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Obscenity trial verdict could lead to more censorship
06 Jan 2012
BY JANE FAE

Let joy be unconfined.  Let there be dancing in the streets.  Ding! Dong! The Obscene Publications Act is dead (or at least exceedingly poorly).  But just as the death of one evil and malignant creature in the Wizard of Oz heralded an even nastier arrival, in the form of the Wicked Witch of the West, so some more perceptive commentators are already moving on to the next challenge: what will come after?

The glad news, for those who believe that grown-ups should be allowed the freedom to gain their erotic pleasures how they will, so long as no-one else is abused in the process, emerged from Southwark Crown Court at around 1pm this afternoon.

Police and Crown Prosecution believed that DVDs  featuring activities such as fisting, sado-masochism and urination for sexual purposes were obscene.

Their distributor, Michael Peacock disagreed and, unusually, was prepared to resist their assertions in court.  The jury agreed with Mr Peacock.

So it’s a victory for free expression?  Perhaps.  Although, giving the OPA a good kicking is a little like playground bullying: its not nice; and after a while, one does start to feel sorry for the poor put-upon law.

In purely legal terms, this verdict makes little difference.  The result is not binding on other courts.  It does not, as the CPS were already spinning in advance, set any sort of precedent.  However, to view the effect of a law purely — or even mostly — in terms of how many successful prosecutions it brings in is to miss the point.

The OPA was launched in 1959 amid claims that it was a stake in the ground: a sticking up for standards.  The failed prosecution of Lady Chatterley’s Lover just four years later, demonstrated just how misplaced that theory was.

In the years since, its direct use has been slowly but surely whittled away: first by the Protection of Children Act 1978, which introduced the idea that possessing indecent images of children was a crime in its own right.  The Video Recordings Act whittled some more, as did laws on incitement to race hatred.  “Extreme porn” laws, introduced in 2008, were probably the final straw, as it became clear that prosecution for possession of things like bestial material were a “slam dunk” under this later legislation —while remaining quite difficult under the OPA.

Thus, the number of successful prosecutions under the OPA has dwindled and dwindled, until last year, the CPS owned up to being aware of just 71 prosecutions nationwide under this law.

So it has next to no impact on the life of the nation?  Not at all.  For over the years, the police have made extensive use of powers of seizure under the OPA to pick up material that they deemed to be obscene: to hold it for months, years even; and then, after giving serious consideration to the matter in hand, releasing it back to its owner.  This was a tactic, possibly a slightly underhand tactic, designed to disrupt the trade in pornographic material and while police activity may have been legally questionable, most porn merchants did not have the inclination — or budget — to challenge the police.

Too, the OPA is entwined with a whole raft of semi-official bodies — such as the British Board of Film Classification — who have argued in the past that they will ban films if they cross the line into territory that the Police and CPS advise “would be likely to be found obscene” in front of a jury. Film-makers are well aware of this approach, and so many films that might fall foul of the BBFC in this way just don’t get made.  Again, because the film producers haven’t the budget to take on the authorities.

No: this case sets no precedent.  But with approximately half of the CPS’ “likely to be found guilty” checklist just booted out of court — literally — it will be hard, now, for the BBFC (and other bodies, such as the Internet Watch Foundation) to hold the line.

Expect loads of fisting and urination in porn films in 2012: and expect the Daily Mail to get very hot under the collar about the moral degeneration that this represents.

So its back to the beginning, with joy ful dancing in the streets?  Not necessarily.  As one highly cynical observer suggested, just minutes after the verdict was in: “I wouldn’t be surprised if this is exactly what the authorities wanted.”

Because although the OPA did exert a major influence on what got made, film-wise, it was also hard to prosecute under.  And that, for many of its more reactionary critics, was the main problem.  They much prefer the newer-fangled laws which are strict liability and don’t mess about with all that namby-pamby subjective stuff about whether something could be considered to “deprave and corrupt”.  They like their law hard and thrusting.  Like the “extreme porn” one.

And if the OPA fails, then, they argue, the case for replacing it with something much stricter, much more draconian becomes inevitable.

Apres lui, le deluge: and it won’t be a golden shower!

Jane Fae is a writer and campaigner on issues of the law and sexuality. She is one of the UK’s leading experts on the recent workings of the Obscene Publications Act, having been an expert witness in the Girls Scream Aloud case – and will be presenting a paper on the evolution of the OPA at the Obscenity Research Conference, taking place in April of this year

22 responses to “Obscenity trial verdict could lead to more censorship”

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  7. Julian Petley says:

    Jane is right to doubt that the authorities will just leave things as they are, and to suggest that they may move increasingly to a ‘laundry list’ approach to censorship, either by doing away with the ‘deprave and corrupt’ test in the OPA, or by expanding the already existing list in the ‘Dangerous Images’ Act.

