Friday, 1 January 2010

Tiger has its day in court

It's oddly appropriate that the last day of a year notable for its stories about police powers, questionable prosecutions and state intrusion should have seen what must be one of the strangest cases on record come to court. At Mold Crown Court, Andrew Robert Holland, 47, from Wrexham in North Wales, was due to go on trial for possessing an illegal "extreme" image. The image in question was a mocked-up comic clip of someone having sex with a tiger. And we're not talking about Mr Woods (all images of whom engaged in any naughtiness have of course been disappeared by order of Mr Justice Eady). The police had "discovered" it on his mobile phone.

Under s63 of the Criminal Justice and Immigration Act, which came into force just under a year ago (see here, here and here) , images of sex with animals are illegal to possess. So are images of human beings engaged in activities, however consensual, which involve "threat of injury to breast or genitals". At the time the law was being debated, the government assured Parliament that it would not be used in trivial cases and that ordinary law-abiding people (even those with unconventional sexual tastes) had nothing to fear. Yet the Crown Prosecution Service saw fit to charge a man with possessing a clip that, however poor in taste, was self-evidently both fake and harmless.

Amid farcical scenes yesterday, the CPS withdrew the charge. Explaining the abrupt U-turn, prosecutor Elizabeth Bell told the caught that in the time since Holland was charged on 6th December CPS investigators had studied the "image" in more detail. They discovered, apparently for the first time, that the clip was accompanied by a comedy sound-track. At the end, the "tiger" turns to face the camera and a voice-over proclaims "That beats the Frosties advert!"

This was sufficient to persuade the CPS that the clip was not made with "sexual intent", as the weird law requires. The Act also requires the clip to be "realistic", however. The test is that "a reasonable person" would consider the image real. Obviously, neither Wrexham police nor the local CPS are over-supplied with reasonable people. Even without the benefit of the soundtrack, it's hard to imagine that a CGI film of someone seeming to have sexual intercourse with a tiger could be considered realistic. A sheep, yes (this is Wales, after all). Even a horse. But a tiger?

That's not the only troubling aspect of the case. The short Telegraph report states that the film had been blue-toothed to the defendant as a joke. So why was he ever put on trial? Just what is the public interest here? Were the police hoping for a guilty plea followed by an easy conviction, as has happened on previous occasions where this law has been used?

Holland's ordeal isn't over yet. In fact, it has barely begun. He is still charged with possession of another quite separate video, one featuring purely human actors and a "threat of injury to the genitals". The trial is scheduled for March - and the prosecution, for now at least, are determined to proceed with it. Hitherto, the legislation has been used almost exclusively for images of bestiality, where the moral case for illegality might be considered stronger. A year ago many feared that the law would be used to persecute S&M affacionados. This hasn't quite come to pass, but the Wrexham case proves that there's nothing to stop the police using the law in that way should they wish to do so. And while it's not quite a strict liability offence, the onus is on the person found in possession to demonstrate either lawful excuse or ignorance, something which can be difficult to prove.

The remaining video in the Wrexham case, which has been described to me, does not appear to raise any issues of consent or coercion; nor is the content sufficiently "extreme" to suggest that anyone possessing it is likely to be a danger to society. It's not just hardcore BDSMers who have stuff on their hard drives that may technically breach the law, either. Indeed, the test laid down that material should have been produced "for the purpose of sexual arousal" ignores the fact that, whatever thoughts were in the minds of its producers, a great deal of such material is consumed in a spirit of curiosity or macabre humour.

John Ozimek, who has been following the case in detail (he hopes to reveal the full story shortly), believes that it "looks like having implications for police and CPS that go some way beyond mere negligence." From what I hear, it's certainly quite disturbing. It reminds me somewhat of the case of Paul Clarke, the ex-soldier convicted of being in possession of a gun which (all sides accepted) he had found innocently and handed in to the police. He was facing a mandatory five-year jail term. Fortunately, the judge was able to discover "exceptional circumstances" - but as Jack of Kent argues, the decision to prosecute in itself represented an injustice and raised serious questions about the conduct both of the police and the CPS. The Wrexham case, too, suggests that neither the police nor the prosecution service can be trusted to exercise proper discretion when bringing criminal charges that can wreck peoples' lives.

After twelve years of New Labour, there are now so many laws, often couched in the widest terms, and sometimes involving strict liability, that the administrative decision to prosecute someone can be of greater significance than the trial itself. The extreme porn ban, brought in after a violent porn "addict" committed an atrocious murder, is a clear case in point. Whatever grounds were used to justify it, there was always a danger (denied, of course) that the police would go on fishing expeditions against anyone who attracted their attention, perhaps for an entirely separate reason. I'm not suggesting this happened here; I don't know. But something very strange must have been going on.