Daft Appeal Against Craven Cuts

For the impatient reader: the verdict was not reached on the day and we were warned that it could take until mid-late June. Last House On The Left , for those that aren't familiar with it, was Wes Craven's first feature film. It is undeniably disturbing (nasty, even) and contains some particularly horrible scenes of rape and murder. The BBFC rejected the film for a theatrical release in 2000 so, in time-honoured fashion for "difficult" titles, the distributors Blue Underground toured an uncertificated print around the UK during 2000/1. This attracted some publicity but no interest from the police. When Leicester council asked to view it before it was shown to the public, one councillor remarked that they had seen worse on Channel 5.

The BBFC have banned Last House On The Left twice theatrically but, as I'm sure you know, there is no appeals process for a ban in the cinema (since the BBFC decisions carry no legal weight there).

When Carl Daft (real name, real person) of Blue Underground submitted Last House On The Left for a video release, the BBFC told him that the video could be released with an 18 certificate, provided 4 cuts (totallying 16 seconds) were made first. Blue Underground refused to make the cuts, so the BBFC changed the classification to "rejected". Blue Underground then started the formal appeal process against the rejection.

It is unfortunate that there have been so few appeals against the BBFC's decisions over the years. The appeals process is the most effective tool with which the "harm" aspect of the Video Recordings Act (VRA) can be challenged. Although the BBFC are invariably blamed for removing huge chunks of our beloved videos, it should be remembered that the distributors are usually complicit in the censorship. Fortunately for the consumers, howere, some distributors are brave (or mad) enough to challenge the system.

The Video Appeals Committee hearing took place in The Royal Institute of Public Health in Portland Place, London on Thursday 23 May. The VAC comprised Philip Graham, Biddy Baxter, John Wood (chairman), Hayden Luke and Neville March Hunnings. The VAC didn't meet at all in 2001; in 2000, the hearing lead to the R18 saga, in which the BBFC challenged the decision of the VAC in the High Court (and famously lost, leading to the legalisation of hardcore pornography in the UK).

I'm sure that when the BBFC were informed that Blue Underground intended to appeal against the 16 seconds of cuts, they didn't expect that they'd be up against David Pannick QC again (he represented one of the distributors in the R18 hearing). The BBFC was represented by Andrew Caldecott QC.

The format of the hearing was as follows: David Pannick presented the case for the distributors in the morning. After lunch, Andrew Caldecott responded to specific points made in the morning and presented the case for the BBFC. Finally, David Pannick responded to some particular points and John Wood (committee chairman) closed the proceedings and announced that we should not expect a verdict for at least 3 weeks (i.e. mid June).

The broad arguments of the two sides in the hearing were:

For the distributor:

• There's no way that the film would be considered obscene by a modern jury, so the Obscene Publications Act doesn't apply
• The BBFC requested the cuts only because they operate an arbitrary rule in which they make token cuts to a title which has been cited in any OPA case in the last 10 years.
• The BBFC were not consistent in their dealings with the distributor, omitting to mention the full reasons for rejection and not being consistent in their cuts list.
• The BBFC guidelines would not be breached by an uncut release, because although the film shows rape and murder, its portrayal is not pornographic or exploitative. In its uncut form it would not cause harm to the viewer or to society (which is what the Video Recordings Act is intended to guard against).
• There are titles which have been passed 18 uncut which feature similar or even worse scenes of violence towards young women. Pasolini's Salo being one such.
• Dr. Mark Kermode (yes - he has a PhD in horror fiction !) has written a treatise on the film (submitted to the committee but not presented during the hearing). He considers it to be an important and serious work which deserves to be released in its uncut form.

For the BBFC:

• The Obscene Publications Act is relevant. The police did not intervene in any of the 2000/1 screenings because they were not notified. In a case in Cardiff in 1993, the title was included in the evidence used in a conviction under the OPA. The BBFC consider that the public have indeed become less tolerant of sexual violence, so the verdict of a jury is not guaranteed.
• The BBFC have recently commissioned research by Guy Cumberbatch (a well-known and respected researcher in the field). He considered six "difficult" titles (A Clockwork Orange, Deathwish 2, Straw Dogs, Baise-Moi, I Spit On Your Grave and Last House On The Left). He conducted a survey in which people viewed the films and were asked their opinions, including the question "should the film be released 18 uncut ?". 56% of respondents said that Last House On The Left should not. 67% though that the viewer was invited to enjoy the spectacle of women being raped and murdered. 85% of the women respondents thought that the film should be cut or banned.
• The Video Recordings Act (last amended in 1994) is particularly applicable to this title. The Act requires that (the BBFC) have special regard to any harm to potential viewers or, through their behaviour, to society by the manner in which the work deals with violence, horror and sexual activity. This is why research into sexually violent material (by Donnerstein, etc.) is significant because it suggests that the title may cause harm. Research evidence may not prove conclusively that exposure to such material does cause harm. It does not mean, however, that the evidence does not suggest it may cause harm. The assumption of the VRA is that exposure to certain material may cause harm.
• The tone of the film is naturalistic and realistic, especially the rape/torture sequence. The distress of young women was realistic and was dwelt on. There was a particular emphasis on knives, which are a staple weapon of sexual assaults. The viewer is invited to enjoy the spectacle. A lot of "robust" research has been conducted which suggest that such material is harmful.
• Those who wish to see an uncut release of the film (e.g. academics such as Dr. Kermode) should have little problem obtaining it.
• The BBFC's national survey and citizen's juries demonstrated that the treatment of sexual violence on screen is of particular concern. The Cumberbatch research showed that it is of very great concern amongst women.

We were expecting to see Mark Kermode, Carl Daft and Robin Duval being cross-examined by the committee but the two QC's had agreed not to do this (since all three had already given written submissions, which the VAC could read later).

Carl Daft had prepared a tape with selected "highlights" from some titles which the BBFC have passed uncut. Unfortunately, the BBFC objected to it being used because the clips would be shown out of context. David Pannick suggested that the VAC could be shown the clips in context. I think the decision was that the VAC would not watch the tape.

There was a discussion over whether the BBFC examiner's reports should have been made available. The BBFC contended that these are internal documents, used by senior management to make decisions. Much like internal government documents, if they were made public the authors would not feel free to express their personal views. This point was conceded by David Pannick.

Although the proceedings were formal in nature, they didn't get too bogged down in legalistic details, unlike the R18 hearing (during which several people fell asleep). