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CAAN Scotland EP FOIR Results

Posted by C_A_A_N on Sat 18 Feb 2012 to C_A_A_N's blog

CAAN Scotland recently completed a Freedom of Information Request detailing the history of the extreme pornography legislation in Scotland. The request was originally for:

Becky Dwyer wrote:
  • 1) Discussions and correspondence that led to the development of the original 2005-06 consultation on extreme pornography.
  • 2) Responses to the Revitalising Justice consultation relevant to the provision at section 42 of the Criminal Justice and Licensing (Scotland) Act 2010 concerning extreme pornography
  • 3) Documentation that supports the Scottish Government's position that the extreme pornography legislation is compatible with the European Convention on Human Rights

A total of 29 documents were released: 10 responses to the Revitalising Justice consultation, 15 other correspondance documents, and 4 meeting minutes. While we were hoping to find out what exactly constituted "evidence" in the construction of this law, a great number of documents are excluded from the Freedom of Information (Scotland) Act, including correspondence between ministers. The official handling the request indicated that Westminster held documents that may be related as well.

The request regarding the ECHR compatibility was rejected because of section 36(1) that states that legal advice does not need to be released. This was repealed, and the decision upheld by the Scottish Information Commissioner because nothing but nothing trumps legal confidentiality. The decision should be posted on the Scottish Information Commissioner's website (eventually).

The documents have not yet been posted online, but if you contact CAAN or Skyfox, we'll get a digital copy of them to you.

Some basic observations regarding the documents:

Although these documents are not yet online (if you can put them online, PLEASE get in contact!), a brief summary of all documents online was provided. None of this should be new.

Patrick Down wrote:
In 2005 the then Scottish Executive undertook a joint consultation with the Home Office on proposals to criminalise possession of extreme pornographic images (see An overview of the evidence concerning the effects of pornography is contained at Pages 8-9 of that consultation.

Scottish responses to that consultation are available at: where the respondent agreed to their response being made public.

The then-Scottish Executive published an analysis of the responses to that consultation in 2006. It is available at:

As you will be aware, provisions on extreme pornography were subsequently included in the Criminal Justice and Licensing (Scotland) Bill, introduced in Parliament on 5 March 2009 (see for an overview of Parliamentary consideration of the Bill.)

The Standing Orders of the Parliament require that a Bill introduced by the Executive must be accompanied by a Policy Memorandum setting out:

(i) the policy objectives of the Bill;

(ii) whether alternative ways of meeting those objectives were considered and, if so, why the approach taken in the Bill was adopted;

(iii) the consultation, if any, which was undertaken on those objectives and the ways of meeting them or on the detail of the Bill and a summary of the outcome of that consultation; and

(iv) an assessment of the effects, if any, of the Bill on equal opportunities, human rights, island communities, local government, sustainable development and any other matter which the Scottish Ministers consider relevant.

The Policy Memorandum can be found on the Parliament website at: (pages 24-27)

The Scottish Government also published an Equality Impact Assessment for the Bill. The assessment of the extreme pornography provisions can be found at

I am afraid I am not aware of the Justice Committee having a 'reading box' of material relating to the Criminal Justice and Licensing Bill. It may be that this was intended as a reference to the written evidence submitted to the Committee in response to its call for evidence on the Bill (see

Responses to the Justice Committee's call for evidence are published at:

The Justice Committee also took oral evidence on the Bill at Stage 1. The provisions on extreme pornography were discussed in evidence sessions on 26 May 2009, ( 2 June 2009, ( 9 June (

The Standing Orders of the Parliament require that the Lead Committee responsible for considering a Bill report to the whole Parliament on the general principles of the Bill. Their report on the extreme pornography offence can be found at: That report supported the general policy behind the extreme pornography offence while asking the Government a number of questions concerning the detail of the provisions.

The Scottish Government's response to the Committee's report is published at (pages 18-21 concern the extreme pornography offence).

The Stage 1 debate on the Bill at which the Parliament agreed to its general principles took place on 26 November 2009 (see

At Stage 2 of the Bill process, each section and schedule and the long title of the Bill is considered separately and the committee decide whether to agree to them. Consideration of the extreme pornography offence at Stage 2 can be found here:

The Stage 3 debate on the Bill took place on 30 June 2010 (see and the Bill received Royal Assent on 6 August 2010.

A Commencement Order was made on 7 March 2011 which will bring section 42 into force on 28 March 2011 (see . Guidance for the public on the new offence was published by the Scottish Government on 1 March and is available at

I appreciate that this information may not be new to you, but I hope it is helpful to set out in one place and in chronological order all the information considered by the Government and Parliament in legislating on extreme pornography.

[posted by @skyfox]

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