So, last night BBC's Newsnight finally took #PornTrial somewhere vaguely into the mainstream (About 21 minutes in). They carried a brief overview, an interview with London's Cheif Crown Prosecutor (of which more later) and an interview with the acquitted defendant Simon Walsh.
Firstly though is the issue of BBC balance again... The final piece was actually fairly well done, but today a couple of tweets from David Allen Green suggested that it was not always going so smoothly:
@DavidAllenGreen #Newsnight wanted live #porntrial interview in front of bling 'porn shop' backdrop. We said no, pre-recorded in front of neutral backdrop.
@DavidAllenGreen And so, with my media lawyer wig on, we got our way re #porntrial interview, to the frustration of #newsnight producers...
@DavidAllenGreen Highpoint of Newsnight #porntrial negotiation was when we asked if CPS interviewed in front of sex shop backdrop. No, came sheepish reply...
Anyway, the more important thing I want to discuss is Alison Saunders' attempt to defend her decision made on behalf of the Crown Prosecution Service. When asked by Eddie Mair why the CPS had brought the case, Saunders replied
We brought the case because there was sufficient evidence and when we looked at the case we found that there was evidence to prosecute the offence of possessing extreme pornography. What we looked at there was whether or not there was a pornographic image and the element of the act we prosecuted under was whether or not the image showed there was likely to be harm or injury caused.
I'm going to start here with her description of the test being applied - "likely to be harm or injury caused". This idea of "harm and injury" or "harm and serious injury" is repeated multiple times by Alison Saunders throughout the piece. I think it is important to note here what the law actually calls for:
63(7)(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals
Note, "serious injury", not "harm or serious injury". It has got to be likely to cause "serious injury". All this talk of "harm" (which is a much wider term) is misleading. Serious Injury is the nature of the offence nothing less. Let's not have the Chief Crown Prosecutor trying to widen an already too wide law and using slopping thinking to justify cases.
Eddie Mair: But your concern was about whether people would come to serious physical damage?
AS: ...it's about does the image show that there is likely to be harm or serious injury...
AS: ...are these extreme images in that does it show harm or serious injury...
Eddie Mair is very close there but Alison Saunders... not quite...
Say it with me: "Serious Injury".
There was also discussion about the fact the images have to be pornographic in order to be extreme porn.
EM: But if I were to take a photo of someone marathon running or skydiving or smoking a cigarette? The Law's not interested there?
AS: But that's not pornographic so... You have to make sure there's a pornographic image which, by definition, is sex.
Actually... err... no. pornographic is, by definition sexual - not sex.
You may think this is nitpicking, but it's really not. In order to prove extreme pornography the prosecution has to show it is pornographic. When the prosecution asked a defence witness whether the images were pornographic she said they weren't. Although they depicted images of sexual activity, the lighting was so poor and the messiness so apparent that the sexual and erotic nature of the images was spoilt. As such they were snapshots of sex, not pornographic images. This nuance is vitally important and if the CPS don't want to get their head round that and want to use a "plain as a pikestaff" understanding then they are simply not fit for purpose.
Also, as half of Twitter pointed out, smoking has a long tradition in pornography. Better check your vintage porn collection just in case...
Eddie Mair then moved onto whether CPS were hoping for easy convictions due to embarrassment. Unless the CPS have to reach certain targets for numbers of prosecutions (which would be as daft as paying firemen by the number of fires put out) this isn't really a CPS issue - it's a bad law problem. It's a bad interpretation problem. It's a bad legal advice problem. And embarrassment will play a major part in how easy the convictions are to get, but I do believe that embarrassment for easy guilty plea is not a clear part of the CPS's mindset. Unsurprisingly anyway she denies it, talks about the fact that they weighed the evidence (against what I don't know) but then came this gem:
... we put them before a jury and then, it's for the jury to decide and in this particular case went all the way through to the jury so it wasn't stopped by the judge, it was put before the jury, the judge obviously decided there was a case to answer and it's a matter for the jury to decide if there's any reasonable doubt - which is different, of course, from our test which is "reasonable prospect of conviction".
Two gems in this. Firstly, "reasonable prospect of conviction" has got to be decided in light of the reasonable doubt bar. That is the bar that must be obtained to secure a conviction. To say that the two are totally different is technically correct but very misleading.
Secondly, "it got all the way to jury" is an circular argument. It got to jury because of your decision making. You cannot use your decision making to justify your decision. And the idea that the Judge allowed it to be brought therefore there was a case to answer - as I understand it, the CPS are the gatekeepers for this. The judge does not get to look at a case and just refuse to hear it. The CPS make the decision that there is a case to answer, the jury hears the case and provide an answer and the judge presides over it. Again, the CPS cannot use it's own decision to justify that decision.
This is a barrister who is obviously well respected and qualified - she has risen to Chief Crown Prosecutor for London - and she is engaging in circular arguments. This system, once again, is clearly not fit for purpose.
The height of crackpot CPS Public Relations meltdown is when asked whether Simon Walsh's job prosecuting corrupt policemen had anything to do with the charge and prosecution:
Absolutely not. In fact, I didn't know that was part of his work.
That, right there, is one of two things: a lie or evidence of incompetence. To believe this, you have to believe that the CPS carried out no conflict of interest check. That this person is immune from professional gossip. That no query was raised, with such poor evidence, about the defendant's character. That no information about his position as a barrister was considered when reviewing his statements and interviews with the police.
Lies or incompetence. Which is it CPS?
Finally, Eddie Mair finished by asking her whether the law was an embarrassment:
This is the law as it stands, the act was passed in 2008. It's not for us to comment on legislation, it's for us to apply the law as parliament sees fit
As parliament sees fit eh? Let's see what parliament had to say introducing it:
Jack Straw: ... so too can deeply offensive, violent and illegal pornography.
We believe that those who produce and publish this vile material in the UK are already covered by legislation, but we need the new offences created by part 6 for those who possess it, because the makers and distributors are very often operating across borders, from eastern Europe, the United States and elsewhere.
After the #ObsceneTrial earlier where fisting images where deemed NOT to be obscene under the acts Jack Straw describes above, the CPS went forward with this anyway. This bill was intended to cover possession of extreme pornography. Beyond the definition in the legislation, extreme brings with it an expectation of something being unusual. So anomolous that it requires special treatment. This was introduced because of a knee jerk reaction to someone with lots of violent pornography killing someone. Five photos is not extreme. In any way.
The formal advice on the bill was maybe thirty prosecutions a year - the CPS are prosecuting 1,300 a year. Extreme?
Evidence in the trial from a GMFA survey showed that 12.8% of respondents partook in fisting. Extreme? Unusual?
As parliament sees fit? I think not.
In my opinion, there is only one phrase to appropriately describe the interview she gave to Newsnight: taken from the CPS Prosecutor in this very case, and previously applied to a defence witness, "disingenuous, self-serving and dishonest".
Yes, the law is bad. The law is very bad. But so is the Crown Prosecution Service.