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2017 | OriginalPaper | Chapter

8. Thresholds of Extreme Pornography

Authors : Alexandros K Antoniou, Dimitris Akrivos

Published in: The Rise of Extreme Porn

Publisher: Springer International Publishing

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Abstract

Chapter 8 examines the practical application of the extreme pornography law as reflected in prosecutors’ decision-making process in a sample of CPS case files involving s 63 offences. It explores the thresholds of extreme pornography indicated by the nature of the material in cases where prosecutors were satisfied that there was sufficient evidence to provide a realistic prospect of conviction.

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previous chapter Crown Prosecution Service Case Files Review: Setting the Scene

next chapter Conclusions

See Chapter 7, Table 7.2.

LO09A (Forensic Investigation Report, Metropolitan Police).

Ibid (Charging Decision/Advice and Case Action Plan).

Ibid.

See the then current Sentencing Guidelines Council, Sexual Offences Act 2003: Definitive Guideline (Sentencing Guidelines Secretariat, London: 2007) Part 6A.

CCP (2010) [4.16].

ST10AB (Staffordshire Police, Computer Examination Department, Computer Analysis Report). Approximately half of them (1,167) were found in unallocated clusters.

Ibid (Witness Statement).

Ibid (Charging Decision/Advice and Case Action Plan; Review Type: Investigative Advice).

Ibid.

Ibid.

Ibid (Charging Decision/Advice and Case Action Plan; Review Type: Full Code Test).

Ibid.

Ibid (ERO Assessment of File).

Ibid (Defence Skeleton Argument, para 3; emphasis added).

Ibid (Defence Skeleton Argument, para 10; emphasis added).

Ibid (Defence Skeleton Argument, para 14; emphasis added).

Ibid (Defence Skeleton Argument, para 19; emphasis added).

Ibid (Defence Skeleton Argument, para 38; emphasis added).

Ibid (Prosecution Outline and Skeleton Argument).

Ibid (Defence Skeleton Argument, para 43).

D Ormerod and A Hooper, Blackstone’s Criminal Practice 2012 (OUP, Oxford: 2011) [D10.41].

ST10AB (Information Report).

Ibid.

Ibid.

Ibid (Prosecution notes as found in the file).

Ibid.

Home Office, Consultation: On the Possession of the Extreme Pornographic Material (Home Office Communications Directorate, London: 2005) [27]: ‘We consider that it is possible that such material may encourage or reinforce interest in violent and aberrant sexual activity to the detriment of society as a whole.’

Nevertheless, it should be borne in mind that such perceptions vary widely between viewers. For instance, a more experienced viewer could probably identify clear evidence of use of prosthetics and computer-generated imagery effects, whereas a less knowledgeable will most likely see none. Modalities of viewing and their relationship to reality and fantasy are issues beyond the scope of this study; see further M Barker and K Brooks, Knowing Audiences: Judge Dredd – Its Friends, Fans and Foes (University of Luton Press, Luton: 1998).

ST10AB (Information Report).

British Board of Film Classification, Classification Guidelines (BBFC, London: 2014) 24. R18 rated films may only be shown to adults in specially licensed cinemas and R18 rated video works may be supplied to adults only in licensed sex shops.

ST10AB (Defence Skeleton Argument, para 49).

ST10AB (Expert Report on Pornography).

Ibid.

Ibid.

Ibid.

The numbers of the images correspond to the counts of the indictment (see Table 8.1).

ST10AB (Expert Report on Pornography; emphasis added).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Memorandum submitted by Dr C Smith et al. (CJ&I 341), http://www.publications.parliament.uk/pa/cm200607/cmpublic/criminal/memos/ucm34102.htm, accessed 22 July 2013.

A Hall, ‘Reading realism: Audiences’ evaluations of the reality of media texts’ (2003) 53(4) Journal of Communication 624, 638.

ST10AB (Expert Report on Pornography).

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid.

Ibid (Extreme Pornography Grading Report).

Ibid.

Ibid (Admissibility of Defense Expert Reports).

Ibid.

Ibid.

