Monday 30 July 2012

Porn Trial: This Time it's Extreme

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.


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.


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.

Thursday 26 July 2012

No words were harmed in writing this article

According to the Court of Appeal’s Judgment in the recent case of R v GS [2012] private one to one text chat on the internet can be subject to the Obscene Publications Act 1959 (OPA).

This means that anyone using the internet to discuss sexual fantasies may be at risk of committing a criminal offence.

Prior to this judgment it was presumed that the OPA did not apply to one to one conversations between individuals. This position was clearly overturned by paragraph 21 of Lord Justice Richards’ lead Judgment wherein it was stated that:

“In our judgment, to publish an article to an individual is plainly to publish it within the meaning of the Act.”

It must be noted that the content of the chat logs in question pertained to “explicit conversation concerning incestuous, sadistic paedophile sex acts on young and very young children. It was accepted that what was discussed was fantasy and not a reference to real events”.

However, whilst the content of the conversations were paedophile fantasies, the Judgment itself potentially extends the OPA to all sexual fantasies that might “deprave and corrupt”.

The Crown Prosecution Service’s Guidelines state that:

“It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted: sexual act with an animal; realistic portrayals of rape; sadomasochistic material which goes beyond trifling and transient infliction of injury; torture with instruments; bondage (especially where gags are used with no apparent means of withdrawing consent); dismemberment or graphic mutilation; activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta); fisting.”

It is noteworthy that, of the CPS’ list, animals cannot consent at law; there are no definitions of what “torture with instruments,” “graphic mutilation” or  “realistic portrayal” of rape are; and urination and fisting are activities which are legal to perform in real-life.

Furthermore these guidelines have not been revised since R v Peacock [2012] where the jury seemed to acquit the defendant on the basis that they did not find that male on male urination and fisting were likely to deprave and corrupt.

However, the most significant consequence of the Judgment in R v GS is that these activities do not need to be represented pictorially, for example by a photograph, but merely in the form of text or words.

Therefore a person using the internet to privately discuss intimate sexual fantasies with other individuals regarding activities which are legal to perform in real-life such as fisting, may find themselves subject to criminal charges.

The Judgment, dated the 9th February 2012, is set out below in full; having only been edited to remove Counsel’s remarks regarding retrial and reporting restrictions:


Neutral Citation Number: [2012] EWCA Crim 398
No: 201106555/B5


Royal Courts of Justice
Strand London, WC2A 2LL
Thursday, 9th February 2012

B e f o r e:





Computer Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Mr G Pons appeared on behalf of the Applicant

Mr D Smith appeared on behalf of the Respondent

JUDGMENT (As approved by the Court)
Crown copyright©

1.            LORD JUSTICE RICHARDS: This is an appeal by the prosecution, under section 58 of the Criminal Justice Act 2003, against a terminating ruling. The application for leave to appeal was referred to the court by the Registrar. We granted leave at the start of the hearing.

2.            The defendant in the case, the respondent to this appeal, faced trial at Maidstone Crown Court on an indictment containing nine counts of publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959 ("the 1959 Act"). The charges resulted from examination of the defendant's computer following its seizure at his home. On it were nine chat logs recording an explicit conversation concerning incestuous, sadistic paedophile sex acts on young and very young children. It was accepted that what was discussed was fantasy and not a reference to real events but it was the prosecution case that the material was obscene.

3.            There was evidence that the chat logs were exact records of the Internet relay chat in which the defendant had been engaged. Internet relay chat is a form of instant communication via the Internet either between a group or, as in this case, in a one-to-one context. The chat logs were not themselves published - that is common ground - but they were relied on as evidence of the comments that the defendant had typed and transmitted to the other party to the chat, and it was alleged that by so transmitting them the defendant had published them. The identity of the other party was not known and there was no evidence that the material was shared beyond the defendant and that other party.

