I have been trying to highlight the complications with regards to the possession of extreme pornography provisions of the Criminal Justice and Immigration Bill (dubbed as the Dangerous Pictures Act) during the last few weeks.
This is another short note to highlight the fact that further complications will arise in terms of sentencing of the offenders with regards to the possession provisions of the Criminal Justice and Immigration Bill. When considering the imposition of penalties a comparison can be made with possession prosecutions involving child pornography. In R v Oliver and others,  EWCA Crim 2766, the Court of Appeal established that possession, including downloading, of artificially created pseudo-photographs and the making of pseudo-photographs, should generally be treated as being at a lower level of seriousness than possessing or making photographic images of “real children”. Although the Court of Appeal has noted that there may be exceptional cases in which the possession of a pseudo-photograph could be as serious as the possession of a photograph of a real child. This could include
“for example, where the pseudo-photograph provides a particularly grotesque image generally beyond the scope of a photograph. It is also to be borne in mind that, although pseudo-photographs lack the historical element of likely corruption of real children depicted in photographs, pseudo-photographs may be as likely as real photographs to fall into the hands of, or to be shown to, the vulnerable, and there to have equally corrupting effect.”
One may assume that the same considerations will be applied in relation to offenders possessing extreme pornographic images even though the Criminal Justice and Immigration Bill provisions do not draw this distinction. There has been no discussion of potential problems that could arise with regards to sentencing at the Parliament. Those convicted of possessing “appears to be real” imagery or images produced as a result of “consensual sexual activity” may therefore receive non-custodial sentences. The Court of Appeal in Oliver recommended that the appropriate penalty in the scenario of an offender who was “merely in possession of material solely for his own use, including cases where material was downloaded from the Internet but was not further distributed, and either the material consisted entirely of pseudo-photographs, the making of which had involved no abuse or exploitation of children or exploitation of children”, or there was no more than a small quantity of material at Level 1 on the Oliver Image Scale (images depicting erotic posing with no sexual activity)” is a fine, and far below the custody threshold for a possession offence under section 160 of the Criminal Justice Act 1988.
The Court of Appeal established that in cases of possession, the custody threshold would be passed when defendants possess real images, for example, large amount of material at Level 2 on the Oliver Image Scale (sexual activity between children, or solo masturbation by a child), or a small amount at Level 3 on the Oliver Image Scale or above (non-penetrative sexual activity between adults and children), and the length of the custodial sentence would depend upon the quantity and the nature of the images.
A custodial sentence of between six and twelve months is recommended usually for cases involving possession of a small number of images at Levels 4 on the Oliver Image Scale (penetrative sexual activity between children and adults) or 5 on the Oliver Image Scale (sadism or bestiality). A custodial sentence between twelve months and three years is appropriate for possessing a large quantity of material at Levels 4 or 5 on the Oliver Image Scale.
Similar detailed sentencing guidelines as set out by the Court of Appeal in Oliver will be necessary in relation to the possession of extreme pornography provisions assuming that the Criminal Justice and Immigration Bill will be enacted.
See further on the same topic: Extreme Porn Provisions: Unanswered Questions and Extreme Pornography Offence includes disproportionate penalties