CPS Prosecution Policy and Guidance, Disclosure Manual, Chapter 36 [36.11], http://www.cps.gov.uk/legal/d_to_g/disclosure_manual/disclosure_manual_chapter_36/, accessed 22 July 2016.

R v Staniforth [1975] Crim LR 291.

DPP v A and BC Chewing Gum Ltd [1968] 1 QB 159; R v Anderson [1972] 1 QB 304, 313 (Lord Widgery CJ) (analysed in Chapter 2).

ST10AB (Witness Statement).

Ibid.

See Table 8.1.

ST10AB (Witness Statement).

Ibid.

The Video Recordings Act 2010 repealed and revived without amendment the Video Recordings Act 1984 in order to rectify a procedural error made during the passage of the latter.

ST10AB (Witness Statement).

Ibid (conference minutes).

ST10AB (cited in email correspondence between the reviewing lawyer and the prosecution counsel; the word ‘numerous’ was capitalised in the original).

Ibid.

Ibid.

Ibid (email correspondence between the CCP and the reviewing lawyer; emphasis added).

Following the new instruction, the prosecution counsel noted in his advice that he saw ‘little value in relying upon the content of [the BBFC examiner’] statement’ (contained in ST10AB).

ST10AB (email correspondence between the reviewing lawyer and the prosecution counsel; emphasis in the original).

See Chapter 7, Table 7.4.

Research cases concerning images portraying serious injury acts, excluding ST10AB: KE01B, LO07B, SW14B, KE03BD, LO06BD, LO08BD, SW13BD, and SW15BD; see also Chapter 7, Table 7.2.

Police and Criminal Evidence Act 1984, s 18.

Criminal Justice Act 1967, s 9; Magistrates’ Courts Act 1980, ss 5A(3)(a) and 5B; Criminal Procedure Rules 2005, Rule 27.1.

Explanatory Notes to the CJIA 2008, para 457.

S Newmahr, Playing on the Edge: Sadomasochism, Risk and Intimacy (Indiana University Press, Bloomington, IN: 2011) 152–4.

This is distinguished from permanent piercings, which are referred to as ‘ringing’.

B Swift, ‘Body art and modification’ in GN Rutty (ed), Essentials of Autopsy Practice: Recent Advances, Topics and Developments (Springer-Verlag, London: 2004) 165–6.

B Love, Encyclopedia of Unusual Sexual Practices (Abacus, London: 2002) 387.

Ibid 416.

S Asefa, ‘Female genital mutilation: Violence in the name of tradition, religion and social imperative’ in SG French, W Teays and LM Purdy, Violence against women: Philosophical perspectives (Cornell University Press, New York: 1998) 94.

H El Bashir, ‘The Sudanese National Committee on the Eradication of Harmful Traditional Practices and the Campaign Against Female Genital Mutilation’ in RM Abusharaf, Female Circumcision: Multicultural Perspectives (University of Pennsylvania Press, Philadelphia) 145.

EA Roth, Culture, Biology and Anthropological Demography (CUP, Cambridge: 2004) 36.

cf C Ashford, ‘Barebacking and the “cult of violence”: Queering the criminal law (2010) 74(4) Journal of Criminal Law 339, 351; citing C White, ‘The spanner trial and the changing law on Sadomasochism in the UK’ (2006) 50(2/3) Journal of Homosexuality 167, Ashford refers to R v Brown, which involved a group of men who had been engaging in BDSM, and the ‘myths’ that emerged around the case, most notably the ‘nailing by A of B’s foreskin or scrotum to a board’; R v Brown [1994] 1 AC 212, 246. He notes that, in truth, ‘the nail had been inserted into a pre-existing piercing and this element was edited out of the three-hour video shown to the jury’.

D Addington, Play Piercing (Greenery Press, Oakland, CA: 2006) 77.

A Aggrawal, Forensic and Medico-legal Aspects of Sexual Crimes and Unusual Sexual Practices (CRC Press, Taylor and Francis Group, Boca Raton, London: 2009) 147.

Explanatory Notes to the CJIA 2008, para 457.

SW14B (Charging Decision/Advice and Case Action Plan).

