The evidence is mounting. Is the CPS institutionally homophobic?

Imagine if this were to happen to you or someone that you loved

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Accusations regarding child abuse images are some of the worst that an individual can face. The injustice is this case in compounded by the fact that we irrefutably proved to the prosecution, many months ago, that all the performers in the images in question were over the age of 18.

Thus this was legitimate adult pornography. No offences had been committed. Yet, perversely, this intrusive, misguided and illiberal prosecution was allowed to continue until the eve of a jury trial. Just imagine the potential impact that such an accusation could have on someone’s life, career and relationships.

My client is a noted professional in his chosen field and a law-abiding citizen who had never been in trouble with the law before. In 2011, he attended a work-related conference with residential accommodation and internet access. While in the privacy of his accommodation, he accessed legitimate adult pornography. After he checked out, the next resident complained to the authorities.

My client was eventually arrested and interviewed by police under caution, where he gave a full interview. He stated that, as a gay man, he regularly subscribed to legitimate adult gay websites, including the site in questions, which specialised in “twink” pornography.

According to Wikipedia, the word twink “is a gay slang term describing a young or young-looking man with a slender, ectomorph build, little or no body hair, and no facial hair”. Note that this definition states that a twink is a man, and also that the word twink is an everyday phrase in gay culture.

It is not a term denoting a covert attempt to look for indecent images of children. In other words, twink pornography is the homosexual equivalent of heterosexual “just legal” pornography, where all the performers are provably over the age of 18.  

Throughout these aborted proceedings, we repeatedly stated that all the performers in question were over the age of 18. Despite this, the prosecution has always maintained that it was a matter for a jury to decide the age of the performers.  However, we were able to prove how old the performers were. In spite of this the police and prosecution consistently failed to make further inquiries regarding the source and context of the images.

In June, our IT expert Paul Vella contacted the website directly. It confirmed it complied with USC Title 2257 legislation, which requires adult websites to keep records verifying a performer’s age against their passport details, as well as keeping signed “model release forms”.

It supplied us with all these details for all the performers on the entire website. We presented these details to the prosecution immediately.  It was possible to compare the passport photos of the performers in question with their pictures on the website.

Unfortunately, the prosecution in this case refused meaningfully to engage with the evidence we supplied. As a final resort, we complained to Director of Public Prosecutions Keir Starmer QC’s office. We failed to receive the reply we were promised.

Ultimately, we were fully prepared to go to trial to present the overwhelming evidence of my client’s innocence. Yet, this behaviour from the prosecuting authorities raises significant civil liberties issues regarding the state’s right to intrude on the freedoms of an individual; proportional response; indiscriminate bureaucracy; and the spectre of homophobia.

Having also represented Michael Peacock in his “obscenity” trial and Simon Walsh in his “porn” trial, it is with extreme regret that I have begun to form the view that the Crown Prosecution Service suffers from institutional homophobia.

This investigative failure by police, in conjunction with the prosecution’s failure to review its own evidence in the face of irrefutable evidence not only seems to amounts to an abuse of the court process, but, as the prosecution appeared baseless, there is the question as to whether it was malicious.

So, imagine if this were to happen to you or someone that you loved? It is almost impossible to convey the true devastation that such a misconceived prosecution can wreak on a defendant’s life. What would you do if you were accused of accessing indecent images of children and stood to lose your career, professional and social standing, yet you knew you hadn’t done anything wrong?

Myles Jackman of Hodge Jones & Allen LLP is the Law Society Junior Lawyer of the Year

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