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Sean Gabb on Telephone Video Nasties, Child Pornography, and the Extraterritorial Jurisdiction

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  • Dr Sean Gabb
    Free Life Commentary Issue Number 140 Thursday, 29 September 2005 http://www.seangabb.co.uk/flcomm/flc140.htm The Difference between Doing and Looking:
    Message 1 of 1 , Oct 1, 2005
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      Free Life Commentary
      Issue Number 140
      Thursday, 29 September 2005
      http://www.seangabb.co.uk/flcomm/flc140.htm

      The Difference between Doing and Looking:
      Reflections on the Case of Subhaan Younis
      by Sean Gabb


      While having coffee with Dr Tame yesterday [28th September
      2005], I did a brief telephone interview with BBC Radio
      Oxford. The issue I was called on to discuss was whether
      it was right for a certain Subhaan Younis to be sent to
      prison for 60 days for having shown someone a video clip
      on his mobile telephone of a beheading in Iraq.

      My answer to the question was no. I agreed that to seek
      out and take pleasure in such images showed a singular
      depravity of mind. I also agreed that to show such images
      to someone who had not agreed in advance to look at them
      was at least in bad taste. But I disagreed with the man's
      being sent to prison. By all means, I said, let him be
      named. Let others know the depravity of his mind, and let
      him be shunned by the respectable on account of that. But
      no one should be punished for merely looking at or even
      publishing things that others might find offensive.

      Of course, there is the matter of procurement. If this man
      had commissioned the beheading so that he might look at
      pictures of it, it would be right to prosecute him as an
      accessory to murder. However, so long as no such
      connection could be shown, he should not be sent to prison.

      Then there is the matter of showing the images to someone
      who had not consented to look at them. According to the
      newspaper reports, the person to whom they were shown was
      shocked and upset. Here, though, while there might be some
      question of an action for the tort of nervous shock, I
      fail to see anything that ought to be regarded as a
      criminal matter. Mr Younis should not be in prison. He
      should be released now he is there.

      And that was the whole of my radio discussion. I spoke
      clearly and firmly, and no one asked me any hard
      questions. In any event, the whole item took up only about
      five minutes, and there was no room to develop a full
      argument or to answer full objections. All I managed in
      the time was to outline the distinction, on which
      libertarians mostly insist, between doing and looking. But
      there is more to be said - as I realised afterwards in a
      long dissection of the issues with Dr Tame. Indeed, the
      Younis case is of little importance compared with the
      larger issues into which its discussion leads.

      What Criminal Act?

      Let us begin with the question of whether Mr Younis had
      committed any act that could be regarded as criminal.
      There is an exception as regards acts against the whole
      community. But where common crimes are concerned, it is
      fair to insist that when no individual victim can be
      identified, there can be no crime. I have no idea what
      motivated Mr Younis to show that image. He might have been
      trying to illustrate the horrors of Moslem terrorism. Or
      he might have believed in the accurate presentation of
      reality - as opposed to the sanitised, or censored,
      imagery provided on British television. But his name is
      Asiatic, and he could be one of those citizens of
      convenience - that is, someone who values his British
      passport purely for the material comforts to which it
      entitles him, who does not share our national ways, and
      who knows enough about us only to hate us. If so - and I
      say at once I have no evidence to believe it really is -
      he would fall into that large class of persons whose
      presence among us is becoming a problem that needs at
      least to be honestly discussed.

      However, this being raised, let us put it aside and
      concentrate on whether he can be regarded as a common
      criminal. Here, we need to identify a victim. It was not
      Mr Younis himself. His possible moral corruption is not so
      much effect of the video clip as cause of the faults that
      led him to seek it out in the first place. So how about
      the woman to whom he showed the image? Can she be called
      the victim of an assault?

      I do not think so. Mr Younis showed her something that she
      found upsetting. But let us be reasonable. What he showed
      her was most likely a jerky, pixellated video clip, and it
      must have been displayed on a screen of no more than one
      inch by one and a half. Any person of reasonably firm mind
      should have been more upset by a good newspaper report.
      Even applying the civil burden of proof, in making out the
      tort of nervous shock, I do not think it reasonable for
      him to have anticipated so extreme a reaction. Unless the
      accounts I have read of the incident have left out
      something important, I fail to see how showing that video
      clip could have been taken as an assault - or even the
      breach of the peace for which he was punished.

      Procurement and Agency

      The publisher and viewer of the clip being excluded as
      victims, let us turn instead to the unfortunate subject of
      the clip. Can we say that Mr Younis had in any sense
      procured his beheading? As said, there is no doubt that
      the direct procurement of images that show illegal acts
      should in itself be a crime. If I have a man killed for
      the sake of having his death filmed, I ought rightly to be
      charged as an accessory to murder. But how about what may
      be called indirect procurement - that is to say, how about
      acts that fall short of commissioning a criminal act, but
      which still contribute by a possible chain of inference to
      the committing of similar acts in the future?

