In the wake of the attempt to blow up Northwest Airlines Flight 253 from Amsterdam to Detroit on Christmas Day, countries all over the world are taking steps to increase airline security. The most talked about suggestion is the greater use of full body scanners that produce images of naked people and allow security officers to find items such as explosives that are concealed underneath clothing.
The United States and Canada have already stated that they will purchase these machines for use at major airports. The EU countries are divided on whether full body scanners are appropriate or interfere too much with the privacy rights of individuals. British PM Gordon Brown is in favour of introducing these full body scanners in order to further protect airline passengers. But some in Britain are raising the issue as whether the use of these scanners violates the country’s child pornography laws.
As reported in the Guardian, the Department of Transport is looking into whether or not scanning persons under the age of 18 years does in fact constitute a criminal offence in the U.K. Until this matter is resolved it is unlikely that these machines will be used to scan passengers who are 17 years old or younger.
Protection of Children Act, 1978
Section 1(1)(a) of the Act makes it an offence to take or permit to be taken or to make any indecent photograph or pseudo-photograph of a child. Distributing and possessing such illegal images are also offenses under the legislation.
Under section 1(4) of the Protection of Children Act, 1978, a person who is charged with possessing or distributing child pornography can raise the defense that there was a legitimate reason for possessing or distributing such images. There is, however, no such statutory defense provided for the crime of making illegal images or permitting them to be made. It is a rule of statutory interpretation that where, for example, the legislation specifically allows a certain defense for possessing and distributing but not for making, Parliament specifically did not intend that defense to apply to the latter. Parliament envisaged situations where police officers and others in the criminal justice system would be justified in possessing and/or distributing child pornography. They would not have seen the necessity for persons in authority actually creating such pictures for a legitimate societal purpose as operators of full body scanners would do.
If the government wants to scan underage passengers they will probably decide to amend the existing legislation. That would take time but even under the current legislative scheme it is far from clear that the taking of scans of minor children would be tantamount to a criminal offense.
Are Full Body Scans Indecent?
Notwithstanding the fact that there is no statutory exception to the making of illegal pictures nevertheless the pictures per se are not illegal. They must be found to be “indecent”. Under the proposed method of operation, those who take and view these full body scans are in a separate room and do not see the people who enter the scanner. Those people who are around the scanner do not see the images that have been scanned. If the operator finds something he or she merely pushes a button to alert those officials who are at the machine. The passenger is then sent for further examination. Under these circumstances, the images would have to be found to be indecent.
In the case of R v. Graham-Kerr, a British court held that whether or not a picture or pseudo-picture is indecent is a question of fact for the jury. While the particular motivation of the picture taker is not relevant, the jury must examine all of the surrounding circumstances to determine the issue of indecency.
The purpose of the legislation must also be considered. Under the preamble of the Protection of Children Act, 1978, it is stated that its purpose is “to prevent the exploitation of children”. In order to convict a person of making or permitting the making of an illegal image, the jury would have to find that minors who were subjected to scans either would have to been exploited or at least an attempt made to exploit them.
The Canadian government has already decided to exclude minor children from the necessity of going through full body scanners at airports. It has been predicted that the same exemption will apply in the U.K. unless the government determines otherwise and amends the law to clearly make the use of full body scans on minors legal.
Arthur Weinreb - Weinreb is an author, associate editor and columnist with Canada Free Press and the Canadian Affairs Feature Writer for Suite 101.
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