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An extreme law, ‘pornography’ and another tabloid debacleLatest News

Fri 10 Aug, 2012.

by Daryl Champion

It’s not often we consider posting a blog-style personal commentary in SomethingDark’s Latest News section, but we have a special case with the trial of Simon Walsh, who had to defend himself in court over the last week and a half against charges of possession of “extreme” pornographic imagery under England’s Criminal Justice and Immigration Act 2008 (CJIA 2008). It is sections 63–68 of this act, known unaffectionately as “the extreme porn law”, that criminalises the simple possession of images unclearly referred to as “extreme”.

A jury unanimously acquitted Walsh on all charges on Wednesday in a result that should have significant ramifications for the CJIA 2008, at least in the way the law is interpreted for certain imagery. Much has already entered the public domain concerning R v Walsh (the “R” standing for Regina – the queen, or “the Crown”, as in the UK state – for the benefit of non-British readers), so this piece will, in the first instance, outline what I consider to be the salient features of the trial. I provide summaries with links to articles and comments dealing with the trial and to background information on how the extreme porn law came to be what it is today: the objective here is to provide a substantial insight and resource for those interested in this law and its application in the prosecution of a man who by any reasonable measure of a civilised society never had a case to answer in the first place.

Secondly, after having elaborated at greater length on the relevant aspects of the trial in part (i), in part (ii) I will highlight the ongoing irresponsibility and carelessness of the British tabloid press with focus on one specific example concerning the Walsh trial.

(i) The prosecution and acquittal of Simon Walsh

Under the extreme porn law, imagery needs to be assessed by prosecutors to be “explicit and realistic”; in other words, images of a sexual nature depicting staged, acted and role-played scenarios, and images generated with whatever computer software is capable of producing realistic simulations of the human form – or animal form, in the case of bestiality cases – are potentially subject to prosecution. So too are images of consenting adults engaging in legal sexual acts in private if such acts are “grossly offensive, disgusting or otherwise of an obscene character” and “[result], or [are] likely to result, in serious injury to a person’s anus, breasts or genitals”. Those interested in the precise wording of the CJIA 2008 can visit the appropriate UK government website at legislation.gov.uk; some of the articles referenced below discuss the law in some detail.

What might be viewed as “grossly offensive, disgusting or…obscene” is, of course, like beauty, in the eye of the beholder. Any attempt to define these concepts is destined to end inconclusively in circular arguments involving philosophy, sociology, religion, and, revealingly, morality. Likewise, what “is likely to result in serious injury” to someone’s erogenous zones is not defined in the law. Conviction of the possession of such imagery carries a maximum prison sentence of three years and inclusion on the career-destroying national sex offenders’ register.

At this point I should state my background as a long-term, on-the-record opponent of the extreme porn law. After submitting an extensive response to the UK Home Office’s farcical public “consultation” on its proposal to introduce such a law in 2005, I edited a feature on censorship for Skin Two magazine no. 58 (Autumn 2007). My own article for this feature, “Florence 1497 or London 2007?” attacked the basis of the proposed law. This article is available for download:

(A4 version)

(US Letter version)

The “extreme porn” legislation passed into law mid-2008 and came into force in January 2009, and for the Skin Two Fetish Yearbook 2009, I produced another censorship feature and edited an article on the new law by one of the UK’s leading commentators on sexual politics, Jane Fae (then writing as John Ozimek). The article, which has just been revised for SDk, provides a valuable insight into the evolution of this law, revealing how it was all but a foregone conclusion well before the Home Office’s public “consultation on the possession of extreme pornographic material” in 2005. Fae’s article, “Tyranny’s genesis and its opposition”, is available here:

(A4 version)

(US Letter version)

The two articles above, as well as Fae’s latest blog item, “Cracks in the wall: the Walsh trial”, help fulfill the purpose of this SDk Latest News item by providing a deeper background to the law that was wielded against Simon Walsh. See also the information page devoted to the extreme porn law on the website of the sexual civil liberties organisation, Backlash: “The legal position”. The Backlash site provides a wealth of other resources concerned with this law, and related laws and issues.

