Not this kind of tiger, clearly. Photo: Getty
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Why a woman having sex with a fake tiger shows that the Extreme Pornography Act must be repealed

Experts predicted that the law would result in fewer than 30 cases a year. Instead, there have been thousands of convictions. The Act is not fit for purpose.

Andrew Holland, the Wrexham man who was famously prosecuted for possessing a clip of a woman having sex with a man in a tiger costume, has challenged Section 63 of the 2008 Criminal Justice and Immigration Act, popularly known as the Extreme Pornography Act. In a letter to the head of the Crown Prosecution Service, Holland’s solicitors have claimed that even five years after its enactment, the law is so unclear and poorly understood – including by police, prosecutors and solicitors – that it too easily traps the innocent. Assisted by a specialist legal team and advised by the sexual freedom campaigning group Backlash, the former defendant has called on CPS head Allison Saunders to review the implementation of Section 63; if no such review is forthcoming, the law will be challenged via judicial review.

Holland’s case illustrates the damage that can be caused by this poorly understood law. He was an ordinary man who loved jokes, the more outlandish the better. He had received the tiger clip, and another six second clip depicting simulated damage to a man’s genitals, as laddish jokes from friends. The friend had shared the clips as part of a braggart, bravado-tinged culture where online buddies swap videos intended to shock. “Unfortunately one of my friends sent me a load of jokes…some of them were hilarious, but unfortunately there were two on there that were classed as obscene,” says Holland.

In the tiger clip, after copulating with the woman, the costumed man looks up and says to the camera: “That beats doing Frosties ads for a living!” Clearly, it is not real; it’s a joke, albeit not to everyone’s taste, and it isn’t meant to be banned under the Act. But when Holland’s phone found its way into the hands of police in 2009, over a matter which was never pursued by them, he found himself charged with possessing extreme pornography, his name plastered across newspapers and websites. “When I went to court, neither my solicitor nor the people at the court understood the new law,” he says.

The trial process showed that lack of understanding. When they had charged Holland, the CPS had not yet heard the clip’s audio, which contained the tiger’s tell-tale punchline. Upon finally hearing the audio, they dropped the charge, but Holland would still have to face trial for the second charge, relating to the six-second clip of simulated genital damage. He pleaded not guilty, but when the jury saw the clip, his lawyers read their shocked reactions and advised him to change his plea to guilty. He followed his lawyers’ advice, and a date for his sentencing was set.

Were it not for the support of Backlash campaigners, the story of Andrew Holland might have ended there. He could have faced a custodial sentence, and any conviction would almost certainly damage his career and personal life. Fortunately for him, the sensational media reports of the “Tiger Porn” case had spread widely, and came to the attention of Backlash. Through their networks, Backlash activists reached out to Holland; when they were finally able to reach him, he had already made his plea. With specialised advice and support from legal experts, he applied to have his guilty plea vacated before sentencing. This was granted, which meant that he would stand trial again, in the knowledge that he had a defence.

This time, he was ready. With the help of civil liberties lawyer Myles Jackman, who frequently advises Backlash, Holland’s legal team had assembled a panel of experts to dispute the pornographic nature of the clip, highlighting that they had been sent without permission, in jest. Eventually, again, the CPS dropped the charges, possibly because they wished to avoid embarrassment in a high-profile, well-informed challenge to the controversial Act.

Holland was cleared, but he had to piece his life together after the many months of litigation. The media furore led to job loss and public ridicule, as his name was publicly associated with illegal pornography. “People were talking…vigilantes and people threatening, I was beaten up on more than one occasion…I was living in fear of my life,” he says. Even today, the ubiquity of the case on the internet worldwide links his name permanently to an embarrassing episode of his life; though he was cleared, he is still at risk, and has moved to an area where nobody knows him. The charges still appear on some background checks, which make it hard for him to find work. “[The story] went everywhere around the world – my name, my address, my age and everything,” he says. At any time, an internet reader might search his name, find old news reports, and skim the headline without following the complexities of his case. In the mind of that skim-reader – perhaps a colleague or neighbour – he will be forever linked with perversion, with deviance.

