Policy paper

Crime and Policing Bill: ECHR supplementary memorandum: 10 April 2026

Updated 14 April 2026

Ninth Supplementary Memorandum by the Home Office, Ministry of Justice and Department for Transport 

Introduction   

1. This memorandum supplements memoranda dated 23 February 2025, ^{[footnote 1]} 22 ^{[footnote 2]} and 24 April, ^{[footnote 3]} 10 June 2025, ^{[footnote 4]} 3 November 2025, ^{[footnote 5]} 13 February 2026, ^{[footnote 6]} 23 February 2026, ^{[footnote 7]} 2 March 2026 ^{[footnote 8]} and 20 March 2026 ^{[footnote 9]} prepared, variously, by the Home Office, Ministry of Justice, Department for Transport and Ministry of Defence, which addressed issues under the European Convention on Human Rights (“ECHR”) in relation to the Crime and Policing Bill.

2. This supplementary memorandum addresses the issues arising under the ECHR from further government amendments tabled on 10 April 2026 for Commons consideration of Lords amendments. It supplements the ECHR memoranda previously published in relation to the Bill. This memorandum has been prepared by the Home Office, Ministry of Justice and Department for Transport.

3. The amendments considered in this memorandum are:

i. “Fly-tipping: penalty points on driving record”, which amends the Road Traffic Offenders Act 1988 to empower courts to endorse a number of penalty points, within the range of 3-9, on the driving record of an offender convicted under section 33 of the Environmental Protection Act 1990 who was driving a motor vehicle used in or for the purposes of the commission of that offence.

ii. “Maximum penalty for offence of possession of weapon with intent to use unlawful violence”, which increases the maximum penalty for possession of a weapon with intent to use unlawful violence.

iii. “High street illegality: powers to close retail premise”, which creates a power to amend by regulations the duration of a closure order and closure notice made under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014.

iv. “Image deletion orders”, which creates a new ancillary order, an “image deletion order”, available to a sentencing court when dealing with an offender convicted of an intimate image offence, breastfeeding voyeurism, recording or sharing semen-defaced images.

v. “Criminalising the possession and publication of pornographic images of sex between relatives – addition of new cohort of relatives”, an amendment which expands the scope of who is ‘related’ for the purposes of the offence.

vi. “Pornographic images of sexual activity with child under 16”, a new clause which will make it an offence to possess or publish an image if: the image is pornographic; it portrays, in an explicit and realistic way, a person (A) engaged in sexual activity with another person (B); a reasonable person looking at the image would think the persons were real; and a reasonable person looking at the image and taking into account any sound or information associated with the image would think one or both of the persons were under 16, or pretending to be under 16.

vii. “Workability amendment to Lords amendment 361 - provisions for pardons and criminal records of women prosecuted under abortion law”, an amendment that requires relevant data controllers, insofar as reasonably practicable, to delete from relevant official records any details of which they are aware of a conviction, caution arrest or investigation detailed in new section 165A(1) of the Policing and Crime Act 2017.

4. The detail of the ECHR implications arising from this set of amendments, insofar as considered necessary and appropriate to raise here, is set out below, addressed by measure.

5. It is not considered that any other Government amendments tabled on 10 April 2026 give rise to issues under the ECHR, or the issues have been fully addressed by previous ECHR memoranda for the Bill.

ECHR Analysis: individual measures

a. “Fly-tipping: penalty points on driving record”

6. The provisions require the court to endorse an offender’s driving record with a number of penalty points, within the range of 3-9, where that offender is convicted of an offence under section 33 of the Environmental Protection Act 1990 and was driving a motor vehicle used in or for the purposes of the commission of that offence. They also require the court to disqualify repeat offenders from driving, subject to any mitigating circumstances, if the penalty points to be taken into account on that occasion number 12 or more.

Article 8 – Right to respect for private and family life

7. Article 8 ECHR may be engaged if a driver was disqualified from driving, especially if the person was required to drive extensively for personal, professional and family needs^{[footnote 10]} as this may be considered to interfere with the right to respect for private and family life. Article 8 provides that there shall be no interference with the exercise of this right except as in accordance with the law and as necessary in a democratic society.

8. Any interference will be in accordance with the law. This measure will amend the primary legislation which sets out the framework for penalty points and disqualification for specified offences. The framework sets out how the endorsement of driving records operates in practice, and the parameters of the court’s discretion in ordering disqualification. The regime is well established and sufficiently accessible and foreseeable. This change does not impact the penalty point regime itself, but adds an offence to a list of offences outside general traffic legislation for which penalty points are available.

