Many superb commentators have already entered the fray of commenting upon the decision in R v Walsh.  Heresy Corner,  Myles Jackman, Alex Dymock, and David Allen Green should all be read at once, if you’ve not already done so.

I also need to declare my own interest, in that I had a very tiny role in the case as an expert witness, alongside my wonderful Sunderland colleague, Clarissa Smith.  The CPS must be wondering what they put in the water at Sunderland Uni.

Brit readers should also check out the lovely and eloquent Simon Walsh speaking last night on the BBC’s Newsnight programme.  It’s a very balanced interview and strikes a friendly, sometimes light, but never flippant tone.  A tribute to the presenter Eddie Mair (who is also gay).

I do not propose to re-state the facts, as they have been stated elsewhere, but whilst those descriptions have constructed the images as representing fisting, urethral sounds and one astonishing accusation of child pornography, I’ve been struck by the lack of mention of scat, which also featured in the fisting images.

Shit-play or sexual play incorporating excrement also characterised the fisting images and whilst the focus has been on injury, I always felt that the issue that might affect a jury more was that of ‘disgust’ – a term utilised in the Criminal Justice and Immigration Act 2008, and part of the tests a jury must satisfy.  Representing – quite literally – the ‘dirty’, the ‘unclean’, this was for me the issue that a jury might find the most difficult to comprehend, and the most likely to cause discomfort.

Oh ye of little faith.  The jury demonstrated – in a unanimous verdict – that they did not find such an image ‘grossly offensive, disgusting or otherwise of an obscene character’ (within the meaning of S63(6)(b)) and so whilst the focus has been on fisting, I think the acceptance of scat images is just as  – if not more – significant.

If we position R v Walsh alongside the case of R v Peacock, concerning a prosecution (again, for fisting images) under the Obscene Publications Act 1959, we might conclude that fisting has now been rejected under both frameworks.  It would however, be a mistake to assume that the CJIA has been neutered.

The defence expert witnesses (myself and Dr Smith) both argued that the images of urethral sounds and fisting were not pornographic.  This is the first element that needs to be satisfied under the CJIA ‘extreme’ porn law.

Section 63(3) states:  An image is “pornographic” if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal.

The images concerned in this case were of an amateur nature, described by the defendant of mementos of private parties.  As such, they were documenting encounters which were of themselves, entirely legal.  They were not solely or principally produced for the purpose of sexual arousal.  Consequently, they failed this first test.  The CPS in contrast argued that it was obvious “as a pikestaff” that they were pornographic images.  The languages of the Act means that it is far from clear (and arguably non-intuitive given our broader cultural understanding of pornography).  Moreover, the same argument could not have been advanced if these were images/video produced by a porn studio – that would clearly be ‘pornographic’ but might still fall outside of the other tests aspects.  In Peacock, the fisting porn was commercial so we are arguably still clearer about where fisting stands in relation to the OPA than under the CJIA.

On we move to the second issue of whether the image is ‘extreme namely grossly offensive, disgusting, or otherwise of an obscene character’.  Here we have a judgement for a jury and a legislative section which is appallingly drafted.  ‘Extreme’ does not – I would suggest – equate to ‘disgusting’.  I am ‘disgusted’ when I see sick in the street, the residue of someone having consumed a dodgy kebab and/or too much booze the night before.  I would not however regard an image of the said vomit as ‘extreme’.

The law was designed to criminalise a particular type of image.  It had been the successful lobbying by radical feminists on the last government and a tragic murder which led to the current bad law.

Back in 2003, Graham Coutts was convicted of murdering Jane Longhurst. Wikipedia picks up the story… ‘At his murder trial, Coutts confessed to a long-standing neck fetish and obsession with strangulation. His testimony, confirmed by other witnesses, stated that he had engaged in breath control play with several consenting partners on many occasions without incident over several years. He had spoken with his GP about his fixation and sought the help of a psychiatrist three years before the killing. Eventually, he started to access violent pornography on the Internet (especially simulated strangulation, rape and necrophilia). He had downloaded a collection of strangulation images the day before Jane’s death. This, according to the prosecution, had caused his dangerous sexual behaviour and murderous intent. Critics of the prosecution’s argument doubt this explanation, since the behaviour preceded the exposure to such pornography by about five years. No evidence of premeditation was presented to the jury. Mr. Coutts testified that he wrapped a pair of nylon tights around Ms. Longhurst’s neck as part of a consensual sexual practice known as erotic asphyxia, which he had undertaken on numerous previous occasions with several different partners. The prosecution claimed that he had invited her to his flat under false pretences, then attacked her.’

Coutts was found to have 69 violent pornographic images on his computer and the argument was that it was this violent pornography which had fuelled his desire, and thus led to the killing of Jane Longhurst.  The logic therefore of a new ‘extreme’ porn law was to prevent other people being murdered by someone who becomes stimulated into such desires via pornography.

However flawed that rationale – and it seems pretty flawed to me – it is a similar rationale to child porn laws, but has had a far wider application.  You might – quite reasonably – assume that Parliament did not intend to criminalise men consensually fisting one another when they passed this law, but Walsh  – and the failure to demonstrate any regrets abut bringing the case by the CPS – highlights that the CPS do not accept such a narrow focus of the legislation.  The very fears that those who campaigned against the legislation expressed, have been realised, and will I fear, be subsequently further demonstrated.

