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The Casbyness
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Here we go again...

Criminal Justice and Immigration Bill

PART 6

CRIMINAL LAW

Pornography etc.

64 Possession of extreme pornographic images

(1) It is an offence for a person to be in possession of an extreme pornographic image.

(2) An “extreme pornographic image” is an image which is both—

(a) pornographic, and

(b) an extreme image.

(3) An image is “pornographic” if it appears to have been produced solely or principally for the purpose of sexual arousal.

(4) Where an image forms part of a series of images, the question whether the image appears to have been so produced is to be determined by reference to—

(a) the image itself, and

(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images.

(5) So, for example, where—

(a) an image forms an integral part of a narrative constituted by a series of images, and

(b) it appears that the series of images as a whole was not produced solely or principally for the purpose of sexual arousal, the image may, by virtue of being part of that narrative, be found not to be pornographic, even though it might have been found to be pornographic if taken by itself.

(6) An “extreme image” is an image of any of the following—

(a) an act which threatens or appears to threaten a person’s life,

(b) an act which results in or appears to result (or be likely to result) in serious injury to a person’s anus, breasts or genitals,

(c) an act which involves or appears to involve sexual interference with a human corpse,

(d) a person performing or appearing to perform an act of intercourse or oral sex with an animal, where (in each case) any such act, person or animal depicted in the image is or appears to be real.

(7) In this section “image” means—

(a) a moving or still image (produced by any means); or

(b) data (stored by any means) which is capable of conversion into an image within paragraph (a).

(8) In this section references to a part of the body include references to a part surgically constructed (in particular through gender reassignment surgery).

(9) Proceedings for an offence under this section may not be instituted—

(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions; or

(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.


65 Exclusion of classified films etc.

(1) Section 64 does not apply to excluded images.
(2) An “excluded image” is an image which forms part of a series of images contained in a recording of the whole or part of a classified work.

(3) But such an image is not an “excluded image” if—

(a) it is contained in a recording of an extract from a classified work, and
(b) it appears that the image was extracted (whether with or without other images) solely or principally for the purpose of sexual arousal.

(4) Where an extracted image is one of a series of images contained in the recording, the question whether the image appears to have been extracted as mentioned in subsection (3)(b) is to be determined by reference to—

(a) the image itself, and

(b) (if the series of images is such as to be capable of providing a context for the image) the context in which it occurs in the series of images;
and section 64(5) applies in connection with determining that question as it applies in connection with determining whether an image is pornographic.

(5) In determining for the purposes of this section whether a recording is a recording of the whole or part of a classified work, any alteration attributable

to—

(a) a defect caused for technical reasons or by inadvertence on the part of any person,

or

(b) the inclusion in the recording of any extraneous material (such as advertisements), is to be disregarded.

(6) Nothing in this section is to be taken as affecting any duty of a designated authority to have regard to section 64 (along with other enactments creating criminal offences) in determining whether a video work is suitable for a classification certificate to be issued in respect of it.

(7) In this section —

“classified work” means (subject to subsection (8)) a video work in respect
of which a classification certificate has been issued by a designated
authority (whether before or after the commencement of this section);
“classification certificate” and “video work” have the same meanings as in the Video Recordings Act 1984 (c. 39);“designated authority” means an authority which has been designated by the Secretary of State under section 4 of that Act; “extract” includes an extract consisting of a single image; “image” and “pornographic” have the same meanings as in section 64; “recording” means any disc, tape or other device capable of storing data electronically and from which images may be produced (by any means).

(8) Section 22(3) of the Video Recordings Act 1984 (effect of alterations) applies for the purposes of this section as it applies for the purposes of that Act.


66 Defence

(1) Where a person is charged with an offence under section 64, it is a defence for the person to prove any of the matters mentioned in subsection (2).

(2) The matters are—

(a) that the person had a legitimate reason for being in possession of the image concerned;

(b) that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an extreme pornographic image;

(c) that the person—

(i) was sent the image concerned without any prior request having been made by or on behalf of the person, and

(ii) did not keep it for an unreasonable time.

(3) In this section “extreme pornographic image” and “image” have the same meanings as in section 64.


67 Penalties etc. for possession of extreme pornographic images

(1) This section has effect where a person is guilty of an offence under section 64.

(2) Except where subsection (3) applies to the offence, the offender is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 3 years or a fine or both.

(3) If the offence relates to an image that does not depict any act within section 64(6)(a) or (b), the offender is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(4) In subsection (2)(a) or (3)(a) “the relevant period” means—

(a) in relation to England and Wales, 12 months;

(b) in relation to Northern Ireland, 6 months.

(5) In Schedule 3 to the Sexual Offences Act 2003 (c. 42) (sexual offences in respect of which an offender becomes subject to the notification requirements of Part 2), after paragraph 35 insert— “35A - An offence under section 64 of the Criminal Justice and Immigration Act 2007 (possession of extreme pornographic images) if the offender—

(a) was 18 or over, and

(b) is sentenced in respect of the offence to imprisonment for a
term of at least 2 years.”

(6) In subsection (5) the reference to Schedule 3 to the Sexual Offences Act 2003 is a reference to that Schedule as it applies in relation to England and Wales and Northern Ireland.
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