Today
the Crown Prosecution Service will attempt to persuade a jury that
images of fisting should be classified as “extreme pornography”
with the risk to the defendant of three years in custody, inclusion
on the sex offenders' register and damage to his personal and
professional standing.
All
for a type of image which is commonly viewed, of an activity which is
itself is legal to perform and is even discussed in the book Fifty
Shades of Grey.
Nonetheless
the defendant, Simon Walsh, has been charged with being in possession
of extreme pornographic images under section 63 of the Criminal
Justice and Immigration Act 2008: so the
Prosecution must prove that the act of fisting
is “likely to result in serious injury to a person’s
anus”.
The
Defendant – Simon Walsh
Simon,
who is represented by my firm (Hodge Jones & Allen) has given his
express permission for this information to be published.
Before
being arrested and charged with these offences, Simon was a
successful professional and politician in the City who, amongst other
things, prosecuted police officers accused of disciplinary offences.
After
being charged, Simon lost both professional and political positions,
despite the fact that no pornography was found on any of his work
computers. In fact, no pornography was found on Simon's home
computers either.
Instead,
the police had to “interrogate” Simon's personal email account
(server) in order to discover a few images they deemed questionable.
This included an image of a man wearing a gas mask. Their expert
stated that this was likely to cause serious harm, even death by
asphyxiation: despite being a piece of equipment designed to assist
breathing. This charge was eventually dropped.
Unfortunately,
by performing the “interrogation” of Simon's email account in the
fashion they did, the police contaminated the only source of
evidence; making it impossible to identify whether images attached to
emails had in fact been opened and viewed.
The
Peacock Trial
Readers
familiar with the jury decision in Micheal Peacock's
obscenity trial earlier this year, where the defendant was
unanimously acquitted of publishing fisting DVDs under the Obscene
Publications Act 1959 (OPA), may be surprised to hear that the CPS
are having another bite at the cherry when it comes to fisting.
As
the Peacock obscenity trial was under the OPA the CPS needed to show
that fisting pornography was likely to “deprave and corrupt” the
viewer. Since this Trial is under section 63 of the CJIA 2008 the
CPS must show that act of fisting is “likely to result in serious
injury to a person’s
anus” in order to persuade a jury that the
mere representation (pictures) of this activity is a criminal
offence, despite the fact that the act itself is legal to perform.
The
Prosecution Case
What
follows is a summary of elements of what the Prosecution must prove
to substantiate an offence has been committed under the CJIA 2008:
According
to Section 63 images are “extreme” if they are “grossly
offensive,
disgusting
or otherwise of an obscene
character”
and according to subsection 7:
“(7)
An image falls within this subsection if it portrays, in an explicit
and realistic
way,
any of the following—
(b)
an act which results, or is likely to result, in serious
injury to a person’s
anus,
breasts or genitals”
Unfortunately,
what is “likely” to result in “serious injury” is not
specifically defined in the Act itself. There were Ministry of
Justice Guidelines specifically on the extreme pornography
legislation, but they seem to have disappeared from the internet,
possibly disavowed.
Conclusion
As
with the Peacock obscenity case, it will be instructive to see
whether the police and prosecution are out of step with current
cultural and moral values towards sexuality; and instead whether a
jury of reasonable people simply deem that fisting pornography is
neither extreme nor criminal.
Updates
Simon's
Trial is listed to start today, Monday the 30th
July 2012, at Kingston Upon Thames Crown Court from 12pm and is
listed to last for up to seven days.
With
the Trial Judge's permission, the Trial will be live-tweeted under
the hash tag #porntrial.
Hence
it should be possible to follow the Trial as it unfolds; and discover
whether a jury will swallow such an intrusive Prosecution.
I wish Simon well. But what we really need here is a good test case that can be sent to the ECHR. Surely this law greviously offends against Art 8 of the ECHR by trying to circumscribe the private sexual behaviour of consenting adults.
ReplyDeleteI have no desire to watch fisting porn but having seen thumbnails of it accidentally on a few porn sites I can safely say I don't think I am any more depraved or corrupted by the experience than I was before.
ReplyDeleteOne would have thought that after the Peacock case the CPS would think enough is enough.
