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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Labour tensions boil over at fractious MPs' meeting

Corbyn supporters and critics clash over fiscal charter U-turn and new group Momentum. 

"A total fucking shambles". That was the verdict of the usually emollient Ben Bradshaw as he left tonight's Parliamentary Labour Party meeting. His words were echoed by MPs from all wings of the party. "I've never seen anything like it," one shadow minister told me. In commitee room 14 of the House of Commons, tensions within the party - over the U-turn on George Osborne's fiscal charter and new Corbynite group Momentum - erupted. 

After a short speech by Jeremy Corbyn, shadow chancellor John McDonnell sought to explain his decision to oppose Osborne's fiscal charter (having supported it just two weeks ago). He cited the change in global economic conditions and the refusal to allow Labour to table an amendment. McDonnell also vowed to assist colleagues in Scotland in challenging the SNP anti-austerity claims. But MPs were left unimpressed. "I don't think I've ever heard a weaker round of applause at the PLP than the one John McDonnell just got," one told me. MPs believe that McDonnell's U-turn was due to his failure to realise that the fiscal charter mandated an absolute budget surplus (leaving no room to borrow to invest), rather than merely a current budget surplus. "A huge joke" was how a furious John Mann described it. He and others were outraged by the lack of consultation over the move. "At 1:45pm he [McDonnell] said he was considering our position and would consult with the PLP and the shadow cabinet," one MP told me. "Then he announces it before 6pm PLP and tomorow's shadow cabinet." 

When former shadow cabinet minister Mary Creagh asked Corbyn about the new group Momentum, which some fear could be used as a vehicle to deselect critical MPs (receiving what was described as a weak response), Richard Burgon, one of the body's directors, offered a lengthy defence and was, one MP said, "just humiliated". He added: "It looked at one point like they weren't even going to let him finish. As the fractious exchanges were overheard by journalists outside, Emily Thornberry appealed to colleagues to stop texting hacks and keep their voices down (within earshot of all). 

After a calmer conference than most expected, tonight's meeting was evidence of how great the tensions within Labour remain. Veteran MPs described it as the worst PLP gathering for 30 years. The fear for all MPs is that they have the potential to get even worse. 

George Eaton is political editor of the New Statesman.