Crown
Prosecution Service asked to review
The
"extreme pornography" law
Let me tell you a legal joke. A man walks into a Court. He’s charged
with an offence under Section 63 of The Criminal Justice and Immigration Act 2008
of being in possession of an “extreme pornographic” video of a woman having sex
with a tiger.
The video was sent to him by a friend, unsolicited, as a joke. He
had no idea what the content of the video was before opening it. Yet the
defendant was arrested at his home address, interviewed by the police under
caution, charged, then bailed to the Magistrates’ Court and finally sent to the
Crown Court. It was here that the Judge requested the video be played in full,
with the sound on, in open Court.
The play button was pressed.
It turned out the “tiger” was a man in a tiger-skin costume, who
turns to the camera and says: “That’s Grrreat”.
Hilarious. Except that the joke was on the defendant (Andrew Holland, of Wrexham,
North Wales) as the story was on the front cover of The Daily Telegraph and
numerous articles published across the globe. His name became synonymous with
the joke, which had a devastating impact on his reputation.
Now, Mr Holland has requested
that the Crown Prosecution Service review this law, to save other innocents
from facing the same fate as him.
This review comes when it has
become clear that millions of adults using mobile phone messaging services like
WhatsApp can be sent potentially “extreme” material to their phones, by
friends, without knowing that they are actually in technical possession of
illegal images.
If it is unclear whether an
image might be extreme and therefore illegal, how can a person be expected to
know if they’ve broken the law?
Hence, on behalf of future
potential defendants, Mr Holland is claiming that:
1. The term "extreme" pornography
is not clearly defined in the legislation; and therefore a potential defendant
would not be able to understand anticipate if being in possession of certain
images might be illegal;
2. There is insufficient guidance from the
DPP as to when these offences will be prosecuted;
3. The offence is disproportionate to the legislation's
intended aims.
Thus, on Mr Holland’s behalf, we at Hodge
Jones & Allen LLP have asked that the Secretary of State for the Home
Department to carry out a Human Rights Impact Assessment of the offences. Should
the offence fail the Human Rights Impact Assessment, we have requested that
this be confirmed in writing so that we can issue judicial review proceedings.
For a more detailed
understanding of these issues, beneath this introduction, are the following
documents:
1)
A letter from the sexual liberty campaign Backlash, to the Prime
Minister;
2)
A Press Release explaining the issues;
3) The letter setting out the
legal issues.
Unit 4
92-98 Vauxhall Walk
London
SE11 5EL
24 October 2014
Dear Prime Minister
S63(7) of the
Criminal Justice and Immigration Act 2008
Prospective
Judicial Review in the Administrative Court of the High Court: Pre-Action
Protocol Letter
In the years since S63(7) of the Criminal Justice and Immigration
Act 2008 was enacted there have been over 5,500 prosecutions for possession
offences. Prior to the introduction of the legislation Ministers said there
would merely be a handful of cases each year, and the Regulatory Impact
Assessment predicted just 30 per annum.
Of great concern is that over the five years since enactment of the
legislation the public, law enforcement agencies and the judiciary remain
either oblivious or uncertain as to the precise meaning of at least two, and
possibly all four, categories of the legislation. The Simon Walsh trial showed
that CPS had sought to widen the meaning of Section 63(7)(b), seeking to
prosecute for possession of images that depicted unconventional but not
dangerous behaviour. The Andrew Holland (“Tiger porn”) case (Section 63(7)(d)) showed
that harmless but crude jokes could also result in prosecution.
While both of these cases and others resulted in acquittal, it is
unacceptable that the legal profession remains uncertain as to what types of
material may get members of the public into trouble. There is emphatic evidence
that many lawyers have advised people to plead guilty to possession offences to
avoid the cost involved in trial, despite subsequent examination of the facts
revealing that no offence had been committed.
The brutal reality is that lives are being turned upside down,
careers destroyed and worse. In the light of the extreme nature of the
penalties upon conviction, inclusion on the sex offenders register, lengthy
period of incarceration and a heavy fine, it is wholly unacceptable that the
public is denied an unequivocal, precise and detailed statement of that which
is legal and that illegal to possess. If it really is impossible for the
executive to provide clarity, then legislators must repeal the sections that
cause the greatest difficulty (S63(7)(a) and(b).
Today, Hodge Jones & Allen LLP, acting on
behalf of Andrew Holland, has written to The Director of Public Prosecutions
explaining that the case against Mr Holland breached his human rights for three
reasons.
1. That the term "extreme"
pornography is insufficiently clearly defined in S63 CJIA 2008. It is not clear from the wording and
accompanying case law how a potential defendant would be able to understand its
scope and foresee the consequence of his/her actions;
2. There is insufficient guidance from the
DPP as to when offences under S63 will be prosecuted; and
3. The offence is a disproportionate means of
achieving the legislation's intended aims.
