Updated 10/09/2019 | Legal Guidance , Sexual offences

The Law

This legislation was introduced with the following rationale expressed in the Home Office consultation:

a desire to protect those who participate in the creation of sexual material containing violence, cruelty or degradation, who may be the victim of crime in the making of the material, whether or not they notionally or genuinely consent to take part;

a desire to protect society, particularly children, from exposure to such material, to which access can no longer be reliably controlled through legislation dealing with publication and distribution, and which may encourage interest in violent or aberrant sexual activity.

The relevant law is found in Part 5 of the Criminal Justice and Immigration Act 2008 ("the 2008 Act"). The offence is provided for by section 63 of the Act. It criminalises the possession of an "extreme pornographic image".

Extreme pornographic image is an image which is:

Pornographic ("of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal"), and

Grossly offensive, disgusting or otherwise of an obscene character, and

Portrays in an explicit and realistic way any of the following: An act which threatens a person's life, or An act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals, or An act which involves sexual interference with a human corpse (necrophilia), or A person performing an act of intercourse or oral sex with an animal (whether dead or alive) (bestiality), or An act which involves the non-consensual penetration of a person's vagina, anus or mouth by another with the other person's penis or part of the other person’s body or anything else (rape or assault by penetration) and a reasonable person looking at the image would think that the persons or animals were real.



Expert evidence is not likely to be admissible to demonstrate whether an image is pornographic or not. This is a matter for the magistrates’ court or jury assessing the image. The intention of the defendant or their sexual arousal is not relevant either.

"Grossly offensive" are ordinary English words: Connolly v DPP [2007] 1 ALL ER 1012. "Obscene" has an ordinary meaning ("repulsive", "filthy", "loathsome" or "lewd"), distinct from that provided for by the statutory terms of the Obscene Publications Act 1959: Anderson [1972] 1 QB 304.

The portrayal must be explicit and realistic, and thus artistic representations, even if deemed pornographic and obscene, are unlikely to be caught.

The Ministry of Justice note Further information on the new offence of Possession of Extreme Pornographic Images may assist prosecutors further in applying these provisions.

Charging Practice

The offence of possessing an extreme pornographic image criminalises the possession of a limited range of extreme sexual and violent material. When considering what may be classified as extreme pornography, it should be borne in mind that all extreme pornography is obscene (section 63(6)(b) of the Act) but not all obscene material is extreme.

"Life Threatening Act"

Section 63(7)(a) of the Act states that one category of an extreme image is "an act which threatens a person’s life." Such an act should be obvious on the face of the image; there should be no speculation of what may happen next or what could occur. For example, merely wearing a mask or other fetish wear would not in itself make an act life threatening. A life threatening act as stated in the explanatory notes to the Act could include depictions of hanging, suffocation, or sexual assault involving a threat with a weapon.

"Serious Injury" Cases

Section 63(7)(b) of the Act states that one category of an extreme image is "an act which results, or is likely to result, in serious injury to a person's anus, breasts or genitals". The Act does not state what a serious injury is. Its ordinary meaning should be applied.

Having regard to Article 8 of the European Convention on Human Rights, the right to a private and family life, the requirement for any interference with that right to be prescribed by law, necessary and proportionate, the threshold for prosecuting section 63(7)(b) cases should be a high one. It will generally not be in the public interest to prosecute serious injury cases unless there is at least one aggravating factor present.

When assessing whether there are aggravating factors present when considering the public interest in prosecuting, consideration should be given to:

The extent of the circulation of the images, if any. For example whether they were shared between consenting parties or posted more widely, for example on social media or pornographic sites.

Whether there is clear and credible evidence of exploitation of those depicted in the images.

The number of images involved. It is less likely to be in the public interest to prosecute for a very small number of images.

Any previous behaviour or conduct that may amount to relevant bad character evidence.

