Possessing Extreme Pornography: Policing, Prosecutions and the Need for Reform
| Published date | 01 December 2019 |
| Date | 01 December 2019 |
| DOI | http://doi.org/10.1177/0022018319877783 |
| Subject Matter | Articles |
Article
Possessing Extreme Pornography:
Policing, Prosecutions and the
Need for Reform
Clare McGlynn
Durham University, UK
Hannah Bows
Durham University, UK
Abstract
The law criminalising the possession of extreme pornography, first enacted in 2008 and
amended to include rape pornography in 2015, continues to generate considerable contro-
versy and calls for reform. In order to inform these ongoing discussions, we undertook a study
to find out information about who is being charged with extreme pornography offences and
their characteristics in terms of gender, age and ethnicity, as well as data on the specific type of
pornography forming the subject-matter of those charges. Utilising freedom of information
requests, our study provides valuable new information to help inform debates over the policing
of extreme pornography across England and Wales. Overall, we found that the vast majority of
those charged were white men across all age groups; that bestiality images formed the most
common basis for charging and that, in respect of the data provided, the majority of charges
were brought together with other sexual offences.
Keywords
Extreme pornography, rape pornography, obscenity, bestiality, Obscene Publications Act 1959
Introduction
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 appro ach targeting producers and distributors.
1
Corresponding author:
Clare McGlynn, Durham Law School, Durham University, Durham, DH1 3LE, UK.
E-mail: clare.mcglynn@durham.ac.uk
1. See s 63 of the Criminal Justice and Immigration Act 2008 and discussion in Clare McGlynn and Erika Rackley, ‘Criminalising
Extreme Pornography: A Lost Opportunity’ (2009) Crim L Rev 245–60.
The Journal of Criminal Law
2019, Vol. 83(6) 473–488
ªThe Author(s) 2019
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DOI: 10.1177/0022018319877783
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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
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 straight-
forward 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
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.
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 regard-
ing 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
2. For an analysis of the public debate preceding the legislation, see Clare McGlynn and Erika Rackley, ‘Striking a Balance:
Arguments for the Criminal Regulation of Extreme Pornography’ (2007) Crim L Rev 677–90.
3. Section 63(7)(A) of the 2008 Act, as amended by s 37 of the Criminal Justice and Courts Act 2015. We use the term ‘rape
pornography’ to encompass both types of images included in the amended extreme pornography laws, namely images of the
non-consensual penetration of a person’s vagina, anus or mouth by another with the other person’s penis, or an act which
involves the non-consensual sexual penetration of a person’s vagina or anus by another with a part of the other person’s body or
anything else.
4. See s 23 of the Digital Economy Act 2017 (and discussion below).
5. For recent discussions of this regulatory terrain, see: Fiona Vera-Gray and Clare McGlynn, ‘Regulating Pornography:
Developments in Evidence, Theory and Law’ in Chris Ashford and Alexander Maine (eds), Research Handbook on Gender,
Sexuality and Law (Edward Elgar, Cheltenham 2019); Jacob Rowbottom, ‘The Transformation of Obscenity Law’ (2018) 27(1)
Information Communication Tech L 4–29; Tanya Palmer, ‘Rape Pornography, Cultural Harm and Criminalisation’ (2018)
69(1) NILQ 37–58.
6. Recent reports and enquiries include the Law Commission, Abusive and Offensive Online Communications (Law Commission,
2018) and the Crown Prosecution Service (CPS) review of prosecutorial guidance on obscenity, see <https://www.cps.gov.uk/
consultation/public-consultation-obscene-publications-prosecution-guidance> accessed 25 April 2019. In addition, preliminary
findings from this study were presented to the All Party Parliamentary Group on Sexual Violence inquiry into ‘Sexual Violence
and Pornography’ (2018). For further information and submissions, see <https://claremcglynn.com/pornography/new-foi-data-
on-policing-extreme-pornography/> accessed 26 April 2019.
7. For further background discussion, see McGlynn and Rackley (n 2).
474 The Journal of Criminal Law 83(6)
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