Hodge Jones & Allen LLP have asked that
the Secretary of State for the Home Department carries out a Human Rights
Impact Assessment in relation to S63 CJIA 2008. In the event that the section
fails the Human Rights Impact Assessment it is requested that this be confirmed
in writing so that proceedings can be issued by way of judicial review by the
Claimant who can then seek a Declaration of Incompatibility by way of a Consent
Order. This will allow the Secretary of State for the Home Department to repeal
Section 63 of the Criminal Justice & Immigration Act 2008 by use of the
fast-track procedure under Section 10 of the Human Rights Act 1998.
I appeal to you to intervene to ensure that
common sense and justice prevail. The harm being caused by S63(7) CJIA 2008 now
greatly exceeds any perceived benefits.
Yours
faithfully
Hazel
Eracleous
Chair,
Backlash
Backlash Media Information:
EMBARGO:
00.01hrs Monday 27th October 2014
"Tiger
porn" defendant requests human rights review of
"extreme
pornography" law by Crown Prosecution Service
The law penalising possession
of "extreme pornography" faces judicial review by a defendant
previously charged with having a video of woman having sex with a tiger.
It was revealed in Court that
the tiger was actually a man in a tiger-skin costume.
Yet the former defendant,
Andrew Holland, of Wrexham, North Wales, suffered significant disruption to his
life and widespread public ridicule.
Solicitor Myles Jackman at
Hodge Jones & Allen LLP acting on behalf of Mr Holland, said:
"Mr Holland does not
want others to go through the ordeal that he has faced. Mr Holland wants to
ensure that others are not prosecuted unnecessarily in the manner that he was.
He remains subject to the risk of further criminal charges in the event that he
is in possession of similar joke images in the future."
Consequently Backlash have
written to the Prime Minister, and HJA have written to Alison Saunders, the
Director of Public Prosecutions asking her to review the implementation of this
law: Section 63 of the Criminal Justice and Immigration Act 2008.
"Something has gone
significantly wrong as Parliament were told there would be thirty of these
cases a year, whereas there have actually been thousands of such costly
prosecutions" emphasised Backlash Chair Hazel Eraclaeous.
If this review is not
forthcoming, the law will be challenged by way of judicial review in the
Administrative Court of the High Court.
Jon Fuller, spokesperson for
Backlash, said:
"This law threatens
anyone with a sex life they want to keep private. It threatens ordinary members
of the public who exchange dirty jokes by phone and over the internet.
Potentially criminalizing millions of people is a disproportionate consequence
of a law not based on harm and with no clear benefit."
Contact
Notes for Editors:
1. Backlash is an umbrella
campaign providing academic campaigning and legal resources in defence of
freedom of sexual expression.
2. Hodge Jones & Allen
LLP is a Tier 1 firm for civil liberties and criminal defence.
3. A commentary by Myles
Jackman aka @ObscenityLawyer is available here: http://obscenitylawyer.blogspot.co.uk/
4. The full text of the
letters are available here: http://www.backlash-uk.org.uk/pm141024/
and http://www.backlash-uk.org.uk/jrofcjia/
5. Andrew Holland's case can
be read here: http://www.backlash-uk.org.uk/press/appearances-and-statements/tiger-porn/
More details of the
"extreme pornography" ban can be read here: http://www.backlash-uk.org.uk/the-law/
ALSO BY FAX TO: 020
3357 7121
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Hodge Jones & Allen LLP
180 North Gower Street
London
NW1 2NB
DX 2101 EUSTON
www.hja.net
Direct tel: [REDACTED]
Direct fax: 0207 874 8306
Switchboard: 020 7874 8300
Our ref: 1004531.0001/DGO
Your ref:
20th
October 2014
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Ms Alison Saunders
The Director of Public Prosecutions
Crown Prosecution Service
Special Casework Unit
CPS London
DX 161330
VICTORIA 19
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Dear Ms Saunders
Re: The
Queen (on the Application of Andrew Holland) v (1) Director of Public
Prosecutions (2) Secretary of State for the Home Department
Prospective
Judicial Review in the Administrative Court of the High Court
Judicial Review Pre-Action Protocol Letter
We act for the above mentioned prospective
Claimant.
This claim relates to the Secretary of State for
the Home Department's introduction of the criminal offence of possession of
extreme pornographic images which was introduced by Section 63 of the Criminal
Justice and Immigration Act 2008.
This
prospective judicial review also concerns the guidance issued by the Director
of Public Prosecutions in respect to that offence.
