Guilty of a crime comitted before it was illegal?

Spook_ie

https://www.breakingnews.ie/ireland/man-admits-child-porn-possession-after-he-was-found-with-first-book-to-be-banned-here-in-two-decades-933356.html

Despite the reprehensible subject matter of child porn, if the book was legally available 4 months before it was banned, should he have been charged? and could it set a precedent of possession of something like a drug before it gets banned?

Mr Murrihy pleaded guilty to knowingly having in his possession the book at his home on November 28th 2015, four months before the book was banned by the censors as a result of the Gardai sending on the book.

blackwhite

Child pornography - including written pornography - was illegal long before this incident.

He wasn't convicted of owned/purchasing a banned book. He was convicted of possessing child pornography.

Thread title is extremely misleading

gctest50

"Det Garda Donal Corkery was giving evidence in a case where Clifford Murrihy (43) of Crovroghan, Kildysart, Co Clare admitted possession of ‘The Raped Little Runaway’ "

It was hardly a book on gardening

Thoie

Spook_ie wrote: »

https://www.breakingnews.ie/ireland/man-admits-child-porn-possession-after-he-was-found-with-first-book-to-be-banned-here-in-two-decades-933356.html

Despite the reprehensible subject matter of child porn, if the book was legally available 4 months before it was banned, should he have been charged? and could it set a precedent of possession of something like a drug before it gets banned?

It still came under the heading of child pornography, which wasn't legal at the time he had it. It sounds like the censorship board only became aware of that particular title because it was sent on by the guards. With all the self-published e-books on Amazon etc, you can't expect the censors to read every single book on the planet, in every single language. So he was charged with possessing child pornography, not with possessing a banned book.

hullaballoo

I don't think the thread title is misleading tbh. The Child Trafficking and Pornography Act 1998 has a lengthy definition for child pornography and it includes reference to books like the one here.

Without knowing all of the facts, it appears it may be the case that the book was found here in the window between the books lawful publication in the US (where this sort of thing may not meet the child pornography threshold and freedom of speech allows for the publication of all sorts) and the examination by the Censorship of Publications Board (or whatever body is now responsible for this examination).

You have to be very careful what you google in terms of trying to construct a reply to this thread btw. The CTPA 1998 is very broad and captures a huge amount of material.

blackwhite

hullaballoo wrote: »

I don't think the thread title is misleading tbh. The Child Trafficking and Pornography Act 1998 has a lengthy definition for child pornography and it includes reference to books like the one here.

Without knowing all of the facts, it appears it may be the case that the book was found here in the window between the books lawful publication in the US (where this sort of thing may not meet the child pornography threshold and freedom of speech allows for the publication of all sorts) and the examination by the Censorship of Publications Board (or whatever body is now responsible for this examination).

You have to be very careful what you google in terms of trying to construct a reply to this thread btw. The CTPA 1998 is very broad and captures a huge amount of material.

He was found with a book that constitutes child pornography in 2015 - approx. 17 years after the CTPA was brought into force.

Claiming that the crime was committed "before it was illegal" is incredibly misleading - 2015 is most certainly not before 1998!

L1011

The Censorship of Publications Acts only covered sale and import anyway I thought? Very clear that the CoPB ban had nothing to do with the crime here

hullaballoo

The process is inextricably linked to the CTPA under its definition of child pornography. If it's given certification by the Board, then even if it contains material that would otherwise be child pornography, it is excluded from the definition under the Act. There are books available that have such material in them but are nonetheless legal to possess here.

I assume there is a misunderstanding of what's involved in the OP but it's not as black and white as some of the replies suggest. Generally, books available for purchase in Ireland have already been through the process of examination by the Board. In this case, it's fudged by the fact that the Board were seemingly unaware of the publication until after the defendant here was caught with it.

We don't know all of the facts in this case in terms of how the book was published and how it came into the defendant's possession.

L1011

hullaballoo wrote: »

Generally, books available for purchase in Ireland have already been through the process of examination by the Board.

Huh?

The board absolutely do not proactively examine and approve content. They realistically only work on referrals for the past 30 years or so.

There was a recent period of 3 years where the "board" consisted of zero members , and didn't meet at all for 6 years - and we certainly had books published and imported during that time period!


Niall Collins claim that the Board ends up giving books publicity is true - I bought Alan Shatter's filthy novel because of the (rejected) referral to it :pac:

Spook_ie

Given that child porn act 1998

(d) any visual representation or description of, or information relating to, a child that indicates or implies that the child is available to be used for the purpose of sexual exploitation within the meaning of section 3 ,

irrespective of how or through what medium the representation, description or information has been produced, transmitted or conveyed and, without prejudice to the generality of the foregoing, includes any representation, description or information produced by or from computer-graphics or by any other electronic or mechanical means but does not include—

(I) any book or periodical publication which has been examined by the Censorship of Publications Board and in respect of which a prohibition order under the Censorship of Publications Acts, 1929 to 1967, is not for the time being in force,

(II) any film in respect of which a general certificate or a limited certificate under the Censorship of Films Acts, 1923 to 1992, is in force, or

(III) any video work in respect of which a supply certificate under the Video Recordings Acts, 1989 and 1992, is in force;

That if it hasn't been examined by the CPB (apparently legally obtainable in the USA) then how can he be charged given that there couldn't be an offence until it had been before the CPB? Or am I missing something?

Anyways, if wrong on that part, then what if I developed a hallucinogenic compound, that was legal (as in not being illegal) and 6 months later it was classified as a class A drug, could I be charged for possession if samples were taken before it had been classified?

L1011

That clause excludes books which have been examined and not given a prohibition order.

Books are not examined unless referred to them. So a non-examined book has no exclusion.

Spook_ie

L1011 wrote: »

That clause excludes books which have been examined and not given a prohibition order.