4.            At the close of the prosecution case there was a defence submission of no case to answer. The judge, His Honour Judge MacDonald QC, rejected defence submissions that there was no evidence on which the jury could find that the material had a tendency to deprave and corrupt, and a related submission, in respect of two of the counts, that the evidence was of no more than mildly offensive remarks. But he upheld the defence submission that publication to one person was not an offence unless that person could reasonably be expected to publish onwards, which had not been shown in this case. He likened the present case to that of two people sitting otherwise alone together in an ordinary physical room, not overheard, sharing these fantasies. He said it was revolting but not a crime.

5.            The prosecution submit that the judge was wrong so to rule and that on the evidence before the Crown Court there was a case to go to the jury. It is common ground that the conditions for an appeal against the judge's ruling, which had the effect of concluding the proceedings against the defendant, are met.

The Statutory Provisions 

6.            Section 2(1) of the 1959 Act provides:

"(1)Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable—

(b)on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both."

7.            Relevant definitions are to be found in section 1, as amended, which provides so far as material as follows:

"(1)For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2)In this Act 'article' means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.

(3)For the purposes of this Act a person publishes an article who—

(a)distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or.

(b)in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it or, where the matter is data stored electronically, transmits that data."

8.            In this case the act of publication relied on for each count was the transmission of electronic data within section 1(3)(b). The article in each case was the comment or statement transmitted, as evidenced by the chat log. As to obscenity, it was contended that the comments taken together had a tendency to deprave and corrupt the person to whom they were sent, being a person likely to read them.

9.            The other provision of the 1959 Act we should mention is section 2(6) which provides:
"In any proceedings against a person under this section the question whether an article is obscene shall be determined without regard to any publication by another person unless it could reasonably have been expected that the publication by the other person would follow from publication by the person charged."

In addition to those provisions of the 1959 Act reference has been made in the submissions before us to section 6(c) of the Interpretation Act 1978 which provides:

"In any Act, unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular."

Relevant Authorities

10. In R v Barker (1962) 46 Cr App R 227, the appellant was charged with having published obscene photographs to four named persons who had corresponded with him and sent him money and received in return the allegedly obscene photographs. Ashworth J, giving the judgment of the court, stated as follows at pages 230 to 231:

"The forms of publication included in the definition in section 1(3)(a) fall into three distinct groups: in one group, comprising the words 'sells, lets on hire, gives or lends,' publication is to an individual; in the second group, comprising the words 'distributes, circulates,' publication is on a wider scale, involving more than one person; in the third group a mere offer for sale or letting on hire constitutes publication.

In a case falling within the first group the first issue for the jury (assuming the publication is admitted) is whether the effect of the article is such as to tend to deprave and corrupt the individual to whom it is published. The second issue is whether any other person or persons were likely to see the article. In this connection the issue is not whether republication has or has not taken place, but whether it could reasonably have been expected. If the answer to the second issue is 'Yes,' a third issue will arise, namely, whether the article is such as to tend to deprave and corrupt the person or persons to whom republication could reasonably have been expected.

In considering the first of these issues, a jury should obviously take into account the article itself, and, in addition they should have regard to the age and occupation of the person to whom the article is published, if such age and occupation is proved in evidence. Similarly, the age and occupation of that person are relevant factors in regard to the second issue, whether republication could reasonably be expected. But they are not the only relevant factors. If, as in the present case, there is evidence to prove that the person to whom the article was published by the accused kept it locked up, this is a relevant factor, though not by any means conclusive. It may well happen that a person who has obtained an obscene article keeps it under lock and key, but nonetheless 'could reasonably have been expected' to show it to others as opportunity arose. In regard to the third issue similar considerations to those involved in the first are applicable ..."

11.            Ashworth J went on to note that the charges in the case before the court were all within the first group, involving sales to named individuals. The court held that the Recorder's directions to the jury had failed to reflect the general principles set out in the judgment in relation to that group and the appellant's conviction was quashed. Among other things, the Recorder directed the jury that the fact that the recipient only looked at the photographs himself and locked them up so that nobody could see them was unimportant. Although the judgment did not spell this out, it is evident that this was a misdirection because if the photographs were likely to be seen only by the recipient, the jury would have had to consider the effect on him alone, not on other people, in deciding whether they had a tendency to deprave and corrupt.

