The farce that was the trial of Simon Walsh, and which ended in acute embarrassment for police and prosecuting authorities in Kingston Crown Court this week exposes three fundamental flaws in the dishonesty that has always been the establishment approach to this legislation.
Collectively, these underline the instinctive reaction of many groups who were vehemently opposed to the law as it made its way through parliament: that you didn’t need the detail of the law to be opposed to it; you needed merely to understand that the law on extreme porn handed powers that were both wide and ill-defined to the authorities, and for that reason alone it should be feared.
The inevitable extension of power
Let’s start with what looks like a very ominous development indeed: the summing up by the trial judge in which he apparently explained to the jury that “serious injury” could involve “physical, mental or moral harm”.. This is par for the course. Over the years we have seen how the courts have extended legislation on child abuse material so that “making” an image, which the public, I suspect, naively consider to involve some sort of recording equipment and the presence of real live children now covers “downbloading”. (Cause the image gets “made” on your hard drive, innit?).
Not that I have enormous issues with this particular extension: just that I think if the law was meant to be that, parliament should have said so. Then there’s the slide in respect of dvd’s and other material from legislating against stuff that “causes harm” to stuff that causes “potential harm” or is “likely to cause harm”.
And this year we have the interesting extension of the law on Obscene Publications to bring one-to-one conversations and online chat within its remit. Again: I can see WHY the authorities might wish this to be the case…but if they do, why not be honest and legislate it?
So. The fly in the ointment of this week’s case is the clear revelation that many in the judiciary have already internalised the falsehood that extreme porn legislation is a bit like Obscenity law and meant to deal with mental and moral harm despite the very clear denials by ministers and politicians just four short years ago that this law was intended to deal with depiction pure and simple.
Use and abuse
Next up and clear for the world to see, is the utter abuse of the law. Although perhaps we shouldn’t be surprised at that. Searching back through articles I wrote at the time, I was sure Lord Hunt of Kings Heath, who steered this legislation through the Lords for Labour, specifically rejected the idea that the law would be used by the police to slap down peeps who were just a bit too uppity for their own good. But no. Here’s Baroness Miller, who mounted a sterling rearguard action against this law’s passing for the Lib Dems:
“Perhaps the most chilling point in the Minister’s summing up—I thank him for going into some detail—was that when it came to policing this it was for dealing “with individuals” who are “causing concern”. Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried.”
Ah. There we have it! The fact that this law has been used over the last three years to criminalise thousands of individuals whose only crime was to possess one or two extreme pics – despite government assurances that the law would only be used against the most extreme images and then give rise to maybe 30 cases a year was never the plan. Twas always intended to be used “thus”.
Which in this case seems to cover a multitude of abuses by police and CPS. Having written about the subject from the off, I have spoken to a fair few defendants. In one instance, it was very clear that the police simply had it in for one individual, had tried on numerous occasions to “bring him to book” and, lo, when one of his detractors falsely claimed he was looking at child abuse material, they promptly broke down the doors of his house and, finding none of that, promptly prosecuted him for two allegedly extreme – and unviewed – video clips found on his phone.
Echoes of the Walsh case, where the stench of someone brought to book because he was “causing concern” by prosecuting corrupt police officers just will not go away!
Beyond this, though, there is the mixture of incompetence and vindictiveness shown by police and prosecuting authorities in case after case. Putting individuals through months of hell as they waited for their case to get to court – then dropping it within minutes of the judge’s arrival. Perhaps the ultimate abuse in this instance is that of North Wales Police and CPS, who insisted over and over that a clip they had of a woman having sex with a tiger was beyond doubt an extreme image featuring bestial sex.
The fact that the “tiger” was but a cgi tiger, made abundantly clear by the voice over accompanying the clip, was excused by these same authorities with the claim that in all the long months they had had access to it, no-one, neither police officer nor lawyer, had been able to work out how to make the sound track on the clip audible. Perhaps they should have asked a five-year old.
Last up, this case and others like it, increasingly expose the internal contradictions in the legislation which may in time be its downfall – and intriguingly it does so in ways that critics, including myself, warned the authorities of throughout the consultation process.
For this law is born of a view – a presumption – about pornography that government never properly tested or researched: the idea that porn is the work of some sort of “evil empire” keen to foist its wares – in turn, the result of force and exploitation – on the rest of the world. Pornography, according to this, is rarely fully consensual: an inherent evil “done” by “them” to “us”.
Yet in a briefing paper I put together for various Lords concerned about this legislation back in February 2008, I argued both that there was considerable evidence to show that the “net worth” of the amateur porn market had now overtaken that of the commercial/criminal one and that this disproportion was even more marked in respect of the bdsm scene, from which the majority of extreme pornographic images were likely to be drawn.
And that particular point of view has returned, with a vengeance, to haunt the authorities wherever extreme porn cases have been well contested. For it is abundantly clear, from the remarks of both the judge and prosecution counsel at the recent trial that they just presume – good upstanding heteronormative white blokes that they are – that “everyone knows” what porn is. They are therefore exceedingly discombobulated when experts such as Dr Clarissa Smith appear, having studied the field in depth and start making distinctions between the uses to which certain images and sequences of images may be put.
Thus, in early cases under this law, I have listened in incredulity to both judges and DEFENCE lawyers intoning portentously about there being only one possible reason for possessing such images (well…perhaps there would be if you were a judge!) and therefore the “produced for pornographic purposes” element of the charge is taken pretty much as read.
A bit like the moral madge view that a woman with her top off is automatically “sexual”. Er, no. Calm down, dears: a woman with her top off is as sexual as SHE wishes to be and as sexual as YOU, the observer, decide to make her.
I digress. This presumption that the authorities just “know what porn is”, is almost certainly a contributory factor to the vast number of convictions obtained to date under the bestiality provisions of the law. Because for the police and CPS, this is a slamdunk conviction. I mean: it includes a doggie and it includes sex. So, obviously, its animal porn.
Except, the purposes – and bear in mind the law talks explicitly of “purpose” – for which the image may have been sent may have been as joke: something to pass around a pub and have a good laugh at; which is exactly what many individuals prosecuted under this law have said.
Ditto some footage of extreme harm being done to the genitals which may be sexual and pornographic…or may simply form part of the growing body of work which has been created around (mostly) non-sexual areas such as the pain Olympics.
Interestingly, Dr Smith appears to have argued that some of the images at the recent trial were not pornographic given their provenance and the way in which they were made. I think this is not correct within the interpretation of the law.
But actually the law has a much bigger issue. For by introducing the concept of images being “made” for porn purposes in respect of films themselves passed for public viewing, it seems clear that the law contains within it a very definite idea of intent.
Not in the acts depicted: but around the intention of the person downloading those images. And if an image was NOT downloaded for pornographic purposes, then it probably is not porn within the meaning of the Act.
In sum, this is a law that looks nasty and repressive but which, the moment you begin to poke at it, just crumbles in your hands. Over the last few years, police and CPS have got away with legal murder in this area, bringing and winning a long series of prosecutions that were undefended or defended poorly by lawyers who don’t really understand what the law is. When a spirited and intelligent defence has been put up, they lose. Period.
Sadly, for now, about the only people offering the latter are the crew over at Hodge Jones Alan and the brilliantly focused Obscenity Lawyer, aka Myles Jackman, of whom, sadly, there is but one.
On the other hand, as awareness of the flaws in this legislation becomes more widespread, it seems inevitable that other lawyers will take up the torch and that without significant amendment, over the next few years we are likely to see the gradual demise of this law.