What is the law relating to extreme pornography?

What is the law relating to extreme pornography?

It is an offence to be in possession of extreme pornographic images. Section 63 of the Criminal Justice and Immigration Act (CJIA) 2008 provides that an extreme pornographic image is an image which is both (a) pornographic, and (b) an extreme image.

What is extreme pornography?

An extreme pornographic image is one which meets the following four criteria:

(1) Pornographic – This is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal;

(2) Grossly offensive – This is disgusting or otherwise of an obscene character;

(3) 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.

(4) An extreme image can also include an act that threats a person’s life or an act which results or is likely to result in serious injury to a person’s breasts, anus or genitals.

What constitutes possession?

Often the question is asked, what does being in possession mean? How far does this extend? Am I in possession of an image I didn’t know I had? 

The issue of possession was considered in the case of Okoro [2018] EWCA Crim 1929 and means a person does not need to know the content of each individual image but just that they must know that they had received the images. The prosecution must prove the images are in the suspect’s custody or control and that they were capable of being accessed.

Is there a defence to extreme pornography?

If the prosecution can prove that you are in possession of extreme images, the following defences that are available are set out below –

Classified films

Section 64 CJIA 2008, provides that a person who possesses a video recording of a film which has been classified by the British Board of Film Classification (BBFC) will be excluded, this would include images that fall foul of the offence if considered by the Board to be justified by the context of the work as a whole. The exclusion will not apply if the images contained within the extract from classified film have been extracted solely or principally for the purposes of sexual arousal.

General defences

Section 65 CJIA 2008, sets out the following three general defences:

1. A person had a legitimate reason for having the image; or
2. A person had not seen it and did not know or suspect it to be illegal, or
3. That it had been sent to them unsolicited and they did not keep it for an unreasonable time.

The burden of proof is on the suspect to show the above defence applies. 

Participation in consensual acts

This defence applies in respect of all images except for those relating to bestiality and the defendant must show that it was they themselves that directly took part in the acts, the acts did not involve non-consensual harm being inflicted on another and if the image concerns a human corpse or non-consensual penetration, in fact it was not a corpse or it was consensual.

What is the sentencing for being in possession of extreme pornography?

Possession of extreme pornographic images is an either way offence, which means it can be tried in the Magistrates’ Court or the Crown Court. The maximum penalty for being in possession of extreme pornographic images which involves necrophilia or bestiality is two years’ imprisonment and/or fine, for other images it is three years and/or fine.

If a term of two years or more of imprisonment is imposed, then a person will become subject to notification requirements often referred to as being on the Sex Offender’s Register.

Consent required by Director of Public Prosecutions (DPP) to prosecute this offence

Possession of extreme pornographic images is an offence which requires the consent of the Director of Public Prosecutions (DPP) for proceedings to be brought against a suspect. The DPP is the head of the Crown Prosecution Service in England and Wales.

If an offence requires the DPP’s consent to prosecute, then the prosecutor must seek that consent but under section 1(7) of the Prosecution of Offences Act 1985, a crown prosecutor can give consent on behalf of the DPP if legal guidance and consents are followed.

How can Olliers help me?

At Olliers we regularly advise and represent clients who have had computer equipment and phones seized by the police and are concerned about improper items being identified.

A lot can be done at an early stage. Firstly, we ensure that we make contact with the police so that we are able to keep up to date with the investigation and time frames. We can obtain assurance that any further contact will be through Olliers, avoiding any embarrassment caused by a police at home or in the workplace.

We can discuss with our clients the circumstances that may have led to their material being seized and provide our clients with an opportunity to discuss any anxiety they may feel. Olliers can also assist in outlining any defences or potential sentence as well as exploring various options available to our client in relation to this offence of similar offences.

Olliers may be able to assist by recommending various organisations, if a client feels they require help, this could also help if the matter proceeds to court by way of mitigation or in some instances it could even assist in seeking an out of court disposal. In some circumstances, images may be of low level category and we may look to argue that a prosecution is not in the public interest to prosecute. The best time to do this is before charge but we can also help if you have already been charged.

I have already been charged with possession of extreme images, what can Olliers do?

If you have already been charged with an offence of this nature, we strongly advise that you seek advice and representation from a specialist solicitor immediately. At this point, we can seek to obtain the Initial Detail of the Prosecution Case (IDPC) enabling us to assess the strength of the evidence against you and sentencing powers available to the court.  Olliers Solicitors cover all courts across England and Wales.

Contact our specialist criminal solicitors

If you would like to discuss how we can proactively assist you in relation to your case, please contact our new enquiry team either by email to info@olliers.com, or by telephone on 020 3883 6790 (London) or 0161 834 1515 (Manchester) or by completing the form below and our new enquiry team will contact you.