Sexual Images Offences

Question 1

Possession of extreme pornographic images offence is an offence covered by what legislation?

Answer 1

63(1) of the Criminal Justice and Immigration Act 2008.

Question 2

According to 63(1) of the Criminal Justice and Immigration Act 2008, it is an offence to be in possession of what?

Answer 2

An ‘extreme pornographic image’ (s 63(2)).

An image includes moving images and electronic data that can be converted into an image, and/or stored on mobile phones or a computer drive for example (s 63(8)).

Question 3

An image is said to be pornographic if…

Answer 3

It appears to have been produced solely or principally for the purpose of sexual arousal (s 63(3)), and it must be explicit and realistic.

Question 4

An image is said to be extreme if it depicts (or appears to depict) activities which:

Answer 4

Threaten a person’s life;

Depicts rape or non-consensual sexual penetration (this was added by the Criminal Justice and Courts Act 2015, and therefore does not apply to material held prior to 13 April 2015).

Result in (or are likely to result in) serious injury to a person’s anus, breasts, or genitals (including surgical reconstructions).

Involve sexual interference with a human corpse (necrophillia); or

Involve a person having intercourse or oral sex with an animal (bestiality and the act, person, or animal depicted in the image is real (or appears to be).

Question 5

Defences for possessing extreme images include…

Answer 5

(s 65 of the Criminal Justice and Immigration Act 2008)

• Had a legitimate reason for possessing it; had not seen it and did not know (nor had any cause to suspect) it was an extreme pornographic image; or had received it without requesting it and did not keep it for an unreasonable time.

Question 6

Possession of extreme pornographic images offence penalties

Answer 6

Triable either way and the penalty is 12 months imprisonment and/ or a fine if tried summarily.

For trials on indictment the penalty is imprisonment (3 ears for images which depict life threatening acts or involve serious injury; and two years for images that involve necrophilia or bestiality.

Question 7

What are excluded images?

Answer 7

Excluded in the sense that they would not be of concern for the offences under s 63(1) of the Criminal Justice and Immigration Act 2009.

For material to be regarded as this, it must be part of a full length mainstream or documentary film classified by the British Board of Film Classification (BBFC) and will not be considered as pornographic if shown as part of the complete film.

If parts have been extracted solely/ principally for the purpose of sexual arousal = no longer excluded (s 63(3)).

Question 8

For the purposes of legislation related to child sexual abuse imagery, any person under what age is considered a child?

Answer 8

18

Question 9

Some photographs of children may appear indecent but are not indecent in terms of the legislation…

Answer 9

s 1 of the Protection of Children Act 1978

Exception 1A is that the photograph was of a person aged 16 or over, and at the time of the alleged offence, the person and the suspect were married or lived together as partners in an enduring family relationship.

Exception 1B is that the photograph is for use in criminal investigation of proceedings, in any part of the world.

Question 10

What legislation states that it is an offence for a person to have in his/her possession any indecent photograph or pseudo-photograph of a child?

Answer 10

Section 160(1) if the Criminal Justice Act 1988

Question 11

What is a pseudo-photograph of a child?

Answer 11

Could involve a child’s naked body with an added adult face to it.

Question 12

Section 160(1) if the Criminal Justice Act 1988 states…

Answer 12

It is an offence for a person to have in his/her possession any indecent photograph or pseudo-photograph of a child.

Question 13

Section 160(1) if the Criminal Justice Act 1988 (possession of indecent photographs or pseudo-photographs of a child).

Defences?

Answer 13

s 160(2)

Having a legitimate reason for possessions the image; having not seen the image, nor having cause to suspect what it was and receiving the image without requesting it and not keeping it for an unreasonable time.

Question 14

Section 160(1) if the Criminal Justice Act 1988 (possession of indecent photographs or pseudo-photographs of a child).

Offence penalties

Answer 14

Triable either way and the penalty is a fine or imprisonment (6 months summarily, 5 years on indictment).

Question 15

Producing and distributing indecent photographs of children

s 1 of the Protection of Children Act 1978 states it is an offence for a person—

Answer 15

(a) To take, or permit to be taken [or to make], any indecent photograph [or pseudo-photograph] of a child; or
(b) To distribute or show such indecent photographs [or pseudo-photographs]; or
(c) To have in his possession such indecent photographs [or pseudo-photographs], with a view to their being distributed or shown by himself or others; or
(d) To publish or cause to be published any advertisement likely to be understood as conveying that the advertiser distributes or shows such indecent photographs [or pseudo-photographs], or intends to do so.

Question 16

Producing and distributing indecent photographs of children

s 1 of the Protection of Children Act 1978

Defences

Answer 16

• Had a legitimate reason for distributing, showing or having possession of the photographs or pseudo-photographs.
• The defendant did not see the photographs or pseudo-photographs, or saw them and did not know they were indecent or have any cause to suspect them to be indecent.

