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.
David Allen Green is legal correspondent of the New Statesman