Criminalising the Possession of Extreme Pornography: Sword or Shield?

DOI10.1350/jcla.2011.75.5.728
Date01 October 2011
Published date01 October 2011
Subject MatterArticle
JCL 75(5) dockie..JCL728 Easton .. Page391 Criminalising the Possession of
Extreme Pornography: Sword or
Shield?
Susan Easton*
Abstract
This article examines the reasons for the introduction of the
extreme pornography provisions in s. 63 of the Criminal Justice and
Immigration Act 2008, whether the provisions can be justified, whether
they meet their goals and the problems they raise. It is argued that the
provisions should be seen as an expression of benign perfectionism,
grounded in respect for individuals, rather than repressive paternalism.
The impact of the law is assessed with reference to recent cases and the
author considers whether the fears expressed at the time the legislation
was passed have been borne out in practice.
Keywords
Extreme pornography; Harm; Consent; Perfectionism
The extreme pornography provisions in the Criminal Justice and Immi-
gration Act 2008 (CJIA) were influenced by campaigns by women’s
groups and anti-pornography campaigners, and by relatives of victims of
‘copycat’ deaths where violent and abusive practices committed in
pornographic films have been imitated on victims, most notably in the
case of Jane Longhurst who was killed in 2003 by Graham Coutts,1 who
had viewed violent pornographic websites of women being strangled
and raped, and of necrophilia, just hours before the murder. Jane
Longhurst’s mother had been campaigning for some time to put pres-
sure on internet service providers to close down or filter such sites.
Although there clearly exists a market for such material, the new
provisions have been vigorously opposed by libertarians and by groups
representing alternative sexualities.
The purpose of the extreme pornography provisions is to protect
individuals involved in production, as well as society as a whole: ‘ban-
ning possession is justified in order to meet the legitimate aim of
protecting the individuals involved from participating in degrading ac-
tivities’.2 But the aim is also to prevent harm caused by viewing the
material: ‘Irrespective of how these images were made, banning their
possession can be justified as sending a signal that such behaviour is not
considered acceptable. Viewing such images voluntarily can desensitise
the viewer to such degrading acts, and can reinforce the message that
such behaviour is acceptable’.3 It is intended that these restrictions will
protect ‘children and vulnerable adults, from inadvertently coming into
* Reader in Law, Brunel Law School; e-mail: Susan.Easton@brunel.ac.uk.
1 See R v Coutts [2005] EWCA Crim 52. Coutts’ initial conviction was quashed after
an appeal to the House of Lords, but following a retrial in July 2007, Coutts was
convicted and jailed for life.
2 Criminal Justice and Immigration Act 2008 Explanatory Notes, para. 804.
3 Ibid. at para. 805.
The Journal of Criminal Law (2011) 75 JCL 391–413
391
doi:10.1350/jcla.2011.75.5.728

The Journal of Criminal Law
possession of this material, which is widespread on the internet’.4 Given
these aims, the government argued that the measure was proportionate;
it has ‘the legitimate aim of breaking the supply and demand of this
material which may be harmful to those who view it’.5
The CJIA provisions were the first substantial piece of legislation on
adult pornography for over 40 years and came into force on 26 January
2009. The offence applies to England, Wales and Northern Ireland and
similar but broader provisions have now been enacted in Scotland.
Section 63 of CJIA creates a new offence of possession of an extreme
pornographic image (s. 63(1)). An image is an ‘extreme pornographic
image’ if it is both pornographic and extreme (s. 63(2)). A definition of
pornographic is given in s. 63(3): ‘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 is a matter for the magistrates or jury
to decide and does not depend on the intention of the producer of the
images.
An image is ‘extreme’ if it falls within s. 63(7) below and is ‘grossly
offensive, disgusting or otherwise of an obscene character’ (s. 63(6)):
Section 63(7) states that an image falls within that 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.
Under s. 63 an image is a ‘moving or still image’ or data which are
capable of conversion into a moving or still image (s. 63(8)).
Proceedings under the CJIA may only be brought with the consent of
the Director of Public Prosecutions (s. 63(10)). Section 63 does not apply
to an excluded image, namely ‘an image which forms part of a series of
images contained in a recording of the whole or part of a classified work’
(s. 64(2)). However, they would not be excluded if the image is ex-
tracted from the recording ‘solely or principally for the purpose of sexual
arousal’ (s. 64(3)). A ‘classified work’ means ‘a video work in respect of
which a classification certificate has been issued by a designated author-
ity’ (s. 64(7)).
Defences for accidental possession, unsolicited material and legit-
imate reasons for possession are given in s. 65 and the burden is on the
defence: ‘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)’, namely:
4 Above n. 2 at para. 806.
5 Ibid at para. 805.
392

Criminalising the Possession of Extreme Pornography: Sword or Shield?
(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. (s. 65(2)
The penalties for possession of extreme pornographic images are the
maximum on summary conviction and on indictment a maximum of
three years or fine or both and for possession of images of necrophilia or
bestiality two years (s. 67).6
Section 63 is more radical than the Obscene Publications Act 1959
(OPA), because mere possession is sufficient for an offence to be com-
mitted whereas under the OPA it is necessary for an obscene article to be
published and distributed. The Consultation Paper on Possession of
Extreme Pornography in 2005, which preceded the Act, made clear it
was not intended to cover text or cartoons although these may raise
collateral issues of legitimation of abuse.7 The focus on offensiveness in
s. 63 seems to reflect concerns over public distaste and over public
indecency, rather than physical harm, which has fuelled criticism of the
provisions.
For an offence to be committed, the material would need to be
pornographic, explicit and realistic, or appear to be real, and to include
serious violence, sex with an animal, or sexual interference with a
human corpse. All elements of the offence must be met. The test is what
a reasonable person might think is real, so both this issue and whether
it is produced for sexual arousal, are objective tests for the jury to
consider.
6 Section 70 of the CJIA also increases the penalties for publication and distribution
of an obscene article under the Obscene Publications Act 1959, s. 2(1) from three
to five years.
7 Home Office, Consultation: on the Possession of Extreme Pornographic Material (Home
Office/NOMS/Scottish Executive: London, August 2005) para. 38. However,
possession of non-photographic images of children has now been criminalised by
the Coroners and Justice Act 2009. In Consultation on the Possession of Non-
photographic Visual Depictions of Child Sexual Abuse
(Home Office: London, 2007)
the Minister of Justice announced plans to create a new offence of possession of
non-photographic pornographic images of children, which includes drawings,
cartoons and computer-generated images of child sexual abuse, with a maximum
sentence of three years. Sections 62–68 of the Coroners and Justice Act 2009
covers images produced by any means which focus solely or principally on the
child’s anal or genital region and depict a range of sexual acts. Often these images
have been found by the police alongside indecent photographs, but sometimes
only non-photographic images have been found. While the images are computer
generated, they still contain depictions of abuse and reinforce the perception of
children as sexual objects. But criminalising what are effectively comics or
fantasies would be seen as a step too far by many defenders of free speech, as no
depictions of real children are involved and the law is targeted at possessors of
such images. Ost has argued that changes in the law should be based on real
harms to real children, rather than on imaginary children and on legal moralism.
See S. Ost, ‘Criminalising Fabricated Images of Child Pornography: A Matter of
Harm or Morality?’ (2010) 30(2) Legal Studies 230.
393

The Journal of Criminal Law
Serious violence would cover acts threatening a person’s life or likely
to cause serious disabling injury and genital injuries. The original pro-
posal of grievous bodily harm was amended to images which appear...

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