The aim of this article is to provide new empirical evidence and analysis to underpin these ongoing debates, focusing particularly on the challenges of prosecuting the extreme pornography offences. We detail the results of a study investigating the nature and extent of police recording and charging of extreme pornography offences across England and Wales, drawn from Freedom of Information (FOI) requests. Having set out the key findings from these data, we go on to examine the implications for the policing, prosecution and reform of this offence. We identify problems with the current interpretation of the law, as well as reiterating long-standing concerns over the obscenity foundation for regulation in this area. Echoing others, we call for a wholesale review of this area of law, with harm rather than obscenity being the foundation for future legal regulation and reform.

In the ensuing decade, the law has been amended to encompass rape pornography 3 ; it has been extended to Scotland and Northern Ireland and, most recently, provides the basis for new provisions enabling enforcement action against commercial pornography websites hosting extreme pornography. 4 Not surprisingly, debate and controversy have continued in the light of this developing programme of regulation, together with technological developments making pornography access and use more straightforward than ever before. 5 As a result, the extreme pornography and obscenity laws continue to be subject to a range of law and policy reviews and inquiries. 6

A decade ago, there was a step change in the legal regulation of pornography, with the new criminal offence of possessing extreme pornography being introduced in the Criminal Justice and Immigration Act 2008. Focusing for the first time on the consumers of adult pornography, this Act marked a significant shift from the dominant obscenity-based approach targeting producers and distributors. 1 Introduced in response to growing concerns over both the ease of access to pornography, and its violent content, the new law proved contentious from the beginning. Challenged by some as a ‘hysterical’ overreaction by the ‘thought-police’, others argued that the law did not go far enough to tackle all forms of pornography. 2

Criminalising Extreme Pornography: Background and Context

The immediate impetus for the adoption of the extreme pornography laws was the sexual murder of Jane Longhurst by Graham Coutts in 2003 which sparked national controversy and debate. Longhurst was asphyxiated, with the case attracting national media attention due to evidence admitted in court regarding Coutts’ proclivity for online pornography featuring images of necrophilia, asphyxiation and forced sex.7 Following a public campaign by Longhurst’s family, and motivated to ‘do something’ by the public outcry over both the murder and the revelation to much of the public as to the sorts of pornography easily available on the Internet, the Government proposed new legislation to criminalise the possession of what was termed ‘extreme pornography’.8 The specific focus on consumers—possessors—arose from the recognition that the existing obscenity laws targeting producers and distributors were having little impact on the ease of access to pornography.9 The Internet was enabling consumers to access pornography with little restriction, and with most of it being produced outside the UK, obscenity laws were increasingly redundant. Following the approach of laws on child sexual abuse images, the focus turned to prohibiting possession.

The Government initially stated that the aim of the new legislation was to ‘protect’ those engaged in the pornography industry and to ‘send a message’ that these materials have no place in society as they may exacerbate problems of sexual violence.10 However, while such ambitions may have underpinned the initial development of the law, by the time the new legislation was enacted in the Criminal Justice and Immigration Act 2008, the debate had retreated onto familiar territory. Conservative-moralistic and disgust-based arguments and libertarian concerns with free speech dominated debate, largely eschewing more egalitarian aims to secure equality and to reduce violence against women.11 Amendments to the proposed legislation both limited its scope, for example, not including all images of rape, and introduced an obscenity threshold which shifted the foundation of the legislation, as well as confusing and complicating the scope of the law. The result was a law that satisfied few: on the one hand, it had the potential to signal a more considered means of regulating pornography, but it also entrenched the obscenity frame of legislation in this field.

Not surprisingly, therefore, the reach of the law came under challenge. First, when Scotland was considering its own extreme pornography laws, it departed from the English example, ensuring that paradigmatic examples of ‘extreme pornography’, namely rape pornography, were included.12 Following the Scottish developments, a campaign was launched by Rape Crisis South London and the End Violence Against Women Coalition in England and Wales which sought to ‘close the rape pornography loophole’ in England and Wales.13 Concerned with the prevalence and easy availability of rape pornography, the campaign argued that this material was a form of cultural harm justifying criminal regulation.14 The campaign received considerable public support and led to the Government introducing an amendment in the Criminal Justice and Courts Act 2015.15 This amendment extended the definition of ‘extreme pornographic image’ to include images of rape and other forms of non-consensual sexual penetration. The reforms were introduced with widespread support, with Parliament’s Joint Committee on Human Rights endorsing the proposals on the basis that they were ‘human rights enhancing’ and that criminalising rape pornography was justified on the basis of its ‘cultural harm’.16 In other words, this was a human rights and harm-based foundation for reform, rather than the focus on disgust, offence and obscenity. These reforms indicated the potential for regulation to be justified on a human rights rather than obscenity basis, providing an opportunity for further development in the future.

