- Code for Crown Prosecutors - considerations
- The Law
- Charging practice
- Possible alternative offences
- Useful references
Code for Crown Prosecutors - considerations
The Code does not contain anything specifically on Obscene Publications.
The Attorney General, in a Parliamentary Written Answer on 16 June 1997, said that "in determining whether a prosecution would be in the public interest, the principal factors include:
- the degree and type of obscenity together with the form in which it is presented;
- the type and scale of any commercial venture;
- whether publication was made to a child or the possibility that such publication would be likely to take place."
The Obscene Publications Acts (OPA) 1959 [Archbold: 31-63] and 1964 [Archbold: 31-76] provide for:
- Prosecution (under section 2 of the 1959 Act as expanded by section 1 of the 1964 Act); and
- Forfeiture (under section 3 of the 1959 Act).
Definition of "obscene" see Archbold: 31-63
Definition of "publishes" see Archbold: 31-72
The Acts are designed:
- To penalise purveyors of obscene material by making it an offence under section 2 either to publish an obscene article or to have an obscene article for publication for gain; and
- To prevent such articles from reaching the market by way of seizure and forfeiture proceedings under section 3.
For either proceedings, the test of whether an article is obscene is the same and set out at section 1 of the OPA 1959.
A prosecution cannot be commenced more than 2 years after the commission of the offence.
In general, the issue "obscene or not" must be tried by the jury without the assistance of expert evidence: Archbold: 31-68.
"To publish an article to an individual is plainly to publish it within the meaning of the Act." That is clear from the list, in section 1(3) OPA 1959 of the forms that the publication may take. Transmitting comments to another person in the context of an internet relay chat is publication and, if the publication is obscene, in the terms of 1(1), a prosecution can be considered. It cannot be said that because there is only one recipient and only one likely reader of an article, the article is incapable of meeting the test of obscenity for the purposes of the Act. Note therefore that some indecent or obscene communications may more appropriately be prosecuted under the OPA, rather than as a communications offence. For instance, in R v GS  EWCA Crim 398, the defendant was charged with publishing an obscene article contrary to section 2(1) of the Obscene Publications Act 1959, relating to an explicit internet relay chat or conversation with one other person, concerning fantasy incestuous, sadistic paedophile sex acts on young and very young children.
The general rule used to be that English and Welsh courts did not accept jurisdiction over offences committed outside England and Wales. That general rule is now subject to a number of statutory exceptions, as the UK has extended its jurisdiction to become extra-territorial for specified offences, and has made special provision for the determination of where the actus reus of the offence took place. The common law also provides for an extension of jurisdiction in certain circumstances.
The starting points for jurisdictional matters are the provisions of the Sexual Offences (Conspiracy and Incitement) Act 1996 and section 72 of the Sexual Offences Act 2003 (in force from 1 May 2004). Section 72 of the Sexual Offences Act 2003 confers extra-territorial jurisdiction on the courts of England and Wales in respect of a number of offences contrary to the Sexual Offences Act 2003 and offences contrary to the Protection of Children Act 1978 and section 160 of the CJA 1988 (the Video Recording Act 1984 and 2010 is not mentioned).
There are very difficult jurisdictional issues about whether material hosted overseas is within reach of the English criminal law. It will depend on a range of factors including who posted the material on the site, where it is hosted and what the person intends the material to do. If a web site is hosted abroad and is downloaded in the UK, the case of R v Perrin  4 Archbold News 2 will apply.
R v Perrin is specifically concerned with 'publishing' electronic data under the Obscene Publications Act 1959 and states that the mere transmission of data constitutes publication. It is clear from the decision in R v Perrin and in the earlier case of R v Waddon (6 April 2000 unreported), that there is publication both when images are uploaded and when they are downloaded. In the case of R v Waddon the Court of Appeal held that the content of American websites could come under British jurisdiction when downloaded in the United Kingdom.
The Obscene Publication Act 1959 has been amended to deal with electronically stored data or the transmission of such data (see section 1(3)).
European Court of Human Rights
Legislation in England and Wales prohibits obscene publications, performances, and photographs. The Convention rights to freedom of expression set out in Article 10 may be used to claim that the particular legislation is incompatible with the Convention. Article 10 states that the right of freedom of expression shall include:
"freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Article 10(2) goes on to say that, "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of ... public safety, for the prevention of disorder or crime, for the protection of health or morals, protection of the reputation or rights of other ..."
