An "extreme" prosecution?

The offence in the infamous “Tiger porn” case is being used again

A man is currently being prosecuted at Kingston Crown Court for possessing images of consensual adult sexual acts. The case has been brought by the Crown Prosecution Service under the notorious section 63 of the Criminal Justice and Immigration Act 2008 which prohibits “extreme pornography”. Myles Jackman, the defence solicitor, has blogged about the case and is also tweeting from Court.

As this is a live trial before a jury there are limits to what can be published about the prosecution and, quite rightly, it is for the jury to determine guilt or innocence on the basis of the evidence and submissions put before them. 

However, it is in the public interest to consider the merits of the law itself, whatever is decided in this particular case.  The “extreme pornography” offence is perhaps the most illiberal piece of legislation ever enacted by Parliament.  It was promoted by a Labour government with the support of the then Conservative opposition. 

Under the “extreme pornography” offence it is a crime to possess an image which is both “pornographic” (defined as of being of “a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal”) and “extreme”. 

To be an "extreme" pornographic image the material has to be “grossly offensive, disgusting or otherwise of an obscene character” (though it is not clear what “grossly offensive” and “disgusting” add to the requirement of “obscene character”) and also depict an act which falls into one of four categories:

(a) an act which threatens a person's life,

(b) an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals,

(c) an act which involves sexual interference with a human corpse, or

(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive).

The Act also provides that a reasonable person looking at the image would need to think that any such person or animal was real.

But people’s preferences are varied, and there are a number of sexual practices – perfectly legal in themselves – which can fall into these categories.  In particular, acts which result, or is likely to result, in serious injury to a person's anus, breasts or genitals can apply to many forms of BDSM as well as fisting.

The Act provides only limited defences, all of which are for the defendant to prove.  It is a defence for the image to be from a classified film (a defence which implicitly acknowledges that the portrayal of such actions can be on general release).  It also a defence in general terms if the images are held for innocent reasons, as long as they are possessed no longer than necessary.  And it is also a defence to have been a consenting participant in the image (unless an animal was seemingly involved).  However, the photographer or other image-maker themselves have no defence, nor does any non-participant possessing an image for private enjoyment.

The offence has not had a happy history.  In 2009, the CPS brought the daft “Tiger porn” prosecution in respect of a video of what appeared to them to be a man having sex with a tiger.  In that case the CPS had not listened to video’s soundtrack before putting a man on trial and thereby at risk of imprisonment and being placed on the sexual offenders register.  When the defence pointed out that at the end of the video, the CGI-generated tiger turns to the camera and says “That beats the Frosties advert!” even the CPS had to accept someone watching it would not think the tiger was real. 

The campaign group Backlash has now intervened in a number of other misconveived and illiberal prosecutions, and Myles Jackman has managed to prevent a number of miscarriages of justice.  Myles continues to be a credit to the legal profession for his work in this area.  But it should not come down to a pressure group and a fine lawyer to stop the bad application of a bad law.

Whatever the result at Kingston Crown Court, there remains on the statute book a dreadful piece of legislation and a CPS very ready to exercise its discretion to prosecute even when the images are of adult consensual sexual activity.  There is something both farcical and worrying in the way the state wishes to regulate mere possession of pornography in these circumstances. 

If you do not want images of lawful but “extreme” adult consensual sexual acts, then the solution is not to possess them.  

Simple really.

 

David Allen Green is legal correspondent of the New Statesman

A safe-for-work picture of a tiger. Photo: Getty

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Meet the ex-footballers launching a support network for victims of sexual abuse in the sport

The Offside Trust is set up after hundreds have come forward, and 55 football clubs have been linked to allegations of abuse.

In a sumptuous room inside a luxurious hotel in the centre of Manchester, the country’s media anxiously await the arrival of a man whose story has rocked English football to its very foundations.

Since Andy Woodward went public with allegations that he experienced sexual abuse as a young footballer in the 1980s, the nation’s favourite sport has been left in crisis and, in the process, forced to do some soul-searching.

Following Woodward’s story, a number of his peers have also come forward with tales of unimaginable suffering.

This week, some of those men have joined together to launch the Offside Trust, an independently-run body aiming to provide support to players and the families of those who have suffered sexual abuse in football and other sports.

According to Woodward and his colleagues, the Trust won’t just be a way to help those who have been abused while playing the sport they love, but also represents a direct response to institutions that, in their view, have failed to protect them.

“A number of people who have come forward have indicated that they don’t have trust in the establishment,” says Edward Smethurst from Prosperity Law LLP, a Manchester law firm in charge of administering the trust.

“We are not here to criticise any of the establishment bodies, but we do have to respect the sensibilities and the opinions of the victims.” 

Wearing a crisp blue suit, hair combed neatly into place, Woodward’s composed demeanour masks the tremendous emotional stress he has revealed to the world he had to endure for decades, in silence until now.

Hearing him retell his story time and again, it is evident that, although exhausting, this process of letting the world know the horrors he says he experienced as a boy is both cathartic and a way to help others.

“I’m totally overwhelmed, the emotions are just unreal,” he says. “I can’t believe how many [people] have come forward, but I just encourage more and more [people] to have that strength and have that belief to do it.”

Sitting beside Woodward is Steve Walters – a former football prodigy whose career was cut short due to a blood disorder – who says he fell prey to the same serial child molester as Woodard. The person in question can no longer be named for legal reasons.

Walters tells me how his story has affected every aspect of his life. “It has ruined marriages, the relationship with my children, flashbacks, lack of sleep, panic attacks,” he tells me.

Walters speaks of “injustices” done to him for the past 20 years by those in charge of the sport he once loved. But he also knows how he would like to start turning the page and move on with his life.

“An apology [from Crewe Football Club] would be a start,” he says. “For them to not even put out one small apology, it does hurt.”

Since Woodward’s allegations were first made public on 16 November, 18 police forces across the country are now investigating claims of historic sexual abuse in football.

Every player I speak to at the Offside Trust launch in Manchester describes this as an epidemic, and that, in modern Britain, some children are still at the mercy of paedophiles operating within the sport. 

“I do believe it’s happening,” says Jason Dunford, who also claims to have been abused at Crewe Alexandra. “I believe it’s happening on a lower scale than when we were children, but as a father of a young boy who is around the football industry at the moment, I still have worries.”

Woodward coming forward has had worldwide implications. Walters and Dunford tell me they have been contacted by players as far-flung as South America and Australia who say they have been through the same ordeal as young footballers. The men are adamant this is not a UK problem, but a football one – wherever the game is played.

Woodward is mentally drained. Prior to the interview, he repeatedly tells me how the whirlwind of the last few weeks has affected his health. But he knows that this is his chance, perhaps the only one he’ll get, to help those like him.

“The closure will be when I feel like I’m satisfied that I have done everything I can to help as many people out there as possible,” he says. “People with children in football need protecting.” 

Felipe Araujo is a freelance journalist based in London. He writes about race, culture and sports. He covered the Rio Olympics and Paralympics on the ground for the New Statesman. He tweets @felipethejourno.