Prosecution prejudice sums up case in porn trial

The Scales of JusticeThe witnesses have been examined and cross examined, and the summative arguments have been made by both the prosecution and the defence, as addressed to the jury. The stage is now set for His Honor the Judge to sum up the arguments of both sides in this case tomorrow, and for the jury to be sent to deliberate in an attempt to reach a unanimous verdict.

It’s improper to try to predict what the verdict of a jury will be, and there’s always a little danger of getting it wrong. Likewise, it’s improper to cast firm and direct aspersions on the innocence or guilt of a defendant, no-matter how clear you feel it to be. Never the less, the prosecution – the Crown Prosecution Service – in this case has done itself few favours with the wider public in some of the comments it has made through the course of the trial and in summing up, and it would not be unfair to look at those comments and arguments: It’s always in the merits of the public interest to consider the conduct of the Crown Prosecution Service. Never the less, if you happen to be a member of the jury or otherwise involved in the case, please look away now.

The first issue is that this case was brought by the CPS before a court of law at all. Notwithstanding the quality, quantity, and facts of the evidence, the prosecution of this trial is widely viewed by onlookers as a travesty, a disgrace, and an embarrassment to both the CPS and to the British legal system – the supposed grandfather of them all. Having failed to win a conviction in January over pornography featuring fisting and BDSM, they decided to have another crack of the whip in a different case and under a different law, but never the less apparently approaching the issue from similar angles in many respects. Needless to say, the CPS does not generally belong as a voyeuristic and punishing Mistress in the private sex lives of the British people.

The second issue is that, once again, it is anal fisting (and not, interestingly enough, vaginal), along with urethral sounding that has been looked at as a means to prosecution by the CPS, and once again, the defendant is a gay man. All in all, there are 5 counts of images involving sounding and fisting which are alleged by the prosecution to constitute “extreme pornography”, and a 6th count involving the possession of an indecent image of a young man asserted by the CPS to be possibly that of a child, which was found by police as an attachment to an email received by the defendant’s email account in 2008.

The third issue is that the acts depicted in the images upon which the majority of the trial has focused are consensual and perfectly legal.

The fourth issue is that there is no evidence save for the word of the defendant as to which of any of these attachments he was even aware of, let alone to show that any of them had ever been viewed. There is only assertion and speculation on the part of the prosecution.

This forms what to many people would be considered a disturbing pattern regarding a prosecution that should be attempting to prove guilt under a presumption of innocence. Never the less, in summing up, the prosecution claimed to the jury that:

He was sole user of this account. Forgetfulness is no defence. Burden is on him to prove he did not open it.

… this, without a hint of any irony whatsoever, from a prosecutor who quoted Oscar Wilde at a crown court trial of a gay man regarding his alleged deviant and criminal sexual preferences:

Oscar Wilde said risk was like feasting with panthers.

… though, as one twitter user pointed out, Oscar Wilde also said that “To be entirely free, and at the same time, entirely dominated by law, is the eternal paradox of human life that we realise at every moment”.

The CPS in this case apparently learned nothing from their faux pas (to consider it generously) yesterday when they asserted that users of sexual health clinics are necessarily those engaged in riskier sexual practices, painting both the responsible health conscious users of those services and gay people as sexual deviants in a single stroke. Indeed, they continued the assault today asserting that an alleged image of child porn found as an email attachment in the defendant’s inbox, for which there is no evidence of requesting or opening, is perfectly inkeeping with  the sexuality of a gay man that likes fisting:

 We say that this image is in accordance with his sexual interests.

Speaking of the consideration that perhaps people should be free to have whatever sex they wanted, the CPS claimed that there are limits to freedom, and that you can’t just shout “Fire!” in a crowded theatre, contextualised by one twitter user by the name of Gemma Hallum: “Not sure that shouting “fire!” in a crowded theatre is analagous to photographing hands up a crowded bumhole. #porntrial #cpswtf

They asserted, to the jury, that the content of the images would be considered degrading and dehumanising were the people in them women, in spite of the fact that the people in them weren’t women, and there were no women involved in any of the counts, or indeed, the accusation as a whole; nor is the consideration anything at all to do with the charge under section 63 of the CJA.

They conflated the charges with illegal drug use:

The law seems to protect individuals, perhaps for themselves. Like drugs. Some may say it’s illiberal, It is the law. #PornTrial

In the pursuit of a conviction, the CPS even went so far as to disparage the character and credibility of one of the expert witnesses, herself a woman, for declining to agree with the assertion that the images in question were pornographic in nature (the defendant describes them as souvenirs/mementos), pretty much all but accusing her of being a selfish and lying traitor to her gender in the process:

Walsh would not concede they were pornographic. He said they were souvenirs. Dr Clarissa Smith refused to accept they were pornographic. It’s a plain as a pikestaff that these images are pornographic. Dr Smith would not concede images were degrading if it pictured a woman. This is clearly wrong. Dr Smith’s evidence was disingenuous, self-serving and dishonest

Finally, but not least, the CPS even managed to get a point of law wrong in the summation of the argument, implying that a jury must convict someone of breaking a law even if they disagree with that law. This is incorrect, as it ignores the noble and honorable tradition of “Jury Nullification“.

The conduct and attitude of the CPS in this has been a joke. Quite apart from stigmatising the users of sexual health services (and particularly queer users) – a stigma that those same services have been working hard to fight – not only do they propose intrusion into the private sex lives of anybody they so desire to intrude upon, but managed to demonstrate victorian attitudes to sex and sexuality in the process.

They have offended vast swathes of the public, they have proposed precedent that can only be described as truly frightening in it’s consequences for democracy and civil liberties, they have disgraced themselves, and they have disgraced the entire profession within which they operate – a profession in which public trust is absolutely critical.

Regardless of the outcome of the trial, one thing is certain – it would be in the merits of the public interests were the judge to see fit to condemn the practices and attitudes of the CPS on display in this trial. This was discriminatory (at best! At worst, they treat everybody like this!), homophobic, insulting, dishonourable and indecent. There is no place for these attitudes and this kind of behaviour either in our legal system, or within British society as a whole. It’s an utter disgrace.