Any restriction of freedom of expression that is imposed by national law must be capable of objective justification as being necessary in a democratic society for one of the purposes set out.
The so called "margin of appreciation" enables states to have a degree of latitude to decide law and social policy in the light of their own cultures and values. For example, (Handyside v United Kingdom (1976) 1 EHRR 737):
"Sharing the view of the Government and the unanimous opinion of the Commission, the court finds that the Obscenity Acts 1959 and 1964 have an aim that is legitimate under Article 10(2), namely, the protection of morals in a democratic society." (paragraph 46)
The majority of the Commission agreed that the European Court had only to ensure that the United Kingdom courts acted reasonably, in good faith and within the limits of the margin of appreciation left to Contracting States by Article 10(2):
"there was no uniform conception of morals. State authorities were better placed than the international judge to assess the necessity for a restriction designed to protect morals." (paragraph 2)
In the expression "necessary in a democratic society" (Article 10(2)), the word "necessary" was not synonymous with "indispensable", but implied the existence of a pressing social need (paragraph 2).
The defence of "Public good" is created by section 4 of the Obscene Publications Act 1959. The defence have to prove that publication of the article in question is justified as being for the public good on the ground that it is for example in the interests of science, literature, art or learning, or of other objects of general concern; Archbold: 31-88.
Section 2(5) of the Act creates a defence for a person who proves that he or she has not examined the article and had no reasonable cause to suspect that it was obscene: Archbold: 31-74.
For provisions as to search, seizure and forfeiture, see Archbold: 31-84.
ECHR Article 10. The Obscene Publications Acts have an aim that is legitimate under Article 10(2), namely, the protection of morals in a democratic society (Handyside v United Kingdom (1976) 1EHRR 737).
The particulars of the charge should clearly identify the obscene article e.g. "an Internet website entitled "Welcome" (exhibit reference KDW/6)."
It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:
- sexual act with an animal
- realistic portrayals of rape
- sadomasochistic material which goes beyond trifling and transient infliction of injury
- torture with instruments
- bondage (especially where gags are used with no apparent means of withdrawing consent)
- dismemberment or graphic mutilation
- activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
Unless any of the factors listed above are present within the given case, the Crown Prosecution Service will not normally advise proceedings in respect of material portraying the following:
- actual consensual sexual intercourse (vaginal or anal)
- oral sex
- mild bondage
- simulated intercourse or buggery
- fetishes which do not encourage physical abuse.
Previously buggery involving humans (whether consensual or not) was regarded as suitable for prosecution under section 2 of the Obscene Publications Act 1959. Now, buggery per se between consenting adults is not regarded as suitable for prosecution under section 2. This includes consensual anal penetration in a situation involving simultaneous double penetration (anal and vaginal) between two men and a woman. However, a depiction of buggery would be regarded as obscene for the purposes of section 2 where one or more of the aggravating features set out above are present. Therefore, depictions of non-consensual buggery will still be regarded as section 2 material.
The principal factors influencing whether a prosecution under section 2 is required are:
- the degree and type of obscenity together with the form in which it is presented: for example the impact of the printed word will be less than the same activity shown in film or photograph;
- the type and scale of any commercial venture should be taken into account;
- whether publication was made to a child or vulnerable adult, or the possibility that such would be likely to take place;
- where children are likely to access material of a degree of sexual explicitness equivalent to what is available to those aged 18 and above in a licensed sex shop, that material may be considered to be obscene and subject to prosecution. This applies to material which is not behind a suitable payment barrier or other accepted means of age verification, for example, material on the front page of pornography websites and non-commercial, user-generated material which is likely to be accessed by children and meets the threshold. see R v Perrin,  EWCA Crim 747;
- where publication took place, especially if material can be readily seen by the general public, for example in a newsagents or market, or websites easily accessible to children;
- the defendant's antecedents, especially where there has been a previous conviction, or caution, for a similar matter;
- the degree of participation of the proposed defendant(s). This becomes relevant where the defendant can employ the statutory defence that he had no knowledge of the contents of the material under section 2(5) of the 1959 Act.
Where proceedings under section 2 are instituted, the number of articles to be placed before the Court should be manageable. The use of too many articles, or charges, could be counter-productive and have a negative effect upon the jury.
