Porn; or, the CPS - keeping you safe from ...yourself?

It's been pointed out to me that my blog, while well written, could use some search engine optimisation. That's why I'm going to write about Porn. Steamy, dirty, nasty porn. The sort of thing you might buy in this wonderfully named shop in Soho:



If you're not a fan of Porn, please feel free to not read this article. Instead, you can click on this link - it leads to a video of a baby panda sneezing. (Honestly. It really does. You do trust me, right?)

Of course, if you're not a fan of Porn, that's statistically unlikely.

Porn isn't a small business. It's a major industry. Pornography - particularly on the internet -is now estimated to generate around $14bn worldwide, roughly the same amount as Hollywood's US box office receipts. The US leads the world in pornography (USA! USA!); about 211 new films are produced every week. The Los Angeles area is the centre of the film boom and most of those in the trade are perfectly respectable citizens. Admittedly, they tend to have more surgery & fake tan than most, but they pay their taxes, and are citizens just like everyone else. As are the consumers of their products.

It's not just an American phenomenon. In the UK, we spend more money at strip clubs than we do in the West End, regional theatres and orchestra performances combined.

Of course, there's all kinds of other sexual stuff on the internet that you don't have to pay for. Indeed, one of the people I used to work with on Bizarre magazine used to say "you aren't a real pervert if there's a pay-site for what you're into".

On websites like deviantart and in chatrooms like mIRC, you can find pretty much any fetish you like. While working my stint at Bizarre, I did see some stuff that made even me blanch - from women who liked to have sex with men dressed in werewolf costumes, to men who were unaccountably attracted to balloons. There are even whole websites devoted to people who find Sarah Palin attractive.

People who are into this sort of thing are, by definition, perverts. But is that a bad thing? Sadly, the UK's CPS prosecutors seem to think so, and don't worry, they are "protecting" us. Mostly, it seems, from ourselves.

Section 127 of the Communications Act 2003 makes it illegal to use the internet to send or receive a message or communication which is any of the following:

- grossly offensive
- indecent
- obscene
- menacing
- annoying
- inconveniencing

Yes, saying annoying things on the internet is illegal in England.



I'll just give you a second to digest that. Just have a quick flip through the Guardian Comment is Free while you think about it. Then call the Police, and have the writer of this article arrested.

Of course, I don't really want him arrested. He's wrong, not a criminal. Free speech anyone?

Clearly, the people who framed this law should probably not spend five minutes on any internet forum, or read the comment pages of any major newspaper - indeed, reading the speeches of contenders in the Labour leadership contest is probably an absolute no-go area for most people, as in many ways, offence is in the eye of the beholder.

Of course, this could just be an obscure law no-one cares about - there are plenty of those on the statute books. But the CPS are pushing this one to the hilt. For example, this year a clearly jokey tweet was held to be "menacing" under this act, and the tweeter was sent to prison. Ridiculous.

However, an even more egregious case has come to my attention.

The saga began last summer when, following an anonymous tip-off, police raided Andrew Holland's home looking for indecent images of children. They found none, but they did find two clips, one involving a woman purportedly having sex with a tiger, and one which is believed to have depicted sado-masochistic activity between consenting adults.

Holland's was charged with possessing extreme porn, and denied access to his children as a result, despite the fact that there was no suggestion anything paedophilic was involved. Would this happen to a Burglar? To a fraudster? No, of course not - but once a "crime" is defined as sexual, all rights go out the window.

In a first court appearance in January of this year, the "tiger porn" charge was dropped when prosecuting counsel discovered the volume control and at the end of the 7 second clip heard the animated tiger turn to camera and say: "That beats doing adverts for a living" - it was an cartoon spoof of Tony the Tiger from the Frosties cereal adverts.

The clip was therefore deemed to be "unrealistic" and out of scope as far as extreme porn legislation was concerned. The court then turned its attention to the allegedly more serious clip involving adult interaction.

In March, following advice from his legal team, Holland pleaded guilty to possessing one extreme porn clip and was stunned to be told that he might face a prison sentence. Holland then spoke to members of Consenting Adult Action Network and sexual rights organisation Backlash, who put him in touch with their legal adviser, Myles Jackman of Audu and Co in King's Cross, London.

Jackman, a solicitor specialising in extreme pornography offences (I bet that is a great business card), advised Holland that contrary to previous advice, there were grounds for pleading not guilty. On this basis, Holland took the unusual step of applying to the court for permission to "vacate his plea". This is a technical device whereby an individual may go back on a guilty plea at any time before sentencing.

In May a judge granted Holland leave to vacate his plea from guilty back to not guilty. Holland was therefore due to stand trial again. The CPS, however, declined to offer any evidence on the day (yeah, fucking it up for free as usual), and the matter is at an end - at a cost of hundreds of thousands of pounds to the taxpayer. The CPS has not yet commented on this matter, or on the fact that on each charge, it was not until the day of the court appearance that they decided the evidence to hand was inadequate.

I assume putting out a statement saying "Basically, we are really, really incompetent" is just too humiliating.

Of course, had Mr.Holland not contacted Backlash in the first place he would have been sentenced for an offence which other people have not only escaped prosecution for, but in fact have made fortunes over in the Libel courts. Yes, I'm thinking of you, Max Mosely.

Why should we criminalise relatively odd porn if we don't criminalise the sex acts themselves? Of course we should criminalise some sex acts; but if the acts are legal (or impossible), why is it right to criminalise seeing images of them? I just don't see a harm to it; certainly not one which justifies spending a fortune and hugely limiting liberty. Fortunately, Mr. Holland has since be reunited with his children.

Other cases have not ended so well. For example, Kent Police are in the process of using the Obscene Publications Act as a means to prosecute an individual, Gavin Smith, of Swanscombe for publishing obscenity in respect of a log of a private online chat he had with another individual. This case marks an extension of the law into an area that its originators could never have envisaged – text chat. Most internet users would regard it as person-to-person conversation.

The legal principle at stake here is whether internet chat constitutes "publication" in the ordinary sense of the word, or can be treated as private conversation. If the former is the conclusion, then anyone with even a passing interest in unusual sexual fantasies may need to be very careful in respect of any online conversations they have in future.

IRC will no longer be quite the refuge of the bizarre and the outlandish it once was. In my opinion, that's a shame. There's a case for the state to legislate to outlaw some things - but private conversation and private, harmless fantasies should not be one of them.

So, in short, we live in a country were the CPS are willing to prosecute a man for being a bit kinky, but not willing to prosecute a man who beat someone to death. Not for the first time, I do worry about the country.