Ibid.

Magistrates’ Courts Act 1980, s 6(1). For the abolition of committal hearings, see Ministry of Justice Press Release, ‘Faster justice as unnecessary committal hearings are abolished’ (London 28 May 2013), https://www.gov.uk/government/news/faster-justice-as-unneccessary-committal-hearings-are-abolished, accessed 4 July 2016.

SW14B (details of court appearances, actions, endorsements, etc.).

See Chapter 7, Table 7.5.

‘Austria smashes child porn ring’ BBC News (London 13 March 2009), http://news.bbc.co.uk/1/hi/world/europe/7941935.stm, accessed 27 July 2016.

See Chapter 7, p 250.

SW15BD (Charging Decision/Advice and Case Action Plan).

[2000] 2 Cr App R 248 (discussed in Chapter 5).

In interview, the suspect, and later defendant in this case, offered ‘no comment’ to all questions put to him with regard to the images. His partner was eliminated as a suspect because on the date of the most recent downloading of the images she was out of the UK; travel documents were provided and immigration stamps on her passport were confirmed by the police officers. In addition, historical rotas were sought before the charging decision from both suspects’ employers, confirming that at the relevant time the primary suspect’s partner was at work, whereas he was not. Furthermore, the forensic analysts’ reports verified that the images in question were saved by the defendant on electronic equipment (external hard drives, CD-ROMs etc.), and the folders on which the images were stored were dated and titled too.

SW15BD (Witness Statement completed by a forensic investigator).

Ibid.

Ibid (Record of Interview).

In his report to the Crown Prosecutor, one of the officers on the case ‘respectfully requested that a charging decision be considered for an offence of outraging public decency or exposure’; Ibid (Further Report to Crown Prosecution for Charging Decision). The prosecutor, however, took the view that ‘this [was] a non-starter’ and that it was difficult for the Crown to establish the ‘public element’: ‘there is no evidence of anyone else being present other than the suspect and his photographer accomplice’, the prosecutor stated; Ibid (Charging Decision/Advice and Case Action Plan).

See Chapter 7, Table 7.6.

Aggrawal, Forensic and Medico-legal Aspects of Sexual Crimes and Unusual Sexual Practices (n 114) 149.

B Rose, S/M Women’s Support Group, Columbus, Ohio, interviewed on 27 February 1987; cited in TE Murray and TR Murrell, The Language of Sadomasochism: A Glossary and Linguistic Analysis (Greenwood Publishing, Connecticut: 1989) 133.

KE03BD (Charging Decision/Advice and Case Action Plan).

Ibid.

Murray and Murrell, The Language of Sadomasochism (n 132) 97.

Explanatory Notes to the CJIA 2008, para 457.

LO06BD (Charging Decision/Advice and Case Action Plan).

Love, Encyclopedia of Unusual Sexual Practices (n 107) 513.

No information was recorded as to whether they were still or moving images.

RDK Herman, ‘Playing with restraints: Space, citizenship and BDSM’ in K Browne, J Lim and G Brown (eds), Geographies of Sexualities: Theory, Practices and Politics (Ashgate, Surrey: 2009) 96.

As explained in Chapter 5, neither ‘life-threatening’ nor ‘serious injury’ are defined in the Act and the intention is that both should be given their ordinary English meaning; Ministry of Justice (MOJ) Circular 2009/01, Possession of extreme pornographic images and increase in the maximum sentence for offences under the OPA 1959: Implementation of section 63–67 and section 71 of the CJIA 2008 (Criminal Law Policy Unit, London: 2009) [15]–[16].

CPS Prosecution Policy and Guidance, Extreme Pornography, http://www.cps.gov.uk/legal/d_to_g/extreme_pornography/, accessed 9 May 2013. The prosecutor’s charging decision was signed on 26 June 2010. The defendant in this case was charged approximately two weeks later and was committed from Barry Magistrate’s Court to the Crown Court in Cardiff early in September 2010. The CPS Prosecution Policy and Guidance was updated in mid-May 2013 and this wording was removed. However, this exact phrasing was explicitly stated in the guidance at the time the prosecution decision was made.

