David Allen Green

A critical and liberal look at law and policy

An "extreme" prosecution?

The offence in the infamous “Tiger porn” case is being used again

By David Allen Green Published 07 August 2012 13:51

A safe-for-work picture of a tiger. Photo: Getty

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

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19 comments

Thu, 2012-08-16 02:15 — best kids scooter (not verified)

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Wed, 2012-08-08 15:26 — David Boothroyd

David Allen Green, who is a Liberal Democrat, is trying to pull a fast one with the line "It was promoted by a Labour government with the support of the then Conservative opposition."

The Liberal Democrats did not oppose the Bill; nor did any Liberal Democrat MP make any comment about this section during its Parliamentary consideration. Labour MP Harry Cohen did question it in committee; the two Liberal Democrats (David Heath and David Howarth) said nothing. There was a minor attempt in the House of Lords to get rid of it, backed by members of all four main groups, but which was voted on late at night and with low participation. The government did add the defence that the image was taken by one of the participants, which was used in the recent trial.

If you want to make party political points, please give a more accurate and truthful account of the origin of the section which was in the Jane Longhurst murder trial. I doubt that it was in the minds of any MP that the section would be used as it has been in this case.

Wed, 2012-08-08 22:44 — blahblahblah (not verified)

False, Evan Harris criticised the law in Parliament (I'm afraid I can't link the debate, as New Statesman considers it spam!). I'm not sure that only 1 Lib Dem criticising it in Committee is relevant - the Committee covers many different laws included in the bill, so I can imagine that different MPs focused on different areas. (I know that David Howarth didn't favour this law, due to the letter he wrote in reply to me - he was my MP at that time.) What is relevant is that the Lib Dems opposed it in the Committee.

I'm not sure what you mean by minor attempt - the Lords saw plenty of good criticism. The vote failed because of all the Labour lords voting for it - I fail to see how you can blame the Lib Dems for this.

Plus, what you say doesn't contradict the article anyway. Even if the Lib Dems were entirely neutral, it is still true that Labour made this law, with support of the Tories. Nothing you say changes those facts.

"The government did add the defence that the image was taken by one of the participants, which was used in the recent trial."

No they didn't - that defence only applies to people directly participating, and they specifically stated that the person taking the image doesn't count! The relevance in this trial I believe was that it so happened that the photographer was caught in the image due to a mirror. But the fact that it gets to the point where the legality might depend on the presence of a mirror just shows how barmy and ill thought out this law is. Also note that Labour still wanted to argue that this defence wouldn't apply if the court decided that they couldn't consent, so as with the Spanner trial, the law could still criminalise BDS M images even for people appearing in the images.

Plenty of far better amendments and defences were proposed by critics of the law (including Lib Dems), that would limit the law to abusive non-consenual po rn, without covering images of consensual acts. These were dismissed, because the law was not about tackling abuse - it was about images deemed to be "disgusting", and claimed to turn people into violent criminals.

"I doubt that it was in the minds of any MP that the section would be used as it has been in this case."

They had plenty of warning, as many people opposing the law warned them of these very possibilities. But they were ignored by supporters of the law - Labour MP Martin Salter dismissed BDS Mers as people who "do weird things to each other".

PS for the New Statesman - you really want to turn of the"profanity filter" if you're going to publish articles on this topic! At least tell us what words we need to edit...

Thu, 2012-08-09 00:05 — David Boothroyd

You're wrong. Evan Harris, speaking for the Liberal Democrats on the Second Reading (8 October 2007), read out a bit from the Liberty briefing on the section, and then finished with "I would be grateful if, in his response, the Minister set out the evidence that justifies the measure" - hardly speaking out against it, and he did not oppose the Bill. He didn't serve on the Public Bill Committee, and he never pursued the issue of this section again in Parliament.

In the Lords the Liberal Democrats argued that the definition should be closer to the Obscene Publications Act 1959 - a bizarre suggestion because that Act is entirely subjective about its definition of obscenity. Reading the debates it is quite clear that Ministers intended the definition to be very restrictive; highly relevant also is the fact that Simon Walsh himself, on Newsnight, said quite clearly that the problem was that the law was misused in his case.

It may be that there is no way of writing the legal definition so that it catches the material possessed by Graham Coutts which inspired the campaign, but is never used as it was in this case. Certainly I have not seen any suggestion for such an amendment.