9. The provision pursues a legitimate aim, namely the prevention of crime, as the purpose of this measure is to address the use of vehicles in the commission of fly-tipping offences, with the overall aim of reducing the number of such offences. The interference with Article 8 is proportionate to that aim – the sanctions are graduated (from penalty points, to discretionary driving disqualifications, to disqualifications for repeat offenders once the number of points reaches a certain threshold) and the court retains discretion in any event. The statutory framework of the Road Traffic Offenders Act 1988 requires the court to have regard to all the circumstances before ordering disqualification due to the number of points to be taken into account, and specifies that exceptional hardship is a relevant circumstance to consider. Further, any disqualification order is for a specified period, taking into account the circumstances of each case. It is also considered proportionate as the imposition of penalty points is limited to drivers who use a motor vehicle in a fly-tipping offence, it does not apply to others who commit those offences without driving a motor vehicle.

10. The Government is satisfied that the measure introduces no greater interference than is proportionate and complies with Article 8 ECHR.

b. “Maximum penalty for offence of possession of weapon with intent to use unlawful violence”

11. This measure will increase the maximum penalty for possession of a weapon with intent to use unlawful violence from 4 years to 7 years. Simple possession of offensive weapons or knives in a public place, educational premises or prison attract a maximum penalty of 4 years’ custody.  The potential penalty for the new offence is higher to recognise the intent element behind these offences. This reflects the more serious nature of the offending and the harm that can flow from it, meaning the causal connection between the conviction and the deprivation of liberty is therefore maintained, and the sentence justified. However, the more serious offence of threatening with an offensive weapon or bladed article in a public place or educational premises also attracts a maximum penalty of 4 years’ custody. In terms of seriousness, the new offence falls between possession and threats.

Article 5 - Right to liberty and security

12. In principle, matters of appropriate sentencing fall outside the scope of the Convention; it is for member states, not the Court, to decide on appropriate sentences. However, raising the maximum penalty for weapon offences could potentially engage Article 5 ECHR if the custodial sentences imposed as a result of the higher maximum penalty are disproportionately severe so as to render the resulting detention arbitrary. However, the Government considers that the proposed increase in penalty in the clause is not arbitrary and is proportionate to the nature and severity of the offending, including, as set out above, the intent element behind these offences.

13. The sentencing guidelines for possession offences suggest a sentence range of between a fine and 2 years 6 months’ custody; while for threatening with a weapon the guidelines suggest a sentence range of between 6 months and 3 years’ custody. It is unlikely that sentencing guidelines for the new offence will be produced for some time and in the interim, judges will be expected to apply the General Guideline: Overarching Principles which states courts should take into account sentences for analogous offences; this is in accordance with the duty imposed by section 59 of the Sentencing Act 2020 to follow any relevant sentencing guidelines. In practical terms it is anticipated that judges will use the possession guidelines and apply an uplift to the sentence to reflect the increased maximum for the new offence while being mindful of the guidelines for the more serious offence of threatening. Due to the safeguards provided by the sentencing guidelines, it is unlikely that a sentence approaching the maximum will ever be imposed and if it was, it would likely be successfully appealed.

c. “High street illegality: powers to close retail premise”

14. This measure creates a power to amend by regulations the duration of a closure order and closure notice made under section 80 of the Anti-social Behaviour, Crime and Policing Act 2014 (“the 2014 Act”). The regulations made under this power are subject to the draft affirmative procedure.

15. Section 80(5) of the 2014 Act allows the court to make a closure order if it is satisfied that (a) a person has engaged, or is likely to engage, in disorderly, offensive or criminal behaviour on the premises, or (b) that use of the premises is has resulted, or is likely to result, in serious nuisance to members of the public, or (c) that there has been, or is likely to be, disorder near those premises associated with the use of those premises and that the order is necessary to prevent the behaviour, nuisance or disorder from continuing, recurring or occurring.

16. A closure order under the current provisions may not exceed 3 months (section 80(6)). A closure order may be extended by a further 3 months (section 82(7)) and must not exceed 6 months (section 82(8)).

