UK Law: Possession of Porn

The Crown Prosecution Service has updated its guidelines for Extreme Pornography under the Dangerous Pictures Act.

This seems to be a response to the disgraceful, and thankfully failed, persecution of Simon Walsh over a few images of gay anal fisting.

One of the several types of images supposedly considered as extreme is now described as follows:

An act which results in or is likely to result in serious injury to a person's anus, breast or genitals; this could include the insertion of sharp objects (although in some circumstances this can be done in a way that is not likely to result in serious injury) or the mutilation of breasts or genitals. It is likely to be difficult to prove that cases of fisting involve images that show activity that is likely to result in serious injury so these cases need to be handled with particular care. Serious injury is not defined in the Act and should be given its ordinary dictionary meaning, being a question of fact for the District Judge or jury.

So it seems that fisting is no longer normally considered extreme.

The CPS also seem to be advising plenty of caution about prosecutions that may follow similar lines to that of Simon Walsh.

"Serious Injury"

Having regard to the Article 8 right to a private life, and the requirement for any interference with that right to be proportionate and necessary, the threshold for prosecuting section 63(7)(b) cases should be a high one. It should be clear It will generally not be in the public interest to prosecute serious injury cases unless there is some aggravating factor present.

When assessing whether there are aggravating factors present when considering the public interest in prosecuting, consideration should be given to:

• The extent of the circulation of the images, for example whether they were shared between consenting parties or posted more widely, for example on social networking sites.

• Whether there is clear and credible evidence of the exploitation of those depicted in the images.

• The number of images involved - it is less likely to be in the public interest if there is a very small number of images involved.

• Any previous behaviour or conduct that may amount to relevant bad character evidence.

In view of the balancing act that section 63(7) (b) cases involve, decisions (either to prosecute or not to prosecute) specifically relating to serious injury should be approved at Deputy Chief Crown Prosecutor (DCCP) level.

When considering such cases, the following should be considered:

• There has to be a likelihood of serious injury - this is more than just a risk .

• The type and severity of the injury likely to be inflicted should be obvious on looking at the image and expert evidence on the subject should not ordinarily be necessary.

• In exceptional cases where expert evidence is required, caution should be exercised when there are contrasting views from reliable experts, although the views of defence experts need to be considered in context.

• If other offences (including those under section 63(7) (a), (c) and (d)) have been committed and can be proved, it is preferable to focus on these rather than any section 63(7) (b) offence.

Update: Police Censors

14th May 2013. Thanks to Sergio

Sergio emailed the BBFC to inquire whether BBFC censorship policy will change in response to CPS comments effectively stating that fisting is not now considered to be 'extreme'.

The BBFC replied that the censorship of fisting will continue on CPS orders:

The guidance you have quoted from relates to the offence of possession of extreme pornography under the terms of the Criminal Justice and Immigration Act 2008.

However, the BBFC does not cut images of this particular practice on those grounds. We cut such images from sex works, and did so long before the Criminal Justice and Immigration Act was introduced, on the basis of potential obscenity.

Current advice from the relevant enforcement agencies suggests that sex works containing images of this practice remain likely to be considered obscene under the terms of the Obscene Publications Act. '

Draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011

House of Commons
Third Delegated Legislation Committee
12th July 2011

The Parliamentary Under-Secretary of State for Scotland (David Mundell): I beg to move,

...

I suggest that the draft order, which was laid before the House on 22 June, be approved. I propose to provide the Committee with an explanation of what the draft order seeks to achieve. It is made under section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. It is made in consequence of the Criminal Justice and Licensing (Scotland) Act 2010.

...

The 2010 Act also ensures that a person will be made subject to the sex offender notification requirements when they are convicted of the offence of possession of extreme pornography. The draft order will extend that provision as a matter of law in England, Wales and Northern Ireland, thus ensuring that a person made subject to the notification requirements as a result of conviction for possession of extreme pornography in Scotland cannot evade the requirement to register by moving elsewhere in the UK.

Question put and agreed to.

The order will commence on 1st August 2011.

Update: Explanation

23rd July 2011. Thanks to Harvey

The succinctly titled "Draft Criminal Justice and Licensing (Scotland) Act 2010 (Consequential Provisions and Modifications) Order 2011" is really just a tidy-up.

