UK Legal News

A trader has been sentenced to 18 months in jail after admitting making and possessing for sale almost 5,000 fake copies of DVDs from the Premier Videos shop in Dunton Road, Bermondsey, London.

David Cox was sentenced at the Inner London Crown Court after pleading guilty to six counts of infringing the Trade Marks Act 1994, two counts of infringing the Copyright, Patents and Designs Act 1988 and two counts of infringing the Video Recordings Act 1984. A further 1,947 offences were also taken into consideration.

Approximately 1,600 of the DVDs seized from a total of 4,833 were rated R18 , available only from licensed sex shops, which Premier Videos was not.

The prosecution followed a joint inspection in November 2011 by Southwark trading standards and representatives from FACT (Federation Against Copyright Theft).

Possession of an extreme pornographic image has led to a fine for a Cornwall man.

Tony Cummings appeared before Bodmin magistrates on October 16 to admit the offence, committed on January 17.

He was fined £ 515 and an order was made that all the material seized should be forfeited and destroyed under the terms of the Obscene Publications Act 1959.

A dominitrix who admitted being the head of two busy brothels has been sentenced to 9 months prison suspended for 18 months.

Sharon Loftus employed sex workers from all over the UK, and took half of their £ 120-an-hour earnings for herself. Loftus pleaded guilty to keeping brothels.

Newcastle Crown Court heard she ran brothels in Melvin Terrace, Heaton, Newcastle, and Foster Drive, St James Village, Gateshead, and deposited £ 30,000 per year into her bank account for six years.

The judge told her that her business hassled her neighbours:

You were providing premises for others to work in prostitution, and that is an offence which does cause victims, because those premises cause enormous stress and upset to those unfortunate enough to have to live beside them.

The judge said Loftus's guilty plea, devotion to her children and the fact none of the workers were forced into prostitution meant the jail sentence could be suspended.

Loftus initially denied the Heaton brothel was used to sell sex. Michael Bunch, prosecuting, said:

She accepted she was the tenant and said she provided dominatrix services from the location, but it did not involve sexual contact, and as such, she did not believe she was guilty. She accepted other women worked there, but believed they acted in the same manner.

It was only after the Gateshead brothel was discovered that she admitted sex was being sold.

Peter Schofield, defending, said none of the employees were forced to engage in prostitution and were already sex workers when they were taken on:

The set-up involved a measure of personal security for each of them.

The Consenting Adult Action Network (CAAN) has revealed details of the the number of people the CPS has charged (and reaching first hearing) under the Criminal Justice and Immigration Act extreme porn provisions and the number of convictions (according to the Ministry of Justice).

Charged (and reaching first hearing)	2008/9	2009/10			2010/11			2011/12
S63(7)(a): life threatening images	0	5			38			40
S63(7)(b): serious injury to breasts, anus or genitals	0	52			132			102
S63(7)(c): necrophilia	0	0			0			6
S63(7)(d): bestiality	2	213			995			1171
Convictions			2010				2011
S63(7)(a): life threatening images				0		3
S63(7)(b): serious injury to breasts, anus or genitals				9		11
S63(7)(c): necrophilia				0		0
S63(7)(d): bestiality				48		67

The vast majority of the police actions have been as a result of computer/phone searches for people investigated for unrelated reasons, most notably child porn. Most of these cases have been mostly uncontested as the main charges are more serious and take precedence. The dangerous pictures charges being used just to top up the main charge.

In some cases the main charge has fallen through but the authorities have continued the dangerous Pictures charges. These cases have shown that the authorities have been persecuting innocent people for jokey bad taste phone clips and exaggerated claims about the 'serious' injury, such as the Simon Walsh persecution over a handful of anal fisting images.

In fact there hasn't yet been a report of a case along the lines of what the law was originally intended to deal with, ie somebody like Graham Coutts, convicted of murder and found to have a large collection of violent porn.

According to the Court of Appeal's Judgment in the recent case of R v GS [2012] 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.

...See the full article

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.

...Read the full article

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 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 .