Article 8 - Right to respect for private and family life, home and correspondence and Article 1 of Protocol 1 – Right to peaceful enjoyment of property

17. This power creates a provision for the regulations to make different provisions for different purposes. This allows for flexibility in extending the duration of closure orders for different categories of premises (for example, commercial vs residential), and flexibility to set the maximum time duration for each category. This safeguard ensures that residents are not excluded from their homes for disproportionate periods of time, such as to limit the interference with their Article 8 rights, and to enable a proportionate approach to be taken. Similarly, while there is scope for the exercise of this power to engage an individual’s Article 1, Protocol 1 rights to peaceful enjoyment of their property, we consider that any interference with those rights will only occur where the relatively high statutory thresholds have been met, in those specified circumstances. Again, these powers will be exercised case by case and so the fairness and proportionality of the specific proposed measure will be considered on a case-by-case basis. We consider therefore that any such interference will be justified in the context of the legitimate aim pursued.

18. This provision also allows for the categorisation of different activities, so that more severe behaviour (such as section 80(5)(a) “disorderly, offensive or criminal behaviour”) can attract a longer duration of a closure order. There is also a duty for the Secretary of State to consult such persons they consider appropriate prior to making any such regulation.

19. Closure orders are increasingly being used by the High Street Illegality Taskforce, which focuses on tackling the risks posed by cash-rich high street businesses (such as nail bars, vape shops, barbers etc). This regulation-making power will assist in tackling high street crime, and in particular illegal activity taking place within high street business

20. Given the safeguards outlined above, and the fact that the specific facts into consideration on a case-by-case basis, we are satisfied that there are sufficient safeguards to ensure that these powers can and will be exercised in a proportionate way. It is therefore not considered that these new powers, or their exercise, will have a disproportionate interference with residents’ Article 8 rights, or businesses’ A1P1 right to trade, and that any interference will be justified by a legitimate aim to tackle anti-social behaviour or tackling high street crime.

d. “Image deletion orders”

21. This clause creates a new ancillary order, an “image deletion order”, available to a sentencing court when dealing with an offender convicted of an intimate image offence, breastfeeding voyeurism recording, or sharing semen-defaced images.

22. The precise terms of the order will be a matter for the court, based on all the circumstances of the case. In principle, however, the order will be capable of requiring an offender to destroy or delete an intimate image (or breastfeeding image or semen-defaced image) to which the offence relates and, where it has been posted online, to take it down. In addition, the order may require the offender to destroy, delete or take down (as the case may be) any other intimate image (or breastfeeding image or semen-defaced image) of the same victim which is in the offender’s possession or under the offender’s control.

23. The making of the order will be discretionary, but where the court declines to make an order in respect of the image to which the offence relates it will be required to give its reasons.

24. Breach of a deletion order will be a criminal offence, triable either way and punishable with up to 5 years’ imprisonment.

25. Image deletion orders potentially engage an offender’s rights under Article 5 (right to liberty), Article 8 (right to private life), Article 10 (freedom of expression), and Article 1 of Protocol 1 (“A1P1”) (peaceful enjoyment of property).

Article 5 – Right to liberty and security

26. Offenders who fail to comply with a deletion order without reasonable excuse may be imprisoned for up to 5 years under the measure. This engages their Article 5 rights. Any deprivation of liberty would, however, be in accordance with a procedure prescribed by law (a criminal trial and conviction for breach of the order) and fall within permitted exception (1)(a) for detention following conviction by a competent criminal court.

27. Whilst it is for member states, not the Court, to decide what the appropriate sentence for any given offence is, the maximum penalty must not be arbitrary. The 5 year penalty is the same as for other, similar breach offences (such as breach of a criminal behaviour order contrary to section 339 of the Sentencing Code). Further, the nature and duration of any sentence imposed would be a matter of judicial discretion, taking into account all the circumstances of the case. This provides an important safeguard, and the government is satisfied that the measure is therefore compatible with Article 5.

Article 8 – Right to respect for private life, home and correspondence

28. Requiring an offender to delete intimate images in their possession or control could conceivably interfere with their Article 8 rights. It is, however, doubtful that an offender could establish that Article 8 includes a right to possess intimate (or other) images of a victim of intimate (or other) image abuse. Any such interference would in any event be justified as proportionate to the pursuit of the legitimate aims of crime prevention, the protection of health or morals, and the protection of the rights and freedoms of others (victims of intimate (or other) image abuse).

29. For these reasons, the Government is satisfied that the measure is compatible with Article 8.

Article 10 – Right to freedom of expression

30. Requiring an individual to take down material posted online may interfere with their Article 10 rights. It is, however, doubtful that  an offender could establish that Article 10 includes a right to post intimate (or other) images of a victim where, depending on the context and offence, there was no consent to the taking, creating or sharing of the image and in circumstances where the offender has been convicted of an intimate image (or similar) offence. Any such interference would in any event be justified on the same grounds as Article 8 above.