The requirement to notify (commonly called The Sex Offenders Register) is a provision of the Sexual Offences Act 2003. That Act applies the whole of the UK. The SOA 2003 contains a schedule (3) which lists the specific offences which trigger the requirement to notify. The Scots are simply asking the UK Parliament to change the schedule to their 2003 Act so that the Scottish offence will be included and thus the notification requirements will be triggered and apply, UK wide, for a person convicted of that offence.

The SOA was similarly modified to include the DPA offence in Schedule 3. The DPA offence applied only to England, Wales and NI, but since it was made in the UK Parliament and the SOA applies to the whole of the UK, it was all accomplished with the text of the DPA, rather than requiring a separate tidying-up order so that a person convicted of the English offence would be required to notify even if they moved to Scotland.

Since the amendment simply includes a new Scottish offence to the schedule, it would not appear to change anything in the present law as it affects persons convicted of offences in England, Wales and N. Ireland.

Update: Passed in Lords Committee

12th September 2011. From publications.parliament.uk

The amendment has now been passed in Lords Committee with the comment:

The 2010 Act also ensures that a person will be made subject to the sex offender notification requirements when they are convicted of the offence of possession of extreme pornography. The order extends that as a matter of law in England and Wales and Northern Ireland. That ensures that a person made subject to the notification requirements as a result of a conviction for possession of extreme pornography in Scotland cannot evade the requirement to register by moving elsewhere in the United Kingdom.

The Criminal Justice and Licensing (Scotland) Bill received Royal Assent on 6 August 2010.

The Act amends the Obscene Material section of the Civic Government (Scotland) Act 1982.

1. It increases the penalty associated with Obscene Material to 5 years imprisonment.
2. It adds clauses to ban the possession of 'extreme pornography'. This mostly based upon the version of the law applying to the rest of the UK but widens the definition of extreme pornography

The Act adds the following clauses:

Section 51A Extreme pornography

(1) A person who is in possession of an extreme pornographic image is guilty of an offence under this section.

(2) An extreme pornographic image is an image which is all of the following—

(a) obscene,
(b) pornographic,
(c) extreme.

(3) An image is pornographic if it is of such a nature that it must reasonably be  assumed to have been made solely or principally for the purpose of sexual arousal.

(4) Where (as found in the person's possession) an image forms part of a series of images, the question of whether the image is pornographic is to be determined by reference to—

(a) the image itself, and
(b) where the series of images is such as to be capable of providing a context for the image, its context within the series of images, and reference may also be had to any sounds accompanying the image or the series of images.

(6) An image is extreme if it depicts, in an explicit and realistic way any of the following—

(a) an act which takes or threatens a person's life
(b) an act which results, or is likely to result, in a person's severe injury,
(c) rape or other non-consensual penetrative sexual activity,
(d) sexual activity involving (directly or indirectly) a human corpse,
(e) an act which involves sexual activity between a person and an animal (or the carcase of an animal).

(7) In determining whether (as found in the person's possession) an image depicts an act mentioned in subsection (6), reference may be had to—

(a) how the image is or was described (whether the description is part of the image itself or otherwise),
(b) any sounds accompanying the image,
(c) where the image forms an integral part of a narrative constituted by a series of images—

(i) any sounds accompanying the series of images,
(ii) the context provided by that narrative.

(8) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a period not exceeding 12 months or to a fine not exceeding the statutory maximum or to both,
(b) on conviction on indictment, to imprisonment for a period not exceeding 3 years or to a fine or to both.

(9) In this section, an image is—

(a) a moving or still image (made by any means), or
(b) data (stored by any means) which is capable of conversion into such an image.

51B Extreme pornography: excluded images

(1) An offence is not committed under section 51A if the image is an excluded image.

(2) An excluded image is an image which is all or part of a classified work.

(3) An image is not an excluded image where—

(a) it has been extracted from a classified work, and
(b) it must be reasonably be assumed to have been extracted (whether with or without other images) from the work solely or principally for the purpose of sexual arousal.

51C Extreme pornography: defences

(1) Where a person (A) is charged with an offence under section 51A, it is a defence for A to prove one or more of—

(a) that A had a legitimate reason for being in possession of the image concerned
(b) that A 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 A—

(i) was sent the image concerned without any prior request having been made by or on behalf of A, and
(ii) did not keep it for an unreasonable time.

