Section 63 of the Criminal Justice and Immigration Act 2008


Section 63 of the Criminal Justice and Immigration Act 2008 is a law in the United Kingdom criminalising possession of what it refers to as "extreme pornographic images". The law came into force on 26 January 2009. The legislation was brought in following the murder of Jane Longhurst by a man who was said at the time of his trial to have had "extreme pornography" in his possession at the time of the death. The law has been more widely used than originally predicted, raising concerns as to whether the legislation is being used for prosecutions beyond the scope originally envisaged by parliament.

The law

The law, part of the Criminal Justice and Immigration Act 2008, applies to pornography which is "grossly offensive, disgusting or otherwise of an obscene character" and portrays "in an explicit and realistic way" any of the following:
  • An act threatening a person's life
  • An act which results in serious injury to a person's anus, breasts or genitals
  • An act which involves sexual interference with a human corpse
  • A person performing an act of intercourse with a non-human animal,
and a reasonable person looking at the image would think that any such person was real.
Additionally, the Criminal Justice and Courts Act 2015 amended section 63 to include:
  • An act which involves 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
The term covers staged acts, and applies whether or not the participants consent. Films classified by the British Board of Film Classification are exempt, but an extract from a classified film would not be exempt. Whether or not an image is "pornographic" is up to the magistrate to determine by looking at the image. It is not a question of the intentions of those who produced the image.
If an image is held in a person's possession as part of a series of images, the question of whether it is pornographic is also determined by the context in which it appears. Therefore, an image might be legal in some contexts but not others. Serious injury is not defined by the act, but is up to the magistrate or jury. Guidance on the bill gives examples of activity which would be covered: depictions of hanging, suffocation, or sexual assault involving a threat with a weapon; the insertion of sharp objects into breasts or genitals.
The definition of "obscene" is not the same as that used in the Obscene Publications Acts, which requires that an image "deprave and corrupt" those likely to view it; instead, this is the ordinary dictionary definition of "obscene". "Grossly offensive" and "disgusting" are given as examples of "obscene".
As was demonstrated by a court decision in 2014, so long as it can be demonstrated that the recipient stored the images then it is not necessary to prove that those in possession of offending images had solicited them. Thus it is possible to contravene the law as a result of receiving unsolicited images.
There is a defence if the defendant can prove that they "directly participated" in the act and the other participants also consented, but only if the acts are those which can be legally consented to in the UK. This defence is not available to the photographer or other "onlookers" who were present, but did not directly participate.
Where the first two clauses above apply, the maximum sentence is three years ; otherwise, the maximum is two years. Adults sentenced to at least two years will be placed on the Violent and Sex Offender Register for 10 years if the sentence is less than 30 months and Indefinite if the sentence is fixed period more than 30 months. A minor offence may result in just a fine.

History

After Graham Coutts' conviction in February 2004, the government and police forces called for "violent" adult pornography sites to be shut down and Jane Longhurst's mother and sister launched a campaign against such sites. A petition promoted by MP Martin Salter was submitted to the government, demanding a ban of "extreme internet sites promoting violence against women in the name of sexual gratification".
The government was unsuccessful in shutting down such sites, since they are based in other countries and are legally made with consenting adults. In August 2005 the British government consulted on, instead, criminalising the possession of such images.
On 30 August 2006, the government published the results of the consultation, and announced its intention to introduce a possession ban on all extreme pornography as soon as the legislative timetable allowed. Opinions on the proposals were sharply divided in the consultation, with 61 percent of responses rejecting the need for stronger laws in this area and 36 percent in favour. The proposed maximum penalty for possession of these images was three years' imprisonment.
On 26 June 2007, the government published the plans as part of the Criminal Justice and Immigration Bill. The bill extended the scope of the proposals from "serious, disabling injury" to "serious injury".
The law came into force on 26 January 2009.
In July 2009, Baroness O'Cathain proposed an amendment to the Coroners and Justice Act which would bring in an equivalent law for "extreme pornographic writings".
There have been many more prosecutions under the law than the 30 cases a year originally predicted by ministers. In 2011–12, there were 1,337 prosecutions and in 2012–13 there were 1,348. By 2015, there were still more than 1,000 annual prosecutions. This has raised concerns that the legislation may be being used for prosecutions beyond the scope originally envisaged by parliament. Prosecutors are said to be unsure of the meaning of the law due to a lack of guidance explaining those categories that are difficult to define. The House of Lords was promised by the government just prior to the enactment of the legislation that such guidance would be issued, but this did not happen. The lack of clarity means that the law would apparently outlaw images which have been exhibited in art galleries, such as the material from Robert Mapplethorpe's X Portfolio, which was included in the Barbican Gallery's Seduced exhibition in 2008.
The possession of rape pornography in England and Wales was not criminalised by the legislation. However, the Criminal Justice and Courts Act 2015 amended the Act to include such a prohibition.

Notable uses

  • A 20-year-old St Helens man was prosecuted on 10 February 2009 for having "extreme" images involving women and animals. The images were reported by a PC repair shop. He was given an 18-month supervision order, 24 hours at an attendance centre and had to pay costs of £65.
  • In June 2009 The Register claimed that according to their sources in law enforcement, there have been two or three prosecutions against people selling Chinese bootlegged DVDs. A later case in 2010 also involved the use against someone selling unlicensed DVDs. In January 2011, a South African national living in Berkshire was sentenced to 12 months in prison, followed by deportation, for having downloaded 261 videos of people having sex with dogs, pigs, horses and donkeys. He also received additional concurrent sentences of two months and one month for four images of children which he had also downloaded, allegedly inadvertently.
  • On 31 December 2009, a man was found not guilty under the law; he was cleared by a judge, after the prosecution offered no evidence against him. The film he was charged with possessing depicted a sexual act with a tiger, but it emerged that the tiger in the film was not real and the image was a joke. Police and prosecutors admitted that they had not watched the film with sound turned on. In March 2010, the same man pleaded guilty on a second charge for a six-second video clip involving humans, having been told by his legal aid defence team that this was his only chance to avoid prison. However, when a judge told him to prepare for a custodial sentence he changed his plea to not guilty, having taken advice from the pressure group Backlash. A new trial was arranged, but the prosecution chose to withdraw charges before it could begin. In 2014 a human rights impact assessment of the law by the Crown Prosecution Service was requested under the Human Rights Act 1998; it was argued that the legislation lacks adequately clear definitions, there is insufficient prosecution guidance from the DPP, and that the offence is disproportionate to the legislation's intended aims.
  • The law has been used against people possessing only images of human adults, who have pleaded guilty.
  • In February 2014 three police officers from the Diplomatic Protection Group were arrested on suspicion of sharing "extreme" pornographic images using mobile phones.
  • In 2015 the footballer Adam Johnson was arrested on suspicion of possessing animal pornography. In investigations, police found animal pornography on Johnson's laptop; he was not tried for possession of these files.

    2011 test case

In January 2011, a man was tried before Stafford Crown Court for possession of staged images depicting a knife attack and a drowning in a bath. The prosecution said, "There is a need to regulate images portraying sexual violence, to safeguard the decency of society and for the protection of women". Expert witness for the defence Feona Attwood said the images were like stills from a 1970s Hammer horror film. The trial was a landmark, possibly the first such case tested by a jury. It was also notable as a case where the defendant admitted that he intentionally downloaded and retained the images in question.
On 6 January, the jury took 90 minutes to return a unanimous verdict of not guilty. The judge told them afterwards that this trial had been a test case; the legislation in question was still being interpreted.