Andrew Holland, the Wrexham man who was famously prosecuted for possessing a clip of a woman having sex with a man in a tiger costume, has challenged Section 63 of the 2008 Criminal Justice and Immigration Act, popularly known as the Extreme Pornography Act. In a letter to the head of the Crown Prosecution Service, Holland’s solicitors have claimed that even five years after its enactment, the law is so unclear and poorly understood – including by police, prosecutors and solicitors – that it too easily traps the innocent. Assisted by a specialist legal team and advised by the sexual freedom campaigning group Backlash, the former defendant has called on CPS head Allison Saunders to review the implementation of Section 63; if no such review is forthcoming, the law will be challenged via judicial review.
Holland’s case illustrates the damage that can be caused by this poorly understood law. He was an ordinary man who loved jokes, the more outlandish the better. He had received the tiger clip, and another six second clip depicting simulated damage to a man’s genitals, as laddish jokes from friends. The friend had shared the clips as part of a braggart, bravado-tinged culture where online buddies swap videos intended to shock. “Unfortunately one of my friends sent me a load of jokes…some of them were hilarious, but unfortunately there were two on there that were classed as obscene,” says Holland.
In the tiger clip, after copulating with the woman, the costumed man looks up and says to the camera: “That beats doing Frosties ads for a living!” Clearly, it is not real; it’s a joke, albeit not to everyone’s taste, and it isn’t meant to be banned under the Act. But when Holland’s phone found its way into the hands of police in 2009, over a matter which was never pursued by them, he found himself charged with possessing extreme pornography, his name plastered across newspapers and websites. “When I went to court, neither my solicitor nor the people at the court understood the new law,” he says.
The trial process showed that lack of understanding. When they had charged Holland, the CPS had not yet heard the clip’s audio, which contained the tiger’s tell-tale punchline. Upon finally hearing the audio, they dropped the charge, but Holland would still have to face trial for the second charge, relating to the six-second clip of simulated genital damage. He pleaded not guilty, but when the jury saw the clip, his lawyers read their shocked reactions and advised him to change his plea to guilty. He followed his lawyers’ advice, and a date for his sentencing was set.
Were it not for the support of Backlash campaigners, the story of Andrew Holland might have ended there. He could have faced a custodial sentence, and any conviction would almost certainly damage his career and personal life. Fortunately for him, the sensational media reports of the “Tiger Porn” case had spread widely, and came to the attention of Backlash. Through their networks, Backlash activists reached out to Holland; when they were finally able to reach him, he had already made his plea. With specialised advice and support from legal experts, he applied to have his guilty plea vacated before sentencing. This was granted, which meant that he would stand trial again, in the knowledge that he had a defence.
This time, he was ready. With the help of civil liberties lawyer Myles Jackman, who frequently advises Backlash, Holland’s legal team had assembled a panel of experts to dispute the pornographic nature of the clip, highlighting that they had been sent without permission, in jest. Eventually, again, the CPS dropped the charges, possibly because they wished to avoid embarrassment in a high-profile, well-informed challenge to the controversial Act.
Holland was cleared, but he had to piece his life together after the many months of litigation. The media furore led to job loss and public ridicule, as his name was publicly associated with illegal pornography. “People were talking…vigilantes and people threatening, I was beaten up on more than one occasion…I was living in fear of my life,” he says. Even today, the ubiquity of the case on the internet worldwide links his name permanently to an embarrassing episode of his life; though he was cleared, he is still at risk, and has moved to an area where nobody knows him. The charges still appear on some background checks, which make it hard for him to find work. “[The story] went everywhere around the world – my name, my address, my age and everything,” he says. At any time, an internet reader might search his name, find old news reports, and skim the headline without following the complexities of his case. In the mind of that skim-reader – perhaps a colleague or neighbour – he will be forever linked with perversion, with deviance.
Holland hopes to prevent anyone else from falling foul of a law that he feels is not fit for purpose. “I want to clear my name, and put the point across to people that are ignorant in their understanding of extreme pornographic images…People showing a cartoon clip on their mobile phone in a pub face being in the same position as me, even though they’ve got no knowledge that what they have is illegal,” he says.
Without a CPS revision of the guidance around Section 63, or its overturn in a successful judicial review, it is very likely that more innocent people will be exposed to the indignity of arrest and the damaging consequences of unjust conviction. Backlash has worked with many people who feel they were unjustly accused. They have heard from those who were reported to the police to satisfy a grudge, and those who police charged after discovering images during investigation for other issues. With increasing availability of high-speed wireless Internet, and the popularity of social media and instant messaging services like WhatsApp, it’s increasingly easy to be carrying an offending image around in your pocket.
According to Jackman, the new technology creates unprecedented opportunities for people to pass illegal images around unknowingly. “You have a group of people who communicate by text or app messaging services, and a member of the group may post something as a joke without realising it’s illegal. I’ve sent you an image, you haven’t asked for it, you don’t know what it is. You could be in possession of extreme pornography and could be arrested for being in possession of it…We are seeing an increasingly large amount of this. [Prosecution is] not limited to people with alternative sexual preferences, but is now an issue which affects the entire adult population,” he says.
In the challenge, Holland’s legal team, advised by Backlash, emphasise the Act’s violations of human rights. With the concept of “extreme” pornography poorly defined, and without reliable guidance from CPS to prosecutors, individuals find it difficult to determine what is and isn’t legal. Perhaps, this is why a law which experts predicted would get less than 30 cases a year has had over 5,000 convictions since its inception. It’s impossible to know how many people have pleaded guilty to possession of images that were not actually unlawful. “I can only assume that a vast proportion of people caught will have been affected in the same way as [Holland],” says Jackman. Even if only a few of those cases were like Holland’s, or like the case of former Boris Johnson aide Simon Walsh (whose career was destroyed when he was accused), the law’s impact on social freedoms is disproportionate to any social good that it has caused.
This challenge comes at a time of contrasting trends around sexuality and morality. Racy erotica is available on the shelves of bookshops in every high street, but much of society exists in a moral panic, and even a whiff of this fear can ruin lives and tear communities apart. It is the duty of our judiciary to uphold the core, liberal values of human rights and freedom of expression, not to give into moral panic. In holding the justice system to account, Holland and his lawyers can stem the tide of panic, but only society as a whole can decide to reject it altogether. “I think liberalism always wins eventually but it takes time; there’s friction between more progressive impulses and more conservative ones, and when it comes to social issues, be it gay marriage or slavery, these debates can be very short or they can be very long-lived,” says Jackman. “Eventually I think when it comes to sexual morality, which is clearly not a state politics issue but a personal one, these things will change, it just takes time,” he says.
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