The third element for consideration is whether ‘the image portrays in an explicit and realisitc way any of the extreme acts sex out in section 63(7).  These consist of:

(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive),and a reasonable person looking at the image would think that any such person or animal was real.

In R v Walsh, (b) was arguably the relevant provision and this is for a jury to decide within the ordinary meaning of the term.  Consequently, opposing medical evidence was marshaled by both sides in Walsh, although the CPS expert seemed to suggest that penetrating the anus with anything beyond six inches was akin to taking one’s life in one’s own hands.   A line which the less-well endowed men of a gay village near you might be trying out soon:  “you don’t want that hung like a donkey stud over there, my 3 inches of moderate pleasure are within the safety parameters”.  On second thoughts, perhaps not.

It is of course easy to joke about the case.  So much about it was utterly absurd.  Yet, at the heart of the case was a man whose life was turned upside down.  Throughout the case, Simon displayed remarkable fortitude.  He was of course represented by a terrific team, and Myles Jackman in particular should be congratulated for his work as the solicitor in the case.  Whilst we comment and reflect, Simon must pick up the pieces of his life, and try and glue them back together.

Where now?

Alex Dymock has suggested this evening, that ‘It becomes difficult to imagine, after Simon Walsh’s landmark acquittal on all counts, under what circumstances charges relating to possession of extreme pornography may be brought to the crown court again, but it seems the CPS has a rather prurient interest in bringing other people’s private sex lives to light and persecuting them for it.’

I’m not so sure.  As another law colleague, Gary McLachlan noted in a comment on this blog earlier this evening, it’s possible that the CPS might bring a case in which HIV transmission is depicted so as to constitute extreme pornography.

It’s certainly easy to envisage a scenario under the CJIA – and one which would attract few defenders.  Two consenting male adults.  Both are HIV negative.  Both desire to become ‘pozed up’.  Both enjoy bareback sex.  They organise a bareback party, at which only HIV positive men are invited.  They record the party in photos and video in order to share it on their blog for other men who are aroused at the prospect of becoming HIV positive.  One of the ‘couple’ becomes HIV positive from the encounters at the party.  The video is retained on the hard-disk of the negative partner and the pair split up.  The negative partner retains his sexual desire to become positive and regularly watches the video – alongside other similar videos that friends share on websites and through file-sharing sites – while he masturbates.  The said individual comes to the attention of the police following a child pornography prosecution.  Our negative man was a Skype contact for a man charged for being in possession of child pornography.  The police raid the property of our negative man.  They find no child pornography but do find a series of videos of videos and photographs from the party described above and footage from other parties.  They also discover that the defendant has been hosting a website for the images.  He is charged under the extreme pornography provisions.

Does it sound that far-fetched?  Are you certain of what would happen?

I do however think that Dymock is write in that R v Walsh does reduce the scope for cases under the CJIA.  That could however force the CPS to look more at the OPA.  Following R v Peacock, a number of people – including myself – expected the CPS to revise their guidelines on prosecution.  They didn’t.

Let’s therefore revisit those guidelines – which are available here.  Here’s the key section:

‘It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:

  • sexual act with an animal 
  • realistic portrayals of rape 
  • sadomasochistic material which goes beyond trifling and transient infliction of injury 
  • torture with instruments 
  • bondage (especially where gags are used with no apparent means of withdrawing consent) 
  • dismemberment or graphic mutilation 
  • activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta) 
  • fisting 

Unless any of the factors listed above are present within the given case, the Crown Prosecution Service will not normally advise proceedings in respect of material portraying the following: actual consensual sexual intercourse (vaginal or anal) oral sex masturbation mild bondage simulated intercourse or buggery fetishes which do not encourage physical abuse. Previously buggery involving humans (whether consensual or not) was regarded as suitable for prosecution under section 2 of the Obscene Publications Act 1959. Now, buggery per se between consenting adults is not regarded as suitable for prosecution under section 2. This includes consensual anal penetration in a situation involving simultaneous double penetration (anal and vaginal) between two men and a woman. However, a depiction of buggery would be regarded as obscene for the purposes of section 2 where one or more of the aggravating features set out above are present. Therefore, depictions of non-consensual buggery will still be regarded as section 2 material.’

So, we know fisting images would not now proceed to prosecution, but the guidelines need amending.  We do however have explicit reference in the guidelines to scat play – a feature of the images in R v Walsh.  Although that case was brought under the CJIA, it will be interesting to see if it influences the CPS in their interpretation  -and any revision to – their guidelines in relation to the OPA.  The CPS barrister did after all argue in Walsh that the images were ‘degrading’ and would be more so if they involved a woman.  If a scat photograph – this time comprising of a woman – formed part of an investigation, would the CPS now feel it inappropriate to bring a case (on the basis that they are unlikely to secure a conviction)?  I’m still not sure.

Walsh is a significant, and welcome, decision.   It is a victory, but the battle goes on.