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The Rise of Extreme Porn pp 201–227Cite as

Palgrave Macmillan

Prosecutions, Convictions and Sentencing

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Abstract

Chapter 6 analyses original data pertaining to the number of prosecutions initiated and convictions obtained under s 63 since the offence came into force. It also explores sentencing trends.

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Notes

  1. 1.

    CPS, Violence Against Women and Girls (VAWG) Crime Report 2009–10 (CPS, London: 2010) 71; CPS, Violence Against Women and Girls (VAWG) Crime Report 2014–15 (CPS, London: 2015) 95. At the time of writing, figures relating to s 63(7A), which was inserted by s 37 of the Criminal Justice & Courts Act 2015 (i.e. offences involving images of non-consensual penetration and rape) were not available.

  2. 2.

    The figures relate to the number of offences in which a prosecution commenced, recorded in magistrates’ courts. They provide no indication of the final outcome. There is no indication whether the charged offence was the substantive charge at finalisation either; CPS, VAWG Crime Report 2014–15 (n 1) 93, fn 114. For a breakdown of s 63 offences that reached a first hearing in magistrates’ courts from 2009 up to 21 November 2011, see Statistics Regarding Prosecutions under s 63 of the CJIA 2008, Disclosure Ref: 02/2012, dated 11 January 2012, http://cps.gov.uk/publications/docs/foi_disclosures/2012/disclosure_2.pdf, accessed 15 July 2013. The figures reveal that approximately 86 per cent of the offences charged up to 21 November 2011 (i.e. 1,922 offences out of a total of 2,236) concerned images portraying a person performing an act of intercourse or oral sex with an animal (dead or alive).

  3. 3.

    CPS figures relate to financial years. This was confirmed via email communication with the Parliamentary and Complaints Unit of the CPS on 15 April 2013.

  4. 4.

    When a defendant has been found guilty of two or more offences, it is the offence for which the heaviest penalty is imposed. Where the same disposal is imposed for two or more offences, the offence selected is the offence for which the statutory maximum penalty is the most severe.

  5. 5.

    S Easton, ‘Criminalising the possession of extreme pornography: Sword or shield’ (2011) 75(5) Journal of Criminal Law 391, 412.

  6. 6.

    R v Wakeling [2010] EWCA Crim 2210, [12] (Beatson J); R v Oliver (Philip) [2011] EWCA Crim 3114, [7] (Pitchford LJ); R v Burns [2012] EWCA Crim 192, [6] (Wyn Williams J); cf Sentencing Council, Sexual Offences Definitive Guideline (Sentencing Council, London: 2014) 75–9 and its previous version Sentencing Guidelines Council (SGC), Sexual Offences Act 2003 Definitive Guideline (Sentencing Guidelines Secretariat, London: 2007) 109–14, which contain detailed guidance on sentencing offences involving indecent images of children.

  7. 7.

    Wakeling (n 7).

  8. 8.

    Ibid [12] (Beatson J).

  9. 9.

    R v Oliver (Mark David) [2003] 1 Cr App R 28.

  10. 10.

    The former UK Sentencing Advisory Council collapsed the widely known COPINE (Combating Paedophile Information Networks in Europe Project) typology of paedophile picture collections down to five levels of severity. The Panel’s analysis of increasing seriousness has been largely accepted by the Court of Appeal in Oliver (n 10) [12] (Rose LJ). The Court categorised the relevant levels as: (1) images depicting erotic posing with no sexual activity; (2) sexual activity between children, or solo masturbation by a child; (3) non-penetrative sexual activity between adults and children; (4) penetrative sexual activity between children and adults; (5) sadism or bestiality.

  11. 11.

    Wakeling (n 7) [14] (Beatson J).

  12. 12.

    Ibid [16] (Beatson J).

  13. 13.

    Ibid.

  14. 14.

    Oliver (Philip) (n 7).

  15. 15.

    CJA 1998, s 160(2A), as amended by the Criminal Justice and Court Services Act 2000, s 41(3)(a).

  16. 16.

    Oliver (Philip) (n 7) [7] (Pitchford LJ) (emphasis added).

  17. 17.

    Ibid [9] (Pitchford LJ).

  18. 18.

    R v C [2010] EWCA Crim 2474.

  19. 19.

    Ibid [9].

  20. 20.

    Ibid [13] (The Recorder of Norwich).

  21. 21.

    Ibid [15] (The Recorder of Norwich).

  22. 22.

    Burns (n 7).

  23. 23.

    Ibid [6].

  24. 24.

    Ibid.

  25. 25.

    Ibid [7] (Wyn Williams J). A sentence of eight months’ imprisonment, after a plea of guilty, indicated that the judge considered a sentence of 12 months appropriate, which was reduced to eight by a third because of the early guilty plea in accordance with the sentencing guidelines; see Sentencing Guidelines Council, Reduction in Sentence for a Guilty Plea Definitive Guideline (SGC, London: 2007) [4.2].

  26. 26.