(3) Where A is charged with an offence under section 51A, it is a defence for A to prove that—

A directly participated in the act depicted, and—

(a) in the case of an image which depicts an act described in subsection (6)(a) of that section, if the act depicted did not actually take or threaten a person's life
(b) in the case of an image which depicts an act described in subsection (6)(b) of that section, if the act depicted did not actually result in (nor was it actually likely to result in) a person's severe injury,
(c) in the case of an image which depicts an act described in subsection (6)(c) of that section, if the act depicted did not actually involve nonconsensual activity
(d) in the case of an image which depicts an act described in subsection (6)(d) of that section, if what is depicted as a human corpse was not in fact a corpse,
(e) in the case of an image which depicts an act described in subsection (6)(e) of that section, if what is depicted as an animal (or the carcase of an animal) was not in fact an animal (or a carcase).

(5) The defence under subsection (3) is not available if A shows, gives or offers for sale the image to any person who was not also a direct participant in the act depicted.

A new law has come into force on 6th April 2010 banning sexual cartoons and drawings featuring children.

Part 2 Chapter 2 of the Coroners and Justice Act 2009 prohibits the possession of non-photographic pornographic images of children. See also explanatory notes

Coroners and Justice Act 2009. Part 2 Chapter 2

Section 62 Possession of prohibited images of children

[Key points extracted by the Melon Farmers, See Part 2 Chapter 2 of the Coroners and Justice Act 2009 for the full text]

(1) It is an offence for a person to be in possession of a prohibited image of a child.

(2) A prohibited image is an image which—

(a) is pornographic, ie 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.
(b) falls within subsection (6), and
(c) is grossly offensive, disgusting or otherwise of an obscene character.

Note that photographic and near photographic images are not covered by this law as they are already prohibited by other more serious laws.

(6) An image falls within this subsection if it—

(a) is an image which focuses solely or principally on a child's genitals or anal region, or
(b) portrays any of the acts:

(a) the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
(b) an act of masturbation by, of, involving or in the presence of a child;
(c) an act which involves penetration of the vagina or anus of a child with a part of a person's body or with anything else;
(d) an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person's body or with anything else;
(e) the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
(f) the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

63 Exclusions

An image which forms the whole or part of a classified work is excluded from the prohibition. [Albeit with exceptions where images are separated from justifying context]

64 Defences

(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 a prohibited image of a child;
(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.

65 Meaning of image and child

(2) Image includes—

(a) a moving or still image, or
(b) data which is capable of conversion into an image.

(5) Child means a person under the age of 18.

An image of a child is where:

(a) the impression conveyed by the image is that the person shown is a child, or
(b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.

66 Penalties

(a) on summary conviction [at a magistrate's court], imprisonment for a term not exceeding 12 months in England and Wales and 6 months Northern Ireland or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment [at a crown court], imprisonment for a term not exceeding 3 years or a fine, or both.

Part 2 Chapter 2 of the Coroners and Justice Act 2009 prohibits the possession of non-photographic pornographic images of children.

The clauses were passed into law on the 12th of November 2009 and came into force on 6th April 2010.

Coroners and Justice Act 2009

Part 2 Chapter 2

Section 62 Possession of prohibited images of children

(1) It is an offence for a person to be in possession of a prohibited image of a child.

(2) A prohibited image is an image which—

(a) is pornographic,
(b) falls within subsection (6), and
(c) is grossly offensive, disgusting or otherwise of an obscene character.

(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.

(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.

(6) An image falls within this subsection if it—

(a) is an image which focuses solely or principally on a child's genitals or anal region, or
(b) portrays any of the acts mentioned in subsection (7).

(7) Those acts are—

(a) the performance by a person of an act of intercourse or oral sex with or in the presence of a child;
(b) an act of masturbation by, of, involving or in the presence of a child;
(c) an act which involves penetration of the vagina or anus of a child with a part of a person's body or with anything else;
(d) an act of penetration, in the presence of a child, of the vagina or anus of a person with a part of a person's body or with anything else;
(e) the performance by a child of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary);
(f) the performance by a person of an act of intercourse or oral sex with an animal (whether dead or alive or imaginary) in the presence of a child.

(8) For the purposes of subsection (7), penetration is a continuing act from entry to withdrawal.

(9) Proceedings for an offence under subsection (1) may not be instituted—

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;
(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

63 Exclusion of classified film etc

(1) Section 62(1) does not apply to excluded images.

(2) An excluded image is an image which forms part of a series of images contained in a recording of the whole or part of a classified work.

(3) But such an image is not an excluded image if—

(a) it is contained in a recording of an extract from a classified work, and
(b) it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal.

