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Criminal Justice and Immigration Act 2008

Section 63: Possession of extreme pornographic images

454.This section creates a new offence of possession of extreme pornographic images. Subsection (1) provides that it is an offence to be in possession of an extreme pornographic image.

455.Subsections (2) to (8) set out the definition of “extreme pornographic image”. The definition of “pornographic” is set out in subsection (3). In order to be considered pornographic, an image must be of such a nature that it must reasonably be assumed to have been produced solely or mainly for the purpose of sexual arousal. Whether this threshold has been met will be an issue for a jury to determine. Subsection (4) makes it clear that where an individual image as it is held in a person’s possession forms part of a larger series of images, the question of whether it is pornographic must be determined by reference both to the image itself and also the context in which it appears in the larger series of images.

456.Subsection (5) expands on subsection (4). It provides that where an image is integral to a narrative (for example a mainstream or documentary film) which taken as a whole could not reasonably be assumed to be pornographic, the image itself may be taken not to be pornographic even though if considered in isolation the contrary conclusion would have been reached.

457.Subsection (6) defines an “extreme image” for the purposes of the offence. An extreme image is one which is grossly offensive, disgusting or otherwise of an obscene character and which depicts one of a list of acts set out in subsection (7). These are explicit and realistic portrayals of:

  • acts which threaten a person’s life; this could include depictions of hanging, suffocation, or sexual assault involving a threat with a weapon;

  • acts which result in, or are likely to result in, serious injury to a person’s anus, breasts or genitals; this could include the insertion of sharp objects or the mutilation of breasts or genitals;

  • acts which involve sexual interference with a human corpse; or

  • a person performing an act of intercourse or oral sex with an animal.

458.The people and the animals portrayed must appear to a reasonable person to be real.

459.Subsection (8) sets out the definition of an image. It states that for the purposes of this offence, “an image” means either still images, such as photographs, or moving images, such as those in a film. The term “image” also incorporates any type of data, including that stored electronically (as on a computer disk), which is capable of conversion into an image. This covers material available on computers, mobile phones or any other electronic device. The scope of the definition of image is also affected by the requirement referred to above that persons and animals portrayed in an image must appear to be real. That requirement has the effect of excluding animated characters, sketches, paintings and the like.

460.Subsection (9) states that references to parts of the body include body parts that have been surgically constructed.

461.Subsection (10) requires proceedings to be instituted by or with the consent of the Director of Public Prosecutions.

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