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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