(4) Where an extracted image is one of a series of images contained in the recording, the question whether the image is of such a nature as is mentioned in subsection (3)(b) 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;

and section 62(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

(5) In determining for the purposes of this section whether a recording is a recording of the whole or part of a classified work, any alteration attributable to—

(a) a defect caused for technical reasons or by inadvertence on the part of any person, or
(b) the inclusion in the recording of any extraneous material (such as advertisements),

is to be disregarded.

(6) Nothing in this section is to be taken as affecting any duty of a designated authority to have regard to section 62 (along with other enactments creating criminal offences) in determining whether a video work is suitable for a classification certificate to be issued in respect of it.

(7) In this section—

classified work means (subject to subsection (8)) a video work in respect of which a classification certificate has been issued by a designated authority (whether before or after the commencement of this section); *

classification certificate and video work have the same meaning as in the Video Recordings Act 1984 (c. 39); *

designated authority means an authority which has been designated by the Secretary of State under section 4 of that Act; *

extract includes an extract consisting of a single image; *

pornographic has the same meaning as in section 62; *

recording means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

(8) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this section as it applies for the purposes of that Act.

64 Defences

(1) Where a person is charged with an offence under section 62(1), it is a defence for the person to prove any of the following matters—

(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 a prohibited image of a child;
(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.

(2) In this section prohibited image has the same meaning as in section 62.

65 Meaning of image and child

(1) The following apply for the purposes of sections 62 to 64.

(2) Image includes—

(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).

(3) Image does not include an indecent photograph, or indecent pseudo-photograph, of a child.

(4) In subsection (3) indecent photograph and indecent pseudo-photograph are to be construed—

(a) in relation to England and Wales, in accordance with the Protection of Children Act 1978 (c. 37), and
(b) in relation to Northern Ireland, in accordance with the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)).

(5) Child , subject to subsection (6), means a person under the age of 18.

(6) Where an image shows a person the image is to be treated as an image of a child if—

(a) the impression conveyed by the image is that the person shown is a child, or
(b) the predominant impression conveyed is that the person shown is a child despite the fact that some of the physical characteristics shown are not those of a child.

(7) References to an image of a person include references to an image of an imaginary person.

(8) References to an image of a child include references to an image of an imaginary child.

66 Penalties

(1) This section has effect where a person is guilty of an offence under section 62(1).

(2) The offender is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine, or both.

(3) The relevant period means—

(a) in relation to England and Wales, 12 months;
(b) in relation to Northern Ireland, 6 months.

67 Entry, search, seizure and forfeiture

(1) The following provisions of the Protection of Children Act 1978 (c. 37) apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (within the meaning of that Act)—

(a) section 4 (entry, search and seizure);
(b) the Schedule (forfeiture of photographs).

(2) The following provisions of the Protection of Children (Northern Ireland) Order 1978 (S.I. 1978/1047 (N.I. 17)) apply in relation to prohibited images of children as they apply in relation to indecent photographs of children (within the meaning of that Order)—

(a) Article 4 (entry, search and seizure);
(b) the Schedule (forfeiture of photographs).

(3) In this section prohibited image of a child means a prohibited image of a child to which section 62(1) applies.

68 Special rules relating to providers of information society services

Schedule 13 makes special provision in connection with the operation of section 62(1) in relation to persons providing information society services within the meaning of that Schedule.

R v Christopher Rowe: CA (Crim Div): 3 November 2008

The appellant (R) appealed against his conviction for 12 counts of possessing indecent photographs of children on a reference by the Criminal Cases Review Commission.

The police seized R's computer and 8 disks which contained several deleted files and two non-deleted files of images of child pornography, and two movie images. There were also three deleted files of child pornography on the computer.

At trial, experts agreed that R would have needed specialist software to access the deleted files, which he did not appear to have. It was not possible for them to prove whether the deleted files had actually been viewed. The last time that the non-deleted files had been accessed was years before the date on the indictment.

Held: The convictions on the counts relating to the deleted files were unsafe as R no longer had custody or control of the images, R v Porter (Ross Warwick) [2006] EWCA Crim 560, [2006] 1 WLR 2633 applied. The original jury were not directed to consider the potential significance that the deleted files had on R's ability to have had knowledge of the images. The counts relating to the deleted images were quashed.

Section 63 Possession of extreme pornographic images

(1) It is an offence for a person to be in possession of an extreme pornographic image.

(2) An “extreme pornographic image” is an image which is both—

(a) pornographic, and
(b) an extreme image. 

(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.

(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.

(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.

(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.