Books are not examined unless referred to them. So a non-examined book has no exclusion.

Which is the question I'm asking, until it's been examined surely it can't be illegal, therefore can he be charged with possession before it has been examined?

L1011

Spook_ie wrote: »

Which is the question I'm asking, until it's been examined surely it can't be illegal, therefore can he be charged with possession before it has been examined?

There is a get-out clause for something which has been examined and approved.

If it hasn't been examined this clause does not come in to play at all.

If it has been examined and not approved this clause does not come in to play at all.

It only covers one very specific scenario which doesn't apply here. It is of no relevance to this case.

hullaballoo

L1011 wrote: »

Huh?

The board absolutely do not proactively examine and approve content. They realistically only work on referrals for the past 30 years or so.

I didn't know that the Board is effectively inert but there's no need for that level of response. There are plenty of ways to let someone know they have the wrong end of the stick and "huh?" is about the least necessary.

Nevertheless, it's still a legally interesting area on the basis that the dynamic would have surely been very different in the event that the board had examined this book after the defendant had been charged and determined it was not going to be prohibited.

L1011

hullaballoo wrote: »

I didn't know that the Board is effectively inert but there's no need for that level of response. There are plenty of ways to let someone know they have the wrong end of the stick and "huh?" is about the least necessary.

Nevertheless, it's still a legally interesting area on the basis that the dynamic would have surely been very different in the event that the board had examined this book after the defendant had been charged and determined it was not going to be prohibited.

It was because it was stated in a manner which seemed to suggest something had markedly changed since it last crossed my path.

Film releases (not DVD) do work in roughly that manner which may have caused confusion/conflation? Private screenings can be made of uncertified films but obviously not if otherwise illegal.

Hal3000

They didn't see the need to charge this guy

https://www.thejournal.ie/courts-child-pornography-declan-costello-4700653-Jun2019/

L1011

Hal3000 wrote: »

They didn't see the need to charge this guy

https://www.thejournal.ie/courts-child-pornography-declan-costello-4700653-Jun2019/

No - he was charged, and convicted. His sentence was suspended. That is hugely different to not being charged.

The offence in the OP has not yet gone to sentencing.

coylemj

hullaballoo wrote: »

The process is inextricably linked to the CTPA under its definition of child pornography. If it's given certification by the Board, then even if it contains material that would otherwise be child pornography, it is excluded from the definition under the Act. There are books available that have such material in them but are nonetheless legal to possess here.

What you're saying is that he could have had a defence if the CoPB had approved the book. But they banned it. Which removed that defence and meant that possession of the book was an offence under the CTPA before and after the CoPB reviewed it.

It did not suddenly fall into the category of child pornography on the day it was banned. So the thread title is grossly misleading.

ohnonotgmail

coylemj wrote: »

What you're saying is that he could have had a defence if the CoPB had approved the book. But they banned it. Which removed that defence and meant that possession of the book was an offence under the CTPA before and after the CoPB reviewed it.

It did not suddenly fall into the category of child pornography on the day it was banned. So the thread title is grossly misleading.

I agree with you but it leads to another question. A book that meets the definition of child pornography is an offence to possess. if the CoPB approves the book then it is not an offence to possess it. If you are found in possession of a book that meets the definition of child pornography but the CoPB subsequently approves it have you committed an offence?

coylemj

ohnonotgmail wrote: »

If you are found in possession of a book that meets the definition of child pornography but the CoPB subsequently approves it have you committed an offence?

At the time you had the book, yes, you committed an offence. It met the criteria for pornography and you did not have the defence that it had been approved.

Though you'd clearly have a case to have the original conviction overturned if the CoPB subsequently aproved the book.

seamus

coylemj wrote: »

Though you'd clearly have a case to have the original conviction overturned if the CoPB subsequently aproved the book.

Still not guaranteed though I suppose. The CoPB doesn't have authority to decide what is or isn't child porn under the law.

Theoretically an approved book could land you a conviction for child porn.

This is a scenario that I've theorised could happen a number of times, I wonder is it the first such incident that someone has been convicted of the possession of child porn that is entirely fictional?

Or maybe it's just the oddest.

This might be something that we need to audit to make sure the law is doing what it intended to do. The potential for overreach here is quite large.

coylemj

seamus wrote: »

Still not guaranteed though I suppose. The CoPB doesn't have authority to decide what is or isn't child porn under the law.

Effectively, they can decide what is not child porn. See below.

seamus wrote: »

Theoretically an approved book could land you a conviction for child porn.

See post #10. By law, if the CoPB examined the book and decided not to ban it, it does not fall into the category of chld porn.

drunkmonkey

How does this apply to online books.

Let's say the Guards took his computer and the only thing on it was a search for the name of the book, and then they could see he went to a website where the book was hosted.

Would he have committed any crime as he did not buy, keep and there is no proof he read the book. Which begs the question is his only crime having a physical book versus a computer. Both give him instant access to it.

GM228

drunkmonkey wrote: »

How does this apply to online books.

Let's say the Guards took his computer and the only thing on it was a search for the name of the book, and then they could see he went to a website where the book was hosted.

Would he have committed any crime as he did not buy, keep and there is no proof he read the book. Which begs the question is his only crime having a physical book versus a computer. Both give him instant access to it.

Accessing via information and communication technology is also an offence once it can be shown it was accessed.

Discodog

There must be a lot of books, novels & non fiction that discuss or depict under age sex - Lolita being the most obvious, maybe even Dickens. I appreciate that ignorance of the law isn't an excuse but this seems an easy law to fall foul of.

There was a fuss in the UK when some types of Japanese manga were banned especially as they could be found on the computers of teenagers. Anyone have the original Rolling Stones Beggars Banquet album :eek: ?