31. For these reasons, the Government is satisfied the measure is compatible with Article 10.

Article 1 of Protocol 1 – Right to peaceful enjoyment of property

32. An image deletion order engages an offender’s A1P1 rights because it may require an offender to delete or destroy their personal property. Any interference with A1P1 rights, however, would be a justified control of use, imposed in accordance with law, for the general interest of combatting intimate (and other) image abuse and protecting victims, and proportionate to that aim.

33. As regards proportionality, the measure pursues a legitimate aim (tackling intimate (and other) image abuse and protecting victims); there is a rational connection between the aim and a measure enabling courts to order the deletion or destruction of such images; and there is no less intrusive means to achieve that aim other than by enabling the courts to order image deletion or destruction.

34. The measure strikes a fair balance between the rights of the offender and the rights of the victim and wider community. The ECtHR has expressly held that a victim’s Article 8 rights (including their right to control the use of images of their body) imposes a positive obligation on member states to ensure an appropriate criminal law response to intimate image abuse ^{[footnote 11]}. Society as a whole has an interest in the effective deterrence, punishment, and reparation of intimate (and other) image abuse. In addition, the rights of the offender will only be interfered with in circumstances where they have been convicted, in a criminal court, of a relevant offence. Any order will be tailored to the particular circumstances of the case, bearing in mind considerations of proportionality.

35. For these reasons, the Government is satisfied that the measure is compatible with A1P1.

e. “Criminalising the possession and publication of pornographic images of sex between relatives – addition of new cohort of relatives”

36. At an earlier Bill stage, the Government added new clause “Pornographic images of sex between relatives”, which makes it an offence to possess or publish an image if: the image is pornographic; it portrays, in an explicit and realistic way, penetrative sexual activity (A sexually penetrating the vagina or anus of B with any part of A’s body or anything else, or A penetrating B’s mouth with A’s penis); a reasonable person looking at the image would think the persons were real; and a reasonable person looking at the image and taking into account any sound or information associated with the image would think the persons were related, or pretending to be related.

37. The Government has now tabled an amendment which expands the scope of who is ‘related’ for the purposes of the offence.

38. The relevant familial relationships now fall into two groups. The first group was included in the original clause: parent (including adopted parent), grandparent, child (including adopted child), grandchild, brother, sister, half-brother, half-sister, uncle, aunt, nephew or niece. The second group is new: present or former step-parent, step-sibling, and foster parent, where one of the persons is portrayed to be under the age of 18.

39. All other elements of the offence remain the same, including defences and penalties.

40. The addition of the new cohort of relatives has not changed the analysis of ECHR impacts as set out in the Sixth Supplemental ECHR memorandum, published by the Government on 23 February 2026. This is because adding the new cohort of relatives continues to result in a measure which only criminalises the possession of images that portray sex between family members that would be illegal in real life. The previous analysis therefore applies to the expanded offence in the same way.

f. “Pornographic images of sexual activity with child under 16”

41. New clause “Pornographic images of sexual activity with child under 16” will make it an offence to possess or publish an image if: the image is pornographic; it portrays, in an explicit and realistic way, a person (A) engaged in sexual activity with another person (B); a reasonable person looking at the image would think the persons were real; and a reasonable person looking at the image and taking into account any sound or information associated with the image would think one or both of the persons were under 16, or pretending to be under 16.

42. For the purposes of the reasonable person test, only the sound or information associated with the image that is in the person’s possession or published with the image can be taken into account; and the persons are not to be taken as pretending to be under 16 if it is fanciful that they are actually under 16 in the way pretended.

43. For both the possession and publication offence, it is a defence for the defendant to prove that: they had a legitimate reason for possessing or publishing the image; they had not seen the image and did not know (or have any cause to suspect) it to be a pornographic image of sexual activity with a child or adult portraying a child; or they directly participated in the act portrayed, the act did not involve the infliction of any non-consensual harm, and neither A nor B was in fact under 16 (and in the case of publication, that they only published the image to others who directly participated). For the possession offence, it will also be a defence if the defendant was sent the image without request and did not keep it for an unreasonable time.

44. The measure potentially engages an offender’s rights under Article 5 (right to liberty), Article 6 (right to a fair trial), Article 7 (no punishment without law), Article 8 (right to private life), Article 10 (freedom of expression), and Article 1 of Protocol 1 (“A1P1”) (peaceful enjoyment of property).