(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).

(9) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).

(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. [see note below]

Section 64 Exclusion of classified films etc.

(1) Section 63 does not apply to excluded images.

(2) An “excluded image” is an image which forms part of a series of images contained in a recording of the whole or part of a classified work.

(3) But such an image is not an “excluded image” if—

(a) it is contained in a recording of an extract from a classified work, and
(b) it is of such a nature that it must reasonably be assumed to have been extracted (whether with or without other images) solely or principally for the purpose of sexual arousal.

(4) Where an extracted image is one of a series of images contained in the recording, the question whether the image is of such a nature as is mentioned in subsection (3)(b) 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; and section 63(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

(5) In determining for the purposes of this section whether a recording is a recording of the whole or part of a classified work, any alteration attributable to—

(a) a defect caused for technical reasons or by inadvertence on the part of any person, or
(b) the inclusion in the recording of any extraneous material (such as advertisements), is to be disregarded.

(6) Nothing in this section is to be taken as affecting any duty of a designated authority to have regard to section 63 (along with other enactments creating criminal offences) in determining whether a video work is suitable for a classification certificate to be issued in respect of it.

(7) In this section—

“classified work” means (subject to subsection (8 )) a video work in respect of which a classification certificate has been issued by a designated authority (whether before or after the commencement of this section);

“classification certificate” and “video work” have the same meanings as in the Video Recordings Act 1984 (c. 39);

“designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act;

“extract” includes an extract consisting of a single image;

“image” and “pornographic” have the same meanings as in section 63;

“recording” means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

(8 ) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this section as it applies for the purposes of that Act.


Section 65 Defence

(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.

(3) In this section “extreme pornographic image” and “image” have the same meanings as in section 63.


Section 66 Defence: participation in consensual acts

(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.

(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.

(3) For the purposes of this section harm inflicted on a person is "non-consensual" harm if—

(a) the 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."

67 Penalties etc. for possession of extreme pornographic images

(1) This section has effect where a person is guilty of an offence under section 63.

(2) Except where subsection (3) applies to the offence, the offender is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine or both.

(3) If the offence relates to an image that does not portray any act within section 63(7)(a) or (b), the offender is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(4) In subsection (2)(a) or (3)(a) “the relevant period” means—

(a) in relation to England and Wales, 12 months;
(b) in relation to Northern Ireland, 6 months.

68 Special rules relating to providers of information society services

Schedule 14 makes special provision in connection with the operation of section 63 in relation to persons providing information society services within the meaning of that Schedule.

Note: Consent of the Director of Public Prosecutions

See  article from  cps.gov.uk

A protection hardly worth the paper it is not written on!

Where the consent of the DPP to institute proceedings is required, this may be given by a Crown Prosecutor by virtue of section 1(7) Prosecution of Offences Act (the 1985 Act). The decision to grant consent should be taken by applying the principles in the Code for Crown Prosecutors and CPS Legal Guidance. A Crown Prosecutor must specifically consider the case and decide whether or not proceedings should be instituted or continued.

Although there is no requirement for consent to be given in writing, the existence of a written record is helpful in answering any subsequent challenge on the point. Section 26 of the POA provides that any document purporting to be the signed consent of a Law Officer, the DPP or a Crown Prosecutor shall be admissible as prima facie evidence without further proof .

Thus, although there is no requirement for consent to be signified in any particular form, where it is in writing and signed it is prima facie evidence of the existence of the relevant consent. Therefore, in all cases requiring the prior consent of the DPP, prosecutors should certify that this has been given by completing the appropriate form.

This article was written some time ago but it is still relevant. The legalisation of adult consensual hardcore in 2000 means that this is no longer considered obscene but other material such as fisting and golden showers is still considered by the authorities to be obscene.

In UK law, pornography as such is not illegal. It only becomes so if and when it qualifies as being obscene according to the provisions of the Obscene Publications Act 1959. The legal test of obscenity in that Act, is the notorious deprave and corrupt yardstick. This is the test the authorities apply, though nobody can demonstrate that anybody has ever been depraved or corrupted by a particular obscene article.

In practise, what this means is that The police and customs officers simply apply their own idiosyncratic subjective and inevitably inconsistent standards, even though they always claim that their decisions are based on what they know to have been successfully prosecuted in the courts in the past. But this measure too, is deeply flawed because the courts themselves are notoriously inconsistent in their judgements. For example, an item found obscene in one court will often be found not obscene in another, No-one can therefore state categorically that a particular item is obscene in the eyes of the law, and the outcome of any prosecution is effectively a lottery.

