Up to date on 19 January 2009
Extreme Pornography
- The Law
- Charging Practice
- Defences
- Consent to Prosecute
- Providers of Information Society Services
- Useful Relevant Links
The Law
Possession of Extreme Pornographic Images
The new offence of possession of extreme pornographic images in Part 5, Sections 63 to 67 of the Criminal Justice and Immigration Act 2008 (the Act) comes into force on 26 January 2009. This guidance should be read in conjunction with the Ministry of Justice note of Further information on the new offence of 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 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 offences
The Ministry of Justice note Further information on the new offence of Possession of Extreme Pornographic Images helpfully provides an overview of the new 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; 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).
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. 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 an persons 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:
- An act which threatens a persons 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.
- An act which results in or is likely to result in serious injury to a persons anus, breast or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals. The words serious injury are not defined in the Act and would take their ordinary dictionary meaning and be a question of fact for the District Judge or jury.
- 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 the case law with respect 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 psychological harm).
- Although the Act does not state what a serious injury is, prosecutors must be aware that by the very nature of its name serious injury will not include trivial or transient injuries which include bruises and grazes.
Charging Practice
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. When pleas are offered, Crown 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
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, rather than the new offence of possession of extreme pornographic images.
Where the extreme image is of a child; prosecutors should consider charging the suspect with either an offence contrary to the 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
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 persons 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.
Defences
Exclusion of classified films etc.
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.
General
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 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) CJA in the Legal Guidance of 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) 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. The decision to grant consent is in all cases to be taken applying the principles of the Code for Crown Prosecutors and CPS policies.
Consent cases should be reviewed at the earliest possible opportunity. If the case is submitted for pre-charge advice and a decision is made to prosecute, consent should be obtained or given at that stage. The police may ask you to consent on behalf of the DPP over the telephone; prosecutors should not do this, as they will need to review the case in accordance with the Code and consent should always be given in writing. If an offence is to be started by summons then consent must be given before the information is laid; the information must state that it is laid on behalf of the DPP. If the defendant has already been charged, consent must be obtained in either way offences before or at mode of trial.
Consent should be in writing, and the form should endorse:
- Relevant statute
- Defendants name and address
- Date of consent
- Name of lawyer consenting
The consent need not specify either a section of the Act or the process of reasoning leading to the consent. These are complicating distractions from the basic consent. It is good practice to prepare a separate form for each defendant in multi-handed matters. The consent form should be kept. Where there is no form of consent to reflect the decision, evidence from the party who originally gave consent is admissible to prove the fact of consent.
Legal Guidance on Consent to Prosecute is available.
Providers of Information Society Services
Section 68 and schedule 14 of the Act ensure that the Act is compliant with the e-Commerce Directive (the Directive). The Directive was implemented generically by the Electronic Commerce (EC Directive) Regulations 2002 (SI2002/2013) (the Regulations).
Schedule 14 paragraph 1(1) extends the territorial application of the offence by making it an offence for a service provider established in the United Kingdom to possess an extreme pornographic image in a European Economic Area (EEA) state which would constitute an offence if it were to be done in England and Wales. Schedule 14 paragraph 1 (2) excludes service providers established in an EEA state from prosecution for the offence of possession of extreme pornographic images.
Schedule 14 paragraphs 3 and 4 of the Act limits the liability of internet service providers who carry out certain activities necessary for the operation of the internet.
Useful Relevant Links
Criminal Justice and Immigration Act 2008
Explanatory Notes on the Criminal Justice and Immigration Act 2008
Legal Guidance on Obscene Publications