12.            Barker was applied in R v Clayton and Halsey [1963] 1 QB 163, a case in which there had been publication by way of sale to two police officers. Convictions were quashed on the basis in effect that there was no evidence that the officers were susceptible to any degrading or corrupting influence from the articles sold to them.

13.            DPP v Whyte [1972] AC 849, concerned book sellers who were charged with having obscene articles, namely books and a magazine for publication for gain. The justices found that the significant proportion of future recipients of the articles were going to be the hardcore of regular customers of the book shop whose morals were already in a state of depravity and corruption and that there was a grave doubt whether such minds could be said to be open to any immoral influences which the articles were capable of exerting. The justices accordingly dismissed the informations. The prosecutor's appeal was dismissed by the Divisional Court but a further appeal was allowed by a majority of the House of Lords. As the headnote to the report summarises it, the House of Lords found that to state as a proposition that all the men in question had been incapable of being depraved and corrupted because they were addicts was not a finding of fact but an assumption contrary to the whole basis of the 1959 Act. The Act was not merely concerned with the once for all corruption of the wholly innocent but equally protected the less innocent from further corruption and the addict from feeding or increasing his corruption. The words "deprave and corrupt" in section 1(1) referred primarily to the effect on the mind, including the emotions, of the persons who read or saw it, and that the justices having found as a fact that the articles were capable of corrupting and that the men in question had been depraved and corrupted by them, the book seller should have been convicted.

14.            That is the context in which Lord Pearson made the following observations on which reliance has been placed in argument. We quote from pages 864G - 865E:

"A third point to be noticed in the statutory definition [obscenity] is that there is no requirement as to the number of persons, or as to the proportion of its readers, which the article will tend to corrupt and deprave. The word 'persons' is plural, but it may include the singular. I think in some cases the rule de minimis non curat lex would suitably be applied. In Reg v Calder v Boyars Ltd [1969] 1 QB 151 it appears from p 155 that:

'30 defence witnesses gave evidence to the effect that the tendency of the book was not to deprave and corrupt but the reverse; that it gave a graphic, compassionate and condemnatory description of the depths of depravity and degradation in which life was lived in Brooklyn, and that the only effect it would produce on any but a minute lunatic fringe of readers would be horror, revulsion and pity;...'

The judgment of the court, delivered by Salmon LJ, contains this sentence, at p 168:

'This court is of the opinion that the jury should have been directed to consider whether the effect of the book was to tend deprave and corrupt a significant proportion of those persons likely to read it.'

That would indeed have been a suitable direction in that case because, on a favourable view, the book could have been regarded as tragic and pathetic rather than pornographic and, if the readers of the book likely to be corrupted by it were only 'a minute lunatic fringe' rather than a significant proportion, the book could not fairly be regarded as obscene. The 'minute lunatic fringe' would be negligible. But I do not think the phrase 'significant proportion' can safely be transplanted to cases of a different character. There is the danger, for instance, of leading a book seller to believe that, so long as he sells a comparatively large number of copies of a pornographic book to persons not likely to be corrupted by it, he can with impunity sell a comparatively small number of copies to persons who are likely to be corrupted by it. In such a case, if the comparative small number of copies is not so small as to be negligible, the statutory definition should be applied according to its terms: the book's effect, taken as a whole, is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read it. 'Persons' means some persons. Cockburn CJ, in Reg v Hicklin L R 3 QB 360 did not suggest any requirement as to the number of persons, or as to the proportion of its readers, which a book might tend to deprave and corrupt."

15.            We should also note that at pages 874H to 875A Lord Salmon, referring to Barker and to Clayton and Halsey, observed that the only counts in those cases charged the defendants with publication by selling to a named person and that “obviously the only question for the jury to consider on these counts was whether the article tended to deprave and corrupt the named individual to whom it was sold”. Lord Salmon was in the minority on the main issue in the appeal but that does not affect what he said on this particular point.

