If you’ve been remotely following the legal news, you’ll have come across #Porntrial. I’m not going to go into the details, which are accurately summarised by Nick Cohen.
A recurring theme of the coverage has been to blame the CPS, and Keir Starmer personally as DPP, for pursuing these cases. In short, prosecutions weren’t in the public interest and charges should not have been pressed.
But is it fair to lump all the blame on the CPS this way?
The public interest test is not as straightforward as commentators imagine. How it works is set out in detail in the Code for Crown Prosecutors. Specifically:
4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.
The CPS is required to work from a presumption that prosecution is in the public interest, and only decide otherwise if there are specific factors pointing against that presumption (again, these can be found in the CCP). If someone has done something that meets the evidential test for criminal liability, then one has to assume prosecution is in the public interest absent any special factors. In this case, it’s hard to see what those factors could have been.
The CPS’s public interest test does not allow them to decide which laws they wish to enforce. It is there for exceptional circumstances that suggest prosecution should not occur. But it works upon the basis that behaviour attracting criminal liability should be prosecuted in the absence of those circumstances.
The real problem here isn’t with the DPP or the CPS. The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.
Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce.
The real target of people’s attentions should not be the CPS, but the law they were required to enforce.