This
matter may give rise to judicial review proceedings. Accordingly, we are writing this letter to
provide you with an opportunity to respond to the relevant issues in the hope
that litigation might be avoided. Please
accept this letter as a formal letter before claim as required by the
pre-action protocol governing claims for judicial review.
Our Client
We act
on behalf of the above named who was born on 20 July 1962 and whose formal
address is 32 High Street, Coedpoeth, Wrexham, LL11 3SB.
Proposed Defendants
Should
proceedings become necessary the proposed defendants are the Director of Public
Prosecutions and the Secretary of State for the Home Department.
Interested Parties
Should
proceedings become necessary there are no proposed interested parties.
Previous Correspondence
This
is the first letter in relation to this matter.
We respectfully request that you provide your reference details. The case number at the Magistrates’ Court was
600900338820, the original custody number was C00157346, the CPS URN in the
original criminal proceedings was 60EW08730-09.
Factual History
Mr
Holland is a private individual.
On 10th June 2009, Mr Holland was arrested and conveyed to
Wrexham Police Station on suspicion of being in possession of indecent images
of children. Following a no-comment
interview, Mr Holland was bailed to return to the police station on 12th
August 2009.
The police extended the bail return period on two occasions. On 1st October 2009, Mr Holland
was charged with two offences, namely:
1. Possession of an extreme pornographic
image, which portrayed in an explicit and realistic way, a person performing an
act of intercourse with a live animal, namely a tiger, which was grossly
offensive, disgusting or otherwise of an obscene character, contrary to s.63(1)(7)(d)
and s.67(3) of the Criminal Justice and Immigration Act 2008; and
2. Possession of an extreme pornographic
image, which portrayed in an explicit and realistic way an act which resulted
or was likely to result in serious injury to a person’s genitals and which was
grossly offensive, disgusting, or otherwise of an obscene character.
These charges related to two videos in Mr Holland’s possession:
The first video was a parody video
featuring a tiger purporting to have sex with a woman. The tiger turned towards the camera and said,
“that’s grrrrrreat”, in the style of
Tony the Tiger, a character used to advertise Kellogg’s Frosties.
The second video was a compilation
called “The Pain Olympics”. It showed a series of images at fast speed
with a musical accompaniment of hard rock music. The images purported to show a series of acts
of mutilation of body parts, including: (i) the insertion of a live banger-type
firework into the penis in the style of catheter, which was then lit and
explodes, (ii) the driving of a large nail through a scrotum with a hammer,
(iii) the stretching a penis in a clamp, before it was sliced open. However, the video was a “spoof”.
Mr Holland argued that this video was not “pornographic” and was not “extreme”;
Mr Holland gave no indication as to plea in the Wrexham Magistrates’
Court and was committed for trial.
At the Plea and Case Management Hearing at Mold Crown Court on the 31st
December 2009 the CPS offered no evidence in respect of the first charge which
related to the parody video featuring a tiger purporting to have sex with a
woman. This was due to the fact that that the judge requested that the CPS play
the soundtrack to the parody video which revealed the tiger turning towards the
camera and saying, “that’s grrrrrreat”,
in the style of Tony the Tiger at the conclusion. It became apparent that the
CPS had failed to examine their own evidence prior to this time which is why
they decided not to proceed upon listening to the soundtrack.
On 17th March 2010, the matter was listed for trial at the
Mold Crown Court in respect of the remaining charge. The video was played to a jury. Counsel acting on behalf of Mr Holland
advised him that he had “no hope” of
successfully defending the charges against him.
He pleaded guilty to both offences.
The matter was adjourned for sentence.
On 9th April 2010, Mr Holland was put in touch with Backlash,
an organisation that campaigns on behalf of sexual freedoms. Through this organisation, Mr Holland
instructed a specialist solicitor, Mr Myles Jackman, who applied to vacate Mr
Holland’s guilty plea.
On 28th May 2010, a judge at the Mold Crown Court accepted
that Mr Holland had been wrongly advised by his previous legal
representatives. The matter was
re-opened. Mr Holland entered a
not-guilty plea. His legal
representatives made detailed representations to the DPP on behalf of Mr
Holland.
On 5th August 2010, the DPP accepted that the material in Mr
Holland’s possession did not contravene the law. His representatives offered no evidence
against Mr Holland.
Despite his acquittal of the criminal charges, Mr Holland suffered a
considerable detriment as a result of this prosecution. Mr Holland faced widespread ridicule as a
result of his prosecution, with some ill-informed commenters suggesting that he
had been prosecuted for possession of indecent images of children. He received hate mail and felt under
threat. As a result, he does not
regularly reside at his home address.
