On 26 January 2009, Section 63 of the Criminal Justice and Immigration Act 2008 came into effect, making it an offence to possess certain extreme pornographic material. At the same time, Section 71 of the Act amended the Obscene Publications Act 1959, increasing the maximum penalty for offences under that Act to five years imprisonment.
The legislation sets out three criteria that an image must meet in order to fall under the Act. First, it must be pornographic in nature. This means that a reasonable person would consider its sole or main purpose to be sexual arousal. However, the legislation does allow for context. For example, if the image was part of a wider narrative that was not pornographic, the image may be classified differently than it would be if considered in isolation. Second, the image must also be grossly offensive, disgusting or otherwise obscene. And third, the image must also portray one of the following in an explicit and realistic way: An act that threatens a person’s life; an act which causes or is likely to cause serious damage to a person’s anus, breasts or genitals; a sex act involving a human corpse; or intercourse or oral sex involving an animal. It is clearly stressed in the legislation that the image must meet all three of these elements for possession to be considered an offence.
For those caught with images that fulfil these criteria, there are three general defences set out in the Act. The first defence allows for legitimate reasons for possession of the material, such as through work as a policeman, film classifier or software builder who is creating a program to block such material. The second defence allows for images which are possessed but have not been viewed, the argument being that the person could not have known the nature of the image. The third defence allows for instances where the image is received by a person without them having requested it, and is deleted quickly after being viewed. Similarly, allowances are also made for people who accidentally stumble upon an image, the emphasis being on intention.
For police investigating offences that fall under this new legislation, the assistance of computer forensic experts is vital. In addition to recovering ‘deleted’ images and internet browsing records in order to prove possession and intent, computer forensics can also provide evidence in support of or against one of the defences described above. For example, if a person claimed that an image had been received by email but not viewed, computer forensic analysis could reveal if this were truly the case. Similarly, where an image had been viewed, computer forensic analysis could reveal how long the image remained on the person’s hard drive before it was deleted.
With the prevalence of high speed broadband connections, social networking sites and peer to peer file sharing services, extreme pornographic images can spread rapidly. Computer forensics experts will no doubt be working increasingly closely with police forces and Crown Prosecution Services throughout England and Wales to help police and prosecute against this new offence.