The Judge's Ruling

16.            The defence argument as advanced before the judge below was that the definition of "obscene" requires that the material should tend to deprave and corrupt persons (in the plural). It was submitted that the normal rule under section 6(c) of the Interpretation Act, that the plural includes the singular, does not apply here because the context otherwise requires. It was said to be unclear what Lord Pearson meant in the passage we have quoted from DPP v Whyte, where he said that the word "persons" is plural but it may include the singular; but what was said does not fit with the immediately following passage, where he refers to the de minimis rule and suggests that for there to be an offence there must be a more than negligible number of copies sold to persons who are likely to be corrupted, and where he says in terms that persons means “some persons”. From the passage as a whole he cannot have meant that a tendency to deprave and corrupt one person is enough. Reliance was also placed on section 2(6) as being indicative that if a defendant publishes to one person, there can be no offence unless that person can reasonably be expected to publish onwards.

17.            The judge accepted the defence submissions. In expressing agreement with the defence he said that he was reaching that conclusion because of the point made on section 2(6). He also read the judgment of Ashworth J in Barker as meaning that even in the case of publication to an individual it is necessary to decide whether any person or persons other than that individual were likely to see the article. He noted, too, the references to persons in the plural in the speech of Lord Pearson in DPP v Whyte and to readers in the plural in the speech of Lord Wilberforce in the same case (in a passage we have not quoted). The judge rejected as vanishingly unlikely the possibility of someone coming across these logs accidentally or looking at the recipient's computer screen while he was engaged in Internet chat with the defendant.

18.            So, it is apparent that the decisive feature for the judge was that there was publication only to one individual and that that was not enough to give rise to an offence. We have referred already to his graphic analogy with a private conversation between two persons in a physical room.

The submissions before this court

19.            In written submissions Mr Pons, on behalf of the prosecution, has advanced various arguments to the effect that the judge was wrong in his ruling. The submissions so made are reflected in the conclusions which we will express in a moment and it is unnecessary for us to set them out separately.

20.            Mr Daniel Smith, for the defendant, has advanced robust submissions in an attempt to support the judge's ruling. He submits that the activity here in question does not fit comfortably within the provisions of the 1959 Act. It was not an activity of a kind within the contemplation of those enacting the provisions. He says that ample opportunity to cover the activities specifically has been afforded to Parliament but Parliament has not taken that opportunity despite requests that it should. The submission made is that the act of transmitting comments by way of Internet relay chat to an individual, as opposed to a group, is not an act of publication for the purposes of the Act. Mr Smith likens it to a private conversation between just two people, whether in a physical room, as mentioned by the judge, or by telephone, and he submits that such a situation is not caught by the Act. Equally, he submits, transmission of data by Internet between just two people is not caught. He says further that the subject matter of the Internet chat in this case represents such a bizarre and specialist interest that it is highly unlikely that an ordinary member of the public would come across it. Therefore, no question arises of likelihood of a wider readership.

Discussion and Conclusions

21.            We have no doubt that the judge was wrong to rule as he did. It seems to us that he confused the separate questions of publication and obscenity and he reached an erroneous conclusion that publication to an individual could not give rise to an offence under section 2(1) of the 1959 Act. In our judgment, to publish an article to an individual is plainly to publish it within the meaning of the Act. That is clear from the list in section 1(3) of the forms that the publication may take. There is nothing in that subsection to support the view that publication has to be to more than one person before it can constitute publication for the purposes of the Act. On the contrary, as the court held in Barker, one of the three groups into which the forms of publication in section 1(3) fall is publication to an individual. One sees that same thread of reasoning run through Clayton and Halsey and the observation we have quoted from Lord Salmon's speech in DPP v Whyte. They are not the only instances in the case law but we do not need to cast the net wider. The reference to "persons" (in the plural) in the definition of obscenity in section 1(1) has no relevance at this stage of the analysis but is a point to which we will return.

