01 February 2019

UK Obscenity Framework

The UK Crown Prosecution Service (CPS) has released updated guidelines following last year's public consultation on Obscene Publications Prosecution Guidance. The guidelines identify potential offences for prosecutors to consider when dealing with “obscene publications”, before focusing on the Obscene Publications Act 1959, offering guidance on the provisions in general and in particular how prosecutors should approach the question of “obscenity”.

The changes give significantly greater recognition of consent and offer a contemporary framework regarding BDSM.

The CPS states that it conducted a public consultation on a proposed revision of its Legal Guidance on Obscene Publications. The purpose of the consultation was to provide interested persons with an opportunity to provide comments and to ensure the final version of the policies were informed by as wide a range of views as possible.
 The Obscene Publications Act makes it a crime to publish material which might ‘deprave or corrupt’ those who are likely to see, read, or hear it. ‘Publishing’ can include distributing, selling, lending or giving the material in question, or offering to sell or lend it. 
Prosecutors might also consider other offences when dealing with “obscene publications”, for example outraging public decency, possession of an extreme pornographic image, disclosing private sexual images without consent, and offences against the Malicious Communications Act 1988 and Electronic Communications Act 2003
The consultation was published on the CPS website and asked five questions:
Question 1 Do consultees agree or disagree with the guidance that the showing or realistic depiction of sexual activity/pornography which constitutes acts or conduct contrary to the criminal law is (subject to the statutory defences) likely to be obscene? 
Question 2 Do consultees agree or disagree with the guidance that prosecutors must exercise real caution when dealing with the moral nature of acts not criminalised by law, and that the showing or realistic depiction of sexual activity/pornography which does not constitute acts or conduct contrary to the criminal law is unlikely to be obscene? 
Question 3 Do consultees agree or disagree with the guidance that prosecutors, when assessing obscenity, should consider: Whether the activity is consensual; b. Whether or not serious harm is caused; c. Whether or not it is inextricably linked with other criminality; and d. Whether the likely audience is not under 18 or otherwise vulnerable. 
Question 4 Do consultees agree or disagree with the guidance that the showing or realistic depiction of other acts or conduct which are contrary to the criminal law is also capable of being obscene? 
Question 5 Do consultees have any further suggestions for guidance to prosecutors in assessing “obscenity” when considering allegations falling under the Obscene Publications Act 1959?
The CPS states
The guidance has been revised to provide more clarity about what an “obscene publication” might be, and places an increased focus on those who may view this material which may determine whether a criminal offence has been committed.  
The updated guidelines state
Prosecutors may consider the following offences when dealing with obscene publications before going on to consider the Obscene Publications Act 1959: 
  • Possession of an extreme pornographic image, contrary to section 63 Criminal Justice and Immigration Act 2008 
  • Taking, making, distributing or publishing indecent images or pseudo-images of children, contrary to section 1 Protection of Children Act 1978; 
  • possession of an indecent image of a child, contrary to section 160 Criminal Justice Act 1988; possession of prohibited images of children, contrary to section 62 Coroners and Justice Act 2009 
  • Disclosing private sexual images without consent, contrary to section 33 Criminal Justice and Courts Act 2015 
  • Sending an article which is indecent, grossly offensive, conveys a threat or is false to cause distress or anxiety, contrary to section 1 of the Malicious Communications Act 1988 
  • Sending by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, or false for the purpose of causing annoyance, inconvenience or needless anxiety to another, contrary to section 127 Communications Act 2003 
  • Pursuing a course of conduct which amounts to harassment, contrary to section 2 Protection from Harassment Act 1997 
  • Outraging public decency, contrary to common law Importing obscene articles, contrary to section 42 Customs Consolidation Act 1876 Sending injurious, indecent or obscene articles etc by post, contrary to section 85 Postal Services Act 2000 
  • Encouraging or assisting an offence, contrary to 44 to 46 Serious Crime Act 2007 Children and Young Persons (Harmful Publications) Act 1955. This criminalises publishing etc. articles consisting of stories told in pictures (whether or not accompanied by text) portraying crimes, violence, cruelty or incidents of a repulsive or horrible nature having a tendency to corrupt children. The maximum penalty is four months imprisonment and/or a £1,000 fine. Attorney General’s consent is needed to prosecute 
  • Video Recordings Act 1984 and 2010. This provides for a regime of video classification and criminalises non-compliance, maximum sentences ranging from six months to two years imprisonment 
  • Indecent Displays (Control) Act 1981. A person permitting or causing display of indecent matter visible from a public place shall be guilty of an offence, punishable by up to two years imprisonment 
  • Theatres Act 1968. A person presenting a play which is obscene so as to have a tendency to corrupt or deprave shall be guilty of an offence, punishable by up to three years imprisonment. Attorney General’s consent is needed to prosecute
The possession of articles caught by the extreme pornography provisions should be prosecuted under that legislation (the maximum sentence is 3 years’ imprisonment); their distribution (or other conduct caught by “publication”) however may in principle be prosecuted using the Obscene Publications Act 1959. Note that sexual communication with a child which involves the provision of obscene material to the child is also covered by section 15A of the Sexual Offences Act 2003 (the maximum sentence is 2 years’ imprisonment). In cases where there is a choice of charges, section 6 of the Code for Crown Prosecutors should be applied. If prosecutors are considering whether, in order to reflect the seriousness and extent of the offending and to provide the court with sufficient powers, to charge using the Obscene Publications Act 1959 they should do so in addition to, not instead of, the 15A offence because of the availability of notification requirements and Sexual Harm Prevention Orders under section 15A: see schedule 3 Sexual Offences Act 2003.