Is it an offence to be in possession of extreme pornographic images?

Since the explosion in the use of the internet, pornography is always an issue at the forefront of debate. In the UK, the Criminal Justice Act 1988 already dealt with the possession of indecent images involving children; the Criminal Justice and Immigration Act 2008 (CJIA 2008) was introduced to cover possession of extreme pornographic images.

CJIA 2008 aimed to cover realistic portrayals of acts, the publication of which were likely to be unlawful under the Obscene Publications Act 1959.

In England, Wales and Northern Ireland, the consent of the Director of Public Prosecutions is needed before a case of possession of extreme pornographic material can be taken to court.

Section 63 of CJIA 2008 makes it an offence to be in possession of an extreme pornographic image.

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.

To be viewed as extreme for the purposes of CJIA 2008, an image must be grossly offensive, disgusting or otherwise of obscene character. An image will be seen to be extreme if it falls within the categories specified by s 63(7) of CJIA 2008. This includes:

• an act which threatens a persons’ life – this could include depictions of hanging, suffocation or sexual assault involving a threat with a weapon;
• an act which results, or is likely to result, in serious injury to a persons’ anus, breasts or genitals – this could include the insertion of sharp objects or the mutilation of breasts or genitals;
• an act which involves sexual interference with a human corpse;
• a person performing an act of intercourse or oral sex with an animal (whether dead or alive).

The offence will only be committed if a reasonable person looking at the image would believe that any such person or animal was real.

In the context of this offence, an image will include a photograph, an indecent film, a copy of a photograph or film, computer data capable of conversion into a photo or a copy.

In most cases possession relates to an offender storing the material on a hard drive of a computer, or could mean having a printed photograph somewhere in their property.

Case law has established that someone will only be in possession of an image when they had custody and control over the image at that time (R v Porter (2006)). If at the time of possession the image is beyond their control, they will not be deemed to possess it. This brings in the issue of multiple users of the same computer.

The maximum sentence is imprisonment for three years for possession of images covered by s 63(7)(a) or (b) of CJIA 2008 (life threatening acts, or serious injury) and imprisonment for two years for possession of images of bestiality and necrophilia. In both cases an unlimited fine may also be imposed.

Under s 64 of CJIA 2008, someone will not be guilty of possession of extreme pornographic images if they 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 which would ordinarily fall foul of the offence in s 63. However, 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.

Under s 65 of CJIA 2008, an individual will have a defence if:

• they had a legitimate reason for being in possession of the image;
• they had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image;
• they were sent the image concerned without any prior request on their behalf and did not keep it for an unreasonable time.

Persons with legitimate reasons for possessing the image would include a police officer investigating a case, a barrister conducting a defence, those involved in the classification of films, or those creating security software to block such images.

This would cover those in possession of offending image who did not know the nature of the images; for example, where they are sent an electronic image, saved it without looking at it and there was no clue that it might be extreme pornography.

This would absolve those who are sent unsolicited material and who act quickly to delete it or otherwise get rid of it. What constitutes an unreasonable amount of time depends on all the circumstances of the case.

Deleting images held on a computer is generally held to be sufficient to get rid of them. An exception would be where a person is shown to have meant to remain in control of an image even though they have deleted it – this would require them to have the ability (through skill or software) to retrieve the image.

Under s 66 of CJIA 2008, it is a defence if the defendant can prove that:

• they directly participated in the act or any of the acts portrayed; and
• the act or the acts did not involve the infliction of non-consensual harm on any person; and
• the acts involving the portrayal of a human corpse was not in fact a human corpse.

Harm inflicted on a person is ‘non-consensual’ if:

• the harm is of such a nature that the person cannot, in law, consent to it being inflicted on himself or herself; or
• where the person can, in law, consent to it being so inflicted, the person does not in fact consent to it being so inflicted.