We will not know the full significance, for legal practice, of the acquittal of Simon Walsh of possession of extreme pornography for some time. However, the way the case has unfolded allows us to challenge some of the claims made by academic legal theorists who either supported legislation banning possession of extreme pornography, or at least felt that the concerns raised by so-called “liberal fundamentalists” (such as myself) were somewhat overwrought or unjustified.
Perhaps the most influential academic arguments in favour of the law came from Clare McGlynn and Erica Rackley. Although not particularly supportive of the final shape of the legislation, they didn’t see the law as fundamentally threatening to the general public or sexual minorities. They argued that a case like Walsh was unlikely to occur because the Director of Public Prosecutions had a veto on instituting prosecutions and were intending to use the law only occasionally. This is what they argued:
Listening to the concerns of those who have campaigned against the measures particularly from the sexual freedom organisations, it is possible to fear that large numbers of people will suddenly be made criminals. In practice, this seems unlikely. Proceedings for an offence may not be instituted without the consent of the DPP, as is the current position under the OPA and other similar forms of legislation… the government’s regulatory impact assessment suggested that the measures would cost little, largely because there would be so few prosecutions. The effect (if any) of the measures may ultimately prove to be more symbolic than real.
(McGlynn and Rackley, Criminalising, Extreme Pornography: A Lost Opportunity. Criminal Law Review 4: 245-260, 2009, p. 255-6)
Responding to the public outcry against the Walsh prosecution, the CPS contradicted this notion that they had any real choice in the matter. On Newsnight, Allison Saunders, Chief Crown Prosecutor for CPS London said:
We brought the case because there was sufficient evidence and when we looked at the case we found that there was evidence to prosecute the offence of possessing extreme pornography. What we looked at there was whether or not there was a pornographic image and the element of the act we prosecuted under was whether or not the image showed there was likely to be harm or injury caused.
(‘In which the CPS try to justify bringing #PornTrial’, Penwing.site)
And later in the interview:
This is the law as it stands, the act was passed in 2008. It’s not for us to comment on legislation, it’s for us to apply the law as parliament sees fit.
The CPS does not see itself as in a position to accept or reject cases according to available resources, in order to achieve public policy goals, or enact any implied intentions of Parliament behind the legislation. They look at legislation as passed by Parliament, examine cases as they arise, and prosecute essentially on the basis of whether the prohibited acts in question fit their take on the meaning of the law. This is why the CPS said they decided to prosecute Walsh, knowing that the case involved images of consenting adults. This may also explain why there have been more than a thousand prosecutions for extreme pornography last year, rather than the handful predicted by the government’s assessment, as well as McGlynn and Rackley.
This may not be a complete account. In other contexts, the CPS have seemed willing to defer prosecutions for a number of reasons. Nevertheless, the assumption that the DPP can and will prune prosecutions down to a subset of genuinely problematic ‘extreme pornography’ appears to have been mistaken.
An alternative defence was suggested by Paul Johnson. He suggested that the extreme porn law provides “jurors with a powerful device… with which to make an evaluative judgement of whether an image that depicts violent sexual activities is grossly offensive to the collective moral values of a liberal, democratic society” (Johnson, 2010).
The possibility of jurors considering this sort of question was actually suggested by the defence during the trial. They argued that the case raised the issue of “how we view [private personal encounters] in an inclusive democracy”.
This certainly sounds like an invitation for jurors to deliberate on the wider moral and political implications of this prosecution. However, this idea was apparently disavowed by the presiding judge. He told the jurors: “It is emphatically not your duty to send out a message about modern society”.
Juries make decisions with formal impunity (they cannot be punished for ‘getting it wrong’). It is a peculiarly ancient check on what is otherwise a highly professionalised modern legal system. It means that juries can find a person ‘not guilty’ for any reason at all. Juries have effectively ‘nullified’ bad laws in the past by refusing to convict people even on good evidence. They could, and perhaps sometimes do, interpret the law according to what they think is compatible with prevailing values. But if that is the case, it is emphatically not what they are being directed to do by the courts.
So one can make a defence of trial by jury more generally from cases like this. But it is not enough to mount any kind of defence of the ban on extreme porn. Its not a substantial point to say “this ambiguous, wide-ranging law is ok, because jurors can always throw a case out if it violates their basic values”. You could justify passing ANY law, no matter how bad, on that basis. Moreover, putting juries in a position where it is more often hoped that they upset a prosecution will just strengthen the establishment-friendly argument that juries should be restricted or abolished.
If there is a shared weakness in these defences of an extreme porn law then I think it is a mistaken conception of what a modern legal system is capable of doing. There is a pervasive sense in many academic theories that the state, and its legal system, can achieve some sort of independent moral agency — that given the responsibility and sufficient power to represent the values of a liberal or humane society, it will do so in a more or less consistent way.
I feel a more realistic picture of the legal system is that of a series of remorseless bureaucratic processes, punctuated by occasional decisions taken by individuals with little access to a general will, liberal or otherwise, and probably working to a tight deadline. The state is not a moral agent in a straightforward sense.
Anyone working within the legal process is blinded to its overall moral outcomes. Everyone has a role to play but no one working inside the system is in a position to evaluate the outcome. In fact, in many cases, taking outcomes into account might represent a failure to uphold professional obligations inherent in the process. You can’t fail to prosecute someone just because it is a bad idea that no one intended to happen. There are rules to be followed!
So perhaps the most important lesson that the Walsh case illustrates is the continuing value and necessity of carefully written legislation with clear intentions and limits. The temptation to leave the details of enforcement to executive discretion should always be resisted. Without moral agency, this is about all that is capable of constraining our legal system so that it doesn’t characteristically swallow up ordinary people.
As utopian as it may sometimes sound when regulating human conduct, a legal framework should at the very least aspire to adhere to the rule of law, where everyone could be confident of what the law is, can follow it easily, and do not have to rely on the kindness or even intelligence of officials. They are too often found wanting.