- The Law
- Charging Practice
- Consent to Prosecute
Possession of Extreme Pornographic Images
The offence of possession of extreme pornographic images in Part 5, sections 63 to 67 of the Criminal Justice and Immigration Act 2008 (the Act) came into force on 26 January 2009 and is not retrospective. This guidance should be read in conjunction with the Ministry of Justice circular 2009/01 on the Criminal Justice and Immigration Act: possession of extreme pornographic images.
Sections 63 to 67 of the Act make it an offence to possess pornographic images that depict acts which threaten a person's life; acts which result in or are likely to result in serious injury to a person's anus, breasts or genitals; bestiality; or necrophilia. They also provide for the exclusion of classified films etc. and set out defences and the penalties for the offence.
Section 68 and Schedule 14 of the Act are in place to ensure that the operation of the extreme pornography offence is consistent with the UK's commitments under the E-Commerce Directive (Directive 2000/31/EC) with regard to services provided by the Internet industry.
Section 71 of the Act increases the maximum penalty for publication of obscene material and for the possession of such material for gain under the Obscene Publications Act 1959.
The Ministry of Justice note "Further information on the new offence of Possession of Extreme Pornographic Images" helpfully provides an overview of the offence and an explanation as to the implementation of sections 63 to 67 of the Act. The note should be read in conjunction with the Act.
This guidance is to assist Crown Prosecutors and Associate Prosecutors when making decisions in respect of sections 63 to 67 of the Act to prosecute for possession of extreme pornographic images.
The Act at section 63 sets out a definition of what is an extreme pornographic image. The new offence only relates to material which by virtue of the Obscene Publications Act 1959; is illegal to publish or distribute in the United Kingdom.
Elements of the Offence
For an offence contrary to section 63 of the Act the prosecution has to prove:
- That the image is pornographic; and
- That the image is extreme namely grossly offensive, disgusting, or otherwise of an obscene character; and
- That the image portrays in an explicit and realistic way any of the extreme acts set out in section 63(7).
The Home Office consultation on the extreme pornography offence stated that the proposal to strengthen controls on extreme pornographic material was based on:
- a desire to protect those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victim of crime in the making of the material, whether or not they notionally or genuinely consent to take part;
- a desire to protect society, particularly children, from exposure to such material, to which access can no longer be reliably controlled through legislation dealing with publication and distribution, and which may encourage interest in violent or aberrant sexual activity.
Prosecutors should remember that decisions in section 63(7) (b) cases are finely balanced and as such it will not usually be in the public interest to prosecute such cases in isolation unless there are some aggravating factors present (see examples of factors under the heading "serious injury" below).
Section 37 of the Criminal Justice and Courts Act 2015 amended the offence of possession of extreme pornographic images in section 63 of the Criminal Justice and Immigration Act 2008 so that, in England and Wales, the offence can be committed by the possession of extreme pornographic images depicting non-consensual penetration and rape. The amendment made by section 37 of the Criminal Justice and Courts Act 2015 do not apply to possession of an image which occurs before 13 April 2015.
An Extreme Image
An image is pornographic if it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Whether an image is pornographic or not is an issue for the District Judge or jury to determine simply by looking at the image. Expert evidence should not normally be required to prove this element. It is not a question of the intentions of those who produced the image. Nor is it a question of the sexual arousal of the defendant.
Section 63(6) of the Act states that an extreme image must be explicit and realistic; both those terms take their ordinary dictionary definition. Taking an example which was raised during parliamentary debates on the Criminal Justice and Immigration Bill, the anal sex scene in the movie "Last Tango in Paris", even if it were to be considered pornographic and of an obscene nature, would not be caught by the new offence, because it is not explicit and does not portray an act resulting or likely to result in serious injury to a person's anus.
The painting "Leda and the Swan", another example raised during debates in Parliament, would also not be caught by the new offence, because it would not meet the "explicit and realistic" test.
Section 63(7) lists a number of extreme acts including:
a) An act which threatens a person's life; this is not defined in the Act and therefore should be given its ordinary dictionary meaning. The Ministry of Justice note of " Further information on the new offence of Possession of Extreme Pornographic Images" at paragraph 11 gives examples of life threatening acts.
b) An act which results in or is likely to result in serious injury to a person's anus, breast or genitals; this could include the insertion of sharp objects (although in some circumstances this can be done in a way that is not likely to result in serious injury) or the mutilation of breasts or genitals. It is likely to be difficult to prove that cases of 'fisting' involve images that show activity that is likely to result in serious injury so these cases need to be handled with particular care. Serious injury is not defined in the Act and should be given its ordinary dictionary meaning, being a question of fact for the District Judge or jury.
c) The Ministry of Justice note of " Further information on the new offence of Possession of Extreme Pornographic Images" specifically states that the reference to "serious injury" was not intended to expressly link into existing case law with regards to 'grievous bodily harm' contrary to sections 18 and 20 of the Offences Against the Person Act 1861 (which has been interpreted as being capable of including psychiatric harm).
As set out in paragraph 2.4 of the Code for Crown Prosecutors:
"Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions."
The offence of possessing an extreme pornographic image criminalises the possession of a limited range of extreme sexual and violent material. When considering what may be classified as extreme pornography, it should be borne in mind that all extreme pornography is obscene (section 63(6) (b) of the Act) as classified by the Obscene Publications Act 1959. But not all obscene material is extreme.
