Linked here is a pdf of the original letter from Backlash to the PM about the Judicial Review of Section 63 of the CJIA, the ‘extreme images’ Act which opens in a new window.
Below here is an HTML version, for ease of cutting and pasting sections that you might wish to quote elsewhere.
24 October 2014
Dear Prime Minister
S63(7) of the Criminal Justice and Immigration Act 2008
Prospective Judicial Review in the Administrative Court of the High Court: Pre-Action Protocol Letter
In the years since S63(7) of the Criminal Justice and Immigration Act 2008 was enacted there have been over 5,500 prosecutions for possession offences. Prior to the introduction of the legislation Ministers said there would merely be a handful of cases each year, and the Regulatory Impact Assessment predicted just 30 per annum.
Of great concern is that over the five years since enactment of the legislation the public, law enforcement agencies and the judiciary remain either oblivious or uncertain as to the precise meaning of at least two, and possibly all four, categories of the legislation. The Simon Walsh trial showed that CPS had sought to widen the meaning of Section 63(7)(b), seeking to prosecute for possession of images that depicted unconventional but not dangerous behaviour. The Andrew Holland (“Tiger porn”) case (Section 63(7)(d)) showed that harmless but crude jokes could also result in prosecution.
While both of these cases and others resulted in acquittal, it is unacceptable that the legal profession remains uncertain as to what types of material may get members of the public into trouble. There is emphatic evidence that many lawyers have advised people to plead guilty to possession offences to avoid the cost involved in trial, despite subsequent examination of the facts revealing that no offence had been committed.
The brutal reality is that lives are being turned upside down, careers destroyed and worse. In the light of the extreme nature of the penalties upon conviction, inclusion on the sex offenders register, lengthy period of incarceration and a heavy fine, it is wholly unacceptable that the public is denied an unequivocal, precise and detailed statement of that which is legal and that illegal to possess. If it really is impossible for the executive to provide clarity, then legislators must repeal the sections that cause the greatest difficulty (S63(7)(a) and(b).
Today, Hodge Jones & Allen LLP, acting on behalf of Andrew Holland, has written to The Director of Public Prosecutions explaining that the case against Mr Holland breached his human rights for three reasons.
1. That the term “extreme” pornography is insufficiently clearly defined in S63 CJIA 2008. It is not clear from the wording and accompanying case law how a potential defendant would be able to understand its scope and foresee the consequence of his/her actions;
2. There is insufficient guidance from the DPP as to when offences under S63 will be prosecuted; and
3. The offence is a disproportionate means of achieving the legislation’s intended aims.
Hodge Jones & Allen LLP have asked that the Secretary of State for the Home Department carries out a Human Rights Impact Assessment in relation to S63 CJIA 2008. In the event that the section fails the Human Rights Impact Assessment it is requested that this be confirmed in writing so that proceedings can be issued by way of judicial review by the Claimant who can then seek a Declaration of Incompatibility by way of a Consent Order. This will allow the Secretary of State for the Home Department to repeal Section 63 of the Criminal Justice & Immigration Act 2008 by use of the fast-track procedure under Section 10 of the Human Rights Act 1998.
I appeal to you to intervene to ensure that common sense and justice prevail. The harm being caused by S63(7) CJIA 2008 now greatly exceeds any perceived benefits.