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 Anne Marie Waters - the Ukip politician too extreme for Nigel Farage

In January 2016, Waters launched Pegida UK with former EDL frontman Steven Yaxley-Lennon (aka Tommy Robinson). 

There are few people in British political life who can be attacked from the left by Nigel Farage. Yet that is where Anne Marie Waters has found herself. And by the end of September she could well be the new leader of Ukip, a party almost synonymous with its beer-swilling, chain-smoking former leader.

Waters’s political journey is a curious one. She started out on the political left, but like Oswald Mosley before her, has since veered dramatically to the right. That, however, is where the similarities end. Waters is Irish, agnostic, a lesbian and a self-proclaimed feminist.

But it is her politics – rather than who she is – that have caused a stir among Ukip’s old guard. Former leader Paul Nuttall has said that her views make him “uncomfortable” while Farage has claimed Ukip is “finished” if, under her leadership, it becomes an anti-Islam party.

In her rhetoric, Waters echoes groups such as the English Defence League (EDL) and Britain First. She has called Islam “evil” and her leadership manifesto claims that the religion has turned Britain into a “fearful and censorious society”. Waters wants the banning of the burqa, the closure of all sharia councils and a temporary freeze on all immigration.

She started life in Dublin before moving to Germany in her teens to work as an au pair. Waters also lived in the Netherlands before returning to Britain to study journalism at Nottingham Trent University, graduating in 2003. She subsequently gained a second degree in law. It was then, she says, that she first learnt about Islam, which she claims treats women “like absolute dirt”. Now 39, Waters is a full-time campaigner who lives in Essex with her two dogs and her partner who is an accountant.

Waters’s first spell of serious activism was with the campaign group One Law for All, a secularist organisation fronted by the Iranian feminist and human rights activist Maryam Namazie. Waters resigned in November 2013 after four years with the organisation. According to Namazie, Waters left due to political disagreements over whether the group should collaborate with members of far-right groups.

In April 2014, Waters founded Sharia Watch UK and, in January 2016, she launched Pegida UK with former EDL frontman Steven Yaxley-Lennon (aka Tommy Robinson). The group was established as a British chapter of the German-based organisation and was set up to counter what it called the “Islamisation of our countries”. By the summer of 2016, it had petered out.

Waters twice stood unsuccessfully to become a Labour parliamentary candidate. Today, she says she could not back Labour due to its “betrayal of women” and “betrayal of the country” over Islam. After joining Ukip in 2014, she first ran for political office in the Lambeth council election, where she finished in ninth place. At the 2015 general election, Waters stood as the party’s candidate in Lewisham East, finishing third with 9.1 per cent of the vote. She was chosen to stand again in the 2016 London Assembly elections but was deselected after her role in Pegida UK became public. Waters was also prevented from standing in Lewisham East at the 2017 general election after Ukip’s then-leader Nuttall publicly intervened.

The current favourite of the 11 candidates standing to succeed Nuttall is deputy leader Peter Whittle, with Waters in second. Some had hoped the party’s top brass would ban her from standing but last week its national executive approved her campaign.

Due to an expected low turnout, the leadership contest is unpredictable. Last November, Nuttall was elected with just 9,622 votes. More than 1,000 new members reportedly joined Ukip in a two-week period earlier this year, prompting fears of far-right entryism.

Mike Hookem MEP has resigned as Ukip’s deputy whip over Waters’ candidacy, saying he would not “turn a blind eye” to extremism. By contrast, chief whip, MEP Stuart Agnew, is a supporter and has likened her to Joan of Arc. Waters is also working closely on her campaign with Jack Buckby, a former BNP activist and one of the few candidates to run against Labour in the by-election for Jo Cox’s former seat of Batley and Spen. Robinson is another backer.

Peculiarly for someone running to be the leader of a party, Waters does not appear to relish public attention. “I’m not a limelight person,” she recently told the Times. “I don’t like being phoned all the time.”

The journalist Jamie Bartlett, who was invited to the initial launch of Pegida UK in Luton in 2015, said of Waters: “She failed to remember the date of the demo. Her head lolled, her words were slurred, and she appeared to almost fall asleep while Tommy [Robinson] was speaking. After 10 minutes it all ground to an uneasy halt.”

In an age when authenticity is everything, it would be a mistake to underestimate yet another unconventional politician. But perhaps British Muslims shouldn’t panic about Anne Marie Waters just yet.

James Bloodworth is editor of Left Foot Forward

This article first appeared in the 17 August 2017 issue of the New Statesman, Trump goes nuclear