An article written by the Guardian highlights that Despite the acquittal by a jury of Simon Walsh, questions are raised about the right of the state to intrude on individual’s private and consensual sex lives.
Despite a Kingston jury returning not guilty verdicts in a landmark porn trial, questions arise of the right of the state to intrude on an individual with unfounded obscenity prosecutions.
A Defendant, was charged with five counts of possessing “extreme pornography” under section 63 of the Criminal Justice and Immigration Act 2008 (CJIA). The images showed various acts that are legal to perform and even discussed in movies, such as Fifty Shades of Grey, but possessing photographs or images of them is criminalised under the Criminal Justice and Immigration Act if they are “likely to result, in serious injury to a person’s anus, breasts or genitals”.
Prosecutions of extreme pornography under s63 of the Criminal Justice and Immigration Act are not uncommon with 1,337 offences Prosecuted in 2011, though most accused plead guilty and it is rare for a Jury to hear such a case.
The Defendant in this case had taken part in the acts in private with other consenting adults which raises questions as to what it has to do with the public.
It is possible for images to be stored to computers without the intentional actions of the user, during Internet browsing or when an unsolicited email is received for example. Either scenario can lead to an individual to find themselves in court accused of being in possession of it.
While some extreme pornography cases consist of many thousands of image, the case of Simon Walsh comprised of 5 images of consensual adults involved in sexual activity and a single unrequested picture that had been unopened on his email server and attached to an email containing a story about “Jason”.
The Defendant had never requested or opened the image and was not aware of the presence of it. Whilst ‘Jason’ was described in the story as being in his mid-twenties, the Prosecution deemed the individual within the image to be 14 years old and, therefore, a child.
Different defence experts viewed the extreme pornography image and confirmed that it was of an adult, however, the Jury were not told about this element of expert evidence but acquitted the Defendant based on their own assessment of the age of the individual in the image.
Nonetheless, this process leaves concerns as to how such Prosecutions are conducted and the right of the state to interfere with privacy.
Unlike the Obscene Publication Act, which covers distribution, the Criminal Justice and Immigration Act 2008 shifts the burden on to individuals in possession of pornography. People need to know how to modify their behaviour in accordance with the law, yet it is unclear what acts constitute “extreme pornography”.
As well as the criminalisation of acts that are legal to perform, the Criminal Justice and Immigration Act also outlaws images that had been displayed in art galleries, including in 2008 the Barbican Gallery’s Seduced exhibition included photographic images deemed to be extreme pornography under the Act.
Given the level of subjectivity involved in classifying an image, the Police also regularly misclassify images they find, whether it be through misjudgement or through miss identification by automated image classification software that they sometimes use. discover.
If you have been sent unsolicited images within emails or social media messages, any such images are often automatically stored to your computer or phone whether or not they are opened.
Only the examination of that evidence can determine how and why an image was stored and most often, the Prosecution and Police simply do not have the capability, time or resources to carry out that level of work in each of the cases that they deal with.
Only the examination of that evidence can determine how and why an image was stored and most often, the Prosecution and Police simply do not have the capability, time or resources to carry out that level of work in each of the cases that they deal with.
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