The Independent View: Whose sex life is it anyway?

We may have a coalition Government, but as it goes about fixing the economy the CPS are prosecuting individuals based on authoritarian legislation passed by the Labour Government. The most recent of which was Simon Walsh, an Independent Councillor in the City of London, Mayoral appointee to the London Fire Authority and a Barrister had a life-changing 18 months waiting for his trial for possession of pornography. There are many aspects of this case that are so wrong, not least the length of time it has taken and the damage that inflicts on an individual mentally, reputationally and financially. Here Simon shares his very personal experience at the hands of Labour’s laws.

The 2008 Parliament outlawed possession of pornographic photographs of death, bestiality and necrophilia. But there was also a fourth prohibition, of photographs of “acts likely to cause serious injury to the breasts, genitals or anus”. It was, of course, aimed at pictures of mutilation or the insertion of razor blades and the like, but there was a fear it could be used more widely. The Ministry of Justice dealt with this by issuing guidance to the public: the Act would not be used for anything that was not already illegal under the Obscene Publications Act and was not specifically aimed at the BDSM community. There was also a defence for those participating in consensual acts. And finally, no prosecution could be brought without the consent of the DPP (Director of Public Prosecutions). So when, in April 2011, I voluntarily gave the Met Police access to my ‘hotmail’ account I should have had nothing to fear. How wrong I was.

The police found a picture of a naked man in a gas mask, a picture of fisting and three pictures of ‘sounding’. A junior Met officer drove with these to see a retired septuagenarian GP at his home in a leafy suburb of Manchester where he gave an “expert” statement to say they were pornographic, obscene and showed images likely to cause death or serious injury. In respect of the man in the gas mask, this was because there was no indication in the picture of how the man would cope should he get into breathing difficulties and he was thus ‘likely’ to die. Where is Private Godfrey and his Red Cross box when you need him?

Incredibly I then found myself charged with possession of extreme pornography and appeared in front of 3 middle-aged Uxbridge Magistrates. They did not bother to ask to look at the pictures but, based on the words the ‘expert’ used, they decided their powers of punishment (which went as far as sending me to prison for 6 months!), were not enough and sent me off to be tried at the Crown Court.

By the time we got to the Crown Court more ‘experts’ had been found. They talked of the dire consequences of fisting and sounding going wrong: internal injury, gangrene or permanent incontinence. I don’t disagree, but the statute uses the word “likely” which they conveniently forgot.

So I ended up in the dock in the Crown Court for a trial that lasted 8 days. A key element of my defence was that 3 of the pictures were taken by me during the course of an overnight party with 2 other men. Indeed if you looked in the mirror in some shots I could clearly be seen, naked and holding the camera! The judge, who told the Court his duty was to see the trial was fair, put paid to this defence by directing the jury the defence of consensual participation was not open to a photographer like me as when I took the pictures they were not of my own genitals!

My last chance was that bastion of our freedoms under the law, the English jury. They, 6 men and 6 women, came up trumps and decided very quickly that I had not broken the law.

I understand the CPS are still refusing to recognise my case as a precedent. That means they could still do the same to you – for having just one picture of fisting lurking as an attachment to an e-mail on a server somewhere in cyberspace. If there is any justice and if what I have gone through means anything, they must not be allowed to carry on in this illiberal and discriminatory way and must be told, as a jury in even Margo Leadbetter’s Surbiton homeland told them, to accept that snapshots of gay adult men indulging together in harmless bedroom fun is just no business of the Crown.

* Simon Walsh is an Alderman of the City of London

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23 Comments

  • Stuart Mitchell 8th Sep '12 - 3:49pm

    I don’t see why the legislation is being blamed. This man was clearly innocent of any offence under the legislation, as the jury confirmed. His ordeal was due to the incompetent and unwarranted actions of individuals. As described here (I haven’t looked into it further), the legislation doesn’t sound that unreasonable.

  • It sounds to me like the legislation is that normal sort of poor law we expect these days. But what worries me more was why the Met were even asking for the Hotmail password in the first place.

  • I too would like to know more about why email passwords are being handed over to police. Are we missing an important part of the story?

