Monday, 30 July 2012

Porn Trial: This Time it's Extreme


Today the Crown Prosecution Service will attempt to persuade a jury that images of fisting should be classified as “extreme pornography” with the risk to the defendant of three years in custody, inclusion on the sex offenders' register and damage to his personal and professional standing.
All for a type of image which is commonly viewed, of an activity which is itself is legal to perform and is even discussed in the book Fifty Shades of Grey.
Nonetheless the defendant, Simon Walsh, has been charged with being in possession of extreme pornographic images under section 63 of the Criminal Justice and Immigration Act 2008: so the Prosecution must prove that the act of fisting is “likely to result in serious injury to a person’s anus”.
The Defendant – Simon Walsh
Simon, who is represented by my firm (Hodge Jones & Allen) has given his express permission for this information to be published.
Before being arrested and charged with these offences, Simon was a successful professional and politician in the City who, amongst other things, prosecuted police officers accused of disciplinary offences.
After being charged, Simon lost both professional and political positions, despite the fact that no pornography was found on any of his work computers. In fact, no pornography was found on Simon's home computers either.
Instead, the police had to “interrogate” Simon's personal email account (server) in order to discover a few images they deemed questionable. This included an image of a man wearing a gas mask. Their expert stated that this was likely to cause serious harm, even death by asphyxiation: despite being a piece of equipment designed to assist breathing. This charge was eventually dropped.
Unfortunately, by performing the “interrogation” of Simon's email account in the fashion they did, the police contaminated the only source of evidence; making it impossible to identify whether images attached to emails had in fact been opened and viewed.
The Peacock Trial

Readers familiar with the jury decision in Micheal Peacock's obscenity trial earlier this year, where the defendant was unanimously acquitted of publishing fisting DVDs under the Obscene Publications Act 1959 (OPA), may be surprised to hear that the CPS are having another bite at the cherry when it comes to fisting.

As the Peacock obscenity trial was under the OPA the CPS needed to show that fisting pornography was likely to “deprave and corrupt” the viewer. Since this Trial is under section 63 of the CJIA 2008 the CPS must show that act of fisting is “likely to result in serious injury to a person’s anus” in order to persuade a jury that the mere representation (pictures) of this activity is a criminal offence, despite the fact that the act itself is legal to perform.
The Prosecution Case
What follows is a summary of elements of what the Prosecution must prove to substantiate an offence has been committed under the CJIA 2008:
According to Section 63 images are “extreme” if they are “grossly offensive, disgusting or otherwise of an obscene character” and according to subsection 7:
“(7) An image falls within this subsection if it portrays, in an explicit and realistic
way, any of the following—

(b) an act which results, or is likely to result, in serious injury to a person’s
anus, breasts or genitals”
Unfortunately, what is “likely” to result in “serious injury” is not specifically defined in the Act itself. There were Ministry of Justice Guidelines specifically on the extreme pornography legislation, but they seem to have disappeared from the internet, possibly disavowed.

Conclusion

As with the Peacock obscenity case, it will be instructive to see whether the police and prosecution are out of step with current cultural and moral values towards sexuality; and instead whether a jury of reasonable people simply deem that fisting pornography is neither extreme nor criminal.

Updates

Simon's Trial is listed to start today, Monday the 30th July 2012, at Kingston Upon Thames Crown Court from 12pm and is listed to last for up to seven days.

With the Trial Judge's permission, the Trial will be live-tweeted under the hash tag #porntrial.

Hence it should be possible to follow the Trial as it unfolds; and discover whether a jury will swallow such an intrusive Prosecution.



40 comments:

  1. I wish Simon well. But what we really need here is a good test case that can be sent to the ECHR. Surely this law greviously offends against Art 8 of the ECHR by trying to circumscribe the private sexual behaviour of consenting adults.

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  2. I have no desire to watch fisting porn but having seen thumbnails of it accidentally on a few porn sites I can safely say I don't think I am any more depraved or corrupted by the experience than I was before.

    One would have thought that after the Peacock case the CPS would think enough is enough.

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  3. "Serious injury"? Well, yes, if it's forced; no, if it isn't. Same as just about any other form of penetrative intercourse. The CPS really are a bunch of fuckwits.

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  4. I am completely disgusted with the Crown Prosecution Service and its complete failure to change with the times. First it was the Twitter Joke Trial and the fisting porn trial, now this? Not only is fisting a legal activity and, so far as I am aware, fisting porn entirely legal (as surely the previous case set a precedent) this prosecution is on the basis of a single image? Really? This prosecution is an utter waste of taxpayers' money and should be ended with an apology to the defendant forthwith.