"Serious injury"? Well, yes, if it's forced; no, if it isn't. Same as just about any other form of penetrative intercourse. The CPS really are a bunch of fuckwits.
ReplyDeleteI am completely disgusted with the Crown Prosecution Service and its complete failure to change with the times. First it was the Twitter Joke Trial and the fisting porn trial, now this? Not only is fisting a legal activity and, so far as I am aware, fisting porn entirely legal (as surely the previous case set a precedent) this prosecution is on the basis of a single image? Really? This prosecution is an utter waste of taxpayers' money and should be ended with an apology to the defendant forthwith.
ReplyDeleteTo be "likely to result in serious injury", requires there to be no lube. Have the police forensic images experts established that there was an insufficiency of lube in the affected area?
ReplyDeleteSurely the CPS has better things to prosecute???
ReplyDeleteI am a junior barrister and would love to get a case like this. Surely there's a good abuse of process argument to be made, re: legal certainty of what's prohibited and what's not? Plus, a potential Article 8 argument. I'd take it all the way to the ECHR if it had to!
The extreme pornography law is seriously one of the worst currently in existence.
Don't forget to thank former labour MP Martin Salter for this. He had the nerve to tell me "if you have done nothing wrong you have nothing to fear."
DeleteSalter was the archetypical authoritarian Labour MP. he was a supporter of compulsory ID Cards and the forced registration of every person in the UK on the DNA Criminal Database. Fortunately he is no longer an MP however there are still plenty of others like him in the Labour Party. Which is the reason why I, as a previously staunch Labour voter, would never support Labour again.
DeleteI send Simon my best wishes and hope that the right thing happens for him. Myles I've been following your tweets on this case all day, looking forward to hearing the rest and hoping that this works out for Simon.
ReplyDeleteBest of luck
ReplyDeleteHm...the same CPS that fell over backwards to avoid prosecuting Simon Harwood.
ReplyDeleteSurely all you'd need for a rock-solid defence is a partner with a really big anus?
ReplyDeleteBest wishes from one of the TwitterJokeTrial mob... The CPS are certainly taking some crazy decisions - in no small part because the politicians took some crazy ones a few years ago.
ReplyDeleteGood luck.
Without meaning to sound completely ignorant, how did all this come to light? Why were the police investigating this guy's email account?
ReplyDeleteIsn't it blatantly obvious that the police have basically manufactured a case against this guy out of whole cloth - possibly even to the extent of sending him incriminating images themselves, so they knew exactly where to find them - in order to remove a persistent thorn in their side? And that the Crown Persecution Service are going along with this because as far as they're concerned, political prosecutions that erode civil rights is what they do these days?
ReplyDeleteI'm sick of hearing about crap like this. This is supposed to be a modern Western democracy; even if the police do take it into their heads to turn themselves into the Stasi, the rest of the legal system is supposed to notice and stop them, not give them every assistance.
(Sorry if you can't publish this comment for legal reasons, but - GAH!)
I'm half tempted to tell the investigating officers, the CPS and the politicians who pushed through the ill thought out and seriously deffective laws to take this case and shove it up their backsides (without any lubrication). However based on recent events on Twitter and the such like that could potentially lead to my arrest and prossecution so I'll reframe from telling them that.
ReplyDeleteGood luck to Simon Walsh. Yet another waste of taxpayers money when we're faced with a double dip recession, but we have to protect people from... erm...
"There were Ministry of Justice Guidelines specifically on the extreme pornography legislation, but they seem to have disappeared from the internet, possibly disavowed."
ReplyDeleteThe document has been moved to http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/docs/extreme-pornographic-images.pdf
(It's a shame that this law wasn't "archived" too...)
Yet another nail in the justice systems coffin!
ReplyDeleteAnd people wonder why we live in a lawless society, it's because of half baked cases like this, where the CPS really have nothing better to do, because they're laying idle because the magistrates courts are just there to act as the governments and local council dog's bodies to collect revenue from council tax and parking tickets.
Simon, I really hope this case falls through.
Doesn't government have anything better to do than to harass the citizens that they are supposed to be protecting?
