Sixty-one days and counting: if your stash contains any material that is or may fall foul of the Government’s new laws on extreme porn, then that is how long you have left to destroy it or otherwise get rid of it. Because, courtesy of Consenting Adult Action Network (CAAN), The Register can reveal today that the law is going live on 26 January 2009.
Sections 62 to 67 of the Criminal Justice Act 2008, passed in May of this year, make it a criminal offence punishable by up to three years in prison to possess material that is both pornographic and extreme.
"Pornographic" is defined as being produced for the purposes of sexual arousal. "Extreme" includes acts which threaten a person’s life, results, or is likely to result, in serious injury to a person’s anus, breasts or genitals, involves sexual interference with a human corpse, or sex with an animal (dead or alive).
In addition, the picture must be grossly offensive, disgusting or otherwise of an obscene character and "a reasonable person" would consider the action depicted to be real.
Possibly the sort of picture that can be found here (NSFW). It is staged by members of The Register’s favourite horror burlesque group, the Satanic Sluts, and the activity in the picture is totally legal, in the sense that the participants have staged it. There's make-up and loads of fake blood, but unless we have missed something the girl in the foreground has not been harmed in any way.
Therefore, those involved may quite legally act out this scene. However, as far as the new law is concerned, it is probably pornographic: it depicts real harm being carried out in a realistic way – possibly even interference with a dead person - and, if a jury decided that the scene was grossly offensive, then possessing this image would, from January, be a criminal offence for anyone but the two girls involved in it.
It could be argued that a British jury would not convict on this image, because the production values are too close to those of soft porn, whilst a similar picture with harsher lighting and grittier make-up might fall foul of the law. However, the reality is that until this type of image is tested in a court of law, neither we nor anyone making such pictures can know.
Ironically, the law could sweep up many images and individuals whose main interest is not in the pornographic aspects of the scenes, but who are members of the growing fashion for Goth Horror – or even fans of the Satanic Sluts.
Opponents of the new law have been expecting a January launch date for some time, but despite repeated requests to the Ministry of Justice had been unable to obtain either an exact launch date or clarification of how the Police and Crown Prosecution Service would be advised to interpret the law.
Clair Lewis, Convenor for CAAN, was therefore very surprised when she rang the Ministry of Justice this week and was informed simply that the date had already been announced, and further information would be forthcoming shortly. She said: "They made it sound as though the decision had been made public ages ago. But we have contacts with every major group working on this issue, so if it had been announced publically, we are pretty sure we would have known. This feels a bit like they were trying to sneak it out on the quiet."
Miss Lewis may have a point: the final commencement date was put out ten days ago in a Statutory Instrument published on November 15 – a Saturday. Police and the Prosecution Service do not yet appear to have had any further information on how the legislation should be applied – despite the fact that when CAAN first raised this issue, the Ministry of Justice assured us that "further information about the offence" would be provided closer to the date of implementation and that they would "seek to give a significantly longer period of notice than two weeks".
As of today, they have just over 8 weeks - including the Christmas holiday period - to explain the new legislation to the public. The Ministry of Justice have said, however, that guidelines for the public will be available much sooner - possibly even this week.
One minor crumb of comfort for those wondering how far they must go to comply with this law comes in a judgment issued in the Criminal Division of the Court of Appeal on 3 November. This held that where an individual no longer had control or custody of images in their possession, it would be unsafe to proceed with a prosecution – and convictions based on such evidence were quashed.
In this particular case, a number of images of child porn had been discovered on computer equipment belonging to the appellant. However, they had been deleted a significant time prior to the defendant’s arrest: he would have needed specialist software to access the deleted files, which he did not appear to have, and there could be no certainty that he had ever actually looked at the images.
This suggests that for non-experts, the bar for deletion of dodgy images may not after all be set impossibly high. ®