    But, on the other hand, let’s not forget that the police and CPS can still use Section 3 of the OPA, which allows them to seize and put allegedly obscene material before a magistrate, who can then simply issue an order for its destruction. Magistrates tend to be less liberal-minded than juries, as the police know full well, and that is why this is their preferred route when dealing with allegedly obscene material. And it’s also the preferred route of most defendants (most of whom are not as courageous as Michael Peacock) since Section 3 charges are brought against the material rather than against its distributor. So one possible upshot of this case is a decline in the number of jury trials for obscenity.

    The other thing to remember is that Customs and Excise work with an extremely lengthy and comprehensive laundry-list of proscribed images, which prohibits the importation of images of the following: ‘anal fisting, analingus, bestiality, bondage, buggery, coprophilia, cunnilingus, defaecation [sic], domination, ejaculation, enemas, fellatio, insertion of an object, intercourse, masturbation, necrophilia, paedophilia, sado-masochism, scatophagy, trolism, urination (urolagnia), and vaginal fisting’. (This list can be found in HM Customs and Excise, Volume C4: Import Prohibitions and Restrictions: Part 34: Indecent or Obscene Material: Appendix F). If they find such material, they can then seize it, place it before local magistrates and request that it be destroyed – just as the police do in Section Three cases under the OPA.

    So, we really do need to think about how we can put an end to situation in which material can be seized and destroyed simply on the say-so of the police, customs officers and local magistrates. As long as this can happen, it’s my guess that the authorities may well be able to live with the decision of the enlightened jurors of Southwark.

  8. Julian Petley says:

    Jane is right to doubt that the authorities will just leave things as they are, and to suggest that they may move increasingly to a ‘laundry list’ approach to censorship, either by doing away with the ‘deprave and corrupt’ test in the OPA, or by expanding the already existing list in the ‘Dangerous Images’ Act.

    But, on the other hand, let’s not forget that the police and CPS can still use Section 3 of the OPA, which allows them to seize and put allegedly obscene material before a magistrate, who can then simply issue an order for its destruction. Magistrates tend to be less liberal-minded than juries, as the police know full well, and that is why this is their preferred route when dealing with allegedly obscene material. And it’s also the preferred route of most defendants (most of whom are not as courageous as Michael Peacock) since Section 3 charges are brought against the material rather than against its distributor. So one possible upshot of this case is a decline in the number of jury trials for obscenity.

    The other thing to remember is that Customs and Excise work with an extremely lengthy and comprehensive laundry-list of proscribed images, which prohibits the importation of images of the following: ‘anal fisting, analingus, bestiality, bondage, buggery, coprophilia, cunnilingus, defaecation [sic], domination, ejaculation, enemas, fellatio, insertion of an object, intercourse, masturbation, necrophilia, paedophilia, sado-masochism, scatophagy, trolism, urination (urolagnia), and vaginal fisting’. (This list can be found in HM Customs and Excise, Volume C4: Import Prohibitions and Restrictions: Part 34: Indecent or Obscene Material: Appendix F). If they find such material, they can then seize it, place it before local magistrates and request that it be destroyed – just as the police do in Section Three cases under the OPA.

    So, we really do need to think about how we can put an end to situation in which material can be seized and destroyed simply on the say-so of the police, customs officers and local magistrates. As long as this can happen, it’s my guess that the authorities may well be able to live with the decision of the enlightened jurors of Southwark.

  9. McDonnel says:

    Does anyone actually know what the DVD’s in question were?

  10. McDonnel says:

    Does anyone actually know what the DVD’s in question were?

  11. Re this comment: “There is a basic problem for the censors: legal prohibition obscenity is based on a theory that reading about or watching something bad is likely to corrupt otherwise good people and make them bad. That probably was what people thought in 1959, but it isn’t what people think in 2012.”

    Perhaps the average person, as represented by the jury in the R v Peacock trial, has progressed, but the censorious have not. One of the main theoretical drivers behind the “extreme porn law” – one that biased academic research and hyperbole alike fosters – is the very suggestion that exposure to “extreme porn” can lead to copy-cat behaviour. The line between fantasy and reality is deliberately blurred to criminalise “the simple possession” of the depiction of fantasy scenarios as much as real ones. According to this law and its supporters, we are, in effect, incapable of indulging fantasy without being potentially criminally influenced by it; in other words, it is a continuation of the mindset that says we are corrupted by what we watch and see (and, yes, even read).

    I agree with Jane Fae that even more insidious and repressive acts of censorship are likely to be just over the horizon.

  12. Re this comment: “There is a basic problem for the censors: legal prohibition obscenity is based on a theory that reading about or watching something bad is likely to corrupt otherwise good people and make them bad. That probably was what people thought in 1959, but it isn’t what people think in 2012.”

    Perhaps the average person, as represented by the jury in the R v Peacock trial, has progressed, but the censorious have not. One of the main theoretical drivers behind the “extreme porn law” – one that biased academic research and hyperbole alike fosters – is the very suggestion that exposure to “extreme porn” can lead to copy-cat behaviour. The line between fantasy and reality is deliberately blurred to criminalise “the simple possession” of the depiction of fantasy scenarios as much as real ones. According to this law and its supporters, we are, in effect, incapable of indulging fantasy without being potentially criminally influenced by it; in other words, it is a continuation of the mindset that says we are corrupted by what we watch and see (and, yes, even read).