Mr
Holland does not want others to go through the ordeal that he has faced. Mr Holland wants to ensure that others are
not prosecuted unnecessarily in the manner that he was. He remains subject to
the risk of further criminal charges in the event that he is in possession of
similar joke images in the future.
The Law
(i)
Extreme
Pornography
The offence of possession of an extreme pornographic image was
introduced by s.63 Criminal Justice and Immigration Act 2008, which provides:
(1)
It is an offence for a person to be
in possession of an extreme pornographic image.
(2) An “extreme pornographic image” is an image
which is both—
(a)
pornographic, and
(b)
an extreme image.
(3)
An image is “pornographic” if it is
of such a nature that it must reasonably be assumed to have been produced
solely or principally for the purpose of sexual arousal.
(4)
Where (as found in the person's
possession) an image forms part of a series of images, the question whether the
image is of such a nature as is mentioned in subsection (3) is to be determined
by reference to—
(a)
the image itself, and
(b) (if the series of images is such as to be
capable of providing a context for the image) the context in which it occurs in
the series of images.
(5) So, for example, where—
(a)
an image forms an integral part of a
narrative constituted by a series of images, and
(b)
having regard to those images as a
whole, they are not of such a nature that they must reasonably be assumed to
have been produced solely or principally for the purpose of sexual arousal,
the image may, by virtue
of being part of that narrative, be found not to be pornographic, even though
it might have been found to be pornographic if taken by itself.
(6) An “extreme image” is an image which—
(a)
falls within subsection (7), and
(b)
is grossly offensive, disgusting or
otherwise of an obscene character.
(7)
An image falls within this subsection
if it portrays, in an explicit and realistic way, any of the following—
(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),
and a reasonable
person looking at the image would think that any such person or animal was
real.
(8) In this section “image” means—
(a)
a moving or still image (produced by
any means); or
(b)
data (stored by any means) which is
capable of conversion into an image within paragraph (a).
(9)
In this section references to a part
of the body include references to a part surgically constructed (in particular
through gender reassignment surgery).
(10)
Proceedings for an offence under this
section may not be instituted—
(a) in England and Wales, except by or with
the consent of the Director of Public Prosecutions; or
(b)
in Northern Ireland, except by or
with the consent of the Director of Public Prosecutions for Northern Ireland.
Where a case is heard in the Crown Court,
the maximum sentence is imprisonment for three years for possession of images
covered by s.63(7)(a) or (b) (life threatening acts, or serious injury) and
imprisonment for two years for possession of images of bestiality and
necrophilia (s.67 Criminal Justice and Immigration Act 2008). In both cases an
unlimited fine may also be imposed.
Section 64(1) and (2) Criminal Justice and Immigration Act 2008 provides
that the criminal offence does not apply to “an image which forms part of a series of images contained in a
recording of the whole or part of a classified work”.[1] A “classified
work” is “a video work in respect of
which a classification certificate has been issued by a designated authority
(whether before or after the commencement of this section)” (s.64(7)).
It is a defence to this criminal offence for a person to prove the
following matters, as set out in s.64(5)(2) Criminal Justice and Immigration
Act 2008:
(a) that the person had a
legitimate reason for being in possession of the image concerned;
(b) that the person had not
seen the image concerned and did not know, nor had any cause to suspect, it to
be an extreme pornographic image;
(c) that the person—
(i)
was sent the image concerned without any prior
request having been made by or on behalf of the person, and
(ii)
did not keep it for an unreasonable time.
Where a person, D, is charged with an offence under s.63(7)(a), (b), or
(c), s.66 Criminal Justice and Immigration Act 2008 provides that:
(2) It is a defence for D to prove—
(a)
that D directly participated in the
act or any of the acts portrayed, and
(b)
that the act or acts did not involve
the infliction of any non-consensual harm on any person, and
(c)
if the image portrays an act within
section 63(7)(c), that what is portrayed as a human corpse was not in fact a
corpse.
(3)
For the purposes of this section harm
inflicted on a person is “non-consensual” harm if—
(a)
the harm is of such a nature that
the person cannot, in law, consent to it being inflicted on himself or herself;
or
(b)
where the person can, in law, consent
to it being so inflicted, the person does not in fact consent to it being so
inflicted.
In November 2008, the Ministry of Justice published guidance, “Further information on the new offence of
possession of extreme pornographic images”.
This guidance provides the following assistance:
I still find this
law difficult to understand. What other sources of information are available
which may help show what pornographic material is legal and what is illegal in
the UK?
The Sections
(63-67) in the Act give considerable detail about the material which is
covered. In addition to specifying that the material must be 1) pornographic
and 2) grossly offensive, disgusting or otherwise of an obscene character,
there is a list of the extreme, explicit and realistic images which are caught.
