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The State Of Extreme Pornography Law In The UK

About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

Pornography is a topic that sparks the strongest of views from both those who would see it banned altogether and those who campaign for the relaxation of the law and greater sexual freedoms. The recent ‘Tiger Porn’ case and proposed Government legislation have intensified the debate, bringing to the fore the arguments of those who campaign for reform of the law, including organisations such as Backlash and Liberty, and lawyers such as Myles Jackman. Is the current law justified in its interference with the personal freedoms of individuals, or is it over-restrictive as a result of the puritanical moral views held by many in the UK? 

The Law

The law governing the possession of ‘extreme pornography’ is set out in s. 63 Criminal Justice and Immigration Act 2008 (‘CJIA’). The key provisions are as follows:

(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.

(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) and 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.

The ‘Tiger Porn’ Case

In 2009, Andrew Holland, a bus driver from Wrexham, was charged with possession of an extreme pornographic image. The image was said to portray in an explicit and realistic way a person performing an act of intercourse with a live animal, which was grossly offensive, disgusting or otherwise of an obscene character, contrary to s. 63(1)(7)(d) of the CJIA 2008. This video, it was claimed, showed a woman having sex with a tiger. The charges were dropped, however, when the judge ordered for the video to be played in front of the jury in the Crown Court. It was at that point it became clear that the video, rather than featuring a tiger, instead featured a man in a tiger costume, who at one stage turns to the camera and says: ‘That’s Grrreat’; a reference to Tony the Tiger who appears in Kellogg’s adverts.

Despite the case against him being dropped, the damage had already been done to Mr Holland’s life. He received hate mail, was denied contact with his young daughter and suffered a heart attack due to the stress of the ordeal. Myles Jackman, solicitor at Hodge Jones & Allen LLP, acting for Mr Holland, said: ‘Mr Holland wants to ensure that others are not prosecuted unnecessarily in the manner that he was. He remains subject to the risk of further criminal charges in the event that he is in possession of similar joke images in the future’. Consequently, Mr Holland has requested that the Director of Public Prosecutions, Ms Alison Saunders, conduct a review of the law on extreme pornography. If this review is not forthcoming, Mr Holland’s lawyers have made it clear the law will be challenged by way of judicial review.

There are four proposed grounds of review, set out in the Judicial Review Pre-Action Protocol Letter. The first is that the definition of ‘extreme pornography’ given by s. 63 CJIA 2008 is not sufficiently clear so as to enable an individual to foresee whether his or her acts constitute a criminal offence, as the European Convention on Human Rights requires. An ‘extreme image’ is described as being an image which falls within s. 63(7) and which is ‘grossly offensive, disgusting or otherwise of an obscene character’. Despite the Ministry of Justice’s claim that the legislation is ‘very descriptive in outlining the type of material which will be illegal to possess’, it is clear that the inherent subjectivity of these conditions leaves the law on the possession of extreme pornography insufficiently clear.

The importance of foreseeability is made greater in cases where a conviction will lead to significant consequences for the defendant. Section 67(3)(b) CJIA sets out that a conviction for possession of pornography depicting bestiality, as claimed in Mr Holland’s case, can lead to ‘imprisonment for a term not exceeding 2 years or a fine or both’. Coupled with the social stigma attached to cases of this kind, foreseeability of consequences becomes of paramount importance. For these reasons it is claimed that the lack of clarity contravenes Articles 8 and 10 of the Convention (right to respect for private and family life, and right to freedom of expression, respectively).

The second proposed ground of review is that there is insufficient guidance from the DPP as to when offences under s. 63 will be prosecuted. Section 63(10) CJIA 2008 sets out that ‘no proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions’. As in this case, the discretion was at issue in the case of Purdy v DPP, which concerned the DPP’s discretion to prosecute cases of assisted suicide. Lord Hope outlined at paragraph 54 that the discretion had led to ‘an obvious gulf between what section 2(1) [Suicide Act 1961] says and the way that the subsection is being applied in practice’. It is clear that such disparity exists in relation to the law on possession of extreme pornography, given that prior to the legislation being introduced, Ministers predicted merely a handful of prosecutions each year, with the Regulatory Impact Assessment predicting just 30 per year. In reality, there have been over 5,500 prosecutions for offences under the section in the few years since s. 63 CJIA was enacted.

The third proposed ground of review is that the offence under s. 63 CJIA is a disproportionate means of achieving the legislation’s intended aims, namely the protection of morals. Prosecution for an act done in private, here the viewing of pornography, is a significant interference with an individual’s right to private life under Article 8 of the Convention and their right to freedom of expression under Article 10. Following the ruling of the European Court of Human Rights in Dudgeon v United Kingdom (1982) 4 EHRR 149, where an interference involves an intimate aspect of private life, weighty reasons must be given for its justification. Given that there is no clear evidence that viewing images deemed ‘extreme’ by s. 63 causes or induces violence, it is hard to accept any justification for such an extensive interference in the private lives of individuals, especially as it is possible to commit the offence of possession under s. 63 where there is no harm, or even threat of harm.

The fourth and final submission made by the legal representative’s of Mr Holland is that the offence under s. 63 is not ‘necessary in a democratic society’, as required by Articles 8 and 10 of the Convention for a State’s interference with these rights to be justified. No other member state of the Council of Europe has introduced similar measures, which is evidence that such a law is not necessary in a democratic society. The European Court of Human Rights, in the well known case of Smith and Gray v United Kingdom (2000) 29 EHRR 493 concerning the ban of homosexuals from the armed forces, outlined at paragraph 104:

…evidence before the domestic courts to the effect that the European countries operating a blanket legal ban on homosexuals in their armed forces are now in a small minority. [The Court] considers that, even if relatively recent, the Court cannot overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue.

