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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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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.

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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.

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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.

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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.

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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.

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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

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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?

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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????

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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?

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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?

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What an excellent analogy!

What an excellent analogy!

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Pint

hmm

sounds like sedition to me.

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@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.

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@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".

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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.

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@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.

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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.

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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?

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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.

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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.

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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.

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@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.

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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".

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@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.

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@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.

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@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.

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@Chris W

Films with certificates are exempt.

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@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...!!

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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

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@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?

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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.

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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.

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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.

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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...

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Joke

This is an outrage

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

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

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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.

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@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.

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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?

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is it a case of..

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

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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.

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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.

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Sarcasm detector obviously needs a reboot....

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

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Joke

Does that mean

that my UpKilt website pictures are now illegal?

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Please

We can only hope...

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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?

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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!

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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.

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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.

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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.

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@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! ;)

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