ReplyDeleteSerious injury, I could use my tallywhacker and cause serious injury. SMH
ReplyDelete"an act which results, or is likely to result, in serious injury to a person’s
ReplyDeleteanus, breasts or genitals”
So if I watch a film of an actor firing a gun at an actress's heart, even though they're acting, and even though they're fully clothed, as long as there's something 'obscene' about the scene, I'm committing an offence.
Really?
No, because elsewhere in the section it defines pornography (material intended solely or primarily for sexual purposes), and to be "extreme porn", it has to be porn as well as being extreme.
DeleteFor it to "result, or be likely to result in serious injury to a person's" wherever the heck it would have to be a real bullet from a real gun - not a prop nor acted scene, and then yes, you would have a serious issue and it wouldn't come under the extreme pornography laws but under the laws currently affecting snuff films. Which I don't believe have been changed in quite some time. So your argument is a pretty invalid one.
DeleteSam B-C - that's why I said as long as there's something 'obscene' about the scene
DeleteSZ - I wasn't making an argument, I was asking a question about the law, which seems to me oddly drafted - if the potential fatal result of the scene I suggested is a problem, I'm sure a less fatal alternative could be imagined. One point is that injury to breasts etc doesn't have to involve the breasts being exposed or of themselves constituting the obscene part of the scene - it could be the woman is undressed from the waist down and something else is going on, while apparent injury is being done to her breasts. Another point is what is meant by 'act' - you imply it means something real and not simulated. How is the distinction made? What does 'likely' mean?
...or firing a gun at her right breast, away from the heart...
DeleteHmmm. What about childbirth? It kills quite a large number.
ReplyDeleteWill he have a case to sue for damages after this? As it seemed he lost his livelihood over the whole affair.
ReplyDeleteWell I can't imagine anyone wanting to do it, though I suppose I am forced to concede that some people do. The response of the CPS seems extreme, it seems like a thing that should be nobody's business if done in private.
ReplyDeleteI'm not EVEN going to comment on this one.
ReplyDeleteI just want to say congratulations and thank you from a member of the public for hopefully getting this illiberal nonsense knocked on the head
ReplyDeleteCongratulations Simon, I'm appalled that you had to go through this, but well done for making as much as you have made public. That must have taken real bravery. Well done to the legal team around you too. I hope this doesn't screw the rest of your life up. Good luck.
ReplyDeleteFisting is definitely 'not my brand', but the wording of the law is ridiculous! 'Normal' penetrative sex with a virgin is 100% guaranteed to cause a permanent injury (rupture of a hymen)- so I guess millions more prosecutions could be brought without a revision of this statute. I regularly have sex with a chap from Glasgow - I know full well it causes brain damage, all those blows to the head as it hits the headboard repeatedly, but to each his or her own.
ReplyDeleteSo glad you've been cleared, but cannot help wondering who you upset sufficiently to have them root through your inbox and attempt to accuse you of being a paedo too (before a sensible jury were shown the 'evidence').
Isn't the thing to do here is attack the incompetent prosecutor who brought the case? Bring up their incompetence, try to ruin their post-government career, etc.
ReplyDeleteWell done Myles. In a sane society the verdict would never have been in doubt.
ReplyDeleteIs someone liable for the emails they receive from others? How can communication work this way? Even if one has requested emails of a generally sexual nature, how can that be equated with requesting this particular image? It is a fundamental of communication that one does not control what others send, and the sender should be the one who is liable if a communication should be considered prohibited in some way. Otherwise it would be easy to mount a malicious attack on anyone by simply sending them prohibited emails. As we know, many of the emails everyone receives are unrequested spam, often of a sexual nature.
ReplyDeleteCongratulations on challenging this obscene law. I wrote to the CPS to ask if they had reviewed hospital admissions as a result of sexual acts in order to determine the likelihood of their causing injury, and oddly enough they had not. Each of these cases is meant to be referred to the Director of Public Prosecution's office for authorisation before being taken to court, so if you want someone to talk to about this waste of taxpayers money, you know who to contact.
ReplyDeleteI would have thought that after the Peacock trial the CPS would rethink its position on trying to get Fisting classified as Extreme Pornography.I can only wonder how far the are willing to go, how many others they are willing to 'put through the mill' on charges like this. What will have to happen before the government finally rethinks this 'politically motivated' new law.
ReplyDeleteVery interesting post..
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