The offence of possession of extreme pornographic images in sections 63 to 67 of the Criminal Justice and Immigration Act 2008 came into force on 26 January 2009.
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.
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 as listed above
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 is 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.
Section 63(7) lists a number of extreme acts including:
- An act which threatens a person’s life; this is not defined in the Act and therefore should be given its ordinary dictionary meaning.
- 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. According to the CPS website 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.
Defences
- Classified films
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 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.
- 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.
As can be seen the law in relation to possession of extreme pornography is complex and so if you have been arrested or charged with this offence please feel free to contact is 24 hours a day 7 days a week for free and confidential advice as to your options.