New laws will make possessing currently legal porn a crime!
From the 6th November 2026, a person who possesses, publishes or distributes of certain types of previously legal pornography will commit a criminal offence. This is the result of the coming into force of section 104 of the Crime and Policing Act 2026.
The Ministry of Justice has published guidance explaining the changes in England and Wales. The offences are due to be brought into force by commencement regulations.
What material will be covered?
We will look at each in a little more detail shortly, but briefly the material rendered illegal will be pornography depicting:
- Strangulation or suffocation;
- Penetrative images between close family relatives, including step and foster relationships; and
- Sexual activity between two or more people where one person is pretending to be under 16 years of age.
Strangulation
To be convicted, the image must depict one person strangling or suffocating another person in an explicit and realistic way such that a reasonable person looking at the image would think the people shown were real.
This means that the law does not cover images depicting self-strangulation but it will cover AI generated images if a reasonable person would think the image shows real people.
Images of family members
The second category concerns images depicting penetrative sexual activity between relatives, or people pretending to be relatives. The relationships covered include parents and children, siblings, grandparents and grandchildren, and aunts or uncles and their nieces or nephews. It also covers step-relationships.
Given that pornography depicting sex between actual family members is already likely to fall foul of the Obscene Publications Act 1959, we might assume that the prevalence of ‘step-family’ pornography on the internet is the main target of this prohibition but the new law does remove any ambiguity over the legality of familial pornography.
Pretending to be under 16
Images and footage showing sexual images of children are already criminal but the new law will expand that to include images depicting at least two people where one of those people is pretending to be under 16 years of age.
To be guilty, the prosecution must persuade a court that a) the image shows people engaged in sex in an explicit and realistic way; b) that the people are real; and c) that at least one of the people shown is pretending to be under 16. In forming that opinion, the reasonable person may take account of both the image and any “sound or information associated with the image”. You may, therefore, find that an image is considered criminal depending on the ability of a viewer to spot AI fakes and the context in which the image is delivered rather than purely what is shown in the image. You could end up with one person being guilty because the caption primes a viewer to believe one of the people shown is pretending to be under 16 while another person is not guilty because the caption does not prime the viewer in that way, all the while the image in fact shows adults.
There is a defence built into the legislation that tells us the possessor of the image is not guilty if it would be “fanciful” to believe that the person pretending to be under 16 is actually under 16.
We look forward to cases in future about the meaning of the word “pretending”. It is not difficult to imagine a situation where charges are brought because a young-looking adult is determined to be pretending to be under 16 but evidence is brought by the defence that they were doing no such thing.
What if everyone involved was an adult and consented?
This is likely to be one of the more surprising aspects of the changes.
The new offences are concerned with what the image portrays, including in some circumstances what people appear to be pretending. An image can potentially fall within the legislation even if the people involved were adults, the activity was consensual and the circumstances were staged.
Take an example. Two unrelated adults make a pornographic video in which they pretend to be sisters. If the other statutory requirements are met, the fact that they are not actually related and the acts shown are lawful does not prevent conviction! It is thus a crime to make and distribute a recording of these acts even where the acts themselves remain completely lawful.
The Act does provide a defence for the people who directly participated in the act depicted, but it has conditions depending on precisely what offence is charged, contact us if you need to discuss the defences in detail.
What counts as possession and publication?
Possession will generally mean having custody or control of an image; that can include a file saved on a phone or computer, stored in a personal account or retained in cloud storage. It could also include images that have been printed out or published in a magazine.
On the 6th November 2026, it will become a crime to possess these images even if you had them before the law came into force. That means if you have files on your computer, or even old magazines, depicting strangulation, incest, or age-based role play that are currently legal continuing to possess them will become a crime. You would be well advised to destroy such material, fortunately there will be plenty of bonfires available the night before the new law comes into force.
“Publication” includes giving or making an image available to another person by any means. That is most likely to result from an image being posted on the internet, but it could include traditional paper-based publication. You should also note that there is no minimum audience size so sending a file to one other person is sufficient for a publishing charge.
Are there any defences?
Yes. The legislation includes several defences, although their application depends on the offence charged and the facts of each case. For example, a person may have a defence if they had not seen the image and did not know, or have cause to suspect, that it was an image covered by the offence. For possession, there is also a defence concerning an image sent without being requested, provided it was not kept for an unreasonable time.
There is a defence of legitimate reason for possessing or publishing an image. This defence can be used by anyone, but is mostly intended to protect police officers who need to possess the images as part of their investigation. There may be cases where the defence can be utilised by others though.
There may also be a more basic issue: whether the prosecution can establish that the image meets the statutory definition in the first place. In many cases, a defence case will turn on the content of the image, the information associated with it, who had control of the device or account, or what the digital evidence can reliably show.
What are the penalties?
The maximum sentence for possession of pornography depicting strangulation or suffocation, or penetrative sexual activity between certain relatives, is two years’ imprisonment.
For possession of an image depicting sexual activity involving a person who is, or is pretending to be, under 16, the maximum is three years’ imprisonment. The maximum for publication under each of the new offences is five years’ imprisonment.
The changes are a reminder that the law can attach criminal consequences to retaining or sharing an image even where the material was acquired legally and no real child was involved. Whether a particular image is caught is a question that requires care: the new offences contain several distinct tests, and the answer may depend on more than a file name or a brief description.
If you are being investigated or charged in connection with sexual images, Chetwode Criminal Defence Solicitors can advise on the allegation, the digital evidence and any available defence. Contact us for a confidential discussion.