Today a jury at Kingston Crown Court took just over one hour to unanimously acquit Simon Walsh on all counts of possessing “extreme pornography”.
It was a sensible jury decision, and one well-deserved by Walsh and his fine legal team.
But this is a matter which should never have got before a jury, for this was a shameful and nasty prosecution of a good man.
The law is bad to begin with. The offence in its entirety is dealt with over four sections of the relevant statute, and is perhaps the most complex as well as one of the most illiberal prohibitions in criminal law. However, the effect of the law is stark: possession of certain “extreme” pornographic images of adults is a serious crime even if the acts portrayed are consensual or staged.
Even acts which are entirely legal, such as fisting or forms of BDSM, become the subject of the criminal law if they are portrayed “realistically”.
The legislation was prompted in part by the circumstances of the death of Jane Longhurst even though there was no proven link between the pornography possessed by the murderer and the death of his victim. But the facts of that dreadful case, where there was extensive collection of violent and necrophiliac pornography held by defendant, are not comparable to the sequence of unhappy cases which have since been brought by a witless Crown Prosecution Service.
But it was not just a bad law.
In the trial of Simon Walsh, a man of good character and a distinguished public servant had his innermost sex life and preferences examined over a week in open court and picked over by a tabloid newspaper in sensationalist terms. For no good reason, the CPS also maintained that one of the images was of a child, even though the accompanying text said the age was in the mid-20s. To proceed with a child sex charge in these circumstances can only be described as spiteful. The rest of the supposed evidence was similarly not compelling: images of consensual adult sexual activity attached to a forgotten email sent by another, which even the CPS could not prove the defendant had even opened.
There are serious question marks over how the prosecution was conducted in court. One bizarre line of questioning of an expert witness irresponsibly suggested that those use using sexual health clinics were those who have riskier sexual practices. This slur was promptly rebutted by the Department of Health who confirmed there was "no evidence at all" for such a proposition. And today, even the CPS head office disowned its own barrister on this:
“The CPS does not endorse counsel’s remarks. Those who attend sexual health clinics are people who are mindful of their health. The question should not have been asked.”
But the larger concerns are over why this prosecution was brought in the first place. The CPS told me today:
“Possession of images that depict acts likely to cause serious injury is illegal and the CPS prosecutes the law as it stands. We do not make the law and cannot change it.
“The evidence of medical practitioners with substantial experience in their fields was that the specific activities shown in the images could cause serious injury. This case was not about the practice itself, but was based on the evidence of medical experts who said the way the acts were performed was likely to cause serious injury or harm. We therefore concluded that there was sufficient evidence to prove this offence and that the matter should, therefore, be put before a jury to decide.”
This, of course, is not good enough.
It smacks of buck-passing to medical experts and the jury.
A decision to prosecute is not a medical matter (which in this case was contested). Nor should the CPS be blithely leaving it "for a jury to decide". The CPS instead has the important function of deciding if cases are properly arguable and in the public interest. But, yet again, the CPS has prosecuted a case free from any notion of proportion, and without regard for a defendant's privacy and dignity.
There are suggestions that the defendant's previous work in prosecuting corrupt police officers may have something to do with why this case was ever brought. If so, that would be a horrific abuse of process. However, even if that is not relevant, this was still an inappropriate application of what was a bad law to begin with.
One definition of extreme pornography is that it portrays an image of something which would cause, or would be likely to cause, serious injury to a person.
But it is prosecutions like this which cause serious injury, both to respect for the law and our sense of living in a liberal society.
Postscript - press release from campaigning group BackLash
Simon Walsh has now issued a statement:
Today I was unanimously acquitted by a jury at Kingston Crown Court of five charges of being in possession of extreme pornography despite the images depicting acts which are legal to perform, and an extremely damaging allegation of being in possession of child porn in respect of a single image sent to me unrequested via email over three years ago which the jury had no difficulty deciding was in fact a picture of an adult.
I would like to commend the jury for their common sense verdict, my legal team for their robust efforts and all the support I have received from the general public.
I would like to take this opportunity to encourage our legislators and regulators not to prosecute individuals in possession of images depicting private and consensual adult sexual acts.
Nonetheless, these allegations have damaged my career and personal standing. As I said in my evidence I do not believe that when I stood for public office I gave up my right to a private sexual life. I reiterate that point now.
I hope to return to public life as soon as possible. I have no further comment to make at this time.
David Allen Green is legal correspondent of the New Statesman