Following the onset of the internet, pornography has been an issue which is always close to the forefront of debate. In the UK there is already existing legislation in relation to the possession of indecent images involving children and recently there have been changes in legislation in relation to the possession of extreme and obscene pornographic images.
The Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act came into force in July 2008 with the provisions in relation to possession of extreme pornographic images coming into force in January 2009.
The reason for the new offence being introduced was to bring the new legislation in line with the Obscene Publications Act 1959 whereby the publications of these images is unlawful. Possession of indecent images of children is unlawful under the Criminal Justice Act 1988 and so it was felt that it was necessary to also ban possession of images of which the publication would be unlawful in the UK.
Section 63 of the Criminal Justice and Immigration Act
Section 63 of the Criminal Justice and Immigration Act makes it an offence to be in possession of an extreme pornographic image.
Therefore it must be established that the image was both pornographic and extreme.
What is meant by a pornographic image?
In order for an image to be regarded as pornographic it must be of such a nature for it to be reasonably assumed to have been produced solely or principally for the purposes of sexual arousal.
What is meant by an extreme image?
For an image to be viewed as extreme for the purposes of the Criminal Justice and Immigration Act if it is grossly offensive, disgusting or otherwise of obscene character. Specifically an image will be seen to be extreme if it falls within the categories specified by subsection 7 of the Section 63 of the Act.
Subsection 7 specifies that an image will be extreme if it relates to any of the following:
An act which threatens a persons’ life – this could include depictions of hanging, suffocation or sexual assault involving a threat with a weapon
An act which results, or is likely to result, in serious injury to a persons’ anus, breasts or genitals – this could include the insertion of sharp objects or the mutilation of breasts or genitals
An act which involves sexual interference with a human corpse
A person performing an act of intercourse or oral sex with an animal (whether dead or alive) and a reasonable person looking at the image would believe that any such person or animal was real
The Act is designed to capture realistic portrayals of acts the publication of which is likely to be unlawful under the Obscene Publications Act 1959.
What is meant by an image?
When looking at this offence an image will include a photograph, an indecent film, a copy of a photograph or film, computer data capable of conversion into a photo or a copy.
What is meant by possession?
Obviously there should be a distinction between possession when relating to drug offences as it is unlikely that the defendant would physically have the photograph on his person – in most cases possession relates to possessing it on a hard drive of a computer or could possessing a printed photograph somewhere in their house.
Furthermore case law in relation to possession of indecent images of children has established that someone will only be in possession of an image when they had custody and control over the image at that time. If at the time of possession the image is beyond his control he will not be deemed to posses it. This brings in the issue of multiple users of the same computer.
It can reasonably be assumed that this will also be the position in relation to possession of extreme pornographic images.
What is the likely criminal sentence for being in possession of an extreme pornographic image?
The maximum prison sentence for an individual found to be in possession of an extreme pornographic image will be three years.
Are there any defences applicable to the offence of being in possession of an extreme pornographic image?
Section 65 of the Act provides the general defences. They are as follows:
That the person had a legitimate reason for being in possession of the image
That the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image
That the person was sent the image concerned without any prior request on their behalf and did not keep it for an unreasonable time
Had not seen the image
In relation to indecent images of children this defence is frequently stated. Accordingly it will be up to the police to present evidence to show that the defendant had seen the pictures.
No prior request and was not kept for a reasonable period of time
The Act and also the Criminal Justice Act (for which it is a defence in relation to possessing indecent images of children) does not define what is meant by prior request and what is meant by a reasonable time.
This brings up the issue of what is meant by not keeping it and whether simply deleting it from a computer is enough. For example if an image has been deleted from a computer it can still be extracted from the deleted files on the hard disc. When police examine computers they use specialist software in order to enable them to retrieve images. This brings in the question of whether the defendant had deleted it for the purposes of retrieving it or if they could in fact do this without specialist technology.
Participating in Consensual Acts
Section 66 of the Act provides a defence in relation to participation in consensual acts. In order for it to be present the following elements must be established:
That the defendant directly participated in the act or any of the acts portrayed
That the act or the acts did not involve the infliction of non-consensual harm on any person
That acts involving the portrayal of a human corpse was not in fact a human corpse
What is meant by a non-consensual act?
The act defines non-consensual acts as an act which defined by law cannot be consented to or an act which can be consented to by law but which is not consented to by that person.
Guidance on certain Sado-Masochistic Acts
If individuals wish to possess images in relation to certain sexual acts such as consensual sado-masochistic acts but are unsure as to whether they will fall foul of the law a good form of guidance is to establish what acts are able to be shown on DVD’s sold in the UK. If certain acts are able to be shown in published format as they are not illegal under the Obscene Publications Act then possession of these images will be lawful.