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  5. To be "likely to result in serious injury", requires there to be no lube. Have the police forensic images experts established that there was an insufficiency of lube in the affected area?

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  6. Surely the CPS has better things to prosecute???

    I am a junior barrister and would love to get a case like this. Surely there's a good abuse of process argument to be made, re: legal certainty of what's prohibited and what's not? Plus, a potential Article 8 argument. I'd take it all the way to the ECHR if it had to!

    The extreme pornography law is seriously one of the worst currently in existence.

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    1. Don't forget to thank former labour MP Martin Salter for this. He had the nerve to tell me "if you have done nothing wrong you have nothing to fear."

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    2. Salter was the archetypical authoritarian Labour MP. he was a supporter of compulsory ID Cards and the forced registration of every person in the UK on the DNA Criminal Database. Fortunately he is no longer an MP however there are still plenty of others like him in the Labour Party. Which is the reason why I, as a previously staunch Labour voter, would never support Labour again.

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  7. I send Simon my best wishes and hope that the right thing happens for him. Myles I've been following your tweets on this case all day, looking forward to hearing the rest and hoping that this works out for Simon.

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  8. Hm...the same CPS that fell over backwards to avoid prosecuting Simon Harwood.

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  9. Surely all you'd need for a rock-solid defence is a partner with a really big anus?

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  10. Best wishes from one of the TwitterJokeTrial mob... The CPS are certainly taking some crazy decisions - in no small part because the politicians took some crazy ones a few years ago.

    Good luck.

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  11. Without meaning to sound completely ignorant, how did all this come to light? Why were the police investigating this guy's email account?

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  12. Isn't it blatantly obvious that the police have basically manufactured a case against this guy out of whole cloth - possibly even to the extent of sending him incriminating images themselves, so they knew exactly where to find them - in order to remove a persistent thorn in their side? And that the Crown Persecution Service are going along with this because as far as they're concerned, political prosecutions that erode civil rights is what they do these days?

    I'm sick of hearing about crap like this. This is supposed to be a modern Western democracy; even if the police do take it into their heads to turn themselves into the Stasi, the rest of the legal system is supposed to notice and stop them, not give them every assistance.

    (Sorry if you can't publish this comment for legal reasons, but - GAH!)

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  13. I'm half tempted to tell the investigating officers, the CPS and the politicians who pushed through the ill thought out and seriously deffective laws to take this case and shove it up their backsides (without any lubrication). However based on recent events on Twitter and the such like that could potentially lead to my arrest and prossecution so I'll reframe from telling them that.

    Good luck to Simon Walsh. Yet another waste of taxpayers money when we're faced with a double dip recession, but we have to protect people from... erm...

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  14. "There were Ministry of Justice Guidelines specifically on the extreme pornography legislation, but they seem to have disappeared from the internet, possibly disavowed."

    The document has been moved to http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/docs/extreme-pornographic-images.pdf

    (It's a shame that this law wasn't "archived" too...)

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  15. Yet another nail in the justice systems coffin!

    And people wonder why we live in a lawless society, it's because of half baked cases like this, where the CPS really have nothing better to do, because they're laying idle because the magistrates courts are just there to act as the governments and local council dog's bodies to collect revenue from council tax and parking tickets.

    Simon, I really hope this case falls through.

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  16. Doesn't government have anything better to do than to harass the citizens that they are supposed to be protecting?

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  17. Serious injury, I could use my tallywhacker and cause serious injury. SMH

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  18. "an act which results, or is likely to result, in serious injury to a person’s
    anus, breasts or genitals”

    So if I watch a film of an actor firing a gun at an actress's heart, even though they're acting, and even though they're fully clothed, as long as there's something 'obscene' about the scene, I'm committing an offence.

    Really?

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    1. No, because elsewhere in the section it defines pornography (material intended solely or primarily for sexual purposes), and to be "extreme porn", it has to be porn as well as being extreme.

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    2. For it to "result, or be likely to result in serious injury to a person's" wherever the heck it would have to be a real bullet from a real gun - not a prop nor acted scene, and then yes, you would have a serious issue and it wouldn't come under the extreme pornography laws but under the laws currently affecting snuff films. Which I don't believe have been changed in quite some time. So your argument is a pretty invalid one.