In the ‘Public Interest’ section of the Charging Decision/Advice and Case Action Plan document the prosecutor simply noted ‘Yes’.

Love, Encyclopedia of Unusual Sexual Practices (n 107) 113.

Ibid.

SOPO stands for Sexual Offences Prevention Order; Sexual Offences Act 2003, s 104; Sentencing Guidelines Council, Sexual Offences Act 2003: Definitive Guideline (n 5) [1.30]. The aim of a SOPO is to reduce the risk of future sexual harm.

LO07B (Charging Decision and Advice, Specifying or Attaching Charges).

Ibid. The same prosecutor acted as the reviewing lawyer in this case and noted in her review endorsement that there was public interest in prosecuting, because ‘the suspect [had] a previous conviction for an identical matter;’ Ibid (Review Endorsement).

LO07B (Borough Crown Prosecutor’s assessment of the evidence in relation to count six, contained in the CPS case file).

LO07B (Legal Counsel Advice, enclosed).

Explanatory Notes to the CJIA 2008, para 457.

LO07B (ruling regarding count six; taped transcript enclosed).

CJIA 2008, s 63(6).

LO07B (The Recorder’s direction regarding count six in the presence of the jury; taped transcript enclosed).

See Chapter 7, Table 7.5.

LO07B (Borough Crown Prosecutor’s assessment of the evidence in relation to count six) (n 149).

The particulars of offence in the indictment stated (count six): ‘[The defendant] on the [date] had in his possession […] a DVD which showed an adult male of large proportions penetrating the anus of a child who had not yet achieved puberty with his penis.’

LO07B (Borough Crown Prosecutor’s assessment of the evidence in relation to count six) (n 149).

The age of the child is ultimately for the jury to consider and expert evidence on this matter is inadmissible; R v Land [1998] 1 Cr App R 301.

LO07B (Borough Crown Prosecutor’s assessment of the evidence in relation to count six) (n 149).

Ibid (DPP’s response enclosed; no date is provided).

No descriptions of images portraying dead animals were found in the sample studied.

SW12D.

KE04D. Similar descriptions of vaginal penetration by a dog were also found in SW15BD.

SW15BD.

LO16D.

SW12D. Similar descriptions were found in LO05D; LO06BD; KE02D; SW12BD.

KE02D.

Ibid.

SW15BD.

H Miletski, Understanding Bestiality and Zoophilia (East-West Publishing, Bethesda, MD: 2002) 7.

KE04D.

KE02D. A similar description was found in ST11D.

KE02D.

Miletski, Understanding Bestiality and Zoophilia (n 171) 7. Felching encompasses an additional meaning, which refers to human sexual interaction; see JT Parsons and C Grov, ‘Gay male identities, desires and sexual behaviors’ in CJ Patterson and AR D’Augelli (eds), Handbook of Psychology and Sexual Orientation (OUP, Oxford: 2013) 23.

KE04D.

KE03BD.

KE04D.

LO08BD.

KE04D.

Ibid.

Ibid (Charging Decision/Advice and Case Action Plan; emphasis added).

Ibid.

see Chapter 7, Table 7.4.

Staffordshire Police, Staffordshire Police Authority and Chief Constable’s Joint Annual Report 2009–10, http://www.statewatch.org/observatories_files/drones/uk/police-staffs-2010-annual-report.pdf, accessed 25 July 2016.

ST11D.

Ibid.

This was further confirmed in a letter sent by the CPS to Stoke Police on 7 February 2011; found in ST11D.

Ibid.

J Sprack, A Practical Approach to Criminal Procedure (14th ed, OUP, Oxford: 2012) [17.09].

Criminal Justice Act 1967, s 17; see also CPS Prosecution Policy and Guidance, Termination of Proceedings, http://www.cps.gov.uk/legal/s_to_u/termination_of_proceedings/, accessed 25 June 2016.

Sprack, A Practical Approach to Criminal Procedure (n 190) [17.09].

ST11D (Review Endorsement).

CCP (2013) [9.2]; (2010) [10.2].