Article 5 - Right to liberty and security

45. Article 5 is engaged as the maximum penalty upon conviction is imprisonment.

46. The new clause falls within the authorised circumstances prescribed by Article 5(1)(a) where deprivation of liberty is lawful, namely detention after conviction by a competent court.

47. Whilst it is for member states, not the Court, to decide what the appropriate sentence for any given offence is, the maximum penalty must not be arbitrary. For the new possession offence, the maximum penalty is in line with the possession of pornographic images depicting life threatening acts, serious injury to a person’s anus, breasts or genitals and rape in section 67(2) of Criminal Justice and Immigration Act 2008 and for the new publication offence, the maximum penalty is the same as the publication of obscene articles offence. The government considers these offences to be of a similar level of seriousness as the new offences, as the policy intent is to criminalise pornographic images that mimic child sex abuse material. The choice of maximum penalty is therefore proportionate to the nature and severity of offending.

48. The procedural safeguards required by Article 5(2) to (4) are assured through the ordinary procedure of the criminal justice system. The courts will be able to take account of all relevant circumstances, and the defendant will be able to appeal against conviction and the resulting sentence in the usual way.

49. As such, the Government is satisfied that the measure is compatible with Article 5.

Article 6 – Right to a fair trial

50. The Article 6(2) presumption of innocence is engaged as the amendment transfers both the legal and evidential burden for the defences to the defendant.

51. The defendant will therefore be required to raise sufficient evidence to satisfy the court that the issue should be put to the trier of fact, and then that the defence applies on the balance of probabilities.

52. However, for the same reasons as set out in paragraphs 116-118 of the Crime and Policing Bill: ECHR sixth supplementary memorandum (in relation to the new offence of criminalising the possession and publication of pornographic images of sex between relatives), the Government is satisfied that transferring the burdens for these defences to this offence is proportionate and legitimate, subject to reasonable limits, is not arbitrary, and is therefore justified.

Article 7 – No punishment without law

53. Article 7 is engaged in so far as it requires the offence and corresponding penalty to be clearly defined in law. The key question is whether the defendant could reasonably have foreseen at the material time (i.e. the commission of the offence), if necessary, with the assistance of a lawyer, that they risked being convicted of the offence in question and being sentenced to the penalty that the offence carries.

54. In relation to foreseeability, the elements of the new offence are clear. In particular:

i. “image” is defined

ii. what makes such an image “pornographic” is defined

iii. detailed information is set out about the tests to be applied in determining whether the persons are or are pretending to be under 16; and

iv. while “possession” and “sexual activity” are not defined, they are well understood and used elsewhere the criminal law.

55. The new offences have a lack of knowledge defence, and a carve out for intermediary service providers (i.e. those who are conduits, who cache or host). It is therefore clear that the mental element is that the person should have some knowledge that they possessed or published the image, but they need not know the exact nature of the image.

56. The penalties for the new offences are clearly set out.

57. The offences are prospective. However, possession is a continuing act and similarly where something is published online, this publication can also be continuing. This means that a person in possession of an image portraying sexual activity with a child under 16 will have to permanently delete or otherwise get rid of the image before the offence comes into force; or to the extent a person is continually publishing an image online, they would have to cease this publication to avoid committing the offence. Communications before commencement will make this clear.

58. A person could therefore reasonably foresee they risked committing the offences and the Government is satisfied that the measure is compatible with Article 7.

Article 8 – Right to respect for private and family life, home and correspondence

59. Article 8 is engaged as the new possession offence criminalises private possession of pornography portraying sexual activity with a child under the age of 16.

60. The first requirement of Article 8(2) - that the offence is in accordance with law - is satisfied in that the new possession offence will be clearly set out in primary legislation. The second requirement of Article 8(2) is that the offence must be necessary in a democratic society, in that it must fall within the conditions upon which a State may interfere with the enjoyment of the protected right. The legitimate aims of this policy are the protection of morals, the prevention of crime and the protection of the rights and freedoms of others.

61. States are generally afforded a wide margin of appreciation regarding matters that raise moral or ethical questions. In Chocholac v Slovakia ^{[footnote 12]} the European Court of Human Rights (ECtHR) found that a ban on prisoners possessing any pornographic material for their private use breached Article 8 in that the ban was general and indiscriminate and it did not permit the required proportionality assessment in an individual case. In contrast, criminalising the possession of a pornographic image portraying sex with a child under 16 is not a general and indiscriminate ban on possessing pornographic material. The new offence is clearly targeted, criminalising the possession of a specific type of pornographic image in furtherance of the legitimate aims set out above.

