The Extreme Pornography Law: How a Murder Became a Possession Offence

Most of the law on this subject was made by judges deciding what to do with a Victorian statute. Section 63 is different. It is a modern offence, drafted for the internet, passed by a Parliament that knew exactly what it was doing, and its history can be followed step by step from a killing to a commencement order.

Where it started

Jane Longhurst was murdered on 14 March 2003. Graham Coutts was convicted of her murder on 4 February 2004 at the Crown Court at Lewes and sentenced to life with a minimum term of thirty years. The Court of Appeal dismissed his appeal against conviction on 21 January 2005 and reduced the minimum term to twenty six years. The House of Lords then quashed the conviction on 19 July 2006, on the ground that the trial judge should have left manslaughter to the jury even though neither side had asked for it, and he was convicted again at a retrial in July 2007.

What made the case a legislative event rather than a criminal one was the evidence about what Coutts had been looking at online. Jane Longhurst’s mother, Liz Longhurst, began a campaign to criminalise possession of violent pornography, backed by members of Parliament including David Lepper, who secured a Westminster Hall debate on internet extreme images on 18 May 2004, and Martin Salter. A petition reported at fifty thousand names was presented to Parliament.

The government moved. A joint Home Office and Scottish Executive consultation on the possession of extreme pornographic material was published in August 2005, and a summary of responses together with the government’s response followed in August 2006. Opposition organised itself in the same period: Backlash was created in 2005 specifically to collate evidence against the proposals, and drew in existing groups including the trust formed after the Spanner prosecutions of the previous decade.

What Parliament passed

The Criminal Justice and Immigration Act 2008 received Royal Assent on 8 May 2008. Sections 63 to 68 deal with pornography. Section 63 came into force on 26 January 2009, along with the sections around it, under a commencement order made in 2008.

The offence is possession. Section 63(1) reads, in full, that it is an offence for a person to be in possession of an extreme pornographic image, and the rest of the section is spent defining that phrase. An image is pornographic if it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. It is extreme if it is grossly offensive, disgusting or otherwise of an obscene character and falls within a closed list: threats to life, acts likely to result in serious injury to a person’s anus, breasts or genitals, sexual interference with a corpse, and sex with an animal. The portrayal must be explicit and realistic, and a reasonable person must think the person or animal was real. Section 64 excludes classified films. Sections 65 and 66 provide defences, section 67 sets the penalties at two or three years on indictment depending on the category, and prosecution requires the consent of the Director of Public Prosecutions.

Nobody has to have been harmed. Nobody has to have complained. The act portrayed does not have to have happened at all, provided it looks as though it did.

The clause that reaches backwards

Section 66 is the provision that matters most to anyone whose interests are the subject of this site. It gives a defence to a defendant who proves that they directly participated in the act portrayed, that the act did not involve the infliction of any non-consensual harm, and, where a corpse is portrayed, that it was not in fact a corpse.

Then the Act defines non-consensual harm. It includes harm to which the person did not consent, which is what anyone would expect. It also includes harm which a person cannot in law consent to, which is not. Read against the ruling described in Operation Spanner, where the House of Lords held in 1993 that consent is no defence to actual bodily harm inflicted for sexual gratification, the participation defence is narrower than it first appears. A photograph of something you did, to a person who wanted it and asked for it, does not necessarily fall inside it.

Amendments and the rest of the United Kingdom

Scotland legislated on its own account. Section 42 of the Criminal Justice and Licensing (Scotland) Act 2010 inserted new sections into the Civic Government (Scotland) Act 1982, creating an offence in similar terms but with a different list. The Scottish provision covers non-consensual penetrative sexual activity and uses severe injury rather than an anatomical list, and it came into force on 28 March 2011.

England and Wales caught up four years later. Section 37 of the Criminal Justice and Courts Act 2015 added a new category to section 63 covering images of non-consensual penetration, in force from 13 April 2015. The amendment moved the working definition of an extreme image for England and Wales into a new subsection, which is why older commentaries citing section 63(6) are now describing the Northern Ireland position rather than the English one.

What it has done

The published figures are thinner than the debate around them. The most cited number, four hundred and five defendants found guilty of possession between 2009 and 2014, with the large majority of cases concerning bestiality images, comes from one piece of research restated in later work rather than from several independent counts, and it should be quoted with that in mind. Prosecutions recorded in Crown Prosecution Service reporting ran into the thousands a year in the middle of the following decade, though the categories those reports use do not map neatly onto section 63 alone.

The acquittal of Simon Walsh at Kingston Crown Court on 8 August 2012 is the case the community remembers, because the images in question came from a private party among consenting adults and the jury declined to convict. It is a Crown Court verdict and therefore not a precedent, and the offence stands exactly as it did. What it demonstrated is that the definition is wide enough to bring an ordinary consensual encounter in front of a jury, and that whether it survives there is a question of twelve people’s judgment rather than of law.

This is the second time in this history that Parliament and the courts have answered the same question the same way. The first is set out in Operation Spanner, the comparison with other countries in how other legal systems answered the consent question, and the sequence in the full timeline.