Monday, 13 August 2012

#PornTrial: Masking the real questions

It's been a pretty dismal few weeks for the director of public prosecutions and Crown Prosecution Service. And a remarkably good time for civil liberties and free speech - although it's certainly not safe to take anything for granted.

First up was what became known as the 'Twitter joke trial', where one Paul Chambers had been prosecuted for a tweet about a nearby airport:

"Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

It wasn't the greatest example of Twitter humour, but although it attracted no panic initially, it was handed on upwards, until a subsequent decision was reached to do a spot of belated panicing.

Result? It was decided that the tweet was "a communication of menacing character".

Chambers was arrested at his place of work, marched out in handcuffs. He was charged and, in May 2010 found guilty at Doncaster Magistrates' Court, and fined £1,000. On appeal, it was upheld at Doncaster Crown Court, where he was faced with a further £1,000 costs.

Judge Jacqueline Davis declared: "We are satisfied, on the evidence, that the message in question is menacing in its content and obviously so. It is difficult to imagine anything more clear."

You do wonder what world (some) judges inhabit.

In February, two more judges at the High Court couldn't agree, so it went before a three-judge panel in July. Finally, common sense prevailed and Paul Chambers was acquitted, as the legal trio decided that nothing suggested that the original tweet had contained a real threat.

So, if at some date in the future, I tweet that, 'come the revolution, X, Y and Z will be first up against the wall', there is now a legal precedent in place to understand that this is humour - dry and probably not particularly funny, but nonetheless, not a serious threat either.

But if the CPS got its fingers burned over that idiocy, it was up to its elbows just a few weeks later.

#PornTrial as it became known on Twitter - it was the first case to be live tweeted from the courtroom - took things to a whole new level.

At this stage, I'm going to say that plenty of good articles and blogs have been penned since - but with the bulk of mainstream media ignoring it, the questions need repeating.

And there a few points that I in particular wish to look at.

However, let's start from the beginning. To précis: Simon Walsh is a barrister working on police disciplinary cases (remember this) and a member of the City of London Corporation, and Boris Johnson had appointed him mayor's representative to the London Fire Authority.

An openly gay man, he suddenly found himself at the centre of a police investigation, with some suggestions that they thought he had child porn.

So, first of all, they investigated his computers, at home and work, finding no porn at all.

Then they decided they'd better check his email (Walsh gave them the passwords) - and in doing so, helped to contaminate any evidence.

On a personal Hotmail account, they found 'dodgy' pictures.

One of the pictures was of a man in a gas mask. An 'expert' for the police claimed that this was very, very bad, since a gas mask could cause serious harm to the wearer - even death by asphyxiation.

Which is quite some stretch of the imagination, since the piece of equipment in question was specifically designed to assist breathing.

In a rare display of common sense as far as this case is concerned, charges pertaining to this picture were dropped.

The police quizzed his goddaughters, asking whether he'd abused them.

And they found a small number of pictures Walsh openly said he'd taken, of himself and (adult) male friends enjoying some fun - and an unsolicited email, which they could not prove had been opened, but which included a picture of a young male they claimed was below the age of consent.

That was enough for the Director of Public Prosecutions, who decided to press ahead, using the legislation enacted by the Labour government, known as On possession of extreme pornography.

Now I explained here why that legislation, and the consultation process that preceded it, was deeply flawed.

Everything about this case shows that my analysis at the time - in 2005 - was correct. With knobs added.

Expert witnesses proved, to the satisfaction of the jury (which unanimously acquitted Walsh on all six counts), that the young man in the picture that the prosecution claimed was evidence of child porn, that he was an adult male.
The picture had been unsolicited.

The prosecution could not prove otherwise - or even that Walsh had ever opened the attachment.

What's in your inbox or even your junk mail folder?

That's one aspect of the case. Let's move on.

Simon Walsh and his friends were consenting adults. What they did between themselves is in no way illegal.

You might not fancy the idea yourself - you might even be repulsed by the thought of it. But that does not mean it's illegal - or that anyone has a right to say that someone else should be prosecuted for it.

While certain acts may not themselves be illegal, the question was whether representing them (in pictures or on film) was against the law.

The law centres on whether the activities shown could produce serious injury.

The CPS barrister, Thomas Wilkins, decided to suggest to one expert witness that only people with 'risky' sex lives used sexual health clinics. That was rebutted by the witness, who responded by stating that clinics are used by anyone who takes their sexual health seriously.