In view of the balancing act that section 63(7)(b) cases involve, decisions (either to prosecute or not to prosecute) specifically relating to serious injury s63(7)(b) cases should be approved by a Senior District Crown Prosecutor or Unit Head.

When considering such cases prosecutors should take account of the following:

There has to be serious injury or a likelihood of serious injury - this is more than just a risk.

The type and severity of the injury inflicted or likely to be inflicted should be obvious on looking at the image and expert evidence on the subject should not ordinarily be necessary.

Where other offences (including those under section 63(7)(a), (c) and (d) have been committed and can be proved, it is preferable to focus on these rather than any section 63(7)(b) offence.

All Cases

In cases where there is evidence that the suspect has published or distributed extreme pornographic images, prosecutors may charge the suspect with an offence contrary to the Obscene Publications Act (see Legal Guidance on Obscene Publications), rather than possession of extreme pornographic images. There is no specific offence of distributing or publishing an extreme pornographic image. Further, the offence is not intended to cover additional material beyond what is illegal to publish under the Obscene Publications Act 1959, and covers a more limited range of material than the Obscene Publications Act 1959.

Where the extreme image is of a child, prosecutors may charge the suspect with either an offence contrary to section 1 of the Protection of Children Act 1978 or 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 and Prohibited Images of Children.

Case law

In Okoro [2018] EWCA Crim 1929, the Court of Appeal gave guidance on the issue of possession. In order to prove this element of the offence, it must be shown that (i) the images are in the suspect’s custody or control such that they were capable of being accessed and (ii) that the suspect knew they possessed images. Unsolicited images sent to a suspect would satisfy (i), the question is whether the suspect knew they had received images. The suspect does not have to be proved to know the content of the images or knowledge of each individual image, as distinct from a group: the question of their content is relevant to the statutory defences.

In Baddiel [2016] EWCA Crim 474, the defendant was charged with possession of three extreme pornographic images sent to his phone in a series of unsolicited WhatsApp messages, addressed to a group of people. The images portrayed acts of intercourse or oral sex with an animal. The defendant contended that under s63(3), as to whether or not an image is pornographic, regard had to be had to the relevant purpose of the sender in sending the image.

However, the Court of Appeal rejected this submission, stating that s63(3) was concerned simply with whether or not the image was pornographic, that is, produced solely or principally for the purpose of sexual arousal for anyone who came to have it. The circumstances in which the material was received is immaterial.

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 does not define what a 'legitimate reason' is and it is also not defined in section 65 of the Act. The defences include 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:

They had a legitimate reason for having the image, or

That they had not seen it and did not know or suspect it to be illegal, or

That it had been sent to them unsolicited and they did not keep it for an unreasonable time.

Prosecutors should refer to the guidance on section 160(2) CJA 1988 in the legal guidance on Indecent and Prohibited Images of Children.

Participation in consensual acts

This defence applies in respect of all images save that those which relate to bestiality. The defendant must prove that they:

Directly participated in the acts; and

The acts did not involve non-consensual harm being inflicted on another (non-consensual means the person did not consent, or cannot in law consent to it, see R v Brown and others [1994] 1 AC 212); and

If the image concerns a human corpse or non-consensual penetration than in fact what was portrayed was not a corpse or was in fact consensual, respectively.

Sentencing

Possession of extreme pornographic images is an either way offence. The maximum penalty for possession of extreme pornographic images involving necrophilia or bestiality is two years' imprisonment and/or a fine; for other images it is three years' imprisonment and/or a fine.

An offender aged 18 or over and sentenced to two years' imprisonment or more is liable to notification requirements pursuant to section 80 and Paragraph 35A Schedule 3 Sexual Offences Act 2003.

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) of the Prosecution of Offences Act 1985. A Crown Prosecutor ought specifically to consider the case and decide whether or not proceedings should be instituted or continued. Legal Guidance on Consents to Prosecute is available.

Forfeiture

The existing powers of forfeiture under section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 will apply to extreme pornographic images and the devices used to locate and store them.