Thursday, 24 February 2011

Another indecent prosecution

It must have been high-fives all round at the CPS when they managed to secure the conviction of Stephen Neale on child pornography charges. For this was not your typical story of evil paedophiles swapping disgusting images of child abuse via clandestine online networks. No computers needed to be decrypted and trawled through; no ring of deparavity has been cracked; this was not a cross-border operation costing millions of pounds and ending in hundreds of arrests. Hardened police officers and prosecuters will not have their nights disturbed by pictures of raped babies or drugged and screaming pre-teens appearing unbidden before their consciousness. On the contrary, the pictures that 59-year old Neal were convicted for possessing were in books - books that are freely and legally available, one of them on sale in all good branches of Waterstone's.

In a rare outbreak of sanity in this area, Neal's conviction has been quashed by the Court of Appeal. Lord Justice Richards described it as "very unfair" that a man had been charged with possessing pictures that were freely on sale. As indeed it is. To require purchasers to individually satisfy themselves as to the legality of every item they purchase is to impose a quite unreasonable burden on members of the public. If something is on sale, one must be able to assume that it is legally on sale. And if it is not - as the judge pointed out - "the right way to deal with the matter is by way of prosecuting the publisher or retailer - not the individual purchaser."

But here's the strange thing. Not only was Neale prosecuted - and found guilty - for having these books (one of which, Sally Mann's Still Time, is listed here on Amazon UK), neither the police nor the CPS have made any move against the publishers or retailers. Branches of Waterstones' have not been raided. There's no reprise of the Lady Chatterley trial in prospect, this time aimed at gauging the acceptability of Sally Mann's unclothed pictures of her children. Which, incidentally, you can access easily on Google images - it does not appear that the Internet Watch Foundation has attempted to block any of the numerous sites on which they appear, as they notoriously did a couple of years ago when they were alerted to an old album cover from the 1970s which featured on Wikipedia. If the CPS were indeed seeking to ascertain the legality of the pictures on the cheap, using Neal as a test case, one would have expected some such follow-up.

Were the pictures - regardless of their widespread legal availability - legally indecent? This is a tricky question. On the one hand, the prosecution managed to persuade a jury that they were indecent - and to bring the case the CPS would have to have been satisfied that they constituted "erotic posing", which is the lowest level classification of child porn - indeed, a classification that would arguably include photographs of child celebrities that regularly adorn the pages of the Daily Mail. On the other, the Court of Appeal ruled yesterday that the trial judge had failed adequately to direct the jury on the "objective" standards to be applied when assessing indecency.

It may be wondered, though, whether an objective standard actually exists or is even possible. Sally Mann's pictures of her own naked children, legitimately regarded as art by some, will strike others in today's heightened and paranoid moral climate as borderline kiddie porn. While the photographs were clearly not sexual in intent (as I have argued, where the person photographed is a child, by definition only a paedophile would see it as sexual) the jury's verdict may suggest that such nuances are increasingly lost on the general public. This is a thought almost as disturbing as the CPS's decision to prosecute.

Consulting the relevant CPS guidelines, I find this:


Level 1 images continue to refer to posing and the question has sometimes been raised as to whether that means that non-posed photographs, particularly those that could be construed as naturist photographs, are indecent or not. It is important to note that the sentencing guideline is relevant solely to the issue of sentence and not the law of what does, or does not, amount to an indecent photograph. In R v O'Carroll [2003] EWCA Crim 2338 the Court of Appeal specifically stated that the original levels put forward in Oliver and, by implication, the revised levels in the definitive guideline do not bind a jury as to what is, or is not, indecent. The photographs in O'Carroll were naturist photographs and his conviction for importing indecent photographs was upheld. Accordingly non-posed photographs that are indecent can form counts on an indictment.


This is hardly a satisfactory state of affairs - especially since the test of indecency typically put before a jury is whether an image offends "recognised standards of propriety". In O'Carroll, the judge made the visibility of genitalia the test of decency, despite the fact that the pictures featured very young children playing on a beach and were thus clearly non-sexual. The law it seems (and perhaps wider society as well) now takes its standards of what is and is not sexual from the warped perspective of the paedophile, rather than than of a normal healthy adult.

It's not clear why the CPS ever thought it appropriate to bring charges against Stephen Neal, or why even at this late stage they were still seeking a retrial (the judgment doesn't appear to be publicly available, so I'm relying on the report in the Telegraph). Perhaps a clue lies in an additional charge, which was dismissed, that Mr Neale had in his possession an "extreme" DVD. The charge was wrongly brought, but the contents of the DVD had already been described to the jury before it was withdrawn and it is likely to have prejudiced them. Certainly, Lord Justice Richards wondered if the successful charges "would have been brought against him but for his prosecution in relation to the DVD". This would be an interesting reversal of the usual pattern by which "extreme images" charges have regularly been tacked onto more serious ones of child pornography, resulting in a large number of uncontested convictions. But was the "extreme" DVD (whatever it was) the source of police interest in Mr Neale, or did his house come to be raided by them for some other purpose entirely? It would be interesting to know the answer.

In any case, it's hard to understand why the CPS continues to regard cases such as this either as in the public interest, or as an appropriate use of public resources.