Wednesday, 8 August 2012

The acquittal of Simon Walsh at Kingston Crown Court

It is traditional for the judge to tell defendants who have been acquitted in a criminal trial that they leave the court without a stain on their reputation. Legally, that is true, but in practical terms the mere fact of being prosecuted, of having one's life subjected to minute examination in open court, of allegations being aired and private information brought to light can be ruinous even if the defendant is wholly and demonstrably innocent.

Simon Walsh's life was destroyed when the police arrested him (in Tesco's of all places) and charged him with the possession of "extreme" pornography and what was implausibly claimed to be an indecent image of a child. A magistrate, a successful barrister, an alderman of the City of London and former chair of its licensing committee, Boris Johnson's personal nominee on the London Fire Authority, he was every inch a pillar of the establishment. His sexual tastes were his own business, although he made no secret of being gay.

Quite how he came to be caught up in a police investigation has not yet been revealed. The police seized all his computers but found no evidence of porn; but they did see some images of unconventional but clearly consensual sex acts in a Hotmail account that he used for private and sexual purposes. As a result, he has been unable to work for more than a year and was summarily sacked by the Mayor of London from his position on the Fire Authority amid media reports that he was involved in child pornography. His life has been wrecked, his privacy has been forever lost and the damage to his career will probably be irreparable. Today a jury acquitted him on all charges in less than three hours, after more than a week of contradictory and often farcical evidence, breathlessly relayed via Twitter. But it is hard to celebrate the result as a victory for justice. Justice could only have been truly served by the charges never having been brought.

Delivering his famous judgement in the privacy case brought by Max Mosley, another man whose private sexual tastes were exposed for the whole world to see, though in his case by a tawdry tabloid rather than by the majestic apparatus of the State, Mr Justice Eady noted that under Article 8 of the European Convention of Human Rights (incorporated into English law in the Human Rights Act) everyone has a right to a private life, including a private sex life. There was "a considerable body of jurisprudence in Strasbourg and elsewhere", he said, to the effect that sex involves a "most intimate area" of private life whose privacy deserves the protection of the law. "People's sex lives are to be regarded as essentially their own business – provided at least that the participants are genuinely consenting adults and there is no question of exploiting the young or vulnerable."

Simon Walsh was a prominent person in the City of London, but as he told the trial, standing for public office should not mean giving up the right to a private life.

Such considerations did not deter the Crown Prosecution Service for bringing charges against Simon Walsh, though there was never any doubt about the consensual nature of the acts portrayed, nor about Walsh's outstanding contributions to civic life. What public interest might there possibly have been in prosecuting him, besides the "public interest" which according to CPS guidelines is inherent in the very process of prosecution? Certainly not the public interest in the sensible and proportionate use of public resources and state power. It's not surprising that some observers have pointed to Walsh's previous involvement in prosecuting corrupt police officers, and wondered if there were some dark ulterior motive at work. It may be more basic than that, though. As its opponents pointed out during the passage of s63 of the Criminal Justice and Immigration Act 2008, under whose provisions Walsh was prosecuted this week, the "extreme porn" law hands the police an easy weapon with which to go after people who might have attracted their attention, perhaps for other reasons entirely, and whose possession of "extreme porn" often seems to be accidental rather than evidence of any "extreme" sexual tastes. Consent is no defence, nor is the fact that the acts being portrayed (in this case fisting and the use of urethral sounds - medical probes - for sexual stimulation) might be entirely legal to participate in. The offence is so vaguely worded that all manner of unconventional sexual practices might be said to fall within its definition of acts "likely to cause serious harm to the anus, breast and genitals".

When it was being debated, Parliament was assured that it was intended to cover only the most violent, depraved and "dangerous" images, of the type that were assumed to have inspired the murderer Graham Coutts. Liz Longhurst, the mother of Coutts' victim, was prominent among those campaigning for the new law. It was originally estimated that there would be no more than around 30 prosecutions each year under the law. There are now closer to 1,500. The charge is often used in conjunction with possession of child pornography, and there is a high proportion of guilty pleas, two facts that might well encourage to the CPS to take a wide interpretation of "extreme". In so doing, the police and CPS vindicate the worst fears of the law's early opponents, as well as the warning of Martin Salter, the former Labour MP and cheerleader for the new offence, that people who engage in BDSM should not put what he called their "weird practices" onto the internet. But it is not at all obvious that this reflects the will of Parliament.

Where charges have been contested, for example in the Wrexham "tiger porn" case in 2009 or last year's trial of Kevin Webster for images that a defence witness compared to stills from a Hammer Horror film, the outcome has often been acquittal. As in the Lady Chatterley trial of 1960, English juries are apt to take a more tolerant and liberal approach than the police or the CPS. For all their appeals to public standards of decency, public prosecutors have regularly shown themselves to be prurient, paternalistic and repressive. Unfortunately, this does not matter where defendants, often badly advised on the law, plead guilty or accept a caution. It is a tribute to Backlash and the solicitor Myles Jackman, who has represented defendants in several high-profile cases, that the law has on occasion been successfully challenged. But many cases they never learn about, or only learn about when it is too late and someone has been unjustly convicted.

In his closing speech, the prosecution barrister Thomas Wilkins seemed to acknowledge the controversy. He admitted that the case raised issues of freedom of speech and of privacy, and conceded that some people considered the law illiberal. He preferred to describe it as "protective". It was not, he said, a Victorian law but one that reflected "modern morals and modern problems", specifically the availability of extreme images on the internet. He claimed that there were films made in places like Poland and Russia where it was difficult to know if participants had given their consent, a claim that even if true has no bearing on the pictures that formed the basis of this prosecution, all of which showed consenting adults. He considered it relevant to bring up the defendant's "fantasies" about participating in orgies.

Wilkins told the jury that attendance at a sexual health clinic was evidence of having a risky sex life - a statement that even the CPS has since distanced itself from. Wilkins asserted that people like Simon Walsh were addicted to danger and risky sex, even quoting Oscar Wilde's line about "feasting with panthers". Perhaps he was unaware that Wilde was not talking about the dangers of sex per se but about the dangers of getting caught and prosecuted by an intolerant and prejudiced legal system. The CPS denied today that Walsh was prosecuted because of his sexuality: "We do not make the law". That is true. It was equally true in the cases of Oscar Wilde and Alan Turing. But when the law itself targets people's personal sexual tastes, acting to enforce it is not a neutral act. And in a society that portrays itself as being a liberal and tolerant one, making the choice to prosecute is in itself to undermine rather than to uphold the proper role of the law.

The jury, by contrast, seems to have taken up the defending barrister's invitation to look to the development of society and how private and personal matters are viewed in "an inclusive democracy". He linked the case with modern battles over sexism, racism and homophobia. The judge warned the jury that their job was not to send messages but to apply the law, whether or not they agreed with it, and Walsh's defence was able to raise enough reasonable doubt for an acquittal in any case. But it would be dangerous for the CPS and the police to take no message home from their humiliation today. A good result doesn't make s63 good law. It is a shame that repealing it doesn't seem to be a priority to a coalition government that came to power promising to undo the authoritarianism of the New Labour years. But it is damaging chiefly in the manner of its application.

Where images involve consenting adults, where those possessing them pose no danger to others and are merely indulging private tastes, where privacy and freedom of expression are involved, the police and the CPS should take no action. The prosecution of Simon Walsh was a manifest abuse of state power.

Simon Walsh has no stain on his reputation. But after this case and several others (for example the Twitter Joke Trial) the Crown Prosecution Service and its head, DPP Keir Starmer, most certainly do.