Letter from the Ministry of Justice

15 May 2008
Ms Deborah Hyde
Our ref: 198671

Dear Ms Hyde,

Thank you for your emails of 23 April, 7 May and 8 May to Lord Hunt about the Government’s proposals in the Criminal Justice and Immigration Bill (now the Criminal Justice and Immigration Act) 2008 to create a new offence of possession of a limited range of extreme pornographic material. I have been asked to reply, further to your brief telephone discussion with Mr. Trodd on 9 May.

I will take the points which you have raised in the order in which you raised them in your emails. Taking first the new defence for participants in consensual activity, as you have noted, the amendment was introduced to address a possibly anomaly where, as the legislation was previously constructed, a person might have been at risk of committing an offence by possessing an image of certain acts which he or she had undertaken lawfully.

The new defence will apply where a defendant proves that he or she was a participant in the act depicted in the image; and that no harm was caused to any participant, or if harm were caused, it was harm which was and could be lawfully consented to. The defence will apply in respect of the first two categories of extreme images, that is, in respect of an image which portrays an act which threatens a person’s life or an act which results in, or is likely to result in serious injury to a person’s anus, breasts or genitals. It will also apply in respect of the third category of extreme image – necrophilia – but only where the image does not depict a real corpse. The defence will not apply in respect of images of bestiality.

You have suggested that the defence should have been drawn up to apply to a wider range of circumstances where the viewer might have a reasonable belief in the consensual nature of the material viewed. This was fully discussed in Parliament and the Government made clear their reasons for not pursuing this course. Briefly, the focus of this offence is on the images themselves and the impact they may have on those who view them. Furthermore, it is very difficult to tell from an image whether true consent has been given and that is why the defence was limited to participants.

You raised further queries in your emails of 7 and 8 May. First in respect of the ‘Sex Offenders’ Register’, it is the case that offenders will be subject to notification requirements under Part 2 of the Sexual Offences Act 2003 if they are 18 or over but only if they are sentenced to two years’ imprisonment or more. This is towards the top of the scale for an offence where the maximum penalty is three years’ imprisonment, i.e. in respect of violent images, and at the very top in the case of an extreme image in the less severe categories i.e. bestiality and necrophilia. Such a sentence would reflect the concerns of the Court about particular aspects of a case, such as the amount and severity of the material or the number of previous convictions.

You have also asked when the law will take effect, whether clearer guidance will be issued on what material will be illegal and what the implications will be for people who have images on their computer which were legal to possess before the law came into force.

The law will be implemented by Commencement Order. Whilst we are aware that some press reports have suggested a commencement date of January 2009, the implementation plan is still being finalised and therefore the date for commencement has still to be confirmed. We will do so as soon as possible. New criminal offences are not normally brought into force for at least two months after enactment and this period is often significantly longer given the need to ensure those likely to be affected by the measure are aware of it, and the police and other agencies have guidance on its operation. An explanation of the offence will be made available closer to the time of implementation but, as a general rule, BDSM material that is currently legal to publish under the Obscene Publications Act 1959 should not be affected by the new legislation. Beyond that, the details of the material covered by the offence are given within Sections 63-67 of the Act itself.

It is correct to say that the offence will not be retrospective. In other words, people will not be at risk of prosecution in respect of the period of time prior to implementation of the offence. However, possession is an on-going action, so when the relevant sections of the Act come into force, material which meets the thresholds and definitions set out in sections 63-67 will become illegal to possess. Thus people in possession of such material will become at risk of prosecution. The time before implementation will give people an opportunity to consider what images they possess. Similar circumstances arose when the age of the child – in respect of possession of indecent photographs of children – was raised from under 16 to under 18 in the Sexual Offences Act 2003. This change in the law meant that people had to consider and, if necessary, delete or destroy material which until then had been legal to possess.

Yours sincerely

Stephen Ruddell
Criminal Law Policy Unit”