The Crown Prosecution Service normally advises on no more than six articles and a consolidation charge that reflects the amount of articles received as being sufficient to highlight the different types of activities portrayed or described, unless there are particular factors in a case, such as multiple defendants, seizure of material from more than one location etc.
In cases where a large amount of material suitable for prosecution under section 2 has been seized, the use of the Criminal Procedure Rules (CPR) should be considered. CPR 2010 Rule 14.2.2 permits multiple examples of offending within one count without duplicity; if the defence is the same, then there is no prejudice to the defendant. This does not mean that you cannot have specimen charges if preferred.
Use of conspiracy charge
Categories of material: Imported pornographic material
Most publishers are outside the jurisdiction and cannot be prosecuted. However where the material falls within that which is usually prosecuted proceedings should be taken against those responsible for its distribution and retailing.
Categories of material: Domestic pornographic material
Where the material has clearly been produced in this country, attempts should be made to prosecute those responsible for its production and distribution before any action is taken against retailers.
Pending the result of those proceedings, it may be more appropriate to proceed by way of forfeiture against the retailers.
Categories of material: Extreme videos that appear realistic
When a video of this type is considered it should be remembered that it is not just what is depicted but how it is treated that is important.
Material depicting the violent mutilation, torture, death and cannibalism of those involved has been found to have a tendency to deprave and corrupt.
Such scenes that are explicit and/or lingering can indicate to the viewer approval or encouragement of the behaviour involved thereby normalising the depraving or corrupting behaviours.
You should examine each violent episode in relation to the work as a whole, and in particular consider the following:
- who is the perpetrator and what is their reaction?
- who is the victim and what is their reaction?
- how is the violence inflicted and in what circumstances?
- how explicit, prolonged and realistic are the scenes?
- is the violence justifiable in the context of the film?
Any doubt about the obscenity of this type of material should only be resolved by way of prosecution, preferably involving the distributors, and not by way of forfeiture.
Possible alternative offences:
Prosecutors should consider charging suspects with the new offence of possession of extreme pornographic images in cases where the suspect cannot be charged with an offence contrary to the Obscene Publications Acts as he has not published or distributed such images. See Extreme Pornography, elsewhere in the Legal Guidance.
Indecent photographs of children
Section 1 of the Protection of Children Act 1978 covers the taking, making, distribution, showing or possession with a view to distributing any indecent image of a child. This offence or an offence contrary to section 160 Criminal Justice Act 1988 should be charged instead of an Obscene Publications offence where the material concerned includes indecent images of children (defined as being persons under the age of 18). See Indecent Images of Children, elsewhere in the Legal Guidance.
Revenge pornography is the public sharing of sexually explicit media without the consent of the pictured individual, usually following the breakdown of an intimate relationship and with the intention of causing the victim distress. In such cases prosecutors should consider charging suspects with offences under section 1 of the Malicious Communications Act; section 127 of the Communications Act; the Protection from Harassment Act or; where the victim was under 18 when the images were taken, the Protection of Children Act 1978. Prosecutors should refer to the Guidelines on prosecuting cases involving Communications sent via Social Media.
Video Recordings Act 1984 and 2010 (VRA)
The Video Recordings Act 2010 (VRA 2010) came into force upon receiving Royal Assent on 21 January 2010. The VRA 2010 repealed and revived without amendment the Video Recordings Act 1984 (VRA 1984) in order to rectify a procedural error made during the passage of the VRA 1984.
As well as introducing a system for the classification of video recordings and the like, the VRA also creates a number of criminal offences including: supplying video recording of unclassified work; Certain video recordings only to be supplied in licensed sex shops; Supply of video recording not complying with requirements as to labels, etc and supply of video recording containing false indication as to classification. See the Video Recordings Act 1984 and 2010, elsewhere in the Legal Guidance and the Video Recordings Act 1984 and the Video Recordings Act 2010.
Indecent Displays (Control) Act 1981
Section 1 of the Indecent Displays (Control) Act states it is an offence to publicly display indecent matter. If material prosecuted under the VRA is on display in shops and the cover can be classified as indecent, consider charging this offence. See Indecent Displays (Control) Act 1981.
Importation of Indecent and Obscene Material
The prohibition on the import of indecent and obscene material is contained in section 42 of the Customs Consolidation Act 1876. It prohibits indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or other indecent or obscene articles. It is an offence under section 170(2) CEMA 1979 to be knowingly concerned in attempting to evade the prohibition on indecent and obscene articles imposed by section 42 of the Customs Consolidation Act 1976. Archbold 31-128.