A Police Community Support Officer has avoided a jail term after falling victim to the Dangerous Pictures Act.

Alan Rosser, who worked with the Lincolnshire Police Neighbourhood Policing Team in Caistor, was arrested in December 2010 after his home was searched.

Laura Pitman, persecuting, told Lincoln Crown Court that Rosser's computer was taken away and subsequent checks revealed almost 5,000 extreme pornographic pictures and videos:

That computer was examined and images of extreme pornography, involving adults and animals was discovered. He was subsequently interviewed and admitted he knew these images were on his computer.

Rosser admitted six charges of possessing extreme pornography on December 14, 2010. He was given a three-year community order with a three-month curfew. He was also ordered to attend a sex offenders' rehabilitation course and his computer was confiscated.

Stephen Grattage, defending, said:

He was a PCSO for several years and was well regarded. He did a good job and always tried to keep himself within the law. He didn't realise that this was a criminal offence. He was very upset that he had crossed that line. It was an error on his part.

And as if to emphasise that Rosser's tastes would have best been left a private matter, rather than adding another broken career to Britain's social security debt mountain:

The judge told Rosser: It is clear that you were highly thought of.

And the newspaper report added that Rosser, described as popular and hardworking, had been a PCSO since 2003 but quit his job after being charged and is now unemployed claiming Job Seekers' Allowance.

A man who was running a brothel in Ossett has been given a suspended prison sentence.

Kevin Wrigglesworth was arrested in January 2011 after falling victim to a police a raid at his home and was later charged with being concerned in prostitution for gain and supposed money laundering offences (ie just spending the money that the authorities claim is illegally obtained).

He pleaded guilty to the offences at Leeds Crown Court and was given an eight-month prison sentence, suspended for twelve months.

An investigation by West Yorkshire Police's economic crime unit found that Wrigglesworth was living off earnings from a sauna in Ossett, which was being used as a brothel.

Also seized from Wrigglesworth's home were 27 pornographic DVDs and a book about the law for sex workers.

DI Fran Naughton, who leads the economic crime unit, said:

Kevin Wrigglesworth was running an illegal business. We will be looking at the money he earned through crime and will be seizing his assets via a confiscation order.

A man who supplemented his income by running a cottage industry, illegally selling adult pornography, has been given a 6 month suspended jail sentence. Simon Pearce also received a hefty £ 10,000 court costs order and will have to carry out 200 hours of unpaid work.

When trading standards officers visited his home they found Pearce had a stock of 5,500 copied DVDs. He had a price catalogue of thousands and thousands of titles.

Pearce pleaded guilty to possessing unclassified recordings and also BBFC R-18 recordings for the purpose of supply.

James Varley prosecuting said trading standards officers investigated after seeing the defendant's mail order advert for R-18 DVDs on Gum-tree's advertising website. Of the titles offered by Pearce, three-quarters were unclassified and the remainder R-18:

It had been going on for a couple of years and the defendant had received e-mails of thanks from customers, repeat orders, and specific requests for material. It was a cottage industry. He was selling them for about £ 3 each.

Judge Mark Rogers said:

Some of these DVDs shouldn't be in circulation at all and some can only be sold in highly-restricted circumstances. You set out to flout that arrangement. The content is such that many people would find repugnant.

Kim Lee, mitigating, said:

It wasn't a large scale sophisticated operation. He estimates between 2009 and 2011 he has sold 200 to 300 DVDs at ?2.50 and would have made £ 900-plus from sales.

Sex shop owners have won a High Court victory over licensing fees which could see them claw back an estimated £ 1 million.

A judge has ruled that Westminster City Council unlawfully used licence fee income to enforce against illegal sex shops. Mr Justice Keith declared that a recently introduced European directive did not permit the determination of a reasonable licence fee to include the costs of enforcement.

Tony Devenish, the council's Cabinet member for licensing and public health, spouted:

Naturally we are disappointed at this decision, which we intend to appeal.

Westminster City Council has always maintained that the use of licence fee income to enforce against illegal sex shops is a proper use of public money, protecting the quality of life for our residents and visitors, including the global reputation of London.

