Prosecuting internet sex offences under old laws

When Parliament was in the process of considering the Criminal Justice and Immigration bill in 2008, various interest and pressure groups lobbied in the hope that their particular concern or hobbyhorse would be considered for inclusion in the bill. Among them was Kent Constabulary, who expressed the concern that there appeared to be a lacuna in the existing law that needed to be filled by the new Act.

Their concern was that sex offenders were engaging in communication as individuals or in groups in online internet chatrooms, and were expressing their fantasies in conversations with others who shared their interests. These conversations were then being stored and exchanged or shared in the form of chatroom logs. These logs were created automatically by the computers used in this communication. Such activity is almost impossible to police, even if the subject is on the Sex Offender Register, and subject to monitoring by the multi-agency public protection arrangements team (MAPPA). This activity is conducted silently, and secretly behind closed doors.

Kent's concern was that this activity was potentially dangerous, feeding an interest in and an unhealthy and unnatural desire for inappropriate sexual contact with children.

They were unsuccessful on that occasion in attracting Parliament's attention to this concern, and the Act makes no mention of these matters, even though Parliament was busy creating new sexual offences of extreme pornography.

Obscene publications

Instead, undeterred, Kent Constabulary turned its attention to the existing law, to see if this new activity could fall under existing legal provisions, whether common law or statutory. They turned the spotlight on the Obscene Publications Act 1959 (OPA).

This Act has a chequered history, and has enjoyed very limited success. Older generations will recall the case of R v Penguin Books (the Lady Chatterley's Lover case) heard at the Central Criminal Court in 1961. That case has gone down in history for the brilliantly inappropriate direction given to the jury by His Honour Judge Mervyn Griffith-Jones the Common Sergeant asking: 'Was it the kind of book you would wish your wife or servants to read?'.

The same generation witnessed the high profile trial of R v Desmond in 1971 (the Oz schoolbook trial), and other equally fascinating examples of idiosyncratic criminal litigation involved the 'Little Red Schoolbook'.

The Obscene Publications Act was passed at a time in our social history when no-one had a home computer, no-one had a mobile phone, there was no internet, and electronic communication was by landline telephone. The Act did not contemplate a new generation of electronic communication, and therefore to use it to apply to modern methods of communication is an uncomfortable exercise.