Information is also available at the Crown Prosecution Service website,
www.cps.gov.uk, about material they will consider for prosecution under the
Obscene Publications Act 1959 and information at the BBFC website,
www.bbfc.org.uk about the sort of sexual material they refuse to classify.
Why is there not a
simple list of material which is illegal?
There is a very
wide range of pornographic material available and it is not possible to produce
a comprehensive list in this way. The legislation itself is already very
descriptive in outlining the type of material which will be illegal to possess.
I have heard that
the new legislation is aimed at the Bondage, Domination and Sado Masochism
(BDSM) community and will criminalise many millions of people. Is this true?
No. The new
legislation is not directed at any particular group and will only catch a
subset of material which is already illegal to publish or distribute under the
Obscene Publications Act 1959 (OPA). BDSM material which is legally available
under the OPA and used by the BDSM community should not be caught by the new
offence.
The DPP has issued guidance on her website with regard to the offence of
possession of extreme pornography.[2] The CPS user guide[3]
provides that:
“This Legal Guidance is prepared by the
Crown Prosecution Service. It provides guidance to prosecutors
and paralegal staff in relation to many criminal offences and
procedural issues. The Legal Guidance is used as an aid to guide Crown
Prosecutors and Associate Prosecutors in the use of their discretion in making
decisions in cases, and is subject to the principles as set out in
the Code for Crown Prosecutors.
...
“Reference to the Legal Guidance does not
override the need for Crown Prosecutors to consider each case on its individual
merits, and to take into account special circumstances when applying the
principles set out in the Code for Crown Prosecutors.
“The Legal Guidance is not a substitute for
any recognised legal textbook, such as Archbold, Blackstone's, Stone's
Justices' Manual or Wilkinson's Road Traffic Offences. Crown Prosecutors
and paralegal staff use these sources as well as the Legal Guidance
in their work. Therefore, these are referred to at various places in the
guidance. However, for contractual reasons, members of the public cannot gain
access to these reference sources through this guidance. It is not
intended to provide legal advice to members of the public, nor does it replace
the specialised advice of lawyers or other experts.
“The Legal Guidance does not create any
rights enforceable at law, in any legal proceedings.”
In relation to the
meaning of “grossly offensive, disgusting
or otherwise of an obscene character”, the DPP’s legal guidance states,
under the heading “The Elements of the
Offence,” that the prosecution must prove “that the image is extreme namely grossly offensive, disgusting, or
otherwise of an obscene character.”
Under the heading “An Extreme Image,” the guidance states:
“Section
63(6) of the Act states that an extreme image must be explicit and realistic;
both those terms take their ordinary dictionary definition. Taking an example
which was raised during parliamentary debates on the Criminal Justice and
Immigration Bill, the anal sex scene in the movie "Last Tango in
Paris", even if it were to be considered pornographic and of an obscene
nature, would not be caught by the new offence, because it is not explicit and
does not portray an act resulting or likely to result in serious injury to a
person's anus.”
The guidance further states, under the
heading “Charging Practice”:
“The
offence of possessing an extreme pornographic image criminalises the possession
of a limited range of extreme sexual and violent material. When considering
what may be classified as extreme pornography, it should be borne in mind that
all extreme pornography is obscene (section 63(6) (b) of the Act) as classified
by the Obscene Publications Act 1959. But not all obscene material is
extreme.”
ii. Human
Rights
It is unlawful for a public authority to act incompatibly with the
rights set out in Schedule 1 of the Human Rights Act 1998 (s.6 Human Rights Act
1998). Those rights include Articles 8
and 10 of the Convention.
Article 8 of the Convention provides:
1.
Everyone has the right to respect
for his private and family life, his home and his correspondence.
2.
There shall be no interference by
a public authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health
or morals, or for the protection of the rights and freedoms of others.”
Article 10 of the Convention provides:
1.
Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and
regardless of frontiers. This article shall not prevent States from requiring
the licensing of broadcasting, television or cinema enterprises.
2.
The exercise of these freedoms,
since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and
are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.
The DPP is a “public authority”
for the purposes of Articles 8(2) and 10(2) and a “public body” for the purposes of s.6 Human Rights Act 1998 (R (Purdy) v Director of Public
Prosecutions (at paragraph 29).
Both Articles 8(2) and 10(2) refer to the Convention principle of
legality.