22.            Accordingly, by transmitting comments to another person in the context of Internet relay chat, the defendant was publishing those comments. It was an act of publication falling within section 1(3)(b). It was not necessary for the defendant to transmit the comments to more than one person before the act could be caught by the statute. The fact that the identity of the recipient is not known is also irrelevant.

23.            The next and distinct question is whether the comments so published were obscene. For that purpose one has to ask, in the terms of 1(1), whether their effect was such as to tend to deprave and corrupt persons who were likely, having regard to all relevant circumstances, to read them. It is self evident that the person to whom the comments were transmitted was likely to read them, and it was therefore necessary for the prosecution to prove that the effect of the comments was such as to tend to deprave and corrupt that person. That is a straightforward application of the reasoning in Barker and in Clayton and Halsey, and as Lord Salmon said in DPP v Whyte. In those cases the charge was of publication by selling to a named person and the only question for the jury to consider was whether the article tended to deprave and corrupt the named individual to whom it had been sold. Here the charges did not specify a named recipient but the principle is the same, since the supporting evidence did not go beyond transmission of the article to the other party to the Internet relay chat. It is therefore the effect on that other party that needs to be considered.

24.            There may be cases where, although publication is to an individual, other persons are likely to read the article so published. If that is so, then the effect on those other persons will also fall to be considered. There may be cases where after the initial publication there is onward publication to other persons, but the effect on those other persons will only fall to be considered if it could reasonably have been expected that such onward publication would follow from the initial publication. That is the situation at which section 2(6) is directed and the limitation that the subsection imposes. But the fact that we are not concerned in this case with other likely readers, apart from the party to the Internet relay chat to whom the comments were transmitted, does not begin to show that those comments fall outside the definition of obscenity.

25.            Lord Pearson's speech in DPP v Whyte was concerned with the different point whether, in a case where there are likely to be multiple readers of an article, it makes a difference that only a small proportion of them are liable to be depraved and corrupted by the article. The one element in his speech which is relevant for present purposes is his observation that the word "persons" in section 1(1) is in the plural but may include the singular. That in itself is a straightforward reflection of the effect of section 6(c) of the Interpretation Act 1978. As it seems to us, there is no contextual reason for reading the plural in section 1(1) otherwise than as including the singular, and Lord Pearson evidently did not think that there was. Nor do the other cases that we have cited support the view that "persons" was intended to apply only in the plural and not also to include the singular. Any difficulties that might arise in the application of the reasoning of Lord Pearson, in the more extended passage that we have quoted, to a case where there are likely to be multiple readers of an article are of no materiality for the straightforward situation with which we are faced here of a single recipient.

26.            Thus, it cannot be said that because there is only one recipient and only one likely reader of an article, the article is incapable of meeting the test of obscenity for the purposes of the Act. It would be extraordinary if it were otherwise. There could be no sensible reason for the legislature having excluded otherwise obscene material from the scope of the legislation, merely because it was likely to be read by, and therefore liable to deprave and corrupt, only one person, a person who might, for example, be a young child.

27.            In the present case, as the judge effectively accepted in a part of his ruling that is not challenged, there was a case fit to go to the jury that the material in question had a tendency to deprave and corrupt the recipient, even if that person was of similar mind to the defendant and even if he was an addict feeding his addiction. The whole tenor of the decision in DPP v Whyte is against any finding that because the recipient is already depraved and corrupted the material cannot have a tendency to deprave and corrupt him.

28.            For those reasons we are satisfied that the prosecution appeal is well-founded and that the judge's ruling that there was no case to answer was wrong in law. We will allow the appeal, reverse the ruling and, subject to any further submissions, will order that a fresh trial may take place in the Crown Court on each of the relevant counts, on the basis that it is in the interests of justice for there to be a fresh trial. We will also hear submissions on the matter of reporting restrictions. On the face of it, having regard to the general nature of the matters covered in this judgment, it should be sufficient for there to be a restriction on reporting that identifies or is liable to identify the defendant but otherwise no restriction is required.