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    3. Sam B-C - that's why I said as long as there's something 'obscene' about the scene

      SZ - I wasn't making an argument, I was asking a question about the law, which seems to me oddly drafted - if the potential fatal result of the scene I suggested is a problem, I'm sure a less fatal alternative could be imagined. One point is that injury to breasts etc doesn't have to involve the breasts being exposed or of themselves constituting the obscene part of the scene - it could be the woman is undressed from the waist down and something else is going on, while apparent injury is being done to her breasts. Another point is what is meant by 'act' - you imply it means something real and not simulated. How is the distinction made? What does 'likely' mean?

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    4. ...or firing a gun at her right breast, away from the heart...

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  19. Hmmm. What about childbirth? It kills quite a large number.

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  20. Will he have a case to sue for damages after this? As it seemed he lost his livelihood over the whole affair.

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  21. Well I can't imagine anyone wanting to do it, though I suppose I am forced to concede that some people do. The response of the CPS seems extreme, it seems like a thing that should be nobody's business if done in private.

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  22. I'm not EVEN going to comment on this one.

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  23. I just want to say congratulations and thank you from a member of the public for hopefully getting this illiberal nonsense knocked on the head

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  24. If a sex act is consensual between two people and is filmed then surely that is not obscene. I have seen fisting and it looked bizarre and as a viewer I felt more in 'awe' , a bit like the sensation one get's when one is looking at a book of freaks, not depraved and corrupted.If such images are between consenting adults in pornography I am sure the studio's wouldn't knowingly film something that is a-done by force and b) going to cause severe damage to the participant .If it was me I would get adult performers in the witness box that have participated in 'fisting' to provide fact's about how they are 'prepared' and the measure's taken by the studio to prevent such 'alleged' harm and to put it bluntly such eyewash that forms the basis of this charge.I am sick to the back teeth with people trying to be my moral guardian when I can be my own moral guardian. Everything is purely subjective and it is every individuals right to have a moral framework to work too but that does not mean that an individual threshold is everybodies limit and, I would like to add, I have the rationale thought of deflecting my gaze if , which is very seldom, I would feel offended by anything I am watching. Proving further more that we are living in a democracy where you are free to do what you want and say what you want; providing it is within the boundaries of those that think they know better than the common citizen I wish Simon all the very best of luck with this and I certainly hope this sets a precedent where the CPS can actually be spared more capacity to deal with the vile side of pornography where individuals are forced into degradation against their wish; where the real harm can be done. Sorry about the rant but things like this really annoy me and I respect that some of things may not be within the boundaries of another person - I am an individual after all.

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  25. Congratulations Simon, I'm appalled that you had to go through this, but well done for making as much as you have made public. That must have taken real bravery. Well done to the legal team around you too. I hope this doesn't screw the rest of your life up. Good luck.

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  26. Fisting is definitely 'not my brand', but the wording of the law is ridiculous! 'Normal' penetrative sex with a virgin is 100% guaranteed to cause a permanent injury (rupture of a hymen)- so I guess millions more prosecutions could be brought without a revision of this statute. I regularly have sex with a chap from Glasgow - I know full well it causes brain damage, all those blows to the head as it hits the headboard repeatedly, but to each his or her own.
    So glad you've been cleared, but cannot help wondering who you upset sufficiently to have them root through your inbox and attempt to accuse you of being a paedo too (before a sensible jury were shown the 'evidence').

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  27. Isn't the thing to do here is attack the incompetent prosecutor who brought the case? Bring up their incompetence, try to ruin their post-government career, etc.

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  28. Well done Myles. In a sane society the verdict would never have been in doubt.

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  29. Is someone liable for the emails they receive from others? How can communication work this way? Even if one has requested emails of a generally sexual nature, how can that be equated with requesting this particular image? It is a fundamental of communication that one does not control what others send, and the sender should be the one who is liable if a communication should be considered prohibited in some way. Otherwise it would be easy to mount a malicious attack on anyone by simply sending them prohibited emails. As we know, many of the emails everyone receives are unrequested spam, often of a sexual nature.

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  30. Congratulations on challenging this obscene law. I wrote to the CPS to ask if they had reviewed hospital admissions as a result of sexual acts in order to determine the likelihood of their causing injury, and oddly enough they had not. Each of these cases is meant to be referred to the Director of Public Prosecution's office for authorisation before being taken to court, so if you want someone to talk to about this waste of taxpayers money, you know who to contact.

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  31. I would have thought that after the Peacock trial the CPS would rethink its position on trying to get Fisting classified as Extreme Pornography.I can only wonder how far the are willing to go, how many others they are willing to 'put through the mill' on charges like this. What will have to happen before the government finally rethinks this 'politically motivated' new law.

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