However, mere possession of obscene material is not in itself an offence, but could be so if illegally imported. Moreover, the showing of any obscene article on one's private possession, to another person, whether a friend or not, has incredibly been interpreted by the courts as publishing. So strictly speaking, this is an offence under the 1959 Act, whether for gain or not.

However with material involving or depicting children under the age of 16, the criteria applied, according to the protection of Children Act 1978, is quite simply that of indecency , which is not subject to the deprave and corrupt limitation of the OPA's obscenity test, and as such it is interpreted by the courts much more broadly, and often recklessly. Furthermore, under Section 160 of the Criminal Justice Act 1988, mere possession of such indecent material (of under 16 year olds) , became a criminal offence, which has recently allowed the police to concern themselves with even the most innocuous material. What's more, the onus is on any defendant charged with possession of material in which those involved appear or seem to be underage, to prove otherwise (quite often an impossibility).

With regard to the importation into the UK of allegedly obscene material, although the provisions of the Customs Consolidation Act (dating back to 1876!) still apply, which prohibit the importation of indecent or obscene material, customs officers now apply the obscenity test of the OPA, Not that this gives much cause for comfort.

HM Customs and Excise officers are given frighteningly wide powers to deal with obscene material, possibly rivalling those of the Third Reich! Their main weapon, where a small number of items is concerned, is the confiscation of the offending material (again often depending on the idiosyncratic and subjective whims of their officers).

The OPA doesn't legally apply to Customs. They might use it as a guideline as part of their policies, but the test that they use is the milder 'considered to be indecent or obscene' rather than the ' ... deprave and corrupt...' one stipulated by the OPA. The laws they use are given at the end of the notice of seizures that they hand out. They use the Customs and Land Management Act (CLMA) which defines a 'considered to be indecent or obscene' criteria, and this is the criteria that they are legally entitled to use. The difference is quite large; under the OPA, something is only obscene if it can be found obscene and convicted as such by a jury (innocent until proven guilty), whilst under the CLMA, only one individual customs officer has to consider the film obscene. The burden of proof is then reversed. If you take Customs  to court, then you have to prove that seized material is not obscene, rather than them prove that it is. It's easy to see why Customs are so desperate to cling on to this criteria trather than have to use the OPA.

But if they suspect you of being a commercial importer, carrier or dealer, you will almost certainly be arrested, strip-searched and taken under escort to your home which will then also be searched.

If you wish to challenge a so-called simple confiscation order, you can do so within 28 days. The case (which is a civil, not criminal hearing), will then be heard before magistrates, where again the onus is on you to show that the material is not obscene, is not therefore illegal and consequently should be returned to you. Not an easy task, because in practice magistrates invariably rubber-stamp customs seizures - and you may be liable for costs, too.

Customs officers are now permitted to exercise a personal use tolerance clause which instructs them not to seize small quantities of obscene material (so you're allowed up to three books or magazines), providing none of the items depict children, and there are no duplicate items, and there is no suspicion that the individual is a regular visitor abusing this tolerance.

(And not that this tolerance clause also excludes video tapes, films, laserdisc and computer discs which will still be seized).

However, in the supposedly free West where freedom of expression is rightfully taken for granted, such big-hearted concessions to us repressed Brits are hardly likely to fill us with paroxysms of joy. Effectively British state nannyism and hypocrisy still pervades.

There has been a lot of discussion in the news groups about the possession of imported porn. The appropriate sections of the Customs & Excise Management Act 1979 seem to be predictably draconian.

Section 170

(1) ...if any person

(a) knowingly acquires possession of any of the following goods, that is to say
...

(ii) goods which are chargeable with a duty which has not been paid;
or
(iii) goods with respect to the importation or exportation of which any prohibition or restriction is for the time being in force...

(b) is in any way knowingly concerned in carrying, removing, deposing, *harbouring*, *keeping* or concealing or in any manner dealing with any such goods, and does so with intent... to evade any such prohibition... he shall be guilty of an offence under this section and may be detained...
...

(3) ...a person guilty of an offence under this section shall be liable--

(a) on summary conviction...
(b) on conviction on indictment, to a penalty of any amount or to imprisonment for a term not exceeding two years or to both.

So, there you are. Hope your blood is suitably chilled. I guess that half the people that have been abroad could be slammed in jail for a couple of years on this one. Typically nasty UK law.