62. Importantly, the new offences only criminalise portrayals of illegal sexual activity. If the person was in fact under 16, the sexual activity would be illegal under the Sexual Offences Act 2003. The Government considers that there is a clear public policy interest in reinforcing the message that having sex with a child under 16 is illegal, and to push back against the normalisation of this criminal behaviour. For an image to be pornographic, it must reasonably be assumed to be produced solely or principally for the purpose of sexual arousal. It is therefore legitimate to limit access to material that has been produced for this purpose, where it portrays illegal sexual activity with a child under 16, even if the person is ‘pretending’ to be a child under 16.

63. Further:

i. Such images could normalise or glorify sexual activity with a child and could encourage a sexual interest in a child.

ii. It is possible that watching this porn could legitimise methods that are used to abuse people in real life (e.g. telling people not to tell anyone about the relationship). This is particularly key for children.

iii. It is possible that people (particularly children) watching such porn might not recognise the harms of such behaviour and consequently be less likely to report real world sexual abuse.

iv. It is understood that viewing this content can be a ‘gateway’ to viewing more extreme and illegal pornography, including actual child sex abuse material (“CSAM”) and there is evidence that watching CSAM can lead to contact offending.

v. Similarly, there is limited evidence, but it is possible that watching porn portraying sexual activity with a child could directly lead to child sexual abuse contact offences.

64. The new possession offence therefore directly addresses the legitimate aims of protecting morals and there is some evidence that it also addresses the legitimate aim of preventing crime. As such, in relation to images that portray sexual activity with a child under 16, the public interest outweighs any private right to possess such material.

65. The offences carve out pornographic images where it is fanciful or ridiculous that the person in the image is a child under the age of 16 in the way pretended. For example, a pornographic image where an adult dresses in a nappy and pretends to be a baby will not be caught. Such behaviour is not illegal in real life and is about regression and humiliation, not the sexualisation of children. The offence is also not intended to criminalise a pornographic image of someone who is clearly an adult where the only marker of childhood is the fact that he or she is in school uniform. This limitation ensures the offence is the least restrictive way of addressing the legitimate aims.

66. Further, the new offences are subject to defences which ensure that the offence is proportionate. Particularly relevant to Article 8 is the fact that a person can still privately possess pornography which shows them engaging in sexual activity and where they or the other person(s) in the image are pretending to be a child under the age of 16, so long as they are not in fact under 16 and serious harm is not caused. This defence is considered appropriate as private possession of your own image does not go to the core harm that the policy intends to address – that is minimising the mainstream dissemination of this material. This defence is therefore an important way of ensuring that the new possession offence is proportionate.

67. Additionally, the new offences enhance the protection of Article 8 rights to the extent the person has not consented to their image being possessed or published. The right to one’s image and photographs is a well-recognised element of Article 8, and possession and publication of pornographic images without consent of the person(s) in the image will go against these protections. In the case of the non-consensual sharing of sexually explicit images, the ECtHR considered the protection of Article 8 required a criminal law response ^{[footnote 13]}.

68. Therefore, the Government is satisfied that the measure is compatible with Article 8.

Article 10 – Right to freedom of expression

Publication

69. Article 10 is engaged because the new publication offence prohibits a person from publishing images showing sexual activity with a child under 16 and this has an impact on that person’s ability to communicate. This is particularly relevant in terms of publication online, where the ECtHR has emphasised in Ashby Donald and Others v France ^{[footnote 14]} that Article 10 applies to communication on the internet, whatever the type of message being conveyed (in this case the publishing of photographs to a webpage) and even when the purpose is profit making.

70. There is an argument that Article 10 is engaged as the new publication offence prohibits a person who has created a pornographic image of them pretending to be a child (i.e. they have appeared in it, produced it or directed it) from publishing that to anyone other than the other persons who directly participated in the act. This could be categorised as restricting their artistic expression. Despite not being mentioned on the face of Article 10, artistic expression is covered by its protections ^{[footnote 15]}. The ECtHR has accepted that publication of obscene images engages Article 10, but that criminal prohibitions may nonetheless be justified ^{[footnote 16]}.

71. On the basis Article 10 is engaged, the publication offence will be clearly set out in primary legislation and the offence is necessary in a democratic society in furtherance of the legitimate aims of the protection of morals, the prevention of crime and the protection of the rights and freedoms of others. The analysis set out in relation to Article 8 concerning the justifications for criminalising such images, applies equally to the analysis for the new publication offence for Article 10 purposes. There is a clear link between the new publication offence and the legitimate aims of the protection of morals and the prevention of crime and as such, the public interest outweighs any private right to publish such material.