David Allen Green, a lawyer and legal commentator, looks at the extreme porn law in the context of the Simon Walsh prosecution the day before Walsh was acquitted: “An ‘extreme’ prosecution?”. In this article he cites the scandalous “Tiger porn” case, where the UK Crown Prosecution Service (CPS) proceeded with prosecuting a man in 2009 for possessing a video of a tiger having sex with a woman; the imagery was computer-generated and the clip had been sent to the defendant by friends as a joke. Apparently both police and CPS failed to listen to the comical soundtrack to the video before proceeding to court (Jane Fae suggests that “[p]erhaps they should have asked a five-year old”).

For the immediate background to the Walsh trial, the blog item posted by Walsh’s defence solicitor, Myles Jackman, on the first day of the trial (Monday 30 July) is essential reading: “Porn trial: this time it’s extreme”. So too is the early item by Nelson Jones, a writer for the New Statesman, posted to his Heresiarch’s Dungeon blog: “The trial of Simon Walsh at Kingston Crown Court”.

Jackman and the Backlash-affiliated academic sex researcher, Alex Dymock, are believed to have made UK legal history as the first people attending a trial given permission to live-tweet on the progress of the case from the courtroom. Their running commentaries of the trial provided a rare, fascinating and valuable inside view of the trial process via #porntrial.

Walsh was acquitted early in the afternoon of Wednesday 8 August; Backlash lost no time issuing a press release, “Jury refuses to criminalise a magistrate for looking at fisting porn”. Almost simultaneously, Dymock had a commentary published on a UK political-news website: “Comment: Prosecutors, extreme porn and 50 Shades of Grey”. Then Jackman followed with a commentary piece later in the afternoon courtesy of the Guardian, as the mainstream press lined up to pay more attention to the trial: “Extreme porn trial: consensual sex and the state”.

Jackman delivered a powerful message about “the voyeur state intruding on the liberty of individuals’ private and consensual sex lives”. The following extract from Jackman’s piece is crucial for an understanding of the transgression not only of the CPS in the conduct of the prosecution, but of a mainstream tabloid in a story on the trial published last Friday, 3 August, on which I focus in more detail below:

Like Simon, you could be sent a potentially illegal picture via email. One which you never requested or opened, only to later find yourself in court, accused of being in possession of it.

While some defendants have hundreds of thousands of allegedly extreme or indecent images on their computers, Simon had five images of consensual adult sexual activity and a single unrequested picture unopened on his email server attached to an email containing a story about “Jason”. Simon never requested this image and the prosecution were unable to prove Simon ever opened, viewed or knew it. In the story Jason was described as being in his mid twenties. The prosecution described Jason as being 14 years old; the legal age of representation in pornography being 18.

Three defence experts viewed the image and stated in written reports that Jason was in his twenties. As a matter of legal procedure, the jury never heard this expert evidence. Instead they used their common sense and acquitted Simon.

David Allen Green, in his capacity as legal correspondent for the New Statesman and shortly after Walsh’s acquittal, commented pointedly on the dubious conduct of the prosecution: “The shameful and nasty prosecution of Simon Walsh”. He states that the extreme porn law “is perhaps the most complex as well as one of the most illiberal prohibitions in criminal law”, and that:

[f]or no good reason, the CPS…maintained that one of the images was of a child, even though the accompanying text said the age was in the mid-20s. To proceed with a child sex charge in these circumstances can only be described as spiteful. The rest of the supposed evidence was similarly not compelling: images of consensual adult sexual activity attached to a forgotten email sent by another, which even the CPS could not prove the defendant had even opened.