    R v Sharples (Brian Anthony) [2012] EWCA Crim 3144.

  27. 27.

    Ibid [2].

  28. 28.

    Ibid.

  29. 29.

    Ibid [5].

  30. 30.

    Ibid [7].

  31. 31.

    Ibid.

  32. 32.

    Ibid [9].

  33. 33.

    R v Lewis (John Michael) [2012] EWCA Crim 1071.

  34. 34.

    SGC, Sexual Offences Act 2003 Definitive Guideline (n 7).

  35. 35.

    Lewis (n 34) [10].

  36. 36.

    SGC, Sexual Offences Act 2003 Definitive Guideline (n 7) 113: for a person of previous good character, the sentencing range of the guidelines after a trial is 26 weeks to two year’s custody.

  37. 37.

    Lewis (n 34) [12].

  38. 38.

    Ibid [13].

  39. 39.

    Ibid [22].

  40. 40.

    Ibid [14] (Beatson J).

  41. 41.

    Ibid.

  42. 42.

    The same position was adopted in Wakeling (n 7) [16] (Beatson J).

  43. 43.

    Oliver (Philip) (n 7) [7] (emphasis added).

  44. 44.

    This was despite the fact that she did not have before her the decision of the Court in Oliver (Philip). The latter was given on 21 December 2011 and was not available when the applicant in Lewis was sentenced on 13 January 2012.

  45. 45.

    Lewis (n 34) [10].

  46. 46.

    Ibid [20] (Beatson J).

  47. 47.

    Ibid [9], [20] (Beatson J).

  48. 48.

    KA McCabe, ‘Common forms: Sex trafficking’ in MC Burke (ed), Human Trafficking: Interdisciplinary Perspectives (Routledge, New York: 2013) 135; FP Bernat and T Zhilina, ‘Human trafficking: The local becomes global’ in FP Bernat (ed), Human Sex Trafficking (Routledge, Abingdon: 2011) ch 1.

  49. 49.

    DM Hughes, ‘The use of new communications and information technologies for sexual exploitation of women and children’ (2002) 13(1) Hastings Women’s Law Journal 129, 136.

  50. 50.

    MD Enaikele and AO Olutayo, ‘Human trafficking in Nigeria: Implication for human immune deficiency virus and acquired immune deficiency syndrome pandemic’ (2011) 3(11) International Journal of Sociology and Anthropology 416, 419; S Ramage, ‘Criminal prosecutions of victims of trafficking: Law Society Practice Note, 9 October 2015’ (2016) 229 Criminal Lawyer 4, 7.

  51. 51.

    C Phillipson, ‘The reality of pornography’ in C McGlynn, E Rackley and N Westmarland (eds), Positions on the Politics of Porn: A Debate on Government Plans to Criminalise the Possession of Extreme Pornography (Durham University, Durham: 2007) 22.

  52. 52.

    Ibid 21; see also Hon’ble Mrs Justice R Dalvi, ‘Human trafficking: The angle of victimology, an overview’ in PH Parekh (ed), Human Rights Year Book 2010 (Universal Law Publishing, Delhi: 2010) 55.

  53. 53.

    R v Livesey (Keith) [2013] EWCA Crim 1600.

  54. 54.

    Ibid [4].

  55. 55.

    Ibid.

  56. 56.

    Lewis (n 34) [9]: ‘the crime [of possession of extreme pornography] was not victimless’ (Beatson J).

  57. 57.

    Livesey (n 54) [4] (emphases added).

  58. 58.

    Ibid [3].

  59. 59.

    Criminal Justice Act 2003, s 144 and SGC, Guilty Plea Definitive Guideline (n 26).

  60. 60.

    Livesey (n 54) [9].

  61. 61.

    Ibid.

  62. 62.

    Ibid.

  63. 63.

    Ibid [10].

  64. 64.

    Sentencing Advisory Panel, Advice to the Court of Appeal: Offences Involving Child Pornography (SAP, London: 2002); cf R v Terrell (Alexander James) [2007] EWCA Crim 3079, [28] (Ouseley J) where the Court of Appeal held that it was inappropriate to impose a sentence of imprisonment for public protection under s 225 of the Criminal Justice Act 2003 on an offender who had been convicted of making indecent images of children, because ‘the link between the offending act of downloading indecent images and the possible harm […] to children [was] too remote to satisfy the requirement that [the offender’s] re-offending which [cause] serious harm’, defined in s 224(3) of the 2003 Act as ‘death or serious personal injury, whether physical or psychological’.

  65. 65.

    A Ashworth, Sentencing and Criminal Justice (6th edn, CUP 2015) 155-6.

  66. 66.

    Home Office, Consultation: On the Possession of the Extreme Pornographic Material (Home Office Communications Directorate, London: 2005) [34].

  67. 67.

    Ashworth (n 66) 155.

  68. 68.

    Livesey (n 54) [4].

  69. 69.

    Lewis (n 34) [9], [22]; Ibid.

  70. 70.

    Livesey (n 54) [4].