Enforcing against the illegal sex trade actually benefits those who are legitimate operators in the sex industry.

With millions of extra visitors about to descend on London to celebrate the Jubilee and Olympics, it is critical people see the best face of our city.

The landmark ruling was a victory for Simply Pleasure Ltd and six other long-standing licensees of 11 sex shops in London's Soho and two others in Covent Garden and the West End selling adult sex toys, DVDs, and books and magazines.

The judge said that in the past the cost of enforcing the licensing system was often reflected in the licence fee. But in 2009 new regulations were introduced to implement EU Directive 2006/123/EC, which was aimed at creating a free and competitive market for services within the European Union .

The judge said that whatever domestic law had permitted in the past , the directive did not allow the licence fee to exceed the administrative costs covering the steps which an applicant for a licence has to take if he wishes to be granted a licence or to have his licence renewed. The judge said:

The fact that the council has preferred over the years to use the licence fee to charge the operators of sex establishments for enforcing the system does not affect the proper interpretation of the 2009 regulations.

For all these reasons, therefore, I have concluded that since the year beginning February 1 2010 the council has not been permitted, when determining the reasonable licence fee for sex establishments, to reflect the fee which it determines the costs of enforcing the system.

A man has been convicted by Belfast Crown Court of prostitution and supposed human trafficking offences. Matyas Pis was convicted of the 'trafficking' of two women into the UK, controlling prostitution and brothel keeping.

It is is the first conviction for 'trafficking' in Northern Ireland.

Recorder Tom Burgess imposed a sentence of 18 months imprisonment followed by 18 months on licence.

On three occasions, between December 2010 and March 2011 Pis arranged for two women to work in Belfast as prostitutes. The women said they asked the Hungarian national to book their air tickets, and he provided them with an apartment in Belfast. The women paid the defendant rent for the apartment and paid back their travelling expenses. There was no allegation that the women were brought or held against their will.

Judge Burgess claimed that even though there was no coercion involved, any case of trafficking human beings was a serious case.

As this was the first time that the courts in Northern Ireland have had the opportunity to sentence someone for trafficking offences, the recorder set out guidance for the courts to follow until the Court of Appeal has had an opportunity to provide an authoritative guideline.

Another unlicensed Soho sex shop on Walkers Court has been warned to cease trading as part of Westminster Council's long-running campaign against unlicensed shops selling hardcore DVDs.

Westminster Council allows a limited number of vendors of adult DVDs, magazines and sex toys to trade in the West End, but such businesses are obliged to pay extortionate licence fees that cost about £ 30,000 per year.

Enterprise chief Councillor Brian Connell said licensing council staff were working hard to put the remaining unlicensed sex shops in the streets and alleyways around Brewer Street out of business. Connell told the West End Extra:

 In my view, cleaning up the worst excesses of this trade is good for London and good for Westminster.

It's what we said we would do prior to the Olympics, so it is delivering on a commitment, and it also has the effect of making sure that legitimate businesses don't run the risk of losing market share.

In 1999 Soho had 61 unlicensed sex shops. It now has nine, and of these, the courts are set to hear three closure hearings in the coming year. The council's declared intention is for no unlicensed sex DVD shops to remain operational by the start of the Olympics.

Update: Meanwhile in Islington

3rd February 2012. See  article from  islingtontribune.com

Islington's last unlicensed sex shop has shut after a council raid found unclassified DVDs on the premises. Trading SubStandards and licensing staff visited DJD Retail, trading as Bookshop, at York Way in May last year, and seized DVDs and videos.

The sole officer of the company, David Darbo, pleaded guilty to eight offences under the Video Recordings Act 1984 at Highbury Magistrates' Court last month.

Darbo was fined £ 3,150 and ordered to pay £ 1,449 costs. DJD Retail admitted eight offences and was fined £ 100 for one offence.

R v Peacock

Michael Peacock has been acquitted of all charges after a unanimous jury decision to find Peacock not guilty on 6 counts of obscenity.

