    Flame

    Right I'm off

    to make a complaint when the law is introduced.

    All those pictures painted featuring 'The rape of the Sabine women' should be banned since many of them depict nudity and non-consensual sex.

    And a couple of them feature semi naked children too.

    On the bonfire with them all!

    1. King Jack

      The Crucifixion

      Don't forget the graven images in Christian churches. I clearly shows a man on a cross being tortured to death. I believe some of them are very realistic.

  37. Eduard Coli
    Big Brother

    It's about time

    That AirStripOne got onboard with thoughtcrime.

  38. Richard Porter
    Pint

    Scottish Smut?

    I thought Robert Burns wrote most of it.

    (topical or what?)

  39. Mr Young
    Grenade

    Another layer of politicians = more cost

    See Title^

  40. Mark .

    mad law

    "This law is, I presume, to protect against pornography created where one or more participants are being forced into it,"

    Well, you might think so - but sadly no. Despite some scaremongering about snuff films and an alleged trade of non-consensual porn (for which no evidence exists), the politicians supporting this law were well aware that it would criminalise images of staged and consensual acts.

    Their justifications were that either people possessing the images would become violent criminals, or simply that the images are "disgusting" and therefore it's okay to lock people up.

    "Nope, see if you actually read the law, you'd see that what you have written here is simply untrue. A legitimate defense is if you directly participated in the act, and it was in fact, consensual. See section 51c."

    But it's still illegal for even the person taking the video to possess it. It's illegal if you're a threesome, and you share the images private with the third person in your menage a trois.

    "Of course removing the speed limit signs is not an exact analogy. The analogy would be the police not declaring just how far you have to be over a speed limit before they will prosecute."

    But you can still play safe by obeying the speed limit, and that still doesn't unreasonably infringe on people's driving ability. What is the analogy with this law?

    I mean yes, you could never possess any sexual images, or go near any website that might have them... which come to think of it, is exactly what supporters of this law want.

  41. Anonymous Coward
    FAIL

    Malfeasance...

    ...in public office?

  42. Anonymous Coward
    WTF?

    "depiction of "rape or other non-consensual penetrative sexual activity"

    Hundreds, if not thousands of cinema releases will be illegal then?

    1. Ammaross Danan
      FAIL

      Guess so.

      I guess so. That, or they've conveniently blocked out the underlying motive of the Death Wish movie series....

    2. Greg J Preece

      Perfect Blue

      That would be an interesting one. It's got a group rape scene, except that the rape scene in the movie is staged - it's part of a movie being made, within the movie. It'd be pretty ironic if that got banned.

    3. Anonymous Coward
      Big Brother

      @"depiction..."

      "Hundreds, if not thousands of cinema releases will be illegal then?"

      Oh no, it's not that easy! There is an exemption for films certificated by the BBFC - but only for the whole film. So if you print off a still image or take a clip - you could still find yourself behind bars.

      1. Anonymous Coward
        Anonymous Coward

        Thing about bbfc certification

        The Lair of the White Worm was bbfc classified, however if you want it on dvd then you have to buy it from mainland Europe, which is exactly the same film but without the bbfc stamp. On VHS it's fine.

        This is an old Hugh Grant flick with a hallucination where nuns are stabbed and raped.

  43. Anonymous Coward
    Anonymous Coward

    Clear enough.

    The reason they won't help people comply with the law is because they aren't banning the porn, they're banning the people who they feel must be bad people for ever wanting to view this kind of porn. If these people obey the law they'll never get to lock them all up for the hideous crime of thinking that sex can be anything but putting a penis into a vagina.

    Old school bigotry is all it is. Same ones who locked people up for cunnilingus back in the fifties.

  44. Semaj
    Terminator

    Arms Race

    Is this like some kind of weird "I can do a better law than you" competition between all the Western nations or something? It's getting absolutely ridiculous now.

    Machines cause it's getting to the point where we'd be better off with them in charge.

  45. JaitcH
    Happy

    Scotland bans smut. What (is) smut?

    A Welshman, wearing Wellington boots chasing sheep might test a kilt wearing Scotsman fattened on haggis.

    Difficult to know what might constitute 'community standards' by people dressed in female attire and without underwear.

  46. nsld

    They have to issue charging standards dont they

    Even the CPS issue and publish charging standards to help prosecutors and the public and its all on there website, dont the Scottish do the same?

  47. Equitas
    FAIL

    Isn't this the same legal system ....

    that allowed a sheriff to publicly name individuals he had never seen and had never been charged with any offence, but nonetheless declared to be conspirators to pervert the course of justice?

  48. Spender
    WTF?

    "allow offenders to adapt or restrict their behaviour...

    ... to conduct which falls short of our prosecution threshold"

    Isn't this the point of laws?

  49. Anonymous Coward
    Boffin

    Great vengeance and furious anger

    Almost all the posters here live outwith Scotland, yet why do so many play the role of the aggrieved? This statute won't affect you: rest easy, padres.

    Many comments, I suspect, are about more than just pornography law-making; there's no mistaking the undertone.

    1. Sarah Bee (Written by Reg staff)

      Re: Great vengeance and furious anger

      Yeah, I make a point of not caring about anyone but myself, generally...

    2. Graham Marsden
      FAIL

      @Gerhardt

      Oh, well, yes, now you say that it's obvious that our opinions should be:

      "It doesn't affect me, so I'm alright Jack and screw anyone else!"

      1. Anonymous Coward
        Anonymous Coward

        @Gerhardt

        Using the same logic we shouldn't comment on articles about Americans who use a shotgun to loosen wheel nuts and lose their own nuts when the shot ricochets.

        Not going to happen.

    3. Anonymous Coward
      Anonymous Coward

      Because

      I have lived in Scotland before and may do so again. Moving back and forth across the border is pretty common and easy. However, if this law remains on the books then I never will again.

  50. Winkypop Silver badge
    Stop

    Stop it !!!

    Or you'll go blind....

  51. Loyal Commenter Silver badge
    Joke

    "... (and any sex at all with animals)"

    I take it then, that our Scottish cousins are all members of the vegetable kingdom?

  52. Anonymous Coward
    Boffin

    Everybody rates Chris?

    Indeed, Mr W. You've the freedom to condescend to every nation under the sun, if you so choose.

  53. Maryland, USA
    Thumb Down

    "I can't define it, but I know it when I see it"

    A few years ago, in Virginia (USA), the Washington Post revealed that a boys' baseball league refused to let parents read the game's rules. The league's director claimed, "If we let them see how we make our rulings, they'll quibble with our calls."

  54. ph0b0s

    State certifed porn

    With stuff like it is OK as long as the BBFC have certified it. You can see where this is going. BBFC certified porn. You can only look at stuff that has a BBFC cerificae on it. No more porn from the internet for you. The porn industry would love this as potential pirates would also be sex offenders as well.

    ,

    I know a bit conspiracy theory and and full of hyperbole but that's the mood I'm in at the moment,

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