Background
Section 63 of the Criminal Justice and Immigration 2008 was driven by campaigning following from the conviction of Graham Coutts. Coutts was determined to have previously downloaded images of strangulation, and the resulting calls for a ban on “Extreme Pornography”, together with the inability to regulate overseas websites, lead the government to legislate against the possession of such images despite opposition from the consultation process.
Though indications from Government were that only a handful of cases would be subject to prosecution, over a thousand cases are brought each year. The legislation has impacted several groups disproportionately, including gay and BDSM communities. The legislation makes no allowance for the consensuality of acts depicted, nor whether actual harm befalls the subjects of the images. In contrast with non-sexual acts frequently occurring in the mainstream media which present graphic violence and murder on a routine basis, “pornographic” material depicting popular sexual activity is criminalised.
Section 63
Possession of extreme pornographic images
(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.
(4)Where (as found in the person’s possession) an image forms part of a series of images, the question whether the image is of such a nature as is mentioned in subsection (3) is to be determined by reference to—
(a)the image itself, and
(b)(if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.
(5)So, for example, where—
(a)an image forms an integral part of a narrative constituted by a series of images, and
(b)having regard to those images as a whole, they are not of such a nature that they must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal,
the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.
(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)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),
and a reasonable person looking at the image would think that any such person or animal was real.
(8)In this section “image” means—
(a)a moving or still image (produced by any means); or
(b)data (stored by any means) which is capable of conversion into an image within paragraph (a).
(9)In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).
(10)Proceedings for an offence under this section may not be instituted—
(a)in England and Wales, except by or with the consent of the Director of Public Prosecutions; or
(b)in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.
Backlash Position
Opposition of the Act was a motivation for the formation of Backlash. Whilst debate surrounding the effect and impact of pornography is welcome, Backlash does not believe a causal relationship between “Extreme Pornography” and sexual violence has been established. The legislation criminalises imagery that is in wide circulation and intersects the erotic taste of many law abiding people. The legislation is ill framed and provides little indication to the public as to whether a particular image is legal. Charging practise has been inconsistent reflecting this ambiguity, and has overstepped the thresh-holds indicated at the time the Bill was debated. Backlash believes that
- Freedom of expression, as enshrined in Article 10 of the European Convention of Human Rights, should be preserved unless there is a demonstrable harm from such expression, and therefore
- Images of legal, consensual, acts should not be unlawful to posses, and
- 63 (7)(a) and 63 (7)(b) should be amended or repealed accordingly.
Backlash is supporting a Judicial Review of the legislation.