Question 17

Producing and distributing indecent photographs of children

s 1 of the Protection of Children Act 1978

Offence penalties

Answer 17

Triable either way.

If tried summarily the penalty is 6 months imprisonment and/ or a fine.

On indictment the penalty is 10 years imprisonment.

Question 18

Under what legislation is it an offence to be in possession of a prohibited image of a child (under 18)?

Answer 18

s 62(1) of the Coroners and Justice Act 2009

The image can be moving, still, or in data for, and is said to be prohibited if it is either:

• Pornographic (produced for the purpose of sexual arousal); or
• ‘Grossly offensive, disgusting or otherwise of an obscene character’.

Question 19

What does s 62(1) of the Coroners and Justice Act 2009 state?

Answer 19

It is an offence to be in possession of a prohibited image of a child (under 18).

The image can be moving, still, or in data for, and is said to be prohibited if it is either:

• Pornographic (produced for the purpose of sexual arousal); or
• ‘Grossly offensive, disgusting or otherwise of an obscene character’.

The image must either focus solely or principally on a childs genitals or anal region, or portray a child as a witness or participant for: sexual intercourse or oral sex with a person or an animal (the animal can be dead, alive or imaginary); masturbation, or penetration of the anus or vagina.

Question 20

Defences for possession of a prohibited image of a child (under 18)?

Answer 20

s 64 of the Coroners and Justice Act 2009

• Had a legitimate reason for distributing, showing or having possession of the photographs or pseudo-photographs.
• The defendant did not see the photographs or pseudo-photographs, or saw them and did not know they were indecent or have any cause to suspect them to be indecent.

Question 21

Possession of a prohibited image of a child (under 18)

s 62(1) of the Coroners and Justice Act 2009

Offence penalties

Answer 21

Triable either way and the penalty is a fine or imprisonment.

12 months if tried summarily and three years on indictment.

Question 22

What is revenge pornography?

Answer 22

When private sexual images, usually of a formed partner, are made available to the public as a form of revenge against the other person.

Question 23

It is an offence for a person to disclose a private sexual photograph or film if the disclosure is made—

Answer 23

s 33(1) of the Criminal Justice and Courts Act 2015

(a) without the consent of an individual who appears in the photograph or film, and
(b) with the intention of causing that individual distress.
(2) But it is not an offence under this section for the person to disclose the photograph or film to the individual mentioned

Question 24

s 33 of the Criminal Justice and Courts Act 2015

Are images that have been altered included in the remit of this offence?

Answer 24

Yes, but not if the unaltered images were non sexual and only became sexual because of the alterations.

Question 25

s 33 of the Criminal Justice and Courts Act 2015

Defences

Answer 25

Disclosure is necessary to prevent, detect or investigate a crime (s 33(3); or

Relates to the preparation or publication of journalistic material which is in the public interest (s 33(4); or

There was a reasonable believe that the images had already been released for reward, and there was no reason to doubt that the portrayed person had not consented to the release, for example as commercial pornography.

Question 26

s 33 of the Criminal Justice and Courts Act 2015

Disclosing private sexual images with intent to cause distress

Offence penalties

Answer 26

Triable either way, with a penalty of a fine and/or 12 months imprisonment if convicted summarily.

Maximum of 2 years imprisonment if convicted on indictment.

Question 27

Possession of extreme pornographic images (Section 63 (1) Criminal Justice and Immigration Act 2008)

A person commits this offence if…

Answer 27

They are in the possession of an extreme pornographic image.

Image: still or moving images or electronic data that can be converted into an image

Pornographic: an image that appears to have been produced solely for the purpose of sexual arousal, and it must be realistic and explicit. If an image is part of a series of images, the context of the series of images must be considered.

Extreme: under this Act the following are considered extreme images if they show acts which: - threaten a person’s life (e.g. hanging/suffocation)

Therefore, for this offence to be complete, three elements must be fulfilled:

1. the image is pornographic
2. the image is grossly offensive, disgusting or obscene
3. a reasonable person viewing the image would think that any person or animal in the image was real

Question 28

Possession of extreme pornographic images (Section 63 (1) Criminal Justice and Immigration Act 2008)

What constitutes relevant extreme acts

Answer 28

Result in serious injury to a person’s anus, breasts or genitals (e.g. penetration of vagina with a sharp object)

Depict rape/non-consensual sexual penetration depict necrophilia (sexual interference with a human corpse)

Depict bestiality (intercourse or oral sex with an animal) where the act, person and animal appear to be real

Question 29

Disclosing private sexual images with intent to cause distress (Section 33 (1) Criminal Justice and Courts Act 2015)

A person commits this offence if…

Answer 29

They disseminate to the public (or section of the public) films or photographs of a sexual nature, without the consent of the portrayed person, and with the intent of causing him/her distress.