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.)

Getty
Show Hide image

How Labour risks becoming a party without a country

Without establishing the role of Labour in modern Britain, the party is unlikely ever to govern again.

“In my time of dying, want nobody to mourn

All I want for you to do is take my body home”

- Blind Willie Johnson

The Conservative Party is preparing itself for a bloody civil war. Conservative MPs will tell anyone who wants to know (Labour MPs and journalists included) that there are 100 Conservative MPs sitting on letters calling for a leadership contest. When? Whenever they want to. This impending war has many reasons: ancient feuds, bad blood, personal spite and enmity, thwarted ambition, and of course, the European Union.

Fundamentally, at the heart of the Tory war over the European Union is the vexed question of ‘What is Britain’s place in the World?’ That this question remains unanswered a quarter of a century after it first decimated the Conservative Party is not a sign that the Party is incapable of answering the question, but that it has no settled view on what the correct answer should be.

The war persists because the truth is that there is no compromise solution. The two competing answers are binary opposites: internationalist or insular nationalist, co-habitation is an impossibility.

The Tories, in any event, are prepared to keep on asking this question, seemingly to the point of destruction. For the most part, Labour has answered this question: Britain will succeed as an outward looking, internationalist state. The equally important question facing the Labour Party is ‘What is the place of the Labour Party in modern Britain?’ Without answering this question, Labour is unlikely to govern ever again and in contrast to the Tories, Labour has so far refused to acknowledge that such a question is being asked of it by the people it was founded to serve. At its heart, this is a question about England and the rapidly changing nature of the United Kingdom.

In the wake of the 2016 elections, the approach that Labour needs to take with regard to the ‘English question’ is more important than ever before. With Scotland out of reach for at least a generation (assuming it remains within the United Kingdom) and with Labour’s share of the vote falling back in Wales in the face of strong challenges from Plaid Cymru and UKIP, Labour will need to rely upon winning vast swathes of England if we are to form a government in 2020.

In a new book published this week, Labour’s Identity Crisis, Tristram Hunt has brought together Labour MPs, activists and parliamentary candidates from the 2015 general election to explore the challenges facing Labour in England and how the party should address these, not purely as an electoral device, but as a matter of principle.

My contribution to the book was inspired by Led Zeppelin’s Physical Graffiti. The track list reads like the score for a musical tragedy based upon the Labour Party from 2010 onwards: In My Time of Dying, Trampled Underfoot, Sick Again, Ten Years Gone. 

Continued Labour introspection is increasingly tiresome for the political commentariat – even boring – and Labour’s Identity Crisis is a genuinely exciting attempt to swinge through this inertia. As well as exploring our most recent failure, the book attempts to chart the course towards the next Labour victory: political cartography at its most urgent.

This collection of essays represents an overdue effort to answer the question that the Party has sought to sidestep for too long.  In the run up to 2020, as the United Kingdom continues to atomise, the Labour Party must have an ambitious, compelling vision for England, or else risks becoming a party without a country.

Jamie Reed is Labour MP for Copeland.