      This is an argument that frequently arises when people are
      found guilty of collecting pornographic images of
      children. We are told that while they may not have
      commissioned the specific images found in their
      possession, they have provided through their act of
      purchasing an incentive for the creation of similar images
      in the future. Does that argument apply in this case?

      I do not think so - and that is granting its validity as
      an argument. There is nothing in the newspaper reports to
      show that Mr Younis had paid to obtain his video clip. Nor
      is there any reasonable chance that the Iraqi resistance
      group had beheaded someone with a view to selling the
      video footage. Nevertheless, while there is no reason to
      assume any financial incentive, the footage was released
      in order to attract approval and support outside the
      resistance group.

      Motivation

      Does Mr Younis support the Iraqi resistance? Did he
      approve of the beheading? The newspaper reports I have
      seen give no answer to these questions, and I have no
      evidence for thinking greater ill of him than I do for
      simply possessing and showing the video clip. But let us
      for the sake of argument suppose that he does support the
      Iraqi resistance, and that his support was quickened by
      sight of the beheading. Does this change matters? Could it
      be argued that the intention of the beheaders to gain
      approval and his granting of public approval did create a
      sufficient nexus to justify an accusation of indirect
      procurement?

      I do not think so. It may be wrong to support the various
      groups resisting the American and British occupation of
      Iraq, and to glorify their acts. But this must be regarded
      as fair comment on events of public importance. To magnify
      any such comment with video clips of an atrocity is
      irrelevant. I know that the British Government is trying
      to create a new offence that will cover expressions of
      support for irregular political violence. But this is
      political censorship. It is the modern equivalent of the
      seditious libel laws that were used in the 1790s to stifle
      the support of some English radicals for the French
      Revolution. If applied consistently, the proposed law -
      indeed, the breach of the peace law used to punish Mr
      Younis - could be used to punish my own view that the
      Iraqi resistance groups stand in a tradition that leads
      through the Guerillas of the Peninsula War and the French
      Resistance of living memory. To answer yes to the above
      question is to sanction as close a censorship of the media
      as we have known in this country since the expiry of the
      Licensing Act.

      Should Possession Ever be a Crime?

      But while I think I have answered the specific question of
      whether Mr Younis should have been sent to prison for
      showing that video clip, I have done so in a way that
      avoids what Dr Tame and I take as the wider and much more
      interesting question - of whether any possession or
      publication should in themselves be treated as crimes.
      What happened yesterday to Mr Younis was an act of
      disguised censorship, and I can join with the media class
      in deploring this. But I am drawn to discuss it by the
      general principle that some are using to justify his
      punishment. Should possession or publication be treated as
      crimes in themselves?

      The Case of Child Pornography

      Let us turn back to the issue - raised above - of child
      pornography. This is presently seen as the most revolting
      and indefensible kind of publication. As such, it is the
      perfect example for answering my question. I do not accept
      the standard English mumble about "not carrying arguments
      to an extreme". It is precisely in its extreme
      applications that an argument is most effectively tested.
      If it fails that test - if it collapses into absurdity at
      the extreme - the argument is to be rejected. If it holds
      up, it is at least internally consistent. So, should it be
      a crime to possess or publish child pornography?

      Dealing first with the issue of possession, my answer is
      no - this should never in itself be a crime. Possession
      should be acceptable as evidence of direct procurement of
      children for sexual acts. But without that nexus,
      possession should not be a crime. If the possessor of
      sexual images involving children cannot be shown to have
      had contact with those involved in the creation of the
      images, there has been no act that can be reasonably
      described as criminal. After all, where no aggression can
      be identified, no crime can be imputed.

      There is also the argument of procedural honesty - that to
      make a crime of possession is to give the police even
      greater scope for corrupt and oppressive behaviour than
      they otherwise enjoy. To prove an offence of publishing
      usually requires objective evidence that is difficult to
      fabricate. To prove an offence of possession requires the
      unsupported word of a police officer or some agent of
      provocation. I do not think, at this late stage in our
      national decline, I need to bother with arguing that the
      police are corrupt and oppressive. It is notorious that
      the police in this country have a long history of
      "stitching up" individuals by planting whatever items may
      currently be demonised. Anyone who believes they are
      uniformed civilians, paid to do the job that we might, if
      so inclined, do for ourselves of protecting life and
      property, has never read a newspaper - or, for that
      matter, much history. On this ground alone, the crime of
      possessing "indecent" images of persons believed to be
      under the age of sixteen - first introduced, I think, in
      the Criminal Justice Act 1988 - erodes the safeguards
      against unjust prosecutions far more than it protects the
      rights of children.