72. It is also important to remember that any interference with Article 10 must be balanced with the protection of others’ Article 8 rights, where that is relevant in any individual case (see above).

73. The new publication offence is subject to defences. Particularly relevant for these purposes is the fact that there is a defence if the person directly participated in the act portrayed and published the image to the other persons who also directly participated (so long as the act was consensual and did not cause serious harm and the persons are not in fact under 16). In this sense, therefore, a person can still exercise their right to freedom of expression by creating such images of themselves and sharing those images with the other person(s) who are directly participating. This ensures that the new publication offence is the least restrictive way of achieving the legitimate aims and are therefore proportionate.

74. Images that are contained within work that has been given a classification certification by the British Board of Film Classification are excluded from the new publication offence, so long as the image has not been extracted from a classified work solely for the purpose of sexual arousal. This exclusion is intended to cover non-pornographic films where the particular scene is part of the narrative of the film, and the government considers that the classification certificate provides an objective assessment that provides clarity to the defence. To this extent therefore a filmmaker is not prevented from expressing themselves by publishing a non-pornographic film that has a scene that shows sexual activity with a person pretending to be a child under 16. This is another way the publication offence is proportionate to the legitimate aims pursued.

75. The Government is therefore satisfied that the measure is compatible with Article 10.

Article 1 of Protocol 1 – Protection of property

76. Article 1 of Protocol 1 (“A1P1”) to the ECHR entitles legal persons to the peaceful enjoyment of their possessions including images. However, this is a qualified right, and it is permissible to deprive someone of their possessions “in the public interest and subject to the conditions provided for by law and by the general principles of international law”. Furthermore, the second paragraph of Article 1 sets out “the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties”.

77. The new possession offence will be prospective. However, due to possession being a continuing act, the offence will apply where the person started possessing the image before the offence comes into force and this possession continues after the offence comes into force. Therefore, to avoid committing the offence, a person will have to delete or otherwise get rid of any pornographic images portraying sexual activity with a child under 16 that they possess before the offence comes into force. A1P1 is directly engaged by the offence.

78. Additionally, the new publication offence directly targets those who publish images, including where they do so for commercial gain. The offence will reduce the sale of pornography that portrays sexual activity with a child under 16, and there is therefore an argument that A1P1 is engaged to the extent that the income of commercial pornography providers is reduced as a result of the new offences coming into force.  The policy intent is to stop the proliferation of this harmful material, and there may be an indirect impact (although this is difficult to assess or quantify) on the income of commercial pornography platforms.

79. Also, as the new offences will be priority offences under the Online Safety Act 2023, service providers will have positive duties to identify and remove such illegal content. Therefore, if a service provider makes money from hosting content published by its users, its proactive duties to prevent and remove the illegal content may cause them to be deprived of any income that could be made from the image.

80. Any direct interference (or to the extent that such indirect interferences with A1P1 are protected), would be a proportionate means of achieving the legitimate aims of protection of morals, the prevention of crime and protecting the rights and freedoms of others, on the same basis as Article 8 and 10 above. Making clear that such images should be deleted or otherwise got rid of reinforces the position that having sex with a child under 16 is illegal, and possession of such pornographic images should be limited in the public interest.

81. It is important to note that individuals will be able to continue to possess pornography that does not portray sexual activity with a child under 16. Additionally, due to the available defences a person will be able to continue to possess images that do portray sexual activity with a child under 16 where they have a legitimate reason for doing so, and will also be able to continue to possess their own pornography where they are pretending to be a child under 16 so long as they are not in fact under 16. This ensures that the new possession offence is the least restrictive way of achieving the legitimate aims and are therefore proportionate.

82. The possession of extreme pornography offence at section 63 of the Criminal Justice and Immigration Act 2008 was amended in 2015 to criminalise pornographic images depicting rape and the decision then was that persons in possession of such images had to delete or otherwise get rid of them to avoid committing a criminal offence. There is therefore relevant precedent for this approach. The new offence criminalises the possession of pornographic images that portray sexual activity that would be illegal in real life in furtherance of specified legitimate aims, and the public policy interest therefore outweighs any individual right to continue to possess such material.

83. Further, as mentioned in relation to Article 8 above, it is possible that the persons in the image have not consented to appearing in the image. Any interference with A1P1 must be balanced with the protection of others’ Article 8 rights, where that is relevant in any individual case.

