Member

I completely understand the intention underlying the amendment, but we suggest that a highly prescriptive statutory test for admissibility is not the right approach. The reason is that the amendment, as drafted, is extremely wide: it would apply to all types of creative expression and is not limited to content produced by the defendant. At the moment, prosecutors currently use this kind of evidence across a wide range of serious crimes. One example is child sexual abuse, where images and writings can demonstrate the intentions of the defendant partly by what they choose to possess or what they write. Another example is terrorism, where possession of certain artistic materials may be evidence of what is in fact going on. All this kind of material would be captured by the amendment, and there is a very real risk that, as drafted, it would restrict the ability of prosecutors to adduce evidence that is needed and should continue to be admissible.