After seeking an explanation for their decisions from the CPS and finding their response inadequate, Green wrote:

A decision to prosecute is not a medical matter (which in this case was contested). Nor should the CPS be blithely leaving it “for a jury to decide”. The CPS instead has the important function of deciding if cases are properly arguable and in the public interest. But, yet again, the CPS has prosecuted a case free from any notion of proportion, and without regard for a defendant’s privacy and dignity.

There are suggestions that the defendant’s previous work in prosecuting corrupt police officers may have something to do with why this case was ever brought. If so, that would be a horrific abuse of process. However, even if that is not relevant, this was still an inappropriate application of what was a bad law to begin with.

Followers of the trial were also made aware of the prosecution suggesting, without any evidence, that Walsh owned another computer the police didn’t find, the insinuation being that Walsh is probably guilty even if the charges brought before the court could be dismissed; and how a prosecution barrister insulted – to say the least – a female expert academic witness for the defence who contradicted the CPS argument (see, for example, Jackman tweets @ObscenityLawyer and Dymock tweets @lexingtondymock, 6–7 Aug.; also Jane Fae, “Why the porn trial verdict is no reason to celebrate” for Index on Censorship; Ian Dunt, “Comment: Heads must roll for the porn trial” for Politics.co.uk).

BBC 2 Television’s Newsnight current affairs program, unusually, devoted time to a reasoned treatment of the issues at hand, and hosted Walsh with some respect and sympathy. The CPS London’s chief crown prosecutor, Alison Saunders, appeared in interview and, confirming Green’s views, offered an entirely inadequate explanation for Walsh’s prosecution. This is no doubt due to the fact that, as Green insists, there is no adequate explanation in the face of the CPS’ complete lack of perspective and sense of proportion. See Newsnight, 8 August, from 20:55 (available on BBC iPlayer until 11:29pm, 15 Aug. 2012).

Jane Fae, writing for the Gay Star News shortly after Walsh’s acquittal, asks questions such as “Is the English legal establishment institutionally homophobic?” (see Fae’s article, “Are British law officials biased against gay sex?”). The questions are pertinent ones considering R v Peacock earlier this year, which saw the CPS prosecute a gay man, Michael Peacock, under the Obscene Publications Act 1959 (OPA) for distributing gay pornography. Peacock, who was selling DVDs on a commercial scale, including DVDs of gay sadomasochism and fisting, was unanimously acquitted in January. If Peacock was acquitted, why would the CPS then pursue Walsh over a mere six images held online in a personal Hotmail account? Chris Ashford, an academic lawyer at the University of Sunderland and an expert witness in the Walsh trial who comes from a gay perspective, reflects on the significance of Walsh’s acquittal in conjunction with Peacock’s acquittal: “Reflections and future legal directions after #porntrial”.

The prosecution of unconventional gay sexual practices in the United Kingdom has a longer history dating back to the Spanner trials of the 1990s; my Backlash-sponsored presentation paper for the UK Socio–Legal Studies Association Annual Conference 2010, “On the edge: BDSM and heteronormative denigration”, ties together the Spanner prosecutions of gay SMers with the extreme porn law and other issues also discussed in Fae’s article mentioned immediately above.

In his Guardian commentary, Jackman alluded to the extreme porn law’s intrusion into the art world, citing how the Barbican Gallery, London, had to clear with police potentially criminal-to-possess work by Robert Mapplethorpe – a legacy of the original Mapplethorpe scandals of more than twenty years ago that crossed the Atlantic and have inspired British moralists since at least 1997. This, too, hints at a selective process of singling out unconventional gay sexual imagery for legal attention together with playing on the prejudicial stereotype that gay men are more likely to be paedophiles (see my feature article for SDk01, “Twenty years later: Mapplethorpe, art and politics”).

Finally, for those interested in the legal media, the Global Legal Post caught up on Walsh’s acquittal on 9 August: “Lawyer acquitted in landmark pornography trial”; and Nelson Jones, this time posting to his Heresy Corner blog, provides a summary of the trial and its human, legal, social and institutional implications: “The acquittal of Simon Walsh at Kingston Crown Court”.

