Section 107 Pornographic images of sexual activity with child under 16I1

After section 67G of the Criminal Justice and Immigration Act 2008 insert—

“Possession or publication of pornographic images of sexual activity with child under 16

67H

(1)

It is an offence for a person (P) to be in possession of an image if—

(a)

the image is pornographic, within the meaning of section 63, and

(b)

a reasonable person—

(i)

looking at the image, and

(ii)

taking into account any sound or information associated with the image,

would think that each of the conditions in subsection (2) was met.

(2)

The conditions are—

(a)

the image portrays, in an explicit and realistic way, a person (A) engaged in sexual activity with another person (B),

(b)

A and B are real, and

(c)

at least one of A or B is, or is pretending to be, under 16.

(3)

A person is not to be taken as pretending to be under 16 if it is fanciful that they are actually under 16 in the way pretended.

(4)

It is an offence for a person to publish an image of the kind mentioned in subsection (1).

(5)

Publishing an image includes giving or making it available to another person by any means.

(6)

For the purposes of subsection (1)(b) the reference to sound or information associated with the image is—

(a)

when subsection (1)(b) applies for the purpose of an offence under subsection (1), to sound, or information, associated with the image that is in P’s possession, and

(b)

when subsection (1)(b) applies for the purpose of an offence under subsection (4), to sound, or information, associated with the image that the person in subsection (4) publishes with the image.

(7)

In this section “image” has the same meaning as in section 63.

(8)

Subsections (1) and (4) do not apply to excluded images, within the meaning of section 64.

(9)

Proceedings for an offence under this section may not be instituted except by or with the consent of the Director of Public Prosecutions.

Defences to offences under section 67H

67I

(1)

Where a person is charged with an offence under section 67H(1), it is a defence for the person to prove any of the matters mentioned in subsection (2).

(2)

The matters are—

(a)

that the person had a legitimate reason for being in possession of the image concerned;

(b)

that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an image of the kind mentioned in section 67H(1);

(c)

that the person—

(i)

was sent the image concerned without any prior request having been made by or on behalf of the person, and

(ii)

did not keep it for an unreasonable time;

(d)

that—

(i)

the person directly participated in the act portrayed as person A or person B mentioned in section 67H(2)(a),

(ii)

the act did not involve the infliction of any non-consensual harm on any person, and

(iii)

neither A nor B was under 16.

(3)

Where a person is charged with an offence under section 67H(4), it is a defence for the person to prove any of the matters mentioned in subsection (4).

(4)

The matters are—

(a)

that the person had a legitimate reason for publishing the image concerned to the persons to whom they published it;

(b)

that the person had not seen the image concerned and did not know, nor had any cause to suspect, it to be an image of the kind mentioned in section 67H(1);

(c)

that—

(i)

the person directly participated in the act portrayed as person A or person B mentioned in section 67H(2)(a),

(ii)

the act did not involve the infliction of any non-consensual harm on any person,

(iii)

neither A nor B was under 16, and

(iv)

the person only published the image to person B or A (as the case may be).

(5)

In this section “non-consensual harm” has the same meaning as in section 66.

Penalties for offences under section 67H

67J

(1)

A person who commits an offence under section 67H(1) is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding three years or a fine (or both).

(2)

A person who commits an offence under section 67H(4) is liable—

(a)

on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b)

on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both).”

In section 68 of that Act (special rules relating to providers of information society services), after “67E” insert “and 67H”.

In Schedule 14 to that Act (special rules relating to providers of information society services), in paragraphs 3(1), 4(2) and 5(1) after “67E” insert “or 67H”.

In Schedule 34A to the Criminal Justice Act 2003 (child sex offences for the purposes of section 327A), after paragraph 13ZB insert—

“13ZC

An offence under section 67H of that Act (possession or publication of pornographic images of sexual activity with child under 16) in relation to an image showing a person under 18.”

In Schedule 7 to the Online Safety Act 2023 (priority offences), in paragraph 29 after paragraph (c) insert—

“(d)

section 67H (possession or publication of pornographic images of sexual activity with child under 16).”