According to recent news reports, a former male nurse who is an American citizen living now in Kent had allegedly fantasised in a US-based fetish chat room about raping, killing and eating young girls and women. After he supposedly tried to take his
fantasy into real life and meet up in Ashford with someone he believed was a 14 year old girl in order to kill and eat her , he was arrested and charged with various offences. It was revealed in court that the FBI had been monitoring the man after
he had chatted online two years ago about his cannibal fetish to a New York Police Department officer who was himself under investigation, and as a result the Kent police had been informed.
The man was subsequently found guilty of
a grooming offence, but he also pleaded guilty to various other charges, including 7 counts of publishing an obscene article , which related specifically to the online chats he had taken part in. This should jog people's memories somewhat, as it harks
back to a case brought by (guess who?) Kent police in 2010. Here, a man was charged with the same offence for online chats involving fantasies about raping and murdering children. This sparked an outcry at the time among the more libertarian-minded as it
had been accepted for over 30 years that purely written material (as opposed to illustrated works), no matter what its subject matter or content, was no longer to be regarded as obscene.
So, what exactly is going on here? Well, a
few years prior to this, during the public consultation about the extreme porn law now enacted by the Criminal Justice and Immigration Act 2008, the Kent police made a submission that there remained ...a legislative gap in terms of written
fantasy material specifically about child rape and murder , and so in their opinion the proposed law should be extended to cover extreme written material as well as images. Up to this point, the police were acting responsibly and within their remit
in flagging up to Parliament what they believed to be a gap in the law, but Parliament disagreed with them, and that should have been that. However, since then it appears that Kent police have been adopting a different approach and trying instead to push
the boundaries of the Obscene Publications Act (OPA) in an attempt to secure convictions for such extreme material.
As far as I am aware (and as someone who is not a member of the legal profession, my awareness in these matters
only reaches as far as the public media), these attempts by Kent police have so far only managed to achieve guilty pleas . This is a very different thing from a guilty verdict as it does not set a legal precedent, but who knows what might happen in the
future. No matter what you may think about the depravity or otherwise of the material in question here, it could only take a single guilty verdict to bring the OPA very much back into play for any type of written material, and we will all be worse off if
we end up being robbed of our hard-won right to write what we please.
According to the Court of Appeal's Judgment in the recent case of R v GS  private one to one text chat on the internet can be subject to the Obscene Publications Act 1959 (OPA).
This means that anyone using the internet to
discuss sexual fantasies may be at risk of committing a criminal offence.
Prior to this judgment it was presumed that the OPA did not apply to one to one conversations between individuals. This position was clearly overturned by
paragraph 21 of Lord Justice Richards' lead Judgment wherein it was stated that:
In our judgment, to publish an article to an individual is plainly to publish it within the meaning of the Act.
You could be committing a criminal offence next time you discuss your deepest fantasies with someone online. Alarmist? Only slightly.
A ruling slipped out quietly by the Appeal Court earlier this year, and lurking in the
background while the substantive case to which it applied came to court, makes it plain: the act of publishing as defined within the Obscene Publications Act can take place with an audience of just one individual.
That means it is
therefore perfectly possible for the content of online chat, should a jury decide that it is capable of depraving or corrupting , to be judged obscene - and as such for one or both participants in that conversation to be guilty of a
criminal offence that carries a sentence of up to five years in prison, and a stint on the sex offenders' register.
This is legal dynamite - and in one single judgment catapults the UK to the back of the queue on a range of
international indices on freedom of speech.
So if the authorities want to invent a new angle to a law they prosecute someone, offer a lenient sentence for pleading guilty, then take the inevitable successful prosecution as
justification for an extended law.
Kent Police have set a legal precedent after successfully prosecuting a man for making lewd comments about children during a private online conversation.
Gavin Smith was charged in 2010 with nine offences of publishing an obscene article. Under
the Obscene Publications Act, it is an offence to supply material ( interpreted as distribute, circulate, sell, hire, give, or lend) , that tends to deprave and corrupt those view it.
When the case first came before
magistrates, it was discharged on arguments of no case to answer. However the CPS said they had received new evidence in this matter and, following a review, decided to re-charge Smith.
At his first trial at Maidstone Crown Court in November last
year, the court heard that Smith had online conversations in which he spoke about molesting and spanking children. His counsel claimed Kent Police were on a moral crusade by prosecuting Smith under the Obscene Publications Act 1959. The jury in
the trial was discharged by Judge Charles Macdonald QC after hearing legal arguments.
His barrister Roger Daniells-Smith told the court on that occasion: This is a test case. We say it is part of a political campaign by Kent Police. We say this
is a moral crusade by Kent Police to extend the law, to try to get this material included as extreme pornography. But their arguments to have online conversations included fell on stony ground , he said: They therefore had nothing other
than to try (to prosecute) under this act.