“The Convention principle of legality requires
the court to address itself to three distinct questions. The first is whether
there is a legal basis in domestic law for the restriction. The second is
whether the law or rule in question is sufficiently accessible to the
individual who is affected by the restriction, and sufficiently precise to
enable him to understand its scope and foresee the consequences of his actions
so that he can regulate his conduct without breaking the law. The third is
whether, assuming that these two requirements are satisfied, it is nevertheless
open to the criticism that it is being applied in a way that is arbitrary
because, for example, it has been resorted to in bad faith or in a way that is
not proportionate …
“The word “law” in this context is to be
understood in its substantive sense, not its formal one … . This qualification
of the concept is important, as it makes it clear that law for this purpose
goes beyond the mere words of the statute. … it has been held to include both
enactments of lower rank than statutes and unwritten law. Furthermore, it
implies qualitative requirements, including those of accessibility and
foreseeability. Accessibility means that an individual must know from the
wording of the relevant provision and, if need be, with the assistance of the
court's interpretation of it what acts and omissions will make him criminally
liable … . The requirement of foreseeability will be satisfied where the person
concerned is able to foresee, if need be with appropriate legal advice, the
consequences which a given action may entail. A law which confers a discretion
is not in itself inconsistent with this requirement, provided the scope of the
discretion and the manner of its exercise are indicated with sufficient clarity
to give the individual protection against interference which is arbitrary …” (see Purdy at paragraph 40).
The issue in Purdy was the
application of these principles to s.2(4) Suicide Act 1961, which provided, in
materially identical terms to s.63(10) Criminal Justice and Immigration Act
2008: “no proceedings shall be instituted
for an offence under this section except by or with the consent of the Director
of Public Prosecutions.” When
considering the issue of consent Lord Hope concluded at paragraphs 54 and 55:
54 The Code [for Crown Prosecutors] will normally provide
sufficient guidance to Crown Prosecutors and to the public as to how decisions
should or are likely to be taken whether or not, in a given case, it will be in
the public interest to prosecute. This is a valuable safeguard for the
vulnerable, as it enables the prosecutor to take into account the whole
background of the case. In most cases its application will ensure
predictability and consistency of decision-taking, and people will know where
they stand. But that cannot be said of cases where the offence in contemplation
is aiding or abetting the suicide of a person who is terminally ill or severely
and incurably disabled, who wishes to be helped to travel to a country where
assisted suicide is lawful and who, having the capacity to take such a
decision, does so freely and with a full understanding of the consequences.
There is already an obvious gulf between what section 2(1) [Suicide Act 1961]
says and the way that the subsection is being applied in practice in
compassionate cases of that kind.
55 The cases that have been referred to the Director are few, but
they will undoubtedly grow in number. Decisions in this area of the law are, of
course, highly sensitive to the facts of each case. They are also likely to be
controversial. But I would not regard these as reasons for excusing the
Director from the obligation to clarify what his position is as to the factors
that he regards as relevant for and against prosecution in this very special and
carefully defined class of case. How he goes about this task must be a matter
for him, as also must be the ultimate decision as to whether or not to
prosecute. But, as the definition which I have given may show, it ought to be
possible to confine the class that requires special treatment to a very narrow
band of cases with the result that the Code will continue to apply to all those
cases that fall outside it.
At paragraph 64, Baroness Hale accepted the need for greater clarity
about the factors which the DPP and her subordinates will take into account in
making their decisions.
Lord Brown concluded, at paragraph 83, that “something more is needed
than the existing general Code to reflect the very particular nature of the
section 2(1) offence.” In coming to this
conclusion, Lord Hope was influenced by his view that the DPP’s decision in the
Daniel James case “appears … to underline the essential unhelpfulness of the
Code itself as any sort of guide to those attempting to ascertain the critical
factors likely to determine how the Director will exercise his prosecutorial
discretion in this class of case” (at paragraph 81).
Lord Neuberger came to the same conclusion at paragraphs 102 to 104.
At paragraph 1, Lord Phillips agreed with all of these judgments.
It is
accepted that the case of Purdy is
the only case in which the DPP has been ordered to prepare offence specific
guidance. However, it is relevant to
note that the DPP has, of its own volition, previously issued a
“Policy for Prosecuting Cases” for a
large number of offences, including “of
Bad Driving” (undated), “of
Disability Hate Crime” (published in 2007), “Rape” (updated in March 2012), “of
Domestic Violence” (3rd edition, published in March 2009), “of Human Trafficking” (published in May
2011), and “of Homophobic and Transphobic
Hate Crime” (3rd edition published in October 2009). The DPP has also published a “Prosecution Policy for Football Related
Offences” (published on 23rd August 2013), a policy on “Deaths in Custody” (undated), a joint
public statement (along with the Association of Chief Police Officers) on “Householders and the use of force against
intruders“ (undated), and a “Policy
for prosecuting cases involving the intentional or reckless sexual transmission
of infection” (updated on 15th July 2011), which provides:
“We are publishing this statement
because we recognise the importance of, and the need for, consistent
decision-making. We also recognise the potential tension between public health
and criminal justice considerations. However, the criminal law exists in part
to protect those who are the victims of unlawful conduct by others, including
through the unlawful transmission of sexual infection.