84. Additionally, individuals and commercial producers of pornography will be able to continue producing pornography, simply without portraying sex with a child under 16, such that this is the least restrictive means of achieving the objective.

85. The Government is therefore satisfied that the measure is compatible with A1P1.

g. “Workability amendment to Lords amendment 361 - provisions for pardons and criminal records of women prosecuted under abortion law”

86. The Government maintains a neutral stance on abortion in England and Wales.  It is for Parliament to decide the changes to the law on this issue.

87. At Lords Report Stage, the House of Lords passed an amendment (tabled by Baroness Thornton) that would insert new section 165A ^{[footnote 17]} into the Policing and Crime Act 2017 which:

i. pardons women who have been convicted of, or cautioned for, an abortion related offence when acting in respect of their own pregnancy (section 165A(2)); and

ii. imposes a duty on the Secretary of State to by notice direct relevant data controllers (including the police and HMCTS) to delete details, contained in relevant official records (including police and court records), of convictions, cautions, arrests and investigations in relation to such abortion offences (new section 165A(3)).

88. The duty at new section 165A(3) is not operationally workable.  The Government has therefore tabled an amendment that removes this duty and replaces it with a duty that requires relevant data controllers, insofar as reasonably practicable, to delete from relevant official records any details of which they are aware of a conviction, caution arrest or investigation detailed in new section 165A(1).

89. The analysis in this memorandum considers only the articles of the ECHR relevant to this narrow workability amendment. It potentially engages a convicted person’s rights under Article 8 (right to respect for private and family life, home and correspondence) and Article 14 (prohibition of discrimination).

Article 8 – Right to respect for private and family life, home and correspondence

90. The Government’s amendment engages the Article 8 rights of the women that will have details deleted from records.  However, this is not an interference as it does not disadvantage those women. The amendment is therefore compatible with Article 8.

Article 14 – Prohibition of discrimination (in conjunction with Article 8)

91. The records that the Government amendment relates to date back to at least 1861 when the current offences of administering drugs or using instruments to procure an abortion and procuring drugs etc to cause abortion were enacted.   To ensure that the duty is operationally workable, it will therefore only require relevant data controllers to delete details from records of which they are aware and insofar as reasonably practicable.  The amendment engages the Article 14 rights of the women whose records it might not be operationally possible to update, because it has limited the enjoyment of their Article 8 rights in a way that it hasn’t for other women who will have their records updated.

92. Any differential treatment is justified and the approach to deletion is proportionate because of the operational difficulties associated with updating records in older cases.  Furthermore, although women do not need to apply to have deletions made from their records, the measure does not preclude a woman from coming forward, asking for her records to be amended and providing sufficient detail to enable her records to be located. The Government is therefore satisfied that the amendment is compatible with Article 14 (in conjunction with Article 8).

Home Office, Ministry of Justice and Department for Transport

10 April 2026

Footnotes

1. ECHRMemo.pdf ↩

2. Crime and Policing Bill: ECHR supplementary memorandum 22 April 2025 - GOV.UK ↩

3. Crime and Policing Bill: ECHR second supplementary memorandum: 24 April 2025 - GOV.UK ↩

4. Crime and Policing Bill: ECHR third supplementary memorandum: 10 June 2025 (accessible) - GOV.UK ↩

5. Crime and Policing Bill: ECHR fourth supplementary memorandum: 3 November 2025 (accessible) - GOV.UK ↩

6. Crime and Policing Bill: ECHR fifth supplementary memorandum: 13 February 2026 ↩

7. Crime and Policing Bill: ECHR sixth supplementary memorandum: 23 February 2026 ↩

8. Crime and Policing Bill: ECHR seventh supplementary memorandum: 2 March 2026 - GOV.UK ↩

9. Crime and Policing Bill: ECHR supplementary memorandum: 20 March 2026 - GOV.UK ↩

10. Kholodov v Ukraine, Application no. 64953/14 ↩

11. MSD v Romania, Application no. 28935/21 at [115] to [121]. ↩

12. Application no. 81292/17. ↩

13. MSD v Romania, ibid. ↩

14. Application no. 36769/08. ↩

15. Muller & others v Switzerland, Application no. 10737/84. ↩

16. Hoare v The United Kingdom, Application no. 31211/96; Perrin v The United Kingdom, Application. no. 5446/03; Karttunen v Finland, Application no. 1685/10. ↩

17. Note that this provision is renumbered as section 165B by the Government amendment, because the Bill already inserts a new section 165A into the Policing and Crime Act 2017. ↩