Kent Police have set a legal precedent after successfully prosecuting a man for making lewd comments about children during a private online
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 community order.
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 conversations.
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 .