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Is Viewing Illegal Pornography the Same as Possessing It?

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In the UK, it is illegal for anyone to produce, possess or distribute illegal pornography or indecent images. However, there is understandably some confusion as to whether ‘viewing’ this type of content is the same as ‘possessing’ it.

The sentences associated with illegal pornography and indecent images have the potential to be serious, so understanding what content is considered to be illegal and what constitutes possession.

Here, we discuss what is illegal to view on the internet in the UK, whether viewing is the same as possessing and what the potential consequences of being involved in illegal pornography may be.

What is considered to be illegal pornography?

As a general rule, it is not illegal to view, possess, share, or sell adult pornography in the UK. However, there are certain types of pornography which are considered illegal.

Firstly, it is illegal to possess ‘extreme pornography’. Extreme pornography refers to material that is considered grossly offensive, disgusting or otherwise obscene. It will explicitly and realistically show:

  • Life threatening injury
  • Act resulting, or is likely to result, in serious injury to someone’s anus, breasts or genitals
  • Bestiality (Intercourse or oral sex with an animal)
  • Necrophilia (Sexual interference with a human corpse)
  • Rape or assault by penetration

A reasonable person looking at the image must think that the persons or animals were real.

Is scat porn illegal in the UK?

Scat pornography (a form of pornography that involves defecation) falls under the wider umbrella of extreme pornography and is therefore considered to be illegal.

What is an indecent image?

It is also an offence to take, to permit to be taken, to make, to possess, show, or to distribute or publish an image of a child (someone under the age of 18) posed or pictured indecently. Images refer to actual photographs or video footage, drawings, tracings or digital images.

It is important to note that there is no statutory definition of ‘indecent’. However, in a case before a jury, it is for them to decide what is indecent by referring to whether it is something that offends recognised standards of propriety.

How are indecent images categorised?

There are three levels of seriousness for indecent images:

Category A indecent images

Category A indecent images are the most serious category. They relate to images involving penetrative sexual activity and sexual activity with an animal or sadism. Offences related to Class A indecent images are very likely to lead to prison sentences.

Category B indecent images

Category B indecent images involve non-penetrative sexual activity. This may include masturbation, typically without the presence of an adult. Class B indecent image offences are likely to result in a prison sentence or community service order.

Category C indecent images

Category C indecent images depict erotic or sexual posing and are considered the least serious. Offences here are likely to result in a community order but can be extended to a prison sentence.

What counts as possession of illegal pornography or indecent images?

Possessing illegal pornography or indecent images refers to the act of storing pictures or photographs in your property, on your person, or on any electronic devices you own, meaning you have a degree of control over them.

Is viewing the same as possessing in the UK?

So, where is the line drawn between viewing and possessing illegal pornography and indecent images? This is a complicated issue that doesn’t necessarily have a single concrete answer.

Distinguishing between viewing and possessing is typically context dependent. The act of viewing an image or video can be done in many ways, which could affect whether the offence of possession is taken into consideration. In law viewing is defined as ‘making’.

For example, situations where someone has to download an image to their device compared to viewing an image through search results, will be treated very differently.

The charge of 'making' also has the advantage of being widely interpreted to cover such activities as opening attachments to emails and downloading or simply viewing images on the internet. By contrast, the same conduct often cannot lead to a possession charge.

The case of R v Okoro (No.3) has given clarity on the law of possession, in which they used the following test:

  • The suspect must have custody or control of the images, basically, they are able to access or retrieve the images;
  • The suspect knows that they possessed an image or collection of images on their device. It’s not necessary to know the content of the images, just that they know they have them.

Can you go to jail for looking at a website in the UK?

It is possible that you can receive a prison sentence for viewing certain websites, especially if the website contains illegal pornography or indecent images. This also applies if you are found to have accessed an illegal website on the dark web.

What are the sentencing guidelines for possessing illegal pornography and indecent images?

The sentencing guidelines related to illegal pornography and indecent images are broad and incorporate a wide range of factors.

With regards to illegal or extreme pornography, the maximum sentence for possession varies depending on the subject matter. The maximum sentence for possession of images that depict life threatening acts or serious injury is three years imprisonment. The maximum sentence for possession of images involving bestiality and necrophilia is two years imprisonment. An unlimited fine can also be handed out.

The range of penalties someone can receive for possessing indecent images depends on the Category. The minimum sentence for possessing indecent images will involve Category C images and could lead to a medium level community order. On the other hand, cases involving possession of Category A indecent images can lead to three years’ custody.

Are there any aggravating or mitigating factors for illegal pornography and indecent image offences?

The sentence someone receives for illegal pornography, or indecent image offence may also depend on whether there are any aggravating or mitigating factors.

Aggravating factors which could increase the severity of punishment may include:

  • Previous convictions
  • An offence taking place while on bail
  • The age and vulnerability of a child depicted (for indecent images)
  • Visible pain and suffering
  • Distress caused
  • The period the images were possessed
  • The volume of images possessed
  • Whether commercial gain was intended
  • Whether widespread distribution was intended

Mitigating factors could include:

  • No prior convictions
  • Clear remorse
  • A defendant previously showing good character
  • Age or a lack of maturity
  • Mental disorders or disability
  • Steps taken to address offending (such as self-referral to counselling)
  • Dealing with a porn addiction through professional help
  • Dealing with drink or drug issues
  • Proving personal mitigation factors such as bereavement or trauma
  • Medical reports
  • Personal consequences because of the offence, such as loss of job or marriage

Should I speak to a solicitor if I’m accused of possessing illegal pornography or indecent images?

In short, yes, you should speak to a solicitor as soon as possible. The sentencing guidelines for illegal pornography and indecent images are harsh, which means that the support and advice of an expert solicitor is critical. If you have been arrested and interviewed by the police, our criminal defence solicitors can step in to lend their expertise and representation.

Some people make the incorrect assumption that instructing a solicitor after being accused of an offence will demonstrate that they must be guilty. This is not accurate, and, no matter what your circumstances may be, it is crucial that you enlist representation as soon as possible.

At JD Spicer Zeb, our sexual offence solicitors have substantial experience and expertise with these types of matters and are ready to lend their support. We will take every possible step to ensure that your rights are protected and that you achieve the best possible outcome.

In the case of indecent images, we will make sure that the alleged images are correctly and accurately categorised, medical reports (including phycological evaluations) are collated and that the potential impact on you and your family is well accounted for. This could make all the difference if a case proceeds to sentencing.

Our team also work with a leading digital forensics provider Cyfor who can offer fast face to face expert advice on the initial forensic aspect of the police investigation. This can cost around £500 plus VAT. The expert can advise in-depth on lines of forensics the police will deploy and the likely outcome of interrogation of various platforms or devices.

Where a conviction is unavoidable, we will also work to ensure that any sentence is proportionate, including the application of a Sexual Harm Prevention Order (SHPO).

Contact our Sexual offence lawyers today

For a free initial consultation, urgent specialist advice, immediate representation, or to speak to us confidentially about allegations of illegal pornography or possessing indecent images, please do not hesitate to get in touch.

You can contact our dedicated sexual offence and indecent images defence lawyers in London, Birmingham, and Manchester by telephone on:

Or email: solicitors@jdspicer.co.uk

Alternatively, you can fill out our quick online enquiry form, and we will get back to you as soon as possible.

24/7 legal representation for illegal pornography and indecent images offence allegations

Please get in touch for a free initial consultation with one of our expert criminal defence solicitors, as well as immediate representation and advice on dealing with allegations relating to illegal pornography and indecent images.

We are available to represent clients all over England and Wales at any time, so please contact our Emergency Number 07836 577 556.

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