Baroness Levitt:

Moved by Baroness Levitt

294: After Clause 84, insert the following new Clause—“Pornographic images of strangulation or suffocation: England and Wales and Northern Ireland(1) After section 67 of the Criminal Justice and Immigration Act 2008 insert—“67A Possession or publication of pornographic images of strangulation or suffocation(1) It is an offence for a person to be in possession of an image if—(a) the image is pornographic, within the meaning of section 63,(b) the image portrays, in an explicit and realistic way, a person strangling or suffocating another person, and(c) a reasonable person looking at the image would think that the persons were real.(2) It is an offence for a person to publish an image of the kind mentioned in subsection (1).(3) Publishing an image includes giving or making it available to another person by any means.(4) Subsections (1) and (2) do not apply to excluded images, within the meaning of section 64.(5) In this section“image” has the same meaning as in section 63.(6) Proceedings for an offence under this section may not be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.67B Defences to offences under section 67A(1) Where a person is charged with an offence under section 67A(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 67A(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 the person directly participated in the act portrayed and the act did not involve the infliction of any non-consensual harm on any person.(3) Where a person is charged with an offence under section 67A(2), 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 67A(1);(c) that the person directly participated in the act portrayed, the act did not involve the infliction of any non-consensual harm on any person, and the person only published the image to other persons who directly participated.(5) In this section“non-consensual harm” has the same meaning as in section 66.67C Penalties for offences under section 67A(1) A person who commits an offence under section 67A(1) is liable—(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine (or both);(c) on conviction on indictment in England and Wales or Northern Ireland, to imprisonment for a term not exceeding two years or a fine (or both).(2) A person who commits an offence under section 67A(2) is liable—(a) on summary conviction in England and Wales, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);(b) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding 6 months or a fine (or both);(c) on conviction on indictment in England and Wales or Northern Ireland, to imprisonment for a term not exceeding five years or a fine (or both).67D Possession of extreme pornographic images: alternative verdict in magistrates’ courtIf on the trial of a person charged with an offence under section 63 a magistrates’ court finds the person not guilty of the offence charged, the magistrates’ court may find the person guilty of an offence under section 67A(1).”.(2) In section 68 of that Act (special rules relating to providers of information society services) for “section 63” substitute “sections 63 and 67A”.(3) In Schedule 14 to that Act (special rules relating to providers of information society services)—(a) in paragraphs 3(1), 4(2) and 5(1) after “63” insert “or 67A”;(b) in paragraph 5(2)—(i) after “possession” insert “or publication”;(ii) for “an offence under section 63” substitute “the offence in question”. (4) In Schedule 34A to the Criminal Justice Act 2003 (child sex offences for purposes of section 327A), after paragraph 13 insert—“13ZA An offence under section 67A of that Act (possession or publication of pornographic images of strangulation or suffocation) in relation to an image showing a person under 18.”(5) In Schedule 7 to the Online Safety Act 2023 (priority offences), in paragraph 29—(a) for “section 63” substitute “any of the following provisions”;(b) for the words in brackets substitute—“(a) section 63 (possession of extreme pornographic images);(b) section 67A (possession or publication of pornographic images of strangulation or suffocation)”.”Member’s explanatory statementThis Amendment makes it an offence in England and Wales and Northern Ireland to possess or publish a pornographic image that portrays strangulation (often referred to as “choking porn”) or suffocation.