The DPP has separately published, on the Crown Prosecution Website, “legal guidance” documents for 160 types
of offences. The website provides that
the purpose of this guidance is:
“Legal Guidance is core to the
decision making of the CPS and in making the guidance publicly available, we
underline our commitment to open and transparent decision making. We will
strive to keep apace of changes in the law and procedure and will regularly
update our guidance.”
This guidance includes, as set out above, specific guidance as to the
offence at the heart of this proposed claim.
Relevant Issues
The
first issue in this proposed claim is that the term "extreme" pornography is insufficiently clearly defined in
Section 63 of the Criminal Justice and Immigration Act 2008. It is not clear from the wording and
accompanying case law how a potential defendant would be able to understand its
scope and foresee the consequence of his/her actions.
Section
63 (6) provides that an "extreme
image" is one which falls within Section 63 (7) and is "grossly offensive, disgusting or
otherwise of an obscene character”.
These conditions are accumulative.
Each of these conditions is inherently subjective. As a result, it is submitted that it is not
immediately apparent which images will be classed as "extreme".
The
Convention requires the law be sufficiently clear to enable an individual to
foresee whether his or her acts constitute an offence.
This
case graphically demonstrates that is not clear how an individual can know
whether an individual will be guilty or not of this criminal offence. Mr Holland was innocent, yet he was persuaded
initially to plead guilty. That guilty
plea was accepted by the Court and then the Court agreed to vacate the guilty
plea. This suggests that there is a lack of understanding on the part of
individuals, practitioners and the courts as to the correct scope of this
offence. In this context there is a particular need for clarity given the
significant social stigma attached to a prosecution under Section 63. We would submit the graver the potential
consequences, the more important it is that the consequences are
foreseeable. These concerns are
consistent with the published advice of Mr Rabinder Singh QC (now Singh J[4]) and
with the views of the former Solicitor General, Mr Edward Garnier MP QC[5]. It
follows that the law is currently insufficiently clear and incompatible with
Articles 8 and 10 of the Convention.
The
second issue in this proposed claim is that there is insufficient guidance from
the DPP as to when offences under Section 63 will be prosecuted. Although the mere existence of the DPP's
discretion to prosecute is not in itself inconsistent with the Convention
principle of legality that this case has a number of similarities with Purdy.
Firstly, the Code for Crown Prosecutors does not provide sufficient
guidance as to when decisions to prosecute are likely to be taken or when
prosecutions under Section 63 will be in the public interest. Secondly, there is no obvious obstacle to the
DPP providing offence specific guidance, given that the DPP already purports to
have done so. Thirdly, the offence is
unusual and highly subjective. Fourthly,
the offence is potentially serious with sentences including imprisonment for a
maximum of three years and likely to imply significant social stigma such as
has been suffered even by Mr Holland on acquittal. Fifthly, there is a risk that the offence
will be used to disproportionately target minorities such as the gay community
(see the commentary following a recent acquittal, which suggested that the
offence was used as a "homophobic witch hunt"[6] ).
Therefore,
as in Purdy, there is arguably no
sufficiently clear or relevant guidance available as to how the very widely
expressed discretion accorded to the DPP in Section 62 (10) of the Act will be
exercised. The current guidance does
little more than repeat the terms of the legislation. Further and better guidance is required.
The
third proposed ground of challenge is that the offence is a disproportionate
means of achieving the legislation's intended aims. Whilst it is clear that the legislation is
aimed at the protection of morals and this would be accepted by both the
domestic and Strasbourg courts however, it is submitted that the legislation is
disproportionate. That is because:-
a.
Where
an interference involves an intimate aspect of private life, particularly
weighty reasons are required for its justification (Dudgeon v United Kingdom (1982) 4 EHRR 149);
b.
Given
that a prosecution or the threat of a prosecution, with the
potential penalty of three years imprisonment, for looking at adult pornography
in private is a very serious interference in an individual’s right to respect
for an intimate aspect of their private life under Article 8 and their freedom
of expression under Article 10, a particularly powerful justification is required;
c.
As the Government admits, there is no proof that
the use of “extreme” images by
individuals causes or induces violence. The research to which the Government
continues to refer has yielded no clear results. It is difficult therefore to
see why there is any need to prosecute individuals for looking at this material
in the privacy of their own homes[7];
d.
It is
unclear why “extreme pornography”
images should be criminalised, whereas written descriptions of “extreme pornography” is not. There is no rational reason for treating
these categories of pornography differently;
e.
