James Ferman last month published his last annual report before his
retirement after 23 years as the director of the British Board of Film Classification
(BBFC). He criticises the police and magistrates for applying the law of obscenity
in
too strict a manner to allow the material the customers want and he concludes that
as
we enter a new millennium, we must find a solution to the problem of pornography, which
will not go away.
The Obscene Publications Act 1959 suffers from three main defects: it is poorly
drafted, it is inconsistently applied and it lacks any coherent principle. It states that
an article is obscene if its effect is such as to tend to deprave and corrupt persons
who are likely, having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.
In a judgment in the House of Lords in 1972 concerning the magazine
Dingle Dangle No
3, Lord Wilberforce complained that the statute offers no definition of "deprave
and corrupt" and does not even identify whether the concern is that the impugned
material may cause people to commit wicked acts, or whether the mischief is simply that
erotic desires may be aroused. (The courts have held that the latter may be sufficient to
establish obscenity.)
Because the Act provides no further criteria for the application of this branch of
criminal law, Parliament has imposed as subjective a test of obscenity as that stated by
Mr Justice Stewart in the United States Supreme Court in 1964: "I know it when I see
it."
The courts have emphasised that a film is not obscene simply because it is disgusting.
In the Oz case in 1971, Lord Chief Justice Widgery for the Court of Appeal accepted
the defence's submission that the test under the 1959 Act is not whether material is
"repulsive, filthy, loathsome or lewd". In 1972, the House of Lords explained
that "corrupt" is "a strong word", meaning much more than to
"lead astray morally".
The consequence is that, in applying "the current standards of ordinary decent
people" (the principle stated by Lord Reid in 1972), juries rarely convict videos or
other material for obscenity where they simply show consensual sexual intercourse between
adults, however graphic the detail. The Crown Prosecution Service does not expect to
secure convictions for obscenity in jury trials unless the work contains images relating
to children, animals, non-consenting adults, or gross degradation. However, by contrast,
magistrates, purporting to apply the same legal principles, regularly and unjustifiably
order the forfeiture of material similar to that which is acquitted of obscenity in jury
trials.
This branch of the law lacks any coherent principle. Courts must determine whether a
film may deprave and corrupt, and yet are forbidden from hearing any expert evidence on a
complex question with profound psychological and ethical implications. It is, in any
event, difficult to understand how magistrates can rationally conclude that pornographic
films tend to deprave and corrupt viewers when there is no evidence that ready access to
such material in (for example) France, Germany and The Netherlands has resulted in
widespread depravation and corruption.
There is - so far as I know - nothing to suggest that those police officers,
magistrates and barristers who regularly watch pornography in the course of duty are any
more depraved and corrupt than their colleagues. Perhaps they all adopt the approach
recommended in 1978 by John Mortimer, QC, who wrote that as counsel for the defence:
At
the showing of blue movies at Scotland Yard I take the precaution of removing my glasses,
which reduces the whole messy business to an impressionist blur.
I must here declare a professional interest as counsel for the distributors of a
pornographic film in a recent appeal before the Video Appeals Committee sitting in Frith
Street, Soho.
Mr Mortimer conceded that pornography was far from attractive, but he was "sure
that censorship is more dangerous". The BBFC, under Mr Ferman, has sensibly
recognised that in all but very extreme cases a system of classification rather than
censorship is appropriate. Those who may be offended or disgusted have no obligation to
watch. Those who wish to buy pornography should be able to do so, but only in licensed sex
shops, out of sight of the rest of the community. To ban such material is an indefensible
restriction on freedom of expression, it is contrary to the contemporary community
standards expressed by jury acquittals and it is futile in an age of ready access to such
material through the Internet, satellite broadcasting and purchase abroad.
Mr Ferman has spent much of the past 23 years watching the unpleasant, the vile and the
evil. It has not impaired his ability to analyse the need for reform of our obscenity
laws.