    I agree with Jane Fae that even more insidious and repressive acts of censorship are likely to be just over the horizon.

  13. David Boothroyd says:

    Oh, I agree there will undoubtedly be many who will argue that an ineffective Obscene Publications Act needs to be replaced by an effective one. There is a basic problem for the censors: legal prohibition obscenity is based on a theory that reading about or watching something bad is likely to corrupt otherwise good people and make them bad. That probably was what people thought in 1959, but it isn’t what people think in 2012.

    The main alternative is the ‘laundry list’ approach identifying specific things that should not be depicted. This approach led to Lord Halsbury’s widely ridiculed Obscenity Bill in the late 1990s, which the late Lord Williams of Mostyn pointed out would render many Shakespeare plays and a large amount of Italian renaissance art as obscene and illegal. (http://hansard.millbanksystems.com/lords/1999/mar/09/obscenity-bill-hl#S5LV0598P0_19990309_HOL_206)

    (But note that the most recent piece of legislation, s. 63 of the Criminal Justice and Immigration Act 2008, split the difference by mentioning three specific things and then having a catch-all provision for anything which causes serious injury.)

  14. David Boothroyd says:

    Oh, I agree there will undoubtedly be many who will argue that an ineffective Obscene Publications Act needs to be replaced by an effective one. There is a basic problem for the censors: legal prohibition obscenity is based on a theory that reading about or watching something bad is likely to corrupt otherwise good people and make them bad. That probably was what people thought in 1959, but it isn’t what people think in 2012.

    The main alternative is the ‘laundry list’ approach identifying specific things that should not be depicted. This approach led to Lord Halsbury’s widely ridiculed Obscenity Bill in the late 1990s, which the late Lord Williams of Mostyn pointed out would render many Shakespeare plays and a large amount of Italian renaissance art as obscene and illegal. (http://hansard.millbanksystems.com/lords/1999/mar/09/obscenity-bill-hl#S5LV0598P0_19990309_HOL_206)

    (But note that the most recent piece of legislation, s. 63 of the Criminal Justice and Immigration Act 2008, split the difference by mentioning three specific things and then having a catch-all provision for anything which causes serious injury.)

  15. jane fae says:

    Grrr! Left the web link out.

    Jane

  16. jane fae says:

    Grrr! Left the web link out.

    Jane

  17. jane fae says:

    Some took the Jenkins view of the opa. Many didn’t.

    Not sure about the VRA argument. There was a case during the interlude in which judges upheld convictions under it while acknowledging that technically it hadn’t been law at the time. Huh?
    U
    My main concern, though, is that while you are strictly correct, this case will be used by those who want an OPA with teeth to campaign to bring one in.

  18. jane fae says:

    Some took the Jenkins view of the opa. Many didn’t.

    Not sure about the VRA argument. There was a case during the interlude in which judges upheld convictions under it while acknowledging that technically it hadn’t been law at the time. Huh?
    U
    My main concern, though, is that while you are strictly correct, this case will be used by those who want an OPA with teeth to campaign to bring one in.

  19. […] That was the view of Jane Fae, writer on IT and the Law and an expert on the working of obscenity law in the UK, discussing the outcome of the case in politics.co.uk and Index on Censorship. […]

  20. […] That was the view of Jane Fae, writer on IT and the Law and an expert on the working of obscenity law in the UK, discussing the outcome of the case in politics.co.uk and Index on Censorship. […]

  21. David Boothroyd says:

    The failure of the Lady Chatterley prosecution marked a success for the Obscene Publications Act 1959 in the eyes of its supporters. The Act had been introduced by Roy Jenkins as a backbench Private Member’s Bill, intended to give publishers a defence of literary merit which they had not previously had. Jenkins would have preferred to go further but the fact that Penguin Books did succeed in using the defence showed that the Act was working.

    You don’t mention the Video Recordings Act 1984, which makes it an offence to supply any unlicensed video/DVD. Fortunately for Michael Peacock the police interest in him happened when this Act had lapsed and before it was revived, so he could not be charged under it. The BBFC had certainly not licensed any of the DVDs. In practice there would be no change if the Obscene Publications Act is abolished but the BBFC does not liberalise its stance.

  22. David Boothroyd says:

    The failure of the Lady Chatterley prosecution marked a success for the Obscene Publications Act 1959 in the eyes of its supporters. The Act had been introduced by Roy Jenkins as a backbench Private Member’s Bill, intended to give publishers a defence of literary merit which they had not previously had. Jenkins would have preferred to go further but the fact that Penguin Books did succeed in using the defence showed that the Act was working.

    You don’t mention the Video Recordings Act 1984, which makes it an offence to supply any unlicensed video/DVD. Fortunately for Michael Peacock the police interest in him happened when this Act had lapsed and before it was revived, so he could not be charged under it. The BBFC had certainly not licensed any of the DVDs. In practice there would be no change if the Obscene Publications Act is abolished but the BBFC does not liberalise its stance.