  • Andrew Wimble 9th Sep '12 - 12:10pm

    I thought we should have all learnt by now that if legislation can be abused it will be. Statements about what a law is intended to do are meaningless. If limitations are not clearly written into the law they will be ignored in practice, regardless of any statements made about intent. The last government brought in a whole series of laws that in spite of claiming to being aimed at terrorists and serious criminals ended up being used far more widely. I do not expect to see the same from any Government that includes Liberal Democrats. This law, alonlg with the proposed internet snooping laws and others is making me question the value fo the coilition.

  • “This law, alonlg with the proposed internet snooping laws and others is making me question the value fo the coilition.”

    I’m all for questioning the value of the coalition, but it can’t really be held responsible for a law passed in 2008.

  • This really does seem an issue we should be making our voice heard on. IF we are to be a liberal party then we have to stand firm on issues of individual liberty. It should be clear that what any consenting adults wish to do in private and between them selves is THEIR busines and NOT the business of the Police or the state. Very simple really. 🙂

  • Paul McKeown 9th Sep '12 - 5:38pm

    I hope I can be forgiven for raising another issue of ethics, but would LDV please write something inviting discussion of Anna Soubry’s comments in The Times yesterday regarding the right to die? I understand Norman Lamb said something supportive too, as did some Labour Peer, perhaps Norman Lamb could be invited to make a statement here? This is a very important issue, which seems to have been neglected by Parliament. Anna Soubry’s promotion, was, to my mind the one good piece of news on the Conservative side of the coalition. Always had time to listen to her, not some mad ideologue, but a normal working woman with intelligence and life experience.

    As for the author’s prosecution? As it concerns consenting adults not causing each other lasting harm, then it is a matter of taste. I imagine the jury thought the same way – not my taste, but not my business either. Parliament needs to re-draft this legislation if the public prosecutor is bent on abusing it.

  • Richard Dean 9th Sep '12 - 6:35pm

    The police are expected to have expertise in catching wrong-doers, and they need to use simple, common-sense definitions for this purpose. They are not lawayers and are not expected to be experts in the finer points of law. They seem to have done their duty well in this case.

    I imagine they would need to have had some justification for searching a computer. Once seatrched, if I had been a policeman seeing the photos, I imagine I would certainly thought them likely to be pornographic, and so would have passed them to the CPS for their assessment of whether to proceed with a prosecution.

  • Stuart Mitchell 9th Sep '12 - 7:36pm

    @Geoffrey and others
    The law is already quite clear that those participating in the acts depicted are not committing an offence :-

    http://www.legislation.gov.uk/ukpga/2008/4/section/66

    So in theory (like you I am not a legal expert), surely it would have been sufficient simply for the participants to confirm to the police that the OP was joining in, and that ought to have been the end of story? If the CPS continued prosecuting despite that, that would seem to be incompetence (or malice?) of a high order.

    In answer to those who are opposed to the law and are anticipating Nick Clegg riding into action on his trusty white civil liberties steed….. An LDV discussion from the time suggests that Lib Dem MPs did not oppose the law. When the Scottish government proposed a virtually identical law a year later, the Lib Dems “strongly” supported it.

  • What worries me is that they’ll keep going until they get a jury that doesn’t understand and knobles someone then they’ll use that as a precedent!

  • “I imagine they would need to have had some justification for searching a computer.”

    As explained in the article, they didn’t search his computer. He voluntarily gave them access to his hotmail account.

  • Richard Dean 9th Sep '12 - 11:45pm

    Personally I think that the images may indeed be judged to be of an act that is “likely to cause serious injury”. When I pass a hard stool after constipation, it hurts, and pain is the body’s warning that further action of that nature is likely to cause injury. My stools are nothing like the size of a fist, and in my view someone fisting me would likely cause me very serious injury. . Most of the population do not do this thing, in my estimation, and would probably sustain serious injury if someone did it to them, in my estimation. So it would be irrelevant that the practitioners in this particular case had sufficient practice that they would not cause srious injury to each other

    On this basis it looks to me like the CPS did the right thing. Parliament’s earlier statements had raised the possibility of excepting some circumstances, and a trial was necessary to help determine this.