The Customs Consolidation Act 1876 does not define the terms "indecent" or "obscene". It is therefore necessary to rely on the dictionary definitions and the changing standards of society as reflected in contemporary court decisions.
The offence is triable either way. The maximum term of imprisonment on summary conviction is six months. On indictment the maximum is seven years imprisonment.
In R v Hirst  1 Cr App R (S) 44 the Court of Appeal upheld a sentence of 12 months imprisonment on a plea of guilty by a 51 year-old with no convictions to conspiracy to import obscene videos in a sophisticated operation in which the offender had an important role.
Children and Young Persons (Harmful Publications) Act 1955
(Stone's Justices' Manual, 8-22445).
This Act applies to any book, magazine or other like work which is of a kind likely to fall into the hands of children or young persons and consists wholly or mainly of stories told in pictures (with or without the addition of written matter), being stories portraying:
- the commission of crimes; or
- acts of violence or cruelty; or
- incidents of a repulsive or horrible nature;
in such a way that the work as a whole would tend to corrupt a child or young person into whose hands it might fall.
A Child for the purposes of this Act means a person under the age of fourteen years: young person means a person who has attained the age of fourteen years and is under the age of eighteen years.
It is also an offence to print; publish; sell; let on hire or import works to which this Act applies. Offences contrary to this Act are summary only and require the consent of the Attorney General.
Section 71 of the Criminal Justice and Immigration Act 2008 has increased the maximum penalty for conviction on indictment 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 26 January 2009.
Most obscene publications relate to magazines, books, films of less than 16mm and DVDs of no literary or artistic merit and the bulk of these are usually dealt with by way of forfeiture proceedings under section 3 of the 1959 Act. Archbold: 31-84.
It is important to realise that such proceedings can only take place when the material in question has been seized pursuant to the execution of a warrant issued by the magistrates' court under section 3.
The conduct of such proceedings becomes the responsibility of the CPS under section 3(2) (d) Prosecution of Offences Act 1985. Archbold: 1-253.
In some cases involving the seizure of large quantities of material, the Police will seek advice as to which articles should be placed before the Court with a view to obtaining a summons under section 3.
Such advice can properly be given with a view to placing a representative sample of the various activities contained within the material before the Court.
Articles not considered to be obscene can be returned to the person concerned under the proviso to section 3(3) of the 1959 Act. Archbold: 31-84.
Although forfeiture proceedings will normally be handled locally, where such proceedings relate to a film of 16mm or more the information in support of the warrant must have been laid or on behalf of the Director of Public Prosecutions.
Where a summons under section 3 has been issued and it is likely that the person concerned will be prosecuted under section 2, the forfeiture proceedings should be adjourned sine die pending the outcome of the prosecution.
If there has been an acquittal, the magistrates should be informed, especially where the sole defence run was that the article in question was not obscene.
Under Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 the magistrates court has power to deprive an offender of property used or intended for use for the purposes of crime.
Section 39 of the Police and Justice Act 2006 and Schedule 11 to the Act amends the Protection of Children Act 1978 to provide a mechanism to allow police to forfeit indecent photographs of children held by the police following any lawful seizure. The provisions came into effect on 1 April 2008 and provide an administrative regime to forfeit images where a decision not to proceed with a prosecution is made or where a caution is issued (it does this by replacing section 5 of the PCA 1978).
The Law Officers have undertaken that where a publisher intervenes in forfeiture proceedings and indicates an intention to continue publishing, whatever the result of the forfeiture proceedings may be, then in the absence of special circumstances and there being sufficient evidence the Director will usually proceed against the publisher by way of prosecution rather than pursue the forfeiture proceedings. The undertaking does not apply to "pulp" magazines. These are magazines where there cannot be any claim of literary, artistic, scientific or any other merit. These are magazines considered by virtue of their nature and character not worthy of consideration by a judge and jury. Therefore if they are obscene they can be consigned to the incinerator (i.e. "pulped") with a minimum of expense by the Justices.
Disclosure of Material
Requests by other agencies, including defence solicitors, to be provided with copies of obscene material should not be acceded to. To do so would be a technical breach of section 2 Obscene Publications Act 1959. The originals should be available to be viewed at a convenient location in the presence of the police and/or CPS.
Handyside v United Kingdom (1976) 1 EHRR 737