Today the Crown Prosecution Service will attempt to persuade a jury that images of fisting should be classified as “extreme pornography” with the risk to the defendant of three years in custody, inclusion on the sex offenders’ register and damage to his personal and professional standing.

All for a type of image which is commonly viewed, of an activity which is itself is legal to perform and is even discussed in the book Fifty Shades of Grey.

Nonetheless the defendant, Simon Walsh, has been charged with being in possession of extreme pornographic images under section 63 of the Criminal Justice and Immigration Act 2008: so the Prosecution must prove that the act of fisting is “likely to result in serious injury to a person’s anus”.

The Defendant – Simon Walsh

Simon, who is represented by my firm (Hodge Jones & Allen) has given his express permission for this information to be published.

Before being arrested and charged with these offenses, Simon was a successful professional and politician in the City who, amongst other things, prosecuted police officers accused of disciplinary offenses.

After being charged, Simon lost both professional and political positions, despite the fact that no pornography was found on any of his work computers. In fact, no pornography was found on Simon’s home computers either.

Instead, the police had to “interrogate” Simon’s personal email account (server) in order to discover a few images they deemed questionable. This included an image of a man wearing a gas mask. Their expert stated that this was likely to cause serious harm, even death by asphyxiation: despite being a piece of equipment designed to assist breathing. This charge was eventually dropped.

Unfortunately, by performing the “interrogation” of Simon’s email account in the fashion they did, the police contaminated the only source of evidence; making it impossible to identify whether images attached to emails had in fact been opened and viewed.

The Peacock Trial

Readers familiar with the jury decision in Micheal Peacock’s obscenity trial earlier this year, where the defendant was unanimously acquitted of publishing fisting DVDs under the Obscene Publications Act 1959 (OPA), may be surprised to hear that the CPS are having another bite at the cherry when it comes to fisting.

As the Peacock obscenity trial was under the OPA the CPS needed to show that fisting pornography was likely to “deprave and corrupt” the viewer. Since this Trial is under section 63 of the CJIA 2008 the CPS must show that act of fisting is “likely to result in serious injury to a person’s anus” in order to persuade a jury that the mere representation (pictures) of this activity is a criminal offence, despite the fact that the act itself is legal to perform.

The Prosecution Case

What follows is a summary of elements of what the Prosecution must prove to substantiate an offence has been committed under the CJIA 2008:
According to Section 63 images are “extreme” if they are “grossly offensive, disgusting or otherwise of an obscene character” and according to subsection 7:

“(7) An image falls within this subsection if it portrays, in an explicit and realistic
way, any of the following—

(b) an act which results, or is likely to result, in serious injury to a person’s
anus, breasts or genitals”

Unfortunately, what is “likely” to result in “serious injury” is not specifically defined in the Act itself. There were Ministry of Justice Guidelines specifically on the extreme pornography legislation, but they seem to have disappeared from the internet, possibly disavowed.

Conclusion

As with the Peacock obscenity case, it will be instructive to see whether the police and prosecution are out of step with current cultural and moral values towards sexuality; and instead whether a jury of reasonable people simply deem that fisting pornography is neither extreme nor criminal.

Updates

Simon’s Trial is listed to start today, Monday the 30th July 2012, at Kingston Upon Thames Crown Court from 12pm and is listed to last for up to seven days.

With the Trial Judge’s permission, the Trial will be live-tweeted under the hash tag #porntrial.

Hence it should be possible to follow the Trial as it unfolds; and discover whether a jury will swallow such an intrusive Prosecution.

Obscenity-lawyer