Michael Peacock (referred to in the gay porn world as Sleazy Michael) had been charged for distributing supposedly obscene DVDs including representation of gay fisting, urolagnia and BDSM.

The trial was heard before the Southwark Crown Court. The films in question feature: gay fisting (the insertion of five fingers of the fist into the rectum of another male); urolagnia (in this case men urinating in their clothes, onto each others' bodies and drinking it); and BDSM (in this case hard whipping, the insertion of needles, urethral sounds and electrical torture ). Also there was an example of a staged non consensual scene.

The Obscene Publications Act 1959 features the contentious and ambiguous deprave and corrupt test, whereby an article (for example a DVD) is obscene if it tends to deprave and corrupt the reader, viewer or listener. The Test is defined in Section1 of the Act as:

An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

Peacock was represented by Nigel Richardson and Sandra Paul of Hodge Jones and Allen

Myles Jackman, a solicitor specialising in obscenity law, said this outcome was a significant victory for common sense suggesting that the OPA has been rendered irrelevant in the digital age .

In a tweet, Jackman said that SCD9, the Metropolitan Police unit dealing with human exploitation and organised crime, will meet with the Crown Prosecution Service and the British Board of Film Classification to review guidelines on obscenity.

And of course the authorities will be considering whether the law itself now needs changing. No doubt nutter campaigners will now be pushing for something new to replace the OPA now that it no longer supports their censorial views.

Speculation: So what may be the outcome at least in terms of BBFC censorship of R18s?

The BBFC have been cutting all such material citing the current interpretation of the Obscene Publications Act. But now of course this will change. The BBFC will still be at liberty to cut scenes off their own bat. And indeed the board has been regularly cutting scenes involving penetration by objects that could possibly result in harm justified via its own guidelines.

I think there will be a few changes welcomed by all sides. The current prohibition of female squirting leaves everyone totally baffled as to why. This prohibition can now be rapidly dropped. Perhaps urolagnia can now be generally allowed albeit with restrictions when it is considered by the censors to be degrading.

Perhaps something similar with fisting which could be generally allowed with a proviso that it must not be seen to be causing any discomfort to those participating.

The BDSM issue is not going to be easy. The current ban is at least easy to explain. To allow any level of hurt beyond trifling may prove very difficult to define. Maybe it is still banned by legislation examined during the notable Spanner Case, the judgement of which basically disallows people from giving consent to be hurt. So perhaps the BBFC will just switch justifications but continue to ban BDSM.

And I don't suppose that the non-consensual scene will impact BBFC guidelines at all. This will no doubt continue to be banned from R18s.

A sex shop owner hopes to mount a court challenge against Westminster Council in what could be a landmark case for Soho's erotica retailers.

Tim Hemming, who owns Simply Pleasure in Brewer Street, fears the cash-strapped council may be exploiting sex shop licence fees as a way of filling its coffers. He is seeking a judicial review.

A Westminster licence to operate a sex shop costs nearly £ 30,000 a year. Hemming, who owns 35 licensed sex shops nationwide, said:

This is supposed to be a non-profit-making fee, so they should be spending all this money on enforcement and administration. We don't believe they have got the evidence to prove they have been doing that.

I pay somewhere in the region of £ 200,000 yearly in licence fees. It's a strain on our bottom line.

He said the fees should be capped at £ 1,000 a year.

A decision on his review bid is due later this year.

The West End Extra understands his bid is being backed by five other central London adult DVD retailers who have attended summits on the issue over the past months.

The 3rd January 2012 marks the first day of the most significant obscenity trial of the decade; which will ultimately clarify the law on the representation of gay fisting, urolagnia as well as BDSM.

The defendant in the case, Michael Peacock, is charged on indictment with numerous offences under the Obscene Publications Act for distributing supposedly obscene DVDs.

The Obscene Publications Act 1959 features the contentious and ambiguous deprave and corrupt test, whereby an article (for example a DVD) is obscene if it tends to deprave and corrupt the reader, viewer or listener. The Test is defined in Section1 of the Act as:

An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

In this trial, which will be heard before the Southwark Crown Court, the films in question feature: gay fisting (the insertion of five fingers of the fist into the rectum of another male); urolagnia (in this case men urinating in their clothes, onto each others' bodies and drinking it); and BDSM (in this case hard whipping, the insertion of needles, urethral sounds and electrical torture ).