(ii) Another tabloid debacle

At 9:38pm on Friday 3 August the Daily Mail’s website, the Mail Online, published a story on Simon Walsh’s trial that, in the words of Myles Jackman, carried an “inaccurate headline” (@ObscenityLawyer, 3 Aug., 10:36pm). The headline read: “Gay Boris aide ‘viewed sadomasochistic and child porn and had e-mail with sexually graphic description of a hanging’”.

The defence was contesting the CPS’ assertion that the six images found stored in Walsh’s Hotmail account were in fact “pornography” at all. The headline was potentially prejudicial to Walsh’s case – and surely must have come close to raising questions of potential contempt of court, and possibly of libel – considering what most legal commentators believe was an “astonishing” CPS accusation that a mature male depicted in one image was fourteen years old (see, for example, Ashford; also Green, both cited above). See the screen capture, below (click to expand in lightbox with further details in the caption):

Jackman made many frustrated attempts late into that Friday night to communicate his dissatisfaction with the headline to the appropriate Daily Mail staff: for example, the “…night editor at The Mail Online just hang [sic] up on me” (@ObscenityLawyer, 3 Aug., 11:44pm). At some stage Jackman must have been successful because, the next morning, the article had been taken offline; however, as he went on to report on Saturday morning, “Mail Online completely removes inaccurate report of #PornTrial from their website; but the remaining URL is still inaccurate” (@ObscenityLawyer, 4 Aug., 9:49am). See the image of the Mail Online take-down screen, with the original URL still serving the page:

At 5:01pm on Monday 6 August, a re-worked version of the story went online with a new headline and a by-line that credited a “Daily Mail reporter” instead of the original item’s Simon Tomlinson. The story was updated again at 02:23am on Thursday 9 August – some thirteen hours after Walsh had been acquitted.

This latest version of the Mail Online story also carried a significant inaccuracy, albeit not of the order of the original headline: it misquoted Walsh to effectively have him say the opposite of what he actually said in court regarding a right to a private life while serving in public office. The relevant text of the article, followed by the relevant screen capture of the re-worked Mail Online story, is:

Thomas Wilkins, prosecuting, questioned whether involving himself in the activities the photographs display would ‘compromise your position as a judge and as somebody with these roles in local government’.

The alderman replied: ‘When I stand for roles in public office I give up a right to privacy.’

What Walsh actually said in court was tweeted live from the courtroom on the morning of Monday 6 August by Dymock: “Walsh: ‘I didn’t give up a right to a private sex life when I stood for election as a public official.’ (@lexingtondymock, 6 Aug., 10:45am). In summarising the case for the jury on the morning of the last day of the trial, Wednesday 8 August, the judge, Nicolas Price QC, cited Walsh: “Standing for public office doesn’t mean I give up my right to a private life” (@ObscenityLawyer, 8 Aug., 11:06am).

The conduct outlined above by one London-based national daily tabloid is, unfortunately, not uncommon. It is consistent with the concept of the tabloid ecosystem, for which I argue a case in “The tabloid ecosystem and crimes against society”.

As Nelson Jones suggested, although the circumstances are very different, there are parallels between the CPS prosecution of Simon Walsh (and some subsequent less-than-responsible press coverage), and the 2008 Max Mosley case at least in terms of the complete and gratuitous destruction of privacy, often couched in the terms of promoting an assumed, universal morality. The conduct of the prosecution of Simon Walsh strongly suggests that the CPS’ and police interpretation of the law – if not the law itself – is one framed by a perceived need to enforce a moral agenda in British society, an agenda that is tacitly supported by the popular press. Having written in depth on the News of the World’s exposé of Mosley and the latter’s breach-of-privacy suit against the now-defunct Sunday tabloid (“Max Mosley’s war for privacy is now a nation’s”), Jones’ opinion is one I share.

Text copyright © Daryl Champion and SomethingDark 2012. Images copyright © SomethingDark 2012. All rights reserved.