Case files involving bestiality: KE02D, KE04D, LO05D, LO16D, ST11D, KE03BD, LO06BD, LO08BD, SW13BD, SW12D, SW15BD.

SW12D.

(1986) 82 Cr App R 5; ‘where two people are jointly indicted for the commission of a crime and the evidence does not point to one rather than the other, and there is no evidence that they were acting in concert, the jury ought to acquit both’; CPS Prosecution Policy and Guidance, Homicide: Murder and Manslaughter, http://www.cps.gov.uk/legal/h_to_k/homicide_murder_and_manslaughter/, accessed 27 July 2016.

SW12D.

LO05D (Charging Decision and Advice, Specifying/Attaching Charges; Review Endorsement).

Ibid.

KE02D (Charging Decision/Advice and Case Action Plan).

Realistic Prospect of Conviction (RPOC).

KE02D (Charging Decision/Advice and Case Action Plan).

LO16D (Charging Decision/Advice and Case Action Plan).

Ibid.

Ibid.

CCP (2010) [2.3]; (2013) [2.3].

ST10AB, SW12D, SW14B and SW15BD; see also Chapter 7.

SW12D; SW15BD.

SW14B; SW15BD.

CJIA 2008, s 63(6)(b).

M DeMello, Encyclopedia of Body Adornment (Greenwood Publishing, Westport, CT: 2007) 281.

As pointed out earlier, these images presumably portrayed BDSM-oriented activities known as ‘nipple torture’; Murray and Murrell, The Language of Sadomasochism (n 132) 133; J Miller, The Passion of Michel Foucault (Harper Collins, London: 1993) 266; similar images were recovered in KE01B.

KE03BD (Charging Decision/Advice and Case Action Plan).

Ibid.

CPS Prosecution Policy and Guidance, Extreme Pornography, http://www.cps.gov.uk/legal/d_to_g/extreme_pornography/, accessed 27 July 2016.

All extreme pornographic material is obscene; CJIA 2008, s 63(6)(b).

SW15BD.

DeMello, Encyclopedia of Body Adornment (n 212) 43.

C Smith, ‘Pleasing intensities: Masochism and affective pleasures in porn short fictions’ in F Attwood (ed), Mainstreaming Sex: The Sexualisation of Western Culture (IB Tauris, London: 2009) 23, citing A Beckman, ‘Deconstructing myths: The social construction of “sadomasochism” versus “subjugated knowledges” of practitioners of consensual SM’ (2001) 8(2) Journal of Criminal Justice and Popular Culture 66.

CCP (2010) [4.13]; (2013) [4.9].

cf CCP (2010) [4.12]; (2013) [4.12a]: ‘The more serious the offence, the more likely it is that a prosecution is required.’

SW14B; SW12D and SW15BD.

ST10AB (Details of hearing).

Ibid.

Ibid.

Ibid.

KE03BD (‘Undoubtedly’); KE04D (‘Satisfied’); LO07B (‘Yes’); LO09A (‘Yes’); LO16D (‘Yes’); ST11D (‘Yes’); SW13BD (‘Yes’).

KE01B; KE02D; LO05D; LO06BD; LO08BD.

The same argument could be raised with respect to the term ‘interference’ under s 63(7)(c) regarding images of necrophilia; C McGlynn and E Rackley, ‘Criminalising extreme pornography: A lost opportunity’ (2009) 4 Crim LR 245, 251.

KE02D.

cf McGlynn and Rackley, ‘A lost opportunity’ (n 230) 251.

MOJ Circular 2009/01 (n 141) 8.

Criminal Justice and Immigration Act 2008

Sexual Offences Act 2003

Title: Thresholds of Extreme Pornography
Authors: Alexandros K Antoniou
Dimitris Akrivos
Copyright Year: 2017
Publisher: Springer International Publishing
Book: The Rise of Extreme Porn
Print ISBN: 978-3-319-48970-4

Electronic ISBN: 978-3-319-48971-1

Copyright Year: 2017
DOI: https://doi.org/10.1007/978-3-319-48971-1_8

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