These activities feature on the current list of what the Crown Prosecution Service (CPS) currently consider to be obscene. Ultimately though, it is a matter for a jury to decide whether these acts are obscene by virtue of whether they deprave and corrupt the viewer.

Interestingly this case seems to have found unofficial tacit support from the BBFC; and the Metropolitan Police's Abusive and Extreme Images Unit (the Met's old obscene publications squad is now part of SCD9): on the basis that this case will establish whether the depiction of fisting and urination pornography is legal or not.

Hence, if the jury decides that such pornography is not obscene, on the basis that it does not deprave and corrupt the viewer; then it is entirely likely that both the producers and distributors of pornography will make such material available for sale, for example via licensed sex shops.

Consequently, this significant obscenity prosecution will either reaffirm or rearrange the boundaries of obscenity law.

Mr Peacock is represented by  Hodge Jones and Allen LLP..

...Read the full article

Update: Follow Live on Twitter

5th January 2012.  See  article from  lawandsexuality.blogspot.com

The #ObscenityTrial involving the issue of fisting (among others) goes into day three today.

If you're not already doing so, be sure to follow on twitter the excellent activist and scholar, @lexingtondymock . I'd also suggest following the journalist @NichiHodgson . Both have been providing fascinating coverage through their live tweets from the courtroom.

Many of the exchanges today would be comical, were they not so serious.

Sheila Farmer, a sex worker who worked with other women from premises for safety had charges of brothel-keeping dismissed in Croydon Crown Court. She worked with other women since being viciously raped and attacked whilst working alone.

Ms Farmer left court with over 20 supporters delighted and relieved that she no longer faces a criminal conviction and possible prison sentence. Ms Farmer suffers from severe diabetes and a malignant brain tumour. Her doctor had provided evidence that an onerous and stressful trial would have exacerbated her condition.

Sheila Farmer commented:

Whilst I'm relieved not to be facing trial I am angry that I was prosecuted. Will the person who made that decision now be held accountable for the 18 months of distress and upset I have suffered while waiting for this case to come to court? Safety and survival has always been my priority. Like hundreds of other women I was working to support my son and more recently to pay for cancer treatment. I would never have got through this ordeal without the English Collective of Prostitutes. Without campaigning we may not have got this result.

Cari Mitchell, English Collective of Prostitutes commented:

Sheila Farmer's bravery in publicly fighting these charges should be commended. She, like many other sex workers, should never have been forced to choose between safety and legality. Why is it legal to work alone but not with others? The prostitution laws are endangering women and should be abolished. Why are police wasting time and money prosecuting sex workers while rapists and racists go free?

Ms Farmer's trial was thrown out because of police and prosecution incompetence -- witnesses had not been asked to attend court and a key witness could not be found. Ms Farmer has attended court six times and the case has been listed to start on two previous occasions.

How much public money has been squandered on this investigation and prosecution? How many other investigations are being neglected as a result?

The conviction of two of Stephen Lawrence's murderers reminds us once again that the priorities of police and prosecution fly in the face of public opinion. Why did it take 18 years to try and convict these dangerous criminals while sex workers who do no harm are quickly arrested and jailed? The ECP has received multiple reports of violent robberies by a gang of five men in East London. The only police action has been to threaten the victims with prosecution. Why are women who report violence arrested while their attackers are not pursued?

Ms Farmer's legal team requested figures on the number of attacks against sex workers to demonstrate the high level of violence they face when working alone and the need for protection. The Metropolitan police said that no such figures are gathered. Why not? How can prostitution law and policy be assessed if their impact on sex workers' safety and welfare is not known?

Ms Farmer was represented by solicitor Nigel Richardson, Hodge, Jones and Allen and barrister Anna Morris, Garden Court Chambers. Supporters in court included representatives from Women Against Rape, the Sex Worker Open University and X:talk.