Holland hopes to prevent anyone else from falling foul of a law that he feels is not fit for purpose. “I want to clear my name, and put the point across to people that are ignorant in their understanding of extreme pornographic images…People showing a cartoon clip on their mobile phone in a pub face being in the same position as me, even though they’ve got no knowledge that what they have is illegal,” he says.

Without a CPS revision of the guidance around Section 63, or its overturn in a successful judicial review, it is very likely that more innocent people will be exposed to the indignity of arrest and the damaging consequences of unjust conviction. Backlash has worked with many people who feel they were unjustly accused. They have heard from those who were reported to the police to satisfy a grudge, and those who police charged after discovering images during investigation for other issues. With increasing availability of high-speed wireless Internet, and the popularity of social media and instant messaging services like WhatsApp, it’s increasingly easy to be carrying an offending image around in your pocket.

According to Jackman, the new technology creates unprecedented opportunities for people to pass illegal images around unknowingly. “You have a group of people who communicate by text or app messaging services, and a member of the group may post something as a joke without realising it’s illegal. I’ve sent you an image, you haven’t asked for it, you don’t know what it is. You could be in possession of extreme pornography and could be arrested for being in possession of it…We are seeing an increasingly large amount of this. [Prosecution is] not limited to people with alternative sexual preferences, but is now an issue which affects the entire adult population,” he says.

In the challenge, Holland’s legal team, advised by Backlash, emphasise the Act’s violations of human rights. With the concept of “extreme” pornography poorly defined, and without reliable guidance from CPS to prosecutors, individuals find it difficult to determine what is and isn’t legal. Perhaps, this is why a law which experts predicted would get less than 30 cases a year has had over 5,000 convictions since its inception. It’s impossible to know how many people have pleaded guilty to possession of images that were not actually unlawful. “I can only assume that a vast proportion of people caught will have been affected in the same way as [Holland],” says Jackman. Even if only a few of those cases were like Holland’s, or like the case of former Boris Johnson aide Simon Walsh (whose career was destroyed when he was accused), the law’s impact on social freedoms is disproportionate to any social good that it has caused.

This challenge comes at a time of contrasting trends around sexuality and morality. Racy erotica is available on the shelves of bookshops in every high street, but much of society exists in a moral panic, and even a whiff of this fear can ruin lives and tear communities apart. It is the duty of our judiciary to uphold the core, liberal values of human rights and freedom of expression, not to give into moral panic. In holding the justice system to account, Holland and his lawyers can stem the tide of panic, but only society as a whole can decide to reject it altogether. “I think liberalism always wins eventually but it takes time; there’s friction between more progressive impulses and more conservative ones, and when it comes to social issues, be it gay marriage or slavery, these debates can be very short or they can be very long-lived,” says Jackman. “Eventually I think when it comes to sexual morality, which is clearly not a state politics issue but a personal one, these things will change, it just takes time,” he says.

Margaret Corvid is a writer, activist and professional dominatrix living in the south west.

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Andy Burnham and Sadiq Khan are both slippery self-mythologisers – so why do we rate one more than the other?

Their obsessions with their childhoods have both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

Andy Burnham is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s widely seen as an unprincipled flip-flopper.

Sadiq Khan is a man whose policies and opinions seem to owe more to political expediency than they do to belief. He bangs on to the point of tedium about his own class, background and interests. As a result he’s the hugely popular mayor of London, the voice of those who’d be proud to think of themselves as the metropolitan liberal elite, and is even talked of as a possible future leader of the Labour party.

Oh, and also they were both born in 1970. So that’s a thing they have in common, too.

