A range of images, whether still or moving, possessed digitally or physically, have been prohibited as ‘extreme pornography’ under section 63 of Criminal Justice and Immigration Act 2008. The Government issued an explanatory note and the CPS guidance plus sentencing advice.
Images must satisfy four tests:
1. The image must be pornographic: ‘must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal’.
2. The image portrays at least one 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).
3. The portrayal must be ‘explicit and realistic'; a reasonable person must believe the actors (and animals) involved are real.
4. The image must be ‘grossly offensive, disgusting or otherwise of an obscene character’.
Defences include having a legitimate reason for possessing images, accidental access of images, or the possessor having taken part in the images with other consenting adults. Complete works that have been classified by the BBFC are exempt (although extracts of classified films are not).
Private viewing of non-harmful activities criminalised
The law takes no account of whether the content of the images are the product of real, dangerous and abusive activities, or the result of merely realistic depictions or acted scenes.
The law also fails to take account of whether the images were produced using adults consenting to activities to which they can consent in law.
The result is that some perfectly legal acts to perform are now illegal to view when recorded, a perversity that places more emphasis on an image than the act which created it – essentially creating a thought crime in the UK.
The law is meant to be limited by an obscenity test similar to that used for prosecuting publications. However, the concept of obscenity has a poor track record in offering a predictable legal outcome.
The result is that many people will not know whether they have broken the law before they have been prosecuted.
As the Judge in one trial put it, Parliament in its wisdom used vague language to define criteria that should be precise. The test for ‘realistic’ is another example.
Several classes of people might have been unwittingly criminalised by the act, including members of the BDSM community, lifestyle goths, and those who view low budget horror films that are not sent to the BBFC for certification.
There are also a large number of young people who exchange unusual pornographic images via email or on mobile phones, not for the explicit purpose of arousal, but out of curiosity or for shock value.
But, in the end, this law affects the rights of all British citizens, as it grants the police more reasons to search people’s homes and seize their property.
Backlash contend that the law is used in a disproportionate or unwarranted way against people who would previously have been classed as law-abiding citizens.