Thu, 2012-08-09 12:07 — blahblahblah (not verified)

Now you have switched to saying that you don't agree with the way they argued. You may have not liked their arguments, but that doesn't mean they didn't argue.

Reading arguments from Liberty is perfectly fine, if their arguments are better than what you might be able to argue; plus MPs are meant to represent the people, not simply themselves.

As for the Lords, yes I'd rather the law as a whole be scrapped, but given the Government was refusing to budge, it was also an important tactic to see if the law could be limited. (In fact, a vote in the Lords was allowed on scrapping the law, but I'd argue it was a bigger problem that a vote wasn't made on some of the useful amendments, as they'd have had a bigger chance of succeeding.)

For the material that Coutts looked at, there is no evidence this involved non-consensual acts - sites like Necrobabes are legally hosted in the US, made with consenting adults. So indeed, I agree it is hard to write a law that catches some consensual things but not other consensual things, all the while the law is intended to be about "banning disgusting images", rather than preventing abuse.

The OPA at least requires the jury to consider the material "deprave and corrupt" - more importantly, it was to safeguard the argument that it would only cover what was already illegal to publish (and given that an al fist ing has already been shown to be legal under the OPA, it might have made the CPS less likely to pursue this case). I agree, a law restricted to the OPA would still have been a bad law - but that was just one of the amendments proposed in the Lords. Another one IIRC would have limited it to cases where a sexual offence was committed in the creation of the images.

Thu, 2012-08-09 10:51 — Keith Underhill (not verified)

In fact you are both wrong. There was very little time for this to be debated in the commons. The government allowed vary little time for amendments to be considered and all of the tabled amendments for this section of the bill were lost due to lack of time (partially through the government tabling it's own amendments which get priority). So MP's did not get a chance to vote on it.

In the Lords there were two votes on this matter. One of them was for the removal of the entire section in both votes The Liberal Democrats voted against the new law, Labour voted in Favour and the Tories abstained.

I don't see how abstaining is supporting or how you can criticise Lib Dem MPs for not opposing it when they were denied a chance to vote. On the whole Christmas tree bill Labour voted for it and the other two main parties voted against it

Thu, 2012-08-09 10:49 — Keith Underhill (not verified)

In facy you are both wrong. There was very little time for this to be debated in the commons. The government allowed vary little time for amendments to be considered and all of the tabled amendments for this section of the bill were lost due to lack of time (partially throughthe governemnt tabling it's own amendments which get priority). So MP's did not get a chance to vote on it.

Thu, 2012-08-09 10:48 — Keith Underhill (not verified)

Tue, 2012-08-07 22:19 — Maria Wolters (not verified)

Then what on earth constitutes innocent possession, and where is the line between legal consensual BDSM and extreme pornography? More to the point, how would that law apply to feederism (until the feedee is physically immobile) and anorexia fetishism? Both can cause serious physical and mental harm, but arguably, many such relationships, films, or videos are fully consensual.

Tue, 2012-08-07 23:34 — blahblahblah (not verified)

Anorexia is something that should be dealt with by mental health services, not a criminal prosecution and time in prison. I don't see at all the argument for criminalising images of those things - and it's not clear that Section 63 would cover these things anyway, since it's not depicting an "act".

Those against a law on images of consenting adults don't need to draw a line. It's the people calling for criminalisation who need to draw the line, since suddenly you have to say why some images of consenting adult things are okay, and some aren't. I mean, mainstream porn and modelling shows unhealthily skinny models, why is that different to "anorexia fetishism" images?

Tue, 2012-08-07 19:30 — Peter English (not verified)

Quite apart from the odd line of questioning from the prosecution - the suggestion that somebody who visits a sexual health clinic must have been indulging in risky sexual behaviour, I was struck by the emphasis on the potential for harm, over the reality.

Much was made by the prosecution for the potential for particular sexual acts to be harmful, despite little evidence that such sexual acts, when performed by consenting sexual partners rather than during a rape or assault, are commonly harmful. “Normal” penis-in-vagina sex, done roughly with a non-consenting or resisting partner can damage the genitals; and even when done by consenting partners it can occasionally (if rarely) cause injury.

As I see it, it’s not the potential for particular sexual acts to be harmful, but the likelihood that they actually will be harmful that should have been tested – and I’m not sure from the twitter reports – that it was.