Other expert witnesses testified that fisting and sounding (insertion of a tube into the penis - something also done for medical reasons) is unlikely to cause serious injury. Indeed, none of them had ever seen an example in lengthy careers.

Trying desperately to get the jury on his side by illustrating just how awful fisting is, Wilkins then suggested that, if it involved women, it would be "dehumanising".

Perhaps he'll explain that to women who enjoy fisting - whether heterosexual, lesbian or bi. Because the sticky reality is that some women do it, some women have it 'done' to them, and this is because they enjoy it.

It should never, ever be the business of the CPS to go around suggesting what, in effect, is acceptable sexual behaviour for women. And the point of the law should not be to make such moral judgements.

And the very fact that the CPS tried to use ideas of women - and prudish ideas at that - to support a case against a gay man, about a form of gay male sexual behaviour, is bang out of order.

Not that things ended there. In his summing up, Wilkins actually announced to the jury that the defendant had fantasised about orgies.

It's now an indicator of criminal behaviour to fantasise about an orgy? It's not even an indicator of criminal behaviour to take part in one!

And for goodness sake, that's probably a vast proportion of the population you've just effectively criminalised, since it's quite likely that many, many people have, at the least, fantasised about sex in such a situation.

But let's be absolutely clear: on the basis of Wilkins's summing up, even fantasies of perfectly legal acts can be used as evidence against you.

Your fantasy life is no longer yours.

In a case of extraordinarily intrusive behaviour, this little gem says so much.

The CPS has been in trouble before with stupid prosecutions under this legislation.

It prosecuted somebody for having footage of an animated tiger having sex with someone - because it was too dumb to turn up the sound and realise that there was a punchline at the end, and that the tiger was a CGI creation.

There are many questions raised by this case. Lawyer David Allen Green phoned the CPS press office pretty much the moment Wilkins came up with his 'risky sex' suggestion about sexual health clinics. They distanced themselves from that one pretty quickly.

But the performance on BBC's Newsnight, after the trial, of Alison Saunders, the chief Crown Prosecutor for the CPS, was hardly one to inspire confidence.

Saunders denied any connection with Simon Walsh's job - of course - but it remains to be clear as to just what the police had as a basis to even start the investigation.

And she appeared downright uncomfortable, if not embarrassed, to be facing such questions. As she should.

Are the CPS simply idiots - or is there an agenda here; either one of stopping Walsh's work, or a puritanical, controlling agenda, whereby some people at least are seeking to foist their mores on to the rest of the population, and particularly on those whose sexual behaviour they view as abhorrent?

Did the CPS really believe that fisting and sounding is likely to cause injury? Or did they quite deliberately lie to the jury to suggest this, as they needed to do if the images involving these things were to fall within the abysmally-worded legislation?

There is something utterly nasty about the prosecution - and persecution - of Simon Walsh.

And a further matter. Whereas the Twitter joke trial attracted widespread coverage, #PornTrial has seen much of the supposedly serious media rather quiet on the matter.

Are elements in the media simply embarrassed by some of what was discussed in court - or are they secretly disgusted, and possibly homophobic, and have allowed that to cloud their minds to the issues?

The Guardian should be praised for being open and covering the case well. The Independent came late to the table with a rather wishy-washy piece, but that was better than most. Perhaps surprisingly, the Sunday Sun deserves praise for a short opinion piece that was remarkably sound and sane, and not sensationalistic.

The Mail had managed, online at least, to do some smearing by misrepresenting the case early on - challenged by Myles Jackman of the defence team. But then, the Mail has no shortage of form in the area of LGBT issues. It did publish (online at least) a report of the acquittal.

The defence team are due great credit for their work - as is the jury, which took just 90 minutes to reach its conclusion.

But in both these cases - and others - we see some serious and worrying things that have the potential to rear their heads again unless the CPS and the police rethink their cack-handed onslaught on some very basic ideas of privacy and free speech.

The legislation that was so flawed to start with needs to go too, but that's unlikely at present. Let's face it, no mainstream political party is currently going to want to risk the wrath of the Mail by being perceived to 'support' alternative sexual activities and porn.

I'd like to think that this was the end of the war. Unfortunately, I suspect it's but a single battle. And it seems entirely possible that there will be more victims.

And these are not just cases about bad jokes and a few perves.

15/08/12 UPDATE: Interview with Simon Walsh at the London Evening Standard.

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