      But there is a more fundamental objection. We can grant
      that products should be made illegal so far as their
      creation involves illegality. This would then justify
      criminalising the mere possession of child pornography.
      But it would also justify criminalising the possession of
      clothes made with child labour, or the consumption of
      electricity made with coal dug out of the ground by
      workers who are effectively slaves. The principle is the
      same in all cases. Possession proves purchase. Purchase
      rewards creation. Creation involves what by our laws is
      illegality. Thus we have a connection of sorts linking
      creator to possessor. Yet almost no one suggests that
      buying clothes made in Bangladesh should be a crime, or
      the burning of coal imported from Colombia. We have here
      an argument that does collapse at its extremes, and that
      ought therefore to be rejected. If its principle is
      applied selectively, it is because those pressing it
      object more to the pleasure that some adults get from
      child pornography than to the alleged harm to children
      involved in creating it. For all the talk about protecting
      the young, the real object is to police the imagination.

      I turn now to publication. And here, for the avoidance of
      doubt, I will say that I do believe there should be some
      age of consent, and that those below it should be
      protected from sexual use by adults. That is the only
      ground I can see on which laws against child pornography
      can reasonably stand. But this does not justify the laws
      against publication in itself that we now have. If a
      publisher can be shown to have procured the creation of
      images that involve criminal acts, he is to be regarded as
      an accessory to those criminal acts. But what if he has
      not procured them? Suppose I find a magazine lying in the
      road one day, and this contains child pornography; and
      suppose I then pass this to you. In the technical sense I
      shall have published child pornography. But does this mean
      I should be treated as a criminal?

      I do not think so. As I said yesterday about Mr Younis,
      where no connection can be shown to its original creation,
      there should be no crime in publication. Or, as I have
      just said above - where no aggression can be identified,
      no crime can be imputed. The argument that buying what is
      already in being encourages the creation of more is
      invalid, so far as it muddles the necessary distinction
      between identifiable and prospective victims.

      Moreover, my understanding is that child pornography is
      created for the market mostly in places like Russia and
      Latin America and the Far East. These are outside the
      traditional jurisdiction of our courts. And I think it
      highly dangerous to go any further than we so far have in
      the granting of extraterritorial jurisdiction. We have
      gone too far already. Unless we are to consent to the
      growth of an unaccountable and increasingly tyrannical
      body of international criminal law, we should insist on
      principle that acts committed elsewhere in the world ought
      not to be the business of our own criminal courts. For the
      same reason we should insist that those accused of
      criminal acts in this country should not be extradited to
      face trial elsewhere in the world - and that therefore our
      Government should refuse to implement the European Arrest
      Warrant, and should denounce the treaty signed a few years
      back with the United States of America.

      National Sovereignty and Law

      I suspect most of my readers will agree with these two
      last points. But there are problems with the refusal to
      countenance any extra-territorial jurisdiction. Does this
      mean that, if a man living in this country should directly
      procure the filming of a rape and murder in France, he
      should not be subject to prosecution in this country? Does
      it mean that Egyptian nationals living in this country
      should be able with impunity to procure the assassination
      of the Egyptian President in their own country?

      With regard to the second question, I can argue that, as a
      matter of policy, we should not allow foreigners into this
      country who are likely to complicate our foreign
      relations. And any who are found plotting here should be
      expelled at once - regardless of what punishment they can
      expect in their own countries. But answering the first
      question is difficult. Before the law was changed in 1858,
      in response to the Orsini bomb plot, there was no crime of
      conspiring to break the laws of another country. Nor,
      until the Fugitive Offenders Act of later in the century,
      was there any means of sending suspects from this country
      to face trial in another country.

      I sympathise with the old concept of an absolutely
      separate territorial jurisdiction. On the other hand, the
      concept was applied in a world where, having regard to the
      state of communications, France was more distant from
      England than China is today. Paris is now within a three
      hour railway journey from Waterloo Station, and the price
      of telephone calls to anywhere in the world is heading
      toward zero. Perhaps the concept is no longer applicable
      in its strict sense. Perhaps, then, there is a case for
      laws to punish the direct procurement of crimes in another
      country. This would cover publishers who commission
      pornography from anywhere in the world. It would also
      cover people - such as Mr Younis is almost certainly not -
      whose approval of terrorist acts abroad amounts to
      commissioning. As said, such laws might not cover Mr
      Younis. But they would cover those hyphenated Americans
      who have spent the past 30 years contributing financially
      to the Fenian insurrection in Ulster.

      But this takes me further from the case of Mr Younis than
      I intended to go. I will conclude by repeating that he
      should not have been sent to prison on the basis of the
      facts reported in the newspapers. Nor should he have been
      sent there on the basis of any argument I have seen made
      or can imagine being made. I do not know Mr Younis. I have
      no sympathy for him. But this is irrelevant to the
      question of his punishment. What is relevant is to recall
      the words of John Lilburne as he was led out to
      punishment: "What they do to me today, they may do to any
      man tomorrow."

      Mr Younis should be released.

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