But the court decision was subsequently appealed by the Crown Prosecution Service, with the Court of Appeal ruling in their favour.
Smith was due to go on trial for a second time this week. But
after being given a Goodyear direction , in which a judge indicates what the likely sentence would be if a defendant pleads guilty, Smith admitted all nine offences after being told that the sentence would likely be a suspended jail term or
Adjourning sentence for reports, Judge Philip St.John-Stevens described the case as unusual .
The case could now open the doors for police forces across the country to charge suspected offenders for online
Comment: Private conversations considered publication
12th July 2012. Thanks to Angelus
Disclaimer: I am not a legal professional, but...
> Kent Police have
set a legal precedent...
Kent Police have not set a legal precedent - to my understanding, only a judge in a Crown Court or higher can set a binding legal precedent.
>...after successfully prosecuting a man...
They did not successfully prosecute anyone in this case - the accused pleaded guilty, which is a very different thing.
This case mirrors very closely recent cases in the USA, where despite strong constitutional
protection of freedom of speech, people are regularly threatened with ridiculous sentences unless they plead guilty.
A private conversation is just that - private - and should in no wise be considered publication . To say that such a
conversation could constitute the giving of obscene materials is outrageous, and this approach should have been stamped on by any half-competent counsel.
Comment: A private telephone conversation may now also
be regarded as a publication
29th July 2012. Thanks to Angelus
Well, it seems I have been completely wrong-footed by this latest judgement, which does set a legal precedent. The section of the OPA in question,
1(3)(b), For the purposes of this Act a person publishes an article who ... in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it or, where the matter is data stored electronically, transmits
that data is clearly and unambiguously intended to apply to audiovisual material ( record meaning a gramophone record), not text. In order to be able to apply this section to online chat, a chat session must effectively be treated as an
audiovisual experience, which given its capability of exchanging audiovisual data (even something as simple as a smiley) is perhaps not too much of a stretch for a legal mind.
However, online chat did not exist when the OPA was
first enacted. So, in cases like this, it is part of the duty of the higher courts to examine laws to determine Parliament's clear intention when the legislation was first enacted and reinterpret it for the current situation. Although the OPA's
definition of publishing is drawn very widely, it was clearly and obviously never intended to apply to private, interpersonal behaviour, and in this respect the Court of Appeal has now committed a grave error. So grave that it now raises the
possibility that, because telephone systems are now all digital and store audio data (albeit temporarily) at several points along the signal route, a private telephone conversation may now also be regarded as a publication .
The prospect of a dramatic extension of the Obscene Publications Act is once more back on the agenda, as the Crown Prosecution Service last week re-opened a case in which an individual is accused of obscene publishing in respect of a private online chat.
A prosecution was originally brought in May of this year against Gavin Smith whose log of a private online chat he had with another individual was deemed by Kent Police to be obscene.
When the case first came before magistrates, it was discharged
on arguments of no case to answer.
The CPS have since received new evidence in this matter and, following a review, have decided to re-charge Smith. There will now be a hearing on 30 November.
As already reported by The Register, Kent Police are in the process of using the Obscene Publications Act as a means to prosecute an individual, Gavin Smith, of Swanscombe for publishing obscenity in respect of a log of a private online chat he had with
This case has now been given the green light to proceed.
Due to reporting restrictions, theregister.co.uk are unable to give any further details
of the alleged content of the conversation at this point in time.
The legal principle at stake here is whether internet chat constitutes publication in the ordinary sense of the word, or can be treated as private conversation. If the former
is the conclusion, then anyone with even a passing interest in more extreme fantasies (not just underage, but also BDSM, rape and other matters currently covered by the extreme porn laws) may need to be very careful in respect of any online conversations
they have in future. IRC will no longer be quite the refuge of the bizarre and the outlandish it once was.
Yesterday's hearing, before magistrates in Gravesend (the date was moved from May 6) resulted in the date of a committal hearing being
agreed for 9 July. At that time, a judge may decide that the case has no legal merit. Otherwise, a date will then be set for trial, and the seriousness of this matter will escalate another notch.
Kent Police have charged an individual with nine offences under the Obscene Publications Act 1959 (OPA) in a case that could potentially see online chat in the UK subjected to a much stricter regulation regime.
A Kent Police spokeswoman confirmed
to The Register it had brought the charges against the individual, and that these charges relate to online chat.
The individual is also charged with two offences of making indecent images of children and four of possessing indecent images of
children. They have been bailed pending their next court appearance at Dartford magistrates on 6 May.
The implications of this case, if it proceeds, could be legal dynamite. At present, under the Obscene Publications Act, a publication is obscene
if its overall effect is to tend to deprave and corrupt persons who are likely ... to read, see or hear it. For the purposes of the law, publication appears to involve distribution, circulation, selling or giving an article to a third party.
The idea that a conversation – albeit one embodied in text chat – can be considered to be published would be fairly radical.