Proposals to introduce new legislation to criminalise possession of violent and extreme pornographic material

The Government has published a document which sets out the responses it received to its consultation on the possession of violent and extreme pornographic material, which was launched last September (covered in the September 2005 Digest) as well as proposals on how it intends to take the matter forward.

The Government’s main proposal is to introduce legislation to make it an offence to possess violent or extreme pornographic images. The paper sets out the proposed criteria for the offence.

The material covered by the offence would be:

• Intercourse or oral sex with an animal.
• Sexual interference with a human corpse.
• Serious sexual violence (i.e. acts that appear to be life threatening or are likely to result in serious, disabling injury).

The first threshold for the offence itself would be an objective test for the jury that the material was pornographic, i.e. that it has been produced solely or primarily for the purpose of sexual arousal. It would be for the prosecution to prove that the material was pornographic.

The second threshold would be an objective test for the jury in respect of actual scenes or depictions which appear to be real acts. This is aimed at covering activity which can be clearly seen, leaves little to the imagination, and is not hidden or disguised (e.g. by pixilation). The inclusion of the words, ‘actual scenes or depictions which appear to be real acts’ are intended to cover material which either is genuinely violent or conveys a realistic impression of fear, violence and harm.

Defences to the offence are likely to mirror the defences provided for the possession of indecent photographs of children in Section 160 of the Criminal Justice Act 1988, which are that the defendant can prove he had a legitimate reason for having the image, or that he had not seen it and did not know or suspect it to be illegal, or that it was sent to him unsolicited and he did not keep it for an unreasonable time.

It is also likely that a further defence will be included to cover having an unaltered version of a work classified by a designated organisation. Such designation would be by Order and it is envisaged that the British Board of Film Classification (BBFC) would be one such organisation.

The paper proposes a maximum penalty of three years’ imprisonment for possession of material depicting serious violence and a lesser maximum penalty for possession of material in the other categories, to reflect the seriousness of the offences shown or depicted in the material.

It is also the Government’s intention to raise the maximum penalty for offences of publication, distribution and possession for gain, committed under the 1959 and 1964 Obscene Publications Acts, to five years’ imprisonment.

The Government intends to commence the necessary legislative process in respect of its proposals as soon as the Parliamentary timetable allows.

The Consultation on the Possession of Extreme Pornographic Material – Summary of responses and next steps paper can be found at http://www.homeoffice.gov.uk/documents/cons-extreme-porn-3008051/