March 01 2014
The Criminal Justice and Immigration Act 2008, enacted in January 2009, criminalised the possession of extreme pornography. This included a number of areas, such as an act threatening a person’s life, an act causing or likely to cause serious injury to genitals, sexual interference with a corpse, or bestiality.
The Act was passed without a great deal of mainstream press attention. In some instances, a defendant may not have been aware such content is illegal, although this is not a statutory defence. This is further complicated by the fact that similar material is perfectly legal elsewhere in the world. It would not be surprising to find holiday makers returning from a Spanish holiday with a DVD featuring bestiality purchased from the local store.
There are several important issues to be considered in extreme pornography cases. Firstly, the wording of the Act requires that a reasonable person looking at the image would believe it to be real. This is intended to exclude cartoon images, but high definition computer generated images can blur the line and make it difficult to assess what a reasonable person would believe. In such circumstances it is the expert’s role to highlight any images which may not meet this criteria. It is then for the jury to decide whether they would believe the images to be real.
Another potential issue we often see arises from the wording of the Act in relation to bestiality. This states an image must depict “a person performing an act of intercourse or oral sex with an animal”. The wording excludes, therefore, the depiction of other sexual activity with an animal, such as masturbation, despite the tone and content being of a similar nature to those that are covered by the Act. The nature of the charged images, and whether such images fall under the strict definitions of the Act, frequently is a key component of the case.
The Act legislates against the possession of such images but, unlike the Protection of Children Act 1978 in relation indecent images of children, there is no offence of making. The Court of Appeal in R v Porter [2006] EWCA Crim 650, however, gives guidance in relation to the possession of indecent images of children, which is equally applicable to extreme pornography cases; can the charged images be considered to be in the possession of the defendant on the dates alleged? Analysis of where the images are stored, along with assessment of any evidence relating to the accessibility of the images, can provide valuable information to help answer this question.
The Government has recently announced its intention to criminalise the possession of pornographic images depicting rape. Carefully worded legislation will be needed to define exactly what will be criminalised. Presumably, the test of it being reasonable to believe that the depicted actions are real will be used. A review of many mainstream pornography websites (hosted outside the UK) is likely to show a number of videos that, to some, may realistically appear to depict rape but are in fact staged. The distinction between real and staged may be difficult to define. When material which is illegal under UK law can be legally hosted on mainstream pornography websites from other countries, there is potential for accidental access. Analysis of a user’s actions is critical to assess whether they appear to have been seeking such material or whether access could have been inadvertent.
In summary, it is the role of the digital forensic investigator to evaluate his or her findings with respect to the charged images and the law as written. Ultimately, it is for the jury to decide whether the images meet the reality or reasonableness test of extreme pornography as discussed above, but this may not be clear cut. We can offer an impartial review of the charged images and access issues, and thereby assist the Court in coming to its decision.