Why it is this approach to politics should have worked so much better for the mayor of London than the would-be mayor of Manchester is something I’ve been trying to work out for a while. There are definite parallels between Burnham’s attempts to present himself as a normal northern bloke who likes normal things like football, and Sadiq’s endless reminders that he’s a sarf London geezer whose dad drove a bus. They’ve both become punchlines; but one of these jokes, it feels to me, is told with a lot more affection than the other.

And yes, Burnham apparent tendency to switch sides, on everything from NHS privatisation to the 2015 welfare vote to the leadership of Jeremy Corbyn, has given him a reputation for slipperiness. But Sadiq’s core campaign pledge was to freeze London transport fares; everyone said it was nonsense, and true to form it was, and you’d be hard pressed to find an observer who thought this an atypical lapse on the mayor’s part. (Khan, too, has switched sides on the matter of Jeremy Corbyn.)

 And yet, he seems to get away with this, in a way that Burnham doesn’t. His low-level duplicity is factored in, and it’s hard to judge him for it because, well, it’s just what he’s like, isn’t it? For a long time, the Tory leadership’s line on London’s last mayor was “Boris is Boris”, meaning, look, we don’t trust him either, but what you gonna do? Well: Sadiq is Sadiq.

Even the names we refer to them by suggest that one of these two guys is viewed very differently from the other. I’ve instinctively slipped into referring to the mayor of London by his first name: he’s always Sadiq, not Khan, just as his predecessors were Boris and Ken. But, despite Eoin Clarke’s brief attempt to promote his 2015 leadership campaign with a twitter feed called “Labour Andy”, Burnham is still Burnham: formal, not familiar. 

I’ve a few theories to explain all this, though I’ve no idea which is correct. For a while I’ve assumed it’s about sincerity. When Sadiq Khan mentions his dad’s bus for the 257th time in a day, he does it with a wink to the audience, making a crack about the fact he won’t stop going on about it. That way, the message gets through to the punters at home who are only half listening, but the bored lobby hacks who’ve heard this routine two dozen times before feel they’re in the joke.

Burnham, it seems to me, lacks this lightness of touch: when he won’t stop banging on about the fact he grew up in the north, it feels uncomfortably like he means it. And to take yourself seriously in politics is sometimes to invite others to make jokes at your expense.

Then again, perhaps the problem is that Burnham isn’t quite sincere enough. Sadiq Khan genuinely is the son of a bus-driving immigrant: he may keep going on about it, but it is at least true. Burnham’s “just a northern lad” narrative is true, too, but excludes some crucial facts: that he went to Cambridge, and was working in Parliament aged 24. Perhaps that shouldn’t change how we interpret his story; but I fear, nonetheless, it does.

Maybe that’s not it, though: maybe I’m just another London media snob. Because Burnham did grow up at the disadvantaged end of the country, a region where, for too many people, chasing opportunities means leaving. The idea London is a city where the son of a bus driver can become mayor flatters our metropolitan self-image; the idea that a northerner who wants to build a career in politics has to head south at the earliest opportunity does the opposite. 

So if we roll our eyes when Burnham talks about the north, perhaps that reflects badly on us, not him: the opposite of northern chippiness is southern snobbery.

There’s one last possibility for why we may rate Sadiq Khan more highly than Andy Burnham: Sadiq Khan won. We can titter a little at the jokes and the fibs but he is, nonetheless, mayor of London. Andy Burnham is just the bloke who lost two Labour leadership campaigns.

At least – for now. In six weeks time, he’s highly likely to the first mayor of Greater Manchester. Slipperiness is not the worst quality in a mayor; and so much of the job will be about banging the drum for the city, and the region, that Burnham’s tendency to wear his northernness on his sleeve will be a positive boon.

Sadiq Khan’s stature has grown because the fact he became London’s mayor seems to say something, about the kind of city London is and the kind we want it to be. Perhaps, after May, Andy Burnham can do the same for the north – and the north can do the same for Andy Burnham.

Jonn Elledge edits the New Statesman's sister site CityMetric, and writes for the NS about subjects including politics, history and Daniel Hannan. You can find him on Twitter or Facebook.