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Home Kent News Article
Kent Police have set a legal precedent after successfully prosecuting a convicted pervert for making lewd comments about children during a private online conversation.
Gavin Smith, who was jailed for two years in February 2001 for possessing indecent photographs, was charged in 2010 with nine offences of publishing an obscene article.
At his first trial at Maidstone Crown Court in November last year, his counsel claimed Kent Police were on a "moral crusade" by prosecuting Smith under the Obscene Publications Act 1959.
The jury in the original trial was discharged by Judge Charles Macdonald QC after hearing legal arguments.
But his decision was subsequently appealed by the Crown Prosecution Service, with the Court of Appeal ruling in their favour.
Smith, 41, of Boleyn Way, Swanscombe, was due to go on trial for a second time this week.
But after being given a "Goodyear direction", in which a judge indicates what the likely sentence would be if a defendant pleads guilty, Smith admitted all nine offences – and his defence team conceded that Kent Police had been "proved right".
Under the Obscene Publications Act, a person who publishes material "distributes, circulates, sells, lets on hire, gives, or lends it", and it is obscene if it tends to "deprave and corrupt" those who are exposed to it.
"we say this is a moral crusade by kent police to extend the law, to try to get this material included as extreme pornography…” – barrister roger daniells-smith
The court heard at the first trial that Smith had online conversations in which he spoke about molesting and spanking children.
His barrister Roger Daniells-Smith told the court on that occasion: "This is a test case. We say it is part of a political campaign by Kent Police.
"We say this is a moral crusade by Kent Police to extend the law, to try to get this material included as extreme pornography."
Furthermore, he informed the court during a hearing where he acted as junior defence counsel, that Kent Police had also made representations to Parliament when it introduced extreme pornography as an offence as part of the Criminal Justice and Immigration Bill.
But their arguments to have online conversations included "fell on stony ground", he said.
"They therefore had nothing other than to try (to prosecute) under this act....and were proved right."
Adjourning sentence for reports, Judge Philip St.John-Stevens described the case as "unusual".
Leading defence counsel John Benson QC said the self-employed electrician and IT consultant did not know that when he "expressed fantasy and transmitted them", he would end up in the dock.
Smith, who lives with his mum, was released on bail. Under the Goodyear direction he was told the likely sentence would be a suspended jail term or community order.
The case could now open the doors for police forces across the country to charge suspected offenders for online conversations.
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