    But does a jury verdict really set a precedent? A judgement by a judge does, because the judge can explain in the judgment the reasons for the judgment. Law is made by Parliament, and by judicial interpretation of statute, and by application of the common law that is the law that was determined by judges previously. Law is not made by 12 people in a jury, not in a demiocracy, so if the jury’s decision was made because it didn’t like the law, then that would be perverse.But a jiury just has one thing to say – guilty or not – and has no way of explaining its reasoning.

  • “In answer to those who are opposed to the law and are anticipating Nick Clegg riding into action on his trusty white civil liberties steed….. An LDV discussion from the time suggests that Lib Dem MPs did not oppose the law. When the Scottish government proposed a virtually identical law a year later, the Lib Dems “strongly” supported it.”

    I don’t know about Scotland but I think we opposed this when it went through Parliament. Certainly this letter from Charles suggests that
    http://www.melonfarmers.co.uk/argch05.htm (scroll down to 29th Oct – note this site is slightly NSFW)

  • Sue Miller also did a lot in opposing this legislation IIRC.

  • “Most of the population do not do this thing, in my estimation, and would probably sustain serious injury if someone did it to them, in my estimation. So it would be irrelevant that the practitioners in this particular case had sufficient practice that they would not cause srious injury to each other”

    On the contrary, the act that was photographed wasn’t performed on “most of the population”, so what you say is irrelevant to the likelihood of the act resulting in serious injury.

  • Richard Dean 10th Sep '12 - 9:20pm

    Chris – maybe we should ask most of the population?

  • Richard Dean 10th Sep '12 - 10:05pm

    Yes, I think it does come down to the interpretation of “likely to cause injury”. To help us understand that phrase, we could do several things.

    One would be to look at similar phrases, such as behaviour “likely to cause a breach of the peace”. The fact that it did not cause a breach in a particular case does not make it unlikely, it just means that it didn’t in that case.

    Another thing we could do would be to see what makes sense. “Likely to cause” is referring to the future, not pthe present or the past, so the fact that it didnlt cause in a particular instance doesn’t mean that its unlikely to cause. Nor would te phrase make much sense if we added “for persons not practiced in the act”, to my mind anyway.

    A third thing we could do is to look at what expressions of intention were made by Parliament in relation to the offence. Thus if Parliament said, in a relevant forum, that it diod not intend the law to be used in certain cirumstances, then that would have been another possible reason why the jury reached its verdict.

    The possibility of these various interpretations has an interesting consequence, that the jury’s verdict cannot be taken as a precedent – since we do not know which of these or any other interpretations they might have used to come to their result.

    Sorry if this seems a bit didactic. Blame the Open University Law Course W100! Of course there are other possibilities …. !

  • Richard

    It’s just a question of whether the act photographed was likely to cause serious injury. If that wasn’t the case because the people involved were accustomed to the act, then it fails the test. It’s no use saying that if other people had been involved the act would have been likely to cause serious injury – because other people weren’t involved.

    It’s rather like arguing that stabbing someone with a sword made of tissue paper is an act likely to cause death, on the basis that most swords are made of metal, not tissue paper. It would be true enough as an observation, but irrelevant and more than a little silly in the context offered.

  • Richard

    One other thought. Of course the jury’s verdict can’t be taken as a legal precedent, because the jury’s function is to determine the facts in a particular case, not to rule on the interpretation of the law in general.

    The jury decided that the photographs in this case did not fall within the definition given in the act. Apparently you don’t agree, but that’s neither here nor there, as you weren’t on the jury, and you didn’t hear the evidence and arguments advamced in court.

  • Andrew Wimble 11th Sep '12 - 6:30pm

    Regardless of if the act is likely to cause injury or not a situation where commiting the act is legal but possessing a photo or video of it can get you jailed is rediculous. Personally I think a prison sentence for simply possessing images or video is excessive in almost all cases. The only exception I would make is for child pornography where there is a well established link between people who view child pornography and people who actually abuse children.

  • Richard Dean 11th Sep '12 - 9:20pm

    Chris, No! We do not know why the jury decided. We just know its final verdict.

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