Thursday, 6 January 2011

An extreme test case

Two developments today in the ongoing saga of the Extreme Images ban, one farcical, the other potentially of far-reaching significance.

(In case you're not au fait with the background, this is the crime, invented by the last government in its 2008 Criminal Justice and Immigration Act (s.63) which makes it an offence to possess any "explicit and realistic" image that depicts certain violent or life-threatening acts in what is deemed to be a sexual context. Its supporters believed that the law was necessary to prevent copycat murders; opponents felt it was targeting perfectly legitimate forms of sexual expression. See (for example) here. In fact, people with no interest whatever in "deviant" sexuality have ended up being caught when arrested for something else and police found viral videos on their mobile phones - as in last year's notorious "tiger porn" case in Wrexham.)

The farce, highlighted by Jane Fae in the Register, involves Northumbria police, who wanted to charge someone on the basis of a single "extreme" image. Sadly for them, according to the CPS "the defence requested details of where the image was on the computer and when the computer was checked, the image was no longer there." Self-deleting porn? It could be the next big thing.

Much more serious was the case of Kevin Webster, who has been on trial in Stafford charged with possessing a number of "extreme" images that unlike the tiger-porn did actually originate on a fetish website called Drop Dead Gorgeous. Yet by most standards, the four images put before the court were not particularly extreme. One showed no more than a woman pretending to drown in a bath, while others featured knives. It's not entirely clear how the case ended up in court, though there is a suggestion that the site from which Webster downloaded the pictures included (unknown to him) a link to a child-porn website. Although there was no paedophile material on his computer, and although he had downloaded the image before the 2008 Act came into force, the CPS decided to prosecute him anyway. And so Webster was facing up to three years in prison for possessing pictures that resembled stills from an old Hammer Horror film.

As the prosecutor admitted to the jury:

We know the images were fake, we know it isn't a knife in someone's breast. The question is whether it is realistic or portrayed in that way. You have to be satisfied the people in those images are real. Plainly they are. The intentions of the persons within those images, the actors and actresses, are irrelevant. It is what is depicted in those images which is material.

This is important, because stills taken from a Hammer film - to say nothing of more recent (and much more realistic) mainstream horror - even if passed by the BBFC might well form the basis of a prosecution if the police or CPS believe that the picture or sequence was extracted "for the purpose of sexual arousal".

The case represented an important test of s.63. For the first time (at least in a case of intentional downloading of "sexual" images) a defendant pleaded Not Guilty; and for the first time a case went before a jury. Previously, charges of possessing extreme porn have been uncontested. They have also tended to involve images of animal abuse, whose illegality is less controversial, or been charged alongside child porn offences. Here were pictures that were admittedly consensual and obviously staged, and yet appeared to fall within the definition of the Act. In many ways this was the case that campaigners against the law have been waiting for.

The defence - which was advised by the anti-censorship group Backlash - called two expert witnesses, Professor Feona Attwood of Sheffield Hallam University and Dr Clarissa Smith of the University of Sunderland. They are probably the leading academic authorities in the field, and together wrote the definitive study of how the new law came into being - Extreme Concern: Regulating "dangerous pictures" in the UK (available in pdf here). It was Attwood who made the Hammer Horror comparison. Webster himself didn't take the stand.

The news came this afternoon that Webster has been cleared. Had he been convicted, it could well have opened the floodgates to many more such prosecutions. Will his acquittal have the opposite effect, and make the CPS think twice about their own definitions of extreme pornography? It's interesting that while male prosecutor Darron Whitehead told the court (somewhat in the spirit of Mervyn Griffith-Jones) that the law was needed "to safeguard the decency of society and for the protection of women", two female academics and a predominantly female jury disagreed. But the law remains very much active. Late last year a man was jailed for ten months in Cornwall for possessing what the investigating police officer described in court as the most "depraved, abusive and cruel pictures and movie files" he had ever encountered. I've no details, but presumably these did not look like stills from a Hammer Horror. But with a law so widely drafted and open to interpretation it's often impossible to tell what is actually being prosecuted and why. (Pandora - also writing today - has a useful round-up of some other notable uses of s 63.)

If this illiberal law (which seems unlikely to fall victim to Nick Clegg's much-anticipated Freedom Bill, despite a vociferous campaign to have it repealed) has any justification, then it should be restricted to cases which appear to feature images of actual sexual violence and abuse. In other words, for "realistic" to be interpreted as meaning "likely to be real". The vast majority of such material, even the most "extreme", is however known to be staged. Some of the participants, indeed, are articulate advocates for their subculture. Several have their own blogs, while fans of the genre, as Clarissa Smith told the court, know and recognise the regular performers who "play dead" for the camera. We are dealing with pure fantasy. It's good to know ordinary members of a jury can tell the difference between fantasy and reality, even if the law and its enforcers decide that the distinction doesn't matter.