Section 62 of the Coroners and Justice Act 2009 creates a new offence of possession of a prohibited image of a child, punishable by up to three years’ imprisonment. This offence, came into force on the 6 April 2010.
The offence is targeted at non-photographic images (this includes computer generated images (CGI’s), cartoons, manga images and drawings) and therefore specifically excludes indecent photographs, or pseudo-photographs of children, as well as tracings or derivatives of photographs and pseudo-photographs.
The offence
Elements of the Offence
Section 62(1) makes it an offence to possess a prohibited image of a child. Section 62 (2) to (8) sets out the definition of possession of a prohibited image of a child.
In order for an image to be a “prohibited image”, there are 3 elements that must be satisfied. An image must meet all 3 of the elements which are:
- That the image is pornographic;
- That the image is grossly offensive, disgusting, or otherwise of an obscene character; and
- That the image focuses solely or principally on a child’s genitals or anal region, or portrays any of the following acts:
- the performance by a person of an act of intercourse or oral sex with or in the presence of a child
- an act of masturbation by, of, involving or in the presence of a child
- an act which involves penetration of the vagina or anus of a child with a part of a person’s body or with anything else;
- an act of penetration , in the presence of a child, of the vagina or anus of a person with a part of a person’s body or with anything else;
- the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
- the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.
The Act defines a ‘pornographic image’ as one which must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Whether this threshold has been met will be an issue for the magistrates, District Judge or jury to determine by looking at the image in question. 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.
Even if an image is pornographic, it will not be a prohibited image unless it also satisfies all the other aspects of the offence.
Where an individual image is held in a person’s possession as part of a larger series of images, the question of whether it is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images. For example, a film where one image is taken out of context could be a prohibited image.
Grossly offensive, disgusting or otherwise of an obscene character (section 62 (c))
‘Grossly offensive, disgusting or otherwise of an obscene character’ are not intended to be read as three separate concepts. “Grossly offensive” and “disgusting” are examples of “an obscene character” and not alternatives to it. They are drawn from the ordinary dictionary definition of ‘obscene’ and are intended to convey a non-technical definition of that concept.
Defences
Exclusion to the offence
Section 63 of the Act provides an exclusion from the offence for works classified by the British Board of Film Classification, (the BBFC), which is the designated authority under the Video Recordings Act 1984 (as repealed and revived by the Video Recordings Act 2010).
Subsection (2) defines the type of material that is excluded. An excluded image is one that forms part of a series of images contained in a recording of the whole or part of a classified work. In deciding whether an image does form part of such a series, subsection (5) clarifies that any alteration due to a technical defect, inadvertence or inclusion of extraneous material such as an advertisement is to be disregarded.
However, this exclusion for classified films does not apply if an image or images have been extracted from one or more classified films and the reason for their extraction appears to be solely or principally for the purposes of sexual arousal. This would be the case, for example, where a new video work has been created consisting of images from classified films. This question is determined by the same test as is set out in section 62, that is, by consideration of the image itself and the context in which it appears.
The exemption does not apply to films shown in cinemas (as opposed to the versions of such films which are classified for DVD or video release). The exemption ensures that members of the public are not at risk from prosecution. Possession does not arise in respect of viewing a film in the cinema. Cinema staff and others involved in the classification process will be covered by the defences in section 64.
General defences
The three general defences set out in section 64 are the same as for the possession of indecent images of children under section 160(2) of the Criminal Justice Act 1988 (CJA):
- There is a defence of legitimate reason for the possession of these images;
- In addition there is a defence that the person had not seen the images and did not know or have cause to suspect they were prohibited images;
- The person had received the images unsolicited and did not keep them for an unreasonable time.
Section 160 CJA did not define what a ‘legitimate reason’ was and it has not been defined in section 64 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 and it will be for the jury to decide whether the reason for the possession of these images is legitimate. For example, police and prosecuting authorities properly handing such images in the course of their employment would ordinarily come within this defence.
Although these cases are much less common than cases of possession or making of indecent images we have seen a steady increase of cases involving prohibited images in the last few years and have represented numerous clients for this offence.
Whilst not viewed quite as seriously as indecent images cases there is still a real risk of custody if cases are not meticulously prepared by an exert lawyer with a detailed understanding of this complex area of law as detailed above.
As such if you are being investigated or have been charged with possession of prohibited images please do not hesitate to contact us immediately for initial free and confidential advice. Our lines are open 24/7