Criminal Memoirs

Click here to download the full English PEN briefing document on the proposed ‘Criminal Memoirs’ law

***UPDATE: On 14 October 2009, in light of the number of concerns raised in Committee in July, the government suggested two possible changes to the proposed ‘Criminal Memoirs’ law. Although we welcome this movment, we continue to urge the government to withdraw the legislation, which we firmly believe to be both unnecessary and disproportionate, altogether.

To read an open letter from English PEN, the Howard League for Penal Reform, Prisoners’ Education Trust, Inside Time, Criminal Justice Alliance and Only Connect published in The Times on 19 October 2009, please click here. ***

Why should offenders be doubly punished? Having been deprived of their liberty, now the government threatens their freedom of speech by granting the Serious Organised Crime Agency (SOCA) the power to apply for an Exploitation Proceeds Order (EPO). Any offender who publishes an account of their crime could be forced back into court, where the state will shake them down for the proceeds and expenses received.

Explaining its reasoning for the new measures, the Ministry of Justice cites the example of Mary Bell, who was responsible for killing two young children while herself a child, and who in 1998 was paid for her contribution to the book Cries Unheard by Gitta Sereny. It argues that EPOs will only be used for these exceptional cases.

However, the provisions of the Bill extend far beyond this extraordinary case. In the analysis on the following pages, we show how the proposed EPOs could be applied against anyone found guilty of any offence – even if that offence took place overseas, or the offender was a foreign national who subsequently settled in the UK.

The Government argues that the measures do not amount to censorship, because nobody would be formally prevented from publishing – merely ‘disincentivised’ from doing so (in the words of the minister responsible, Maria Eagle MP). This is a highly simplistic reading of our ancient and fundamental right to free speech, which is affected wherever the public’s right to freedom of expression and information is curtailed. The general public has a legitimate interest in reading about crime; just as criminals have a legitimate interest in describing their experiences. Crime has never been a taboo subject in this country, and should not become one.

In fact, offenders and ex-offenders have an important role to play: in highlighting the perils of crime, and in explaining why some people choose to offend. Indeed, Cries Unheard, the book the Government continually seeks to ‘disincentivise’, is precisely the sort of work from which society as a whole can learn.
The Government’s motivation in legislating is ‘to prevent further hurt and distress’ to the victims of crime and their families. Whilst noble, this sentiment again reveals their lack of understanding of freedom of expression, which, as George Orwell said, means nothing unless it includes the freedom to offend. Many ideas are shocking; some information can be extremely disturbing. Every day, books and films appear which are disgusting to many people. However, a society where such ideas are explored openly is clearly preferable to one in which the state decides what it is fit for us to read. And yet, in asking the Attorney General to rule on ideas such as literary value and public interest, the Government is proposing just that.

In any case, hurt and distress is not linked to profit in any meaningful way. EPOs do nothing to prevent a violent criminal from publishing a gloating account of their crimes on a free blog, or even in a newspaper, so long as they take no payment. This is not, therefore, just a sledgehammer to crack a nut; it is an ineffective nutcracker.

Worse, the introduction of EPOs may inadvertently shut down an entire world of charitable work in the field of offender rehabilitation, an area in which ex-offenders are routinely asked to give artistic expression to their lives and their crimes. Charity trustees are under obligations to act within the law, and to protect their revenues. The qualifications in the Bill offer no clarity to such trustees that their work is likely to meet with the approval of SOCA. Nor does it guarantee that charitable revenues from an ex-offender’s work would not also be seized. As a result, numerous important programmes within prisons, young offenders’ centres and the probation service may be withdrawn, to the detriment of prisoners, ex-prisoners, and the general public.

We are calling on the Government to withdraw their proposed ‘Criminal Memoirs’ legislation. The measures will not achieve their purpose, will have unintended consequences, and will introduce a permanent bind on the free expression of ex-offenders who have cleared their debt to society.

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