This is a clear indication of the importance of coordinated state regulation. I would submit that the prevalence of material deemed to be ‘extreme’ cannot be subdued by criminalising possession when laws differ so greatly within Europe. 

The Disproportionate Impact of the Law

The wide discretion of the DPP in cases of possession has led some, including Myles Jackman, to suggest that the offence has the potential to disproportionately target minorities, including the gay community. The defendant in a recent case, known as the ‘Twink Trial’, accused the police and CPS of a ‘homophobic witch-hunt’ after he was arrested in front of his family, charged with ten offences almost a year later and repeatedly bailed before every charge was dropped. He was charged with child sex offences after looking at legal gay pornography, namely ‘twink pornography’, in a hotel room while on a business trip. ‘Twink’ is a well-known term in gay slang for young-looking men who are in fact aged 18 or over. The defendant in the case, following his acquittal, said: ‘I doubt I would have been treated the same way if heterosexual pornography was involved. Police … were obviously clueless about pornography – as were the CPS’. Myles Jackman, who represented the defendant in the ‘Twink Trial’, expressed his view that ‘the CPS at best showed an ignorance of gay culture and at worst showed itself to be institutionally homophobic’.

The Criminal Justice and Courts Bill 2013-2014

You would be forgiven for thinking, in consideration of the many flaws of s. 63 CJIA set out above, that any reform of the law would be aimed at bringing clarity to the law and reducing the non-Convention compliant interference by the State in individuals’ private lives. Sadly, this is not the case. This Government, instead, is extending the category of materials considered ‘extreme’ with the introduction of the Criminal Justice and Courts Bill, which has just completed the third reading stage in the House of Lords. Following the Prime Minister’s announcement in July 2013 that he would ban ‘rape pornography’, this Bill will amend the 2008 Act so as to make it an offence in England and Wales to possess pornographic images depicting rape and other non-consensual sexual penetration. An identical provision already exists in Scotland in the Criminal Justice and Licensing (Scotland) Act 2010. This provision was introduced as it was felt that the definition of ‘extreme pornography’ in England and Wales was ‘insufficiently broad’ (see the Policy Memorandum at paragraph 162). However, it is the broadness of the law in England and Wales that groups such as Backlash, and other groups supporting sexual freedoms, are campaigning against.

As with other types of ‘extreme’ pornography, there is a lack of evidence that the images cause harm to society. This is a fact that even the policy unit of the Ministry of Justice acknowledges unequivocally:

We have no evidence to show that the creation of staged rape images involves any harm to the participants or causes harm to society at large.

If there is no evidence, then the key, if not the only, justification for the broadening of the possession offence is that rape porn causes cultural harm. I agree with Myles Jackman in that the cultural harm argument is not ‘sufficiently strong as a legal argument to justify the criminalisation of possession of consensual adult rape-fantasies’. This is because, as Mr Jackman emphasises, the idea of cultural harm relies on the fact that adult rape-fantasies ‘may’ normalise ‘rape culture’. This reliance on the ‘may’ rather than the ‘does’ is a dangerous justification for legislation. 

While many find such images morally repugnant, in the absence of evidence that representations of simulated rape harm the participants or viewers, is the prohibition of images depicting legal acts not too much of an interference? This level of interference would not be entirely unprecedented, however. The law at present criminalises the possession of images depicting bondage and fisting, even though both activities are legal to perform in real life. The law does not go so far as the proposed provision on simulated rape, however, as possession of representations of fisting, bondage and other forms of legal sexual activity are only prohibited if the act ‘results, or is likely to result, in serious injury to a person’s anus, breasts or genitals’ contrary to s. 63(7)(b) CJIA 2008. 

While the current law makes possession of material depicting non-consensual acts illegal, such as sex with an animal or human corpse, who do not have capacity to consent under s. 74 of the Sexual Offences Act 2003, the extension proposed by the Criminal Justice and Courts Bill would make it illegal to be in possession of material where the acts were in fact consensual, namely representations of simulated rape. It can be argued that the new law has no justification for not distinguishing between consensual and non-consensual acts. Again, such interference is questionable in the absence of any evidence to suggest that possession of these images results in harm to the participants or viewers.

The Solution

With the number of prosecutions per year under s. 63 CJIA at a level far beyond that predicted by Ministers at the Act’s passing, it is clear that there is something amiss with the UK’s current stance on the possession of extreme pornography. I believe there are three reasons for this, which give rise to three steps to a solution.

The first reason for the unsatisfactory state of affairs is the law itself. The legislation is fundamentally flawed. Its conditions are so subjective that it is impossible for an individual to foresee whether his or her actions will constitute a criminal offence. 

Secondly, the administration of law is flawed. The level of discretion afforded to the DPP takes clarity away from an already-unclear law. While the discretion itself is compliant with the Convention, further guidance must be given by the DPP on when the discretion to prosecute will be exercised if the law is to be Convention compliant.

The third and final step that must be taken is the education of the public, law-enforcement agencies and the judiciary. Many of the problems experienced by defendants charged with offences under s. 63 CJIA arise as a direct result of a lack of education. Greater knowledge of the law is needed, and widespread debate on the issue of extreme pornography needs to be had if the law, and the treatment of defendants in the justice system, is to reach an acceptable level.

Further Reading

Myles Jackman, ‘Tiger Porn Victim Bites Back’ 26 October 2014

The Independent, ‘Man wrongly charged in Crown Prosecution Service's ‘homophobic witch-hunt’’ 1 November 2013

The Telegraph, ‘'Tiger porn' bus driver fights for change in law’ 28 October 2014 

Myles Jackman, ‘Porn Trial: This Time it's Extreme’ 30 July 2012

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Tagged: Criminal Law

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