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.

State authorities obsessed with fisting seek to shaft us all

For the police and Crown Prosecution Service, this simple hand gesture is like a red flag to a bull this year

For the police and Crown Prosecution Service, this simple hand gesture is like a red flag to a bull this year

They went for it just 8 months ago, and they’re at it again now. The British police and the Crown Prosecution Service just can’t say no to anal fisting. Now, we wouldn’t normally offer a graphic description, but as this is apparently a significant issue worthy of a great deal of state time and resources, you might like to know (if you don’t already) that fisting is the practice of inserting a hand into the anus or vagina of another… or, in the words of one DS Callaghan when asked to describe an image used as evidence:  “appears to be arm inserted into anus“. There is, however, a darker and more serious aspect to this case.

Back in early January 2012, the Crown Prosecution Service brought charges, felt by many to be spurious, against Michael Peacock under the Obscene Publications Act, on grounds that he distributed pornography featuring gay fisting, urolagnia and BDSM which would tend to “deprave and corrupt the reader, viewer or listener”. This first porn trial was dubbed the “Obscenity trial of the decade“, and he was subsequently cleared of this charge by a jury of his peers. Presumably, either he was innocent of the charge or the jury became depraved and corrupted as a result of being forced to view the evidence.

Apparently unsatisfied with this result, the police and Crown Prosecution Service have once more brought fisting into the public eye (and intense scrutiny). Apparently unconcerned that they may stretch things too far, the charge this time, against one Simon Walsh, is brought under section 63 of the Criminal Justice and Immigration Act 2008, relating to “Extreme Pornography”. The charge under this law asserts that Mr. Walsh was in possession of images of a sexually explicit nature, involving activity that is “likely to result in serious injury to a person’s anus”. This, of course, has nothing to do with the fact that prior to this accusation, “Simon was a successful professional and politician in the City who, amongst other things, prosecuted police officers accused of disciplinary offences.”

This trial has brought up some intriguing issues and questions, the most obvious of course being with regard to why the police and CPS seem to have this bizarre obsession with queer sexual practices and fisting in particular. More interesting, however, is that the CPS asserted with apparent confidence, in the form of a question, that “people who attend sexual health clinics engage in more risky practices” in an apparent assertion that those who attend sexual health clinics do so for a reason other than because they take their sexual health seriously. Though in itself an irresponsible assertion to make, it’s perhaps given context by a question asked shortly after by the CPS;

CPS: This survey went to LGBT charities; does that not skew the kinds of people who would respond?

There’s a less than subtle insinuation buried in this line of questioning and reasoning. It’s not a positive insinuation, to say the least about it. If anybody held any kind of belief that the legal authorities of the UK held enlightened views on queer sexuality and common-if-kinky perfectly legal sexual practices, that belief can now be dispelled through this somewhat less than shining example of tolerance and sex positivity.

It does, nevertheless, get worse. This case is not all about the absurdly surreal courtroom comments where a Judge asks for both he and the jury to be informed as to the relationship between anal fisting and ketamine. This case is about you, me, and anybody else in the UK. The charge in this trial comes about through the existence of attachments in an online email account owned by Simon Walsh, which the police have ransacked for evidence having not found anything of note on any computer. In the process of ransacking the email account for evidence they could use for a conviction against Mr. Walsh, the police have destroyed any evidence of whether or not Mr. Walsh actually ever opened or viewed these attached images, at least one of which was sent to his inbox as long as 3 years ago, and it isn’t proven that he requested them either!

In hoping to win a conviction at this trial, the CPS is hoping, perhaps indirectly, to see a second precedent set quite apart from the criminalisation of the possession of photographs taken of specific and perfectly legal sexual acts between two or more consenting adults.  In order to win this conviction, the court would also have to assert that simply having an email account to which such an image is sent, requested or otherwise, constitutes the illegal possession of that image.

This has some rather serious repercussions. For example, what if somebody were to seek revenge upon you for some reason, or perhaps simply as a practical joke, and sent you such an image? Perhaps you may not even be aware it was in your inbox with the sheer volume of spam that exists on the internet in this day and age – after all, opening unknown email attachments is in itself immediately dangerous in the age of worms, viruses and trojan horses. What if somebody were to send such a thing and tip off the police about it’s existence? It’s easy enough to accurately spoof an email header if you know what you’re doing, and there’s no way to trace such an email.

Just as bad, however, is the fact that tomorrow it could be anything – who knows what legal changes will come our way over the course of time. What if it one day becomes illegal to ‘possess’ a copy of a trojan horse or computer virus? What if some other perfectly legal act becomes illegal to possess as a keepsake or record in photographic form?

This is not a precedent that’s healthy to be setting in anything other than a police state, and to set such a precedent in this “green and pleasant isle” would certainly be at least an unfortunate thing, and quite possibly a dangerous thing.

It’s arguably farcical that this latest “porn trial” ever came to court in consideration of the quality of this evidence, and even more farcical that the police and Crown Prosecution Service are once again going after the prosecution and criminalisation of the same thing through a different avenue having been unsuccessful the first time around. Never the less, it does constitute a serious threat to freedom and civil liberties. It’s a hidden threat, but it’s there nevertheless, and its a threat that we should all be aware of. If we’re not careful, they’ll move on from their dogged pursuit of fisting and, whether gay, bi, pansexual or straight,  they’ll be shafting us all in posterity.

You can keep up to date with proceedings at the hashtag #porntrial, or by following @lexingtondymock or @ObscenityLawyer who are livetweeting from the trial with the judges permission. @ObscenityLawyer is making history as the first legal solicitor to be granted permission to livetweet court proceedings. Please be advised that neither person is able to answer queries regarding the case, as to do so they would be found to be in contempt of court.

In Montana, Civil Unions are at the back of the bus

There’s been a ruling in Montana, that highlights many of the problems with civil unions. The case was about giving civil unions all the rights of married couples in Montana.

The judge in the case, Jeffrey Sherlock ruled that since there was a Montana amendment specifically in place to prevent equal rights for lgbtqia couples, his hands were tied and he had to reject the plaintive’s case.

Minor hate group, the Montana Family Foundation, applauded the judge’s cowardice claiming he exercised “judicial restraint”.

The Montana ACLU was disappointed but stated that they would appeal to the Montana supreme court. Judge Sherlock indicated that their appeal might be successful, due to his feeling that the superior court would feel they had more of a scope to rule against the amendment.