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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Why is it called Storm Doris? The psychological impact of naming a storm

“Homes being destroyed and lives being lost shouldn’t be named after any person.”

“Oh, piss off Doris,” cried the nation in unison this morning. No, it wasn't that everyone's local cantankerous old lady had thwacked our ankles with her stick. This is a different, more aggressive Doris. Less Werther’s, more extreme weathers. Less bridge club, more bridge collapse.

This is Storm Doris.

A storm that has brought snow, rain, and furious winds up to 94mph to parts of the UK. There are severe weather warnings of wind, snow and ice across the entire country.

But the real question here is: why is it called that? And what impact does the new Met Office policy of naming storms have on us?

Why do we name storms?

Storm Doris is the latest protagonist in the Met Office’s decision to name storms, a pilot scheme introduced in winter 2015/16 now in its second year.

The scheme was introduced to draw attention to severe weather conditions in Britain, and raise awareness of how to prepare for them.

How do we name storms?

The Name our Storms initiative invites the public to suggest names for storms. You can do this by tweeting the @metoffice using the #nameourstorms hashtag and your suggestion, through its Facebook page, or by emailing them.

These names are collated along with suggestions from Met Éireann and compiled into a list. These are whittled down into 21 names, according to which were most suggested – in alphabetical order and alternating between male and female names. This is done according to the US National Hurricane Naming convention, which excludes the letters Q, U, X, Y and Z because there are thought to be too few common names beginning with these letters.

They have to be human names, which is why suggestions in this list revealed by Wired – including Apocalypse, Gnasher, Megatron, In A Teacup (or Ena Tee Cup) – were rejected. The Met Office received 10,000 submissions for the 2016/17 season. According to a spokesperson, a lot of people submit their own names.

Only storms that could have a “medium” or “high” wind impact in the UK and Ireland are named. If there are more than 21 storms in a year, then the naming system starts from Alpha and goes through the Greek alphabet.

The names for this year are: Angus (19-20 Nov ’16), Barbara (23-24 Dec 2016), Conor (25-26 Dec 2016), Doris (now), Ewan, Fleur, Gabriel, Holly, Ivor, Jacqui, Kamil, Louise, Malcolm, Natalie, Oisín, Penelope, Robert, Susan, Thomas, Valerie and Wilbert.

Why does this violent storm have the name of an elderly lady?

Doris is an incongruous name for this storm, so why was it chosen? A Met Office spokesperson says they were just at that stage in their list of names, and there’s no link between the nature of the storm and its name.

But do people send cosy names for violent weather conditions on purpose? “There’s all sorts in there,” a spokesperson tells me. “People don’t try and use cosy names as such.”

What psychological impact does naming storms have on us?

We know that giving names to objects and animals immediately gives us a human connection with them. That’s why we name things we feel close to: a pet owner names their cat, a sailor names their boat, a bore names their car. We even name our virtual assistants –from Microsoft’s Clippy to Amazon’s Alexa.

This gives us a connection beyond practicality with the thing we’ve named.

Remember the response of Walter Palmer, the guy who killed Cecil the Lion? “If I had known this lion had a name and was important to the country or a study, obviously I wouldn’t have taken it,” he said. “Nobody in our hunting party knew before or after the name of this lion.”

So how does giving a storm a name change our attitude towards it?

Evidence suggests that we take it more seriously – or at least pay closer attention. A YouGov survey following the first seven named storms in the Met Office’s scheme shows that 55 per cent of the people polled took measures to prepare for wild weather after hearing that the oncoming storm had been named.

“There was an immediate acceptance of the storm names through all media,” said Gerald Fleming, Head of Forecasting at Met Éireann, the Irish metereological service. “The severe weather messages were more clearly communicated.”

But personalising a storm can backfire. A controversial US study in 2014 by PNAC (Proceedings of the National Academy of Sciences) claimed that hurricanes with female names lead to higher death tolls – the more “feminine” the name, like Belle or Cindy, the higher the death toll. This is not because female names are attached to more severe storms; it is reportedly because people take fewer steps to prepare for storms with names they perceive to be unintimidating or weak.

“In judging the intensity of a storm, people appear to be applying their beliefs about how men and women behave,” Sharon Shavitt, a co-author of the study, told the FT at the time. “This makes a female-named hurricane . . . seem gentler and less violent.”

Names have social connotations, and affect our subconscious. Naming a storm can raise awareness of it, but it can also affect our behaviour towards it.

What’s it like sharing a name with a deadly storm?

We should also spare a thought for the impact sharing a name with a notorious weather event can have on a person. Katrina Nicholson, a nurse who lives in Glasgow, says it was “horrible” when the 2005 hurricane – one of the fifth deadliest ever in the US – was given her name.

“It was horrible having something so destructive associated with my name. Homes being destroyed and lives being lost shouldn’t be named after any person,” she tells me over email. “I actually remember at the time meeting an American tourist on a boat trip in Skye and when he heard my name he immediately linked it to the storm – although he quickly felt guilty and then said it was a lovely name! I think to this day there will be many Americans who hate my name because of it.”

Anoosh Chakelian is senior writer at the New Statesman.