  71. 71.

    Such as physical integrity, autonomy and freedom from degrading treatment; see further A von Hirsh and N Jareborg, ‘Gauging criminal harm: A living standard analysis’ (1991) 11(1) Oxford Journal of Legal Studies 1.

  72. 72.

    A similar point is made by Ashworth (n 66) 162 in the context of indecent images of children.

  73. 73.

    Oliver (Philip) (n 7) [7] (Pitchford LJ).

  74. 74.

    Lewis (n 34) [19] (Beatson J); referring to R v Roe [2010] EWCA Crim 357, [4] (Lord Justice Hughes).

  75. 75.

    Ibid [20] (Beatson J).

  76. 76.

    Livesey (n 54) [4].

  77. 77.

    Lewis (n 34) [14] (Beatson J).

  78. 78.

    Wakeling (n 7).

  79. 79.

    Ibid [16] (Beatson J).

  80. 80.

    Oliver (n 7); Wakeling (n 7) [15] (Beatson J); Lewis (n 34) [14] (Beatson J); Burns (n 7) [6] (Wyn Williams J).

  81. 81.

    Wakeling (n 7) [12] (Beatson J).

  82. 82.

    Ibid [16].

  83. 83.

    Ibid.

  84. 84.

    R v C (n 19) [9]; Oliver (Philip) (n 7); Burns (n 7); Sharples (n 27).

  85. 85.

    Oliver (Philip) (n 7) [8] (Lord Justice Pitchford).

  86. 86.

    Livesey (n 54) [9].

  87. 87.

    Burns (n 7) [6] (Wyn Williams J).

  88. 88.

    Ibid [7] (Wyn Williams).

  89. 89.

    Lewis (n 34) [21] (Beatson J).

  90. 90.

    Various media and methods can be used for accessing extreme images, e.g. an offence of possession would arguably be less serious if the offender simply viewed the images without actively storing them; see also the discussion about the element of possession in Chapter 5 (section ‘Viewing’).

  91. 91.

    This challenge can be overcome by treating possession of one file on the offender’s computer containing numerous images as a single offence. The same solution has been suggested by the Sentencing Advisory Panel in relation to cases involving the offence of possession of indecent images of children, where it is not uncommon among Internet users to possess collections of numerous images; see Sentencing Advisory Panel, Advice to the Court of Appeal (n 65) [43].

  92. 92.

    Wakeling (n 7) [14] (Beatson J).

  93. 93.

    Coroners and Justice Act 2009, s 125(1).

  94. 94.

    Ministry of Justice, Justice Statistics Analytical Services; Ref: 349-13 FOI 82593; Ref: 390-15 FOI 99319 (n 5).

  95. 95.

    When a defendant has been found guilty of two or more offences it is the offence for which the heaviest penalty is imposed.

  96. 96.

    Ashworth (n 66) 339.

  97. 97.

    Criminal Justice Act, s 152(2).

  98. 98.

    The ACSL excludes life/indeterminate sentences.

  99. 99.

    R Williams, ‘Police will not target offenders against law on violent porn’ The Guardian (London 26 January 2009).

  100. 100.

    The ACSL for triable either-way offences was 12.2 months in 2009, 11.8 months in 2010, 12.2 months in 2011, 12.0 months in 2012 and 12.5 months in 2013. The ACSL for possession of bestiality images was also significantly lower than that of all criminal offences in the same years: 13.7 months in 2009, 13.7 months in 2010, 14.3 months in 2011, 14.5 months in 2012, 15.5 months in 2013 and 15.6 months in 2014; Ministry of Justice, Criminal Justice Statistics Annual Update 2015, Table Q5.1 (offenders sentenced by offence group and type of sentence at all courts, 2005–2015), https://goo.gl/ifok2O, accessed 5 July 2016.

  101. 101.

    Ministry of Justice, Justice Statistics Analytical Services; Ref: 390-15 FOI 99319 (n 5); the number of defendants found guilty in a particular year (Table 6.2) may exceed the number proceeded against, as the proceedings in the magistrates’ court took place in an earlier year and the defendants were found guilty at the Crown court in the following year.

  102. 102.

    Williams (n 100).

  103. 103.

    That is 14 offenders in 2010, 28 in 2011, 15 in 2012, 22 in 2013 and 15 in 2014; see Table 6.4.

  104. 104.

    Williams (n 100).

References

  • Dalvi R, ‘Human trafficking: The angle of victimology, an overview’ In PH Parekh (ed), Human Rights Year Book 2010 (Universal Law Publishing, Delhi: 2010).

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Authors and Affiliations

  1. School of Law and Criminology, University of West London, London, United Kingdom

    Alexandros K Antoniou

  2. Canterbury Christ Church University, Canterbury, United Kingdom

    Dimitris Akrivos

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  1. Alexandros K Antoniou
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Antoniou, A.K., Akrivos, D. (2017). Prosecutions, Convictions and Sentencing. In: The Rise of Extreme Porn. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-48971-1_6

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