A reminder of just how illiberal and misconceived some of the legislation was under the last Labour government is the prohibition extreme pornography under section 63 of the Criminal Justice and Immigration Act 2008.
This offence is currently being prosecuted at Kingston Crown Court against Simon Walsh.
As it is a complex provision, this is a commentary on the offence in full.
(1) It is an offence for a person to be in possession of an extreme pornographic image.
This sub-section establishes the offence. You will see that a lot of those terms need defining. However, it is for the Crown (ie, the Crown Prosecution Service) to prove to a jury beyond reasonable doubt that each element of the offence is present.
(2) An “extreme pornographic image” is an image which is both—
(a) pornographic, and
(b) an extreme image.
This means that the Crown has to prove that the image has both the quality of being “pornographic” and “extreme”. In effect, this is a two-stage test.
(3) 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.
This deals with s 63(2)(a) above – the Crown needs to prove this as well as “extremity”.
(4) Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a) the image itself, and
(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.
(5) So, for example, where—
(a)an image forms an integral part of a narrative constituted by a series of images, and
(b)having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
These provisions ensure if an image is in a sequence of images, it does not escape the offence.
(6) An “extreme image” is an image which—
(a) falls within subsection (7), and
(b) is grossly offensive, disgusting or otherwise of an obscene character.
So once the image is “pornographic” under s. 63(3) then it falls to the jury to decide whether it is also extreme. The image has to be both “grossly offensive, disgusting or otherwise of an obscene character” and be one of those images specified in s. 63(7)
(7) An image falls within this subsection if it portrays, in an explicit and realistic way, any of the following—
(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) 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 think that any such person or animal was real.
This provision gives an additional four specific examples of prohibited images. You will see the additional element that it has to be “realistic”. The requirements of s. 63(7)(a) and (b) do not need the activity to be unlawful or not consensual.
(8) In this section “image” means—
(a) a moving or still image (produced by any means); or
(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).
This is a further provision on what constitutes an image.
(9) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).
So there is no “those are not real genitals or real breasts” defence.
(10) Proceedings for an offence under this section may not be instituted—
(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or
(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
This means prosecutions should not be made lightly and need permission of the Director of Public Prosecutions.
It is a defence, in general terms, if the image is included in a classified film.
Then there are the defences under section 65 of the same Act - which are for the defendant to prove:
(1) Where a person is charged with an offence under section 63, it is a defence for the person to prove any of the matters mentioned in subsection (2).
(2) The matters are—
(a)that the person had a legitimate reason for being in possession of the image concerned;
(b) 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;
(c)that the person—
(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and
(ii) did not keep it for an unreasonable time.
These are generally innocent recipient defences. (Though 65(2)(a)’s “legimate reason” looks as if it has potential.)
There is also a further defence in section 66 of the same Act, again for the defendant to prove:
(1) This section applies where—
(a) a person (“D”) is charged with an offence under section 63, and
(b) the offence relates to an image that portrays an act or acts within paragraphs (a) to (c) (but none within paragraph (d)) of subsection (7) of that section.
[ie, not with animals]
(2) It is a defence for D to prove—
(a) that D directly participated in the act or any of the acts portrayed, and
(b) that the act or acts did not involve the infliction of any non-consensual harm on any person, and
(c) if the image portrays an act within section 63(7)(c), that what is portrayed as a human corpse was not in fact a corpse.
[ie, not an onlooker or photographer]
(3) For the purposes of this section harm inflicted on a person is “non-consensual” harm if—
(a) he harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or
(b) where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.
Accordingly only if one is a participant in the image does consent play a part.
So, in summary:
A: if it is an image under sub-sections 63(4), (5) and (8); and
B: the image is pornographic under sub-section 63(3); and
C: the image is extreme under sub-sections 63(6) and (7),
then the offence of possession under sub-section 63(1) is committed
unless a the defendant can prove the image is in a classified film (section 64), or he/she is an innocent recipient (section 65) or participant (section 66).
(Also see the CPS guidance here.)