The Code for Crown Prosecutors advises prosecutors to select charges which reflect the seriousness of the offending; give the court adequate sentencing powers; and enable the case to be presented in a clear and simple way. Possession of extreme pornographic images is an either way offence and the maximum penalty for possession of extreme pornographic images for an act which threatens a person's life or an act which results in or is likely to result in serious injury on indictment is three years' imprisonment. For possession of other extreme images the maximum penalty is two years' imprisonment. Section 71 of the Act has increased the maximum penalty for the publication etc. of obscene articles from three to five years' imprisonment. This increase in penalty does not apply to any offence committed before the 26 January 2009.
When pleas are offered, Prosecutors must bear in mind that in very limited circumstances people convicted of this offence can be made subject to notification requirements under Part 2 of the Sexual Offences Act 2003. Offenders must be aged 18 or above and receive a sentence of two years' imprisonment or more.
Choice of charge and acceptance of pleas
"Life Threatening Act"
Section 63(7) (a) of the Act states that one category of an extreme image is "an act which threatens a person's life." Such an act should be obvious on the face of the image; there should be no speculation of what may happen next or what could occur. For example, merely wearing a mask or other fetish wear would not in itself make an act life threatening. A life threatening act as stated in the explanatory notes to the Act could include depictions of hanging, suffocation, or sexual assault involving a threat with a weapon.
Section 63(7) (b) of the Act states that one category of an extreme image is "an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals". The Act does not state what a serious injury is. Having regard to the Article 8 right to a private life, and the requirement for any interference with that right to be proportionate and necessary, the threshold for prosecuting section 63(7)(b) cases should be a high one. It should be clear It will generally not be in the public interest to prosecute serious injury cases unless there is some aggravating factor present.
When assessing whether there are aggravating factors present when considering the public interest in prosecuting, consideration should be given to:
- The extent of the circulation of the images, for example whether they were shared between consenting parties or posted more widely, for example on social networking sites.
- Whether there is clear and credible evidence of the exploitation of those depicted in the images.
- The number of images involved - it is less likely to be in the public interest if there is a very small number of images involved.
- Any previous behaviour or conduct that may amount to relevant bad character evidence.
In view of the balancing act that section 63(7) (b) cases involve, decisions (either to prosecute or not to prosecute) specifically relating to serious injury should be approved at Deputy Chief Crown Prosecutor (DCCP) level.
When considering such cases, the following should be considered:
- There has to be a likelihood of serious injury - this is more than just a risk.
- The type and severity of the injury likely to be inflicted should be obvious on looking at the image and expert evidence on the subject should not ordinarily be necessary.
- In exceptional cases where expert evidence is required, caution should be exercised when there are contrasting views from reliable experts, although the views of defence experts need to be considered in context.
- If other offences (including those under section 63(7) (a), (c) and (d)) have been committed and can be proved, it is preferable to focus on these rather than any section 63(7) (b) offence.
In cases where there is evidence that the suspect has published or distributed extreme pornographic images, prosecutors should charge the suspect with an offence contrary to the Obscene Publications Act (see Legal Guidance on Obscene Publications), rather than the new offence of possession of extreme pornographic images.
Where the extreme image is of a child; prosecutors should charge the suspect with either an offence contrary to section 1 of the Protection of Children Act 1978 of making the image or possessing such images contrary to section 160 of the Criminal Justice Act 1988. Prosecutors should refer to the Legal Guidance on Indecent Photographs of Children.
Section 64 of the Act excludes from this offence persons who possess a video recording of a film which has been classified by the British Board of Film Classification (BBFC), even if the film contains an image or images, considered by the Board to be justified by the context of the work as a whole, which nevertheless fall foul of the offence in section 63. The fact that the images are held as part of a BBFC classified film takes them outside the scope of the offence.
The exclusion does not apply in respect of images contained within extracts from classified films which must reasonably be assumed to have been extracted solely or principally for the purposes of sexual arousal.
The three general defences set out in section 65 are the same as for the possession of indecent images of children under section 160 (2) of the Criminal Justice Act 1988 (CJA). Section 160 of the CJA did not define what a 'legitimate reason' was and it has not been defined in section 65 of the Act. The defences cover those who have a legitimate work reason for being in possession of the image. The burden of proof is on the defendant to show that he had a legitimate reason for having the image, or that he had not seen it and did not know or suspect it to be illegal, or that it had been sent to him unsolicited and he did not keep it for an unreasonable time.
Prosecutors should refer to the guidance on section 160 (2) of the CJA in the Legal Guidance on Indecent Photographs of Children.
Participation in consensual acts
The defence set out in section 66 of the Act applies where the possessor of an extreme pornographic image proves firstly that he was a participant in the act depicted, and secondly that no harm - other than harm that can be and was lawfully consented to - occurred to any of the participants. This defence does not apply in respect of bestiality images or necrophilia images which involve a real corpse.
Consent to Prosecute
The offence of possession of extreme pornographic images requires the consent of the DPP for the institution of proceedings.
A Crown Prosecutor can give consent on behalf of the Director of Public Prosecutions by virtue of section 1(7) of the Prosecution of Offences Act 1985. Consent cannot be implied merely because the CPS is conducting proceedings. A Crown Prosecutor must specifically consider the case and decide whether or not proceedings should be instituted or continued. Legal Guidance on Consents to Prosecute is available.
The existing powers of forfeiture under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 will apply to prohibited images.