The CPS dropped a prosecution under the extreme porn law last week when it apparently accepted that the soundtrack on a clip of a tiger apparently having sex with a woman rendered the video comical rather than pornographic.
Andrew Robert Holland of Coedpoeth near Wrexham appeared at Mold Crown Court on New Year's Eve to answer two charges of possessing extreme porn. Both charges related to video clips sent to him by friends, allegedly as jokes.
The first charge involved a video clip of a woman having sex with a tiger. The tiger, according to Mr Holland, was an animated image, rather than a real tiger.
He told El Reg that the fictional nature of the action was obvious from the fact that, at the end of the scene, the Tiger turns to camera and said: "That beats doing Frosties ads for a living."
According to court reports, neither police nor prosecution listened to the soundtrack before the case reached court and the voiceover became an issue.
At that point, prosecutor Elizabeth Bell withdrew the charge, saying that the prosecution had decided to offer no evidence. Questioned by the Judge, John Rogers QC, she claimed that when the case was previously reviewed the film had no soundtrack.
El Reg spoke to the Crown Prosecution Service just 24 hours before the case went to court. At that point, they expressed themselves entirely satisfied that there was a case to answer.
We later asked whether the soundtrack was available to them or whether the police had withheld the soundtrack from the CPS.
The CPS is adamant that no soundtrack was given to it when charges were considered and the lawyer was not told at that time there was a soundtrack.
The CPS did the job that it is required to do - which was to review the evidence as supplied by the police - and as soon as it became aware that a soundtrack was available, it was instrumental in pointing this out to the judge in the trial.
Holland told us his computer equipment was seized in June 2009, in relation to another matter never pursued further by police - and he made the police aware, in November 2009, of the existence of the comic soundtrack on the clip in question.
We asked North Wales police when they became aware of the content of the soundtrack, and are waiting a response.
Concerns about selective policing of extreme porn were raised by Baroness Miller in 2008, when she said, in a debate on the extreme porn law:
"Perhaps the most chilling point in the Minister's summing up [...] was that when it came to policing this it was for dealing 'with individuals' who are 'causing concern'. Well, that is pretty difficult. How are they causing concern if they have committed no crime yet? They might be causing concern in all sorts of ways; they might be individuals whom the police do not much like, for a number of reasons, but then they get raided. Again, that really makes me feel worried."
Mr Holland still faces a charge of possession of extreme porn in respect of the second video clip: that charge will be heard in court on 17 March. ®