A Judge’s summing up

This is a precis of key points contained in a Crown Court Judge’s summing up at a trial for the possession of extreme images in January 2011. The Jury found the defendant Not Guilty.

Parliament recently decided to outlaw extreme pornographic images.

This is not about rights and wrongs. Leave emotions at home. Apply the law to the facts.

The prosecution needs to make you sure of guilt. It you are not sure, the verdict is Not Guilty.

There are 4 counts. Each charge needs to be judged separately. It is open to you to make different decisions on each count.

What ingredients of the prosecution make you sure ?

I have prepared a written Route to Verdicts (below), which I ask the usher to give you and the lawyers, who have agreed what I have written

A difficulty is that Parliament used ordinary language for legal definitions.

On a scale of porn, clearly more hardcore material exists. But that fact is not at issue.

It is Step 3, the issue of “realistic”, that may give rise to difficulty

It is for you alone to come to a conclusion as to whether these images are realistic.

You may have thought before this trial that that is straightforward.

Of course it isn’t that simple.

Pain, fake blood, apparent struggle. They could be more realistic, further along on a scale of realism.

There are elements that are less realistic. High camp acting, the lighting, body positions – especially count 4 where the body is positioned to expose the vagina.

These images could have been done differently to make them look more realistic


what matters is do you consider these realistic. If you do not, that is the end of the matter.

Then, you need to be satisfied they are grossly offensive, disgusting or otherwise obscene. You need to be sure.

No one else’s opinion matters. You must use your judgement.

Now we turn to the evidence you have heard.

Two experts were called. There is no magic in expert evidence. It is for you to consider their opinions (here the Judge explained that only experts are allowed to provide opinions – in their areas of expertise – as opposed to just evidence, and for the benefit of the court not the prosecution or defence).

Professor Attwood characterised the narratives as death fetish. Very specialised. Uses stagey conventions, an artificial style, a predictable narrative. Overtly staged, acting out, choregraphed, deliberately exagerated. No attempt at realism.

But remember, the question is whether you are satisfied.

Dr Smith characterised the images as necro porn, or Damsel in Distress. She identified the producer as Drop Dead Gorgeous. She named the models. The images are knowingly high camp. There is humour and glamour. They are stylised. They cost 6 dollars. The stories are more than death, they are about helplessness, horror, surprise.

You did not hear from the defendant. He is of previously good character. As a man of good character he is entitled to suggest he is less likely to be guilty as he has not offended before. He is not young. He has not come to police attention before or since. He has the choice to remain silent.

It means we have no oral evidence, but he admits possession. You might conclude in these circumstances it is reasonable for the defence to think it is irrelevant what the defendant thinks.

Strive to reach a unanimous verdict. Appoint a foreman to give your verdict when you return – who needn’t be the same person who chairs your discussion.

The judge then gave guidance about smoking; no discussion when separated for a smoking break, and jury bailiffs monitor.

Unanimous Not Guilty verdicts on all 4 counts. Jury members 8F 4M. Jury retired 11.20, returned 13.00

Prosecutor then asked Judge to comment on Test Case issue. Judge responded:

I make no criticism of the Prosecution. This was a test case. The legislation put the onus on the Jury. Their interpretation will vary. It is very difficult for the Crown to have any idea of the boundaries until there is guidance and feedback from Jury verdicts.

This is new legislation that is currently being interpreted. We have to decide where is the line in the sand.

The Judge thanked the jury and discharged them.

Route to Verdicts

Part 1 Have the prosecution proved the image is pornographic ?

Question 1

Are we sure the Image is a pornographic image ?

It is pornographic if it is reasonably assumed to have been produced solely or principally for the purposes of sexual arousal.

(note: it is accepted that the images are pornographic)

If NO verdict is “not guilty” if YES go to question 2

Part 2 Have the prosecution proved that the image is extreme ?

Question 2

Are we sure that a reasonable person looking at the images would think that the person (rather than the scene) was real ?

(it is accepted the people are real and appear to be real people)

If NO verdict is “not guilty” if YES go to question 3

Question 3

Re Counts 1,2 and 3. Are we sure that the image portrays in an explicit and realistic way an act resulting or likely to result in serious injury to a person’s breast ?

Re Count 4. Are we sure that the image portrays in an explicit and realistic way an act which threatens a person’s life ?

(the defence contend the prosecution have not proved the images are realistic)

If NO verdict is “not guilty” if YES go to question 4

Are we sure that the image is grossly offensive, disgusting or otherwise of an obscene character ?

(the defence contend that the prosecution have not proved this element)

If NO verdict is “not guilty” if YES to question 1, 2, 3 and 4 verdict is “guilty”.