The
offence is aimed at private, rather than public, consideration of
pornography. When the European Court has
upheld the criminalisation of pornographic images previously, it was in a very
different context. In Muller, the Court considered the
imposition of a fine on the exhibitors of a public art exhibition. The Court was influenced by the particularly
public context, namely the fact that the exhibition was free, had no age limit,
and that the public was actively encouraged to enter (at paragraph 36). The offence under s.63 is very different, in
that it is aimed squarely at private consumption of images;
f.
The offence potentially criminalises acts that
do not cause harm (in contrast to the position in Brown v United Kingdom (1997) 24 EHRR 39, in
which the European Court accepted that a prosecution for extreme
sado-masochistic acts, even though consensual, did not constitute a violation
of the defendants’ private life because the “sado-masochistic activities involved a significant degree of injury or
wounding which could not be characterised as trifling or transient”. The offence under s.63 is capable of being
committed even where no physical ham or even risk of harm is involved;
g.
As explained
above, the offence is insufficiently clear;
h.
No
other Western country has introduced equivalent legislation.
i.
If
inhibition is necessary it can be achieved more effectively in other ways, for
example by industry self-regulation, blockage by service providers, and steps
taken in the home.
The
final submission is that the offence under Section 63 is not necessary in a
democratic society as no other equivalent member state of the Council of Europe
has introduced similar measures. We
submit that the policies of other member states are plainly relevant to whether
this measure is, in fact, necessary in a democratic society (see, by analogy, Smith and Grady v United Kingdom (2000) 29
E.H.R.R. 493 at paragraphs 104-105). The offence of possession of extreme
pornography means that images that are perfectly legal in all other member
states of the Council of Europe are contrary to the criminal law of England and
Wales. There are particular dangers in;
“haphazard and
unco-ordinated state regulation” in relation to “the growth of cyberspace” (see, by analogy, the American Libraries
case [1997] 969 F.Supp.160 ACLU v. Reno
(No.3) [2000] 217 F.3d 162, at 168-169, and Michigan in Cyberspace Communications Inc. v. Engler [1996] 55
F.Supp, 2d 737).
Action Required
We
request that in light of our submissions that the Secretary of State for the
Home Department carries out a Human Rights Impact Assessment in relation to
Section 63 of the Criminal Justice and Immigration Act 2008. In the event that
the section fails the Human Rights Impact Assessment we request that this is
confirmed to us in writing so that proceedings can be issued by way of judicial
review by the Claimant who can then seek a Declaration of Incompatibility by
way of a Consent Order. This will allow the Secretary of State for the Home
Department to repeal Section 63 of the Criminal Justice & Immigration Act
2008 by use of the fast-track procedure under Section 10 of the Human Rights
Act 1998.
We
further request that whilst the abovementioned is being carried out that the
Director of Public Prosecutions issues clear and sufficient guidance in respect
of when prosecutions under Section 63 of the Criminal Justice and Immigration
Act 200 will be commenced.
Details of information sought and details of
documents sought
We
request that all relevant documentation is provided along with any advice
received by the Secretary of State for the Home Department in respect of any
Human Rights Impact Assessment which was conducted prior to the commencement of
Section 63 of the Criminal Justice and Immigration Act 2008.
Address for Reply and Service of Documents
Please
reply to Mr Daniel Godden & Mr Myles Jackman of Hodge Jones & Allen
Solicitors LLP, 180 North Gower Street, London, NW1 2NB or DX 2101 Euston.
Proposed Reply Date
We
look forward to hearing from you within fourteen days of the date of this
letter failing which we reserve the right to commence judicial review
proceedings without further recourse to you.
Yours sincerely
Daniel Godden
Partner
For Hodge
Jones & Allen LLP
[1] Although this exception does not apply to an extract
from a classified work that is of such a nature that it must reasonably be
assumed to have been extracted solely or principally for the purpose of sexual
arousal (s.64(3)).
[2]
http://www.cps.gov.uk/legal/d_to_g/extreme_pornography/#an04
[4]
http://www.backlash-uk.org.uk/wp/?page_id=148
[5]
http://news.bbc.co.uk/1/hi/7364475.stm
[7]
See the briefing paper, “Extreme
Pornography”, dated February 2014, at p.3 (available at http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=6&ved=0CE8QFjAF&url=http%3A%2F%2Fwww.parliament.uk%2Fbriefing-papers%2Fsn05078.pdf&ei=bwkhU6O9HpOYhQfY2IGgBA&usg=AFQjCNH5SWMqFfW6iXysHJTrjmXa8FEEKw&bvm=bv.62922401,d.ZG4
)
Excellent work by Mr Holland, everyone at your firm and Backlash.
ReplyDeleteIt is good to see a coherent legal challenge being made against this unjust law.
Elly Tams
aka quiet riot girl