Nonetheless, the main elements of the original extreme pornography provisions remained in place, including the limited defences and inconsistencies with sexual offence laws.17 Thus, the 2008 Act (as amended) sets out of the offence in s63, criminalising the possession of an ‘extreme pornographic image’. An extreme pornographic image is defined as one that: (a) ‘portrays, in an explicit and realistic way;’ (b) acts which are life-threatening, or result, or are likely to result, in serious injury to a person’s anus, breasts or genitals, or portray rape or other forms of non-consensual sexual penetration, as well as images of bestiality and necrophilia; and the images must be (c) ‘grossly offensive, disgusting, or otherwise of an obscene character’.18

Obscenity Threshold and Foundation The obscenity threshold was added during the final stages of the 2008 parliamentary process and was acknowledged by the Government to constitute the ‘most significant’ change to the original proposals.19 Its impact is significant both in terms of the clarity of the law and its conceptual foundation. The new clause was intended to ‘clarify the alignment between this offence and the Obscene Publications Act’ and ensure that ‘only material that would be caught by’ the Obscene Publications Act would be caught by the new Act.20 However, in doing so, the Government stated that their aim was not to ‘build directly’ on the Obscene Publications Act, but to ‘create symmetry’.21 In particular, in interpreting this phraseology, Lord Hunt, then Parliamentary Under-Secretary in the Ministry of Justice, stated that the ‘test is drawn from the ordinary dictionary definition of “obscene”’ rather than the definition used in the Obscene Publications Act.22 Lord Hunt went on to state that the effect of this change was that only material which was subject to the Obscene Publications Act would also be caught by the extreme pornography laws.23 Unfortunately, this is not the clear effect of this provision. In stating that the definition of ‘obscene’ was not that in the Obscene Publications Act, but in fact the ordinary dictionary definition, this means a lower threshold and certainly a different interpretation. The definition of obscene in the Obscene Publications Act is specific and higher than the ordinary dictionary definition, as established in Anderson.24 The Obscene Publications Act requires that material is such that it would tend to ‘deprave and corrupt’ those likely to consume the material, interpreted in Penguin Books Ltd to mean moral corruption, debasement, perversion, debasement and defilement.25 This is generally assumed to be a higher standard than the dictionary definition which refers to material being offensive, repulsive or disgusting. This means that an image could be ‘obscene’ according to its ‘ordinary’ meaning, but not sufficiently ‘obscene’ to come within the scope of the Obscene Publications Act. There is, therefore, no ‘symmetry’ between the terms; they are interpreted differently, with different standards applying. In fact, whether the term is given its ‘ordinary’ or Obscene Publications Act meaning, there is still much confusion around what is covered, but at least in the case of the Obscene Publications Act, there is prosecutorial guidance and some previous practice on which to base the interpretations. In sum, the obscenity foundation for the provisions remain, with the effect that while prosecutions for obscenity offences are in overall decline, the concept itself continues to form the bedrock of legal regulation in this area.26 This foundation is conceptually problematic, demonstrating that the law has little concern for the wider impacts of pornography either on certain groups specifically, such as women and girls, or society more generally. But it also adds to the complexity and opacity of the law, likely to impact on decisions regarding policing and prosecution. Further, its inclusion in the law meant that the opportunity to shift from the obscenity framing towards a more harm-based standard had been lost for now.27

Explicit and Realistic Images A further threshold to be satisfied is that the images must be explicit and realistic. From the initial consultation, the aim of the Government was clear that it intended any new law to cover images depicting the harms covered whether a ‘real’ image or not: ‘we intend to catch material which is either genuinely violent, or conveys a realistic impression of fear, violence and harm’.28 This includes, therefore, ‘actual scenes or depictions which appear to be real acts’.29 This reference to material ‘appearing’ to be real was included in early drafts, but was amended during the Parliamentary process to include the requirement that any image must be ‘explicit and realistic’.30 Lord Hunt explained that this amendment meant that ‘only graphic and convincing schemes will be caught’.31 Attempts were made to amend the law which would have meant that only material involving non-consenting participants was criminalised, but these proposals were rejected on the basis that they would unnecessarily restrict the scope of the law.32 Specifically, such an amendment was rejected as the offence was ‘not limited to photographs and film of real criminal offences which…would make the offence unworkable and of limited effect’.33 Subsequent Ministry of Justice guidance stated that the terms ‘take their ordinary dictionary definition’.34 No further guidance was given regarding their meaning other than that scenes in mainstream films were not included as they would not be ‘explicit’ (nor satisfy the other elements of the offence). It is entirely clear and unambiguous, therefore, that not only does the law include images of actual violence and rape but also simulated acts. This reality was reflected in the commentary on the law, being a particular focus of those campaigning against the law that it captures ‘entirely fictional’ materials.35 Campaign organisation Backlash, for example, at both the time of the legislative debates in 2008, and in its ongoing work, has focussed on the inclusion of such images which, while potentially portraying an unlawful act, are enacted with consent (that is, the actors or those involved consented to participating in the activities).36 It should, therefore, be clear that the law applies to all ‘realistic’ images, not only recordings of ‘real’ activities. Realistic means representing something in a manner which portrays it as accurate or true to life. Any suggestion or approach by regulators or prosecutors to limit their role and the law to only real images is failing to follow the intention of Parliament, the specifics of the law and contrasts with the overwhelming understanding of the legislation. Not only is this important in terms of ongoing prosecutions for the possession of extreme pornographic images, but it will also take on greater significance with new regulatory powers under the Digital Economy Act 2017 to block websites hosting extreme pornography.37