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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Nicola Sturgeon and the SNP’s echoes of New Labour

The fall of Blair should be a set text for anyone wishing to know what happens next to the SNP.

If there was one thing the SNP and New Labour had in common, it was the hope. Both offered themselves as a burning torch of optimism to publics that had become tired of the same old gang running things in the same old way. Both promised a fairer, more equal society and fearless embrace of the modern world with an appealing freshness and energy. The voters bought it: both won big, repeatedly.

The thing is, if you’re elected on a mandate to be different, you’d better be different. In many areas, for a long time, New Labour managed to be just that. The smiling PM with the huge majority pushed through bold policies, some of which even worked. Tony Blair’s strategy was so successful that the Conservatives and the Lib Dems reshaped themselves in his likeness.

But, as some say, it’s the hope that kills you. When the inevitable attritional realities of governing start to weigh; when you make, as you will, bad decisions; when the list of enemies grows long; when you’ve simply had your time; you’ll fall like all the rest. Only, when you’ve soared so close to the sun, you have that much further to plummet.

The fall of Blair should be a set text for anyone wishing to know what happens next to the SNP. The debate on 21 May between the Scottish party leaders was, I think, a foretaste of a sure outcome – a public that until recently was politically and emotionally invested in the Nats is growing restive. In time, this will turn to disenchantment, then anger, then revenge at the ballot box. That is the unbreakable cycle of democratic politics.

Some of us have warned since the start that the SNP had over-promised and could only under-deliver. Its raison d’être is independence; everything else is just another brick to build the path. And so its education reform cannot be either brave or unpopular, even if it needs to be so to work, because the SNP cannot afford to alienate teachers or the teaching unions, or parents.

The same goes for the NHS, and doctors and health unions and patients. All the separatists have done – all they could have done, given their nature – is deploy the rhetoric of the radical while body-swerving hard choices and conflict at any cost. And where they have found themselves taking flak, they’ve pointed south to Westminster: “It’s no’ our fault, it’s theirs.”

Yet the voters show signs of wearying. Middle Scotland is either ignored or maligned by the middle-class socialists who drive the nation’s political debate, but it is where elections are won. The SNP has secured the support of enough of these people to win every recent election in style, but somewhere along the way the party seems to have forgotten this was a mandate not for independence, but for good government. Ten years in to SNP rule, each new audit of public services seems to wail like a warning siren.

So, during the debate, it was Nicola Sturgeon, not the Conservative leader, Ruth Davidson, or Labour’s Kezia Dugdale, who found herself in the audience’s cross-hairs.

There were the teachers, who complained about the damp squib that is the Curriculum for Excellence, the SNP’s flagship education policy; who pointed out that a fifth of primary pupils are leaving without basic literacy and numeracy skills; and who warned that lowering the standard of exams in order to push up the pass rate was not a mark of success.

Then there was the nurse who said she had been forced to use food banks (the existence of which has been used repeatedly by the SNP as a stick with which to beat the Conservatives and Westminster). “I can’t manage on the salary I have [which is set by the Scottish government],” Claire Austin told the panel. “You have no idea how demoralising it is to work in the NHS.” She delivered the killer line of the evening: “Do you think your perceived obsession with independence might actually cost you . . . in this election?”

The list of reasonable criticisms of the SNP’s governance is growing. The ideological obsession with free university tuition for Scottish students is increasingly seen as a sop to the better-off. Sturgeon’s demand for a quick second independence referendum, when a worried Middle Scotland was focused on what Brexit might mean for its future, was tone deaf.

The SNP has another problem (one that New Labour, for all its flaws, didn’t face): its doctrine of infallibility. The Nationalists’ constitution explicitly prohibits SNP elected members from criticising the party, its policies or each other. Although total unity is useful when you’re on the climb, it starts to look bonkers when the cracks are showing.

The word “cult” has long dogged the SNP. The party has tried hard to normalise its electoral appeal while keeping the flame of independence burning, but this has been a difficult balancing act. The pro-independence mob is an ugly thing when unleashed (and it has suited the leadership to open the cage door at times). After the debate, Claire Austin found herself at its mercy as the Nats briefed – wrongly – that she was the wife of a Tory councillor. The SNP branch in Stirling said, Tebbitishly, that if she was having to use food banks, “Maybe she needs to tighten her belt a bit more?”

Joanna Cherry, a QC, MP and the SNP’s home affairs spokesperson, was forced to apologise for spreading “Twitter rumours” about Austin. The ravening horde has largely kept its head down since the 2014 independence referendum, but it hasn’t gone away – it is not enough for the SNP’s critics to be debated: they must be destroyed. This isn’t the behaviour of a normal political party.

I have a feeling that when the SNP does fall, it will fall quite quickly. Its belief in its infallibility, and its inability or unwillingness to do self-deprecation or apology, will increasingly exasperate voters. There is nothing to suggest the current public policy failings will be addressed, and many signs that things will get worse.

How then do you arrest your fall? The SNP offered hope and promised it was different, and the voters believed it. The sense of betrayal could make for a very hard landing indeed. 

Chris Deerin is the New Statesman's contributing editor (Scotland). 

This article first appeared in the 25 May 2017 issue of the New Statesman, Why Islamic State targets Britain

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