That said, of course, it is a thoroughly bad law, which should be thrown at immediately.

Tue, 2012-08-07 18:47 — Steffi (not verified)

'If you do not want images of lawful but “extreme” adult consensual sexual acts, then the solution is not to possess them. '

OK, completely missing the point.

Violent and extreme pornography does not exist in a vacuum. A lot of this type of pornography is available for anyone to access, including young people. But more importantly, a lot of this type of pornography is not consensual, unless you define consent as that of the powerful coercing the powerless to pose in the front of the camera.

This article says a lot more about the writer's preference for pornography than it does about the law.

As the first poster says, if the CPS aren't going to prosecute then who will draw the line? The people making money out it? Or the people who get off on it? I don't think so.

Tue, 2012-08-07 22:38 — blahblahblah (not verified)

"more importantly, a lot of this type of pornography is not consensual"

Let's look at what he said again:

"'If you do not want images of lawful but “extreme” adult consensual sexual acts"

So I'm not sure what non-consensual porn has to do with the matter of adult consensual acts...

I'm not sure what evidence supports your claim anyway - either that a lot of non-consensual adult material exists at all, or that this is a particular problem with either "violent" porn, or the ill-defined category of so-called "extreme" porn defined by this law. Supporters of the law made all the same claims of non-consensual material, snuff films and so on - yet even with the law in place, still not a single case of non-consensual adult material has emerged. If there's "a lot of" it, then where is it? Where are the legal cases?

Not sure what the issue of children accessing porn has to do with criminalising private possession of only some kind of porn. I think your comment says a lot more about your opposition to porn, than it does about the law - since your comments have little to do with the specific law being criticised.

Tue, 2012-08-07 19:41 — Andreas (not verified)

What an utterly inane argument. Are you seriously saying the because SOME PEOPLE might be forced to perform for kinky pornography, it should be made entirely illegal? Or that because some disturbed young people might be mentally ill, the rest of the population should be forbidden from exploring their sexuality?

That's illiberal lunacy, and I'm practically a bloody tory.

If CPS doesn't think pornography is consensual, then they can persecute whoever is making it. Hell, they can ever prosecute who watches, as far as I care - people shouldn't watch unethical porn. But this law is being used to prosecute a man with pictures of people he knows having consensual sex. Pathetic work from the CPS, demonstrating again that our judicial system is entirely comprised of middle class white men who don't represent anybody.

Tue, 2012-08-07 19:32 — Matt Bradley (not verified)

"But more importantly, a lot of this type of pornography is not consensual, unless you define consent as that of the powerful coercing the powerless to pose in the front of the camera."

I can understand the desire to prevent coercion of the weak into activities which they do not wish to undertake. However, by this logic, would the law not create a far greater good for a much larger number of coerced people if it were to outlaw cheap trainers and clothing?

The point is that we cannot in the UK control such activity by means of the law, and in attempting to do so, we may create more injustices without actually improving the lot f those who we my hope to help.

As for your slur of David Allen Green, author of this piece: I really don't that comment is deserving of any further response.

Tue, 2012-08-07 19:13 — David Allen Green

"This article says a lot more about the writer's preference for pornography than it does about the law."

Priceless :-)

Tue, 2012-08-07 19:00 — davelong (not verified)

'A lot of this type of pornography is available for anyone to access, including young people.'

Well, maybe the parents of these young people (you do mean children?) should simply deny them access to it? You can't try to reform everything in the world in case it is 'seen by young people'. They can go online and see people promoting creationism, racism, sexism, every kind of bigotry. How are you going to stop that? At what age would you allow 'young people' access to the internet? Or the Bible? Or Mein Kampf?

'This article says a lot more about the writer's preference for pornography than it does about the law.'

Smearing the person who puts a cogent argument in favour of personal freedom says a lot about you. Stay classy.

Tue, 2012-08-07 17:15 — BallsOfFire (not verified)

Yeah, but if the CPS did not prosecute this type of case then who would it prosecute? Money laundering bankers?

Tue, 2012-08-07 17:38 — Patrick Graham (not verified)

while that made me laugh - the issue of the establishment not prosecuting its own - or only if it can be limited to individuals who can be dismissed as traitors to it - may well run into exactly their own sort of person when it comes to "extreme pornography".

One does wonder what has happened to the good old Lodge agreements when you see these sorts of prosecutions come forward...