Let me tell you a legal joke. A man walks into a Court. He's charged with an offence under Section 63 of The Criminal Justice and Immigration Act 2008 of being in possession of an "extreme pornographic" video of a woman having sex with a tiger.
The video was sent to him by a friend, unsolicited, as a joke. He had no idea what the content of the video was before opening it. Yet the defendant was arrested at his home address, interviewed by the police under caution, charged, then bailed to the Magistrates' Court and finally sent to the Crown Court. It was here that the Judge requested the video be played in full, with the sound on, in open Court.
The play button was pressed.
It turned out the "tiger" was a man in a tiger-skin costume, who turns to the camera and says: "That's Grrreat".
Hilarious. Except that the joke was on the defendant (Andrew Holland, of Wrexham, North Wales) as the story was on the front cover of The Daily Telegraph and numerous articles published across the globe. His name became synonymous with the joke, which had a devastating impact on his reputation.
Now, Mr Holland has requested that the Crown Prosecution Service review this law, to save other innocents from facing the same fate as him.
This review comes when it has become clear that millions of adults using mobile phone messaging services like WhatsApp can be sent potentially "extreme" material to their phones, by friends, without knowing that they are actually in technical possession of illegal images.
If it is unclear whether an image might be extreme and therefore illegal, how can a person be expected to know if they've broken the law?
Hence, on behalf of future potential defendants, Mr Holland is claiming that:
1. The term "extreme" pornography is not clearly defined in the legislation; and therefore a potential defendant would not be able to understand anticipate if being in possession of certain images might be illegal;
2. There is insufficient guidance from the DPP as to when these offences will be prosecuted;
3. The offence is disproportionate to the legislation's intended aims.
Thus, on Mr Holland's behalf, we at Hodge Jones & Allen LLP have asked that the Secretary of State for the Home Department to carry out a Human Rights Impact Assessment of the offences. Should the offence fail the Human Rights Impact Assessment, we have requested that this be confirmed in writing so that we can issue judicial review proceedings.
For a more detailed understanding of these issues, you can read a letter from the sexual liberty campaign Backlash, to the Prime Minister, the press release explaining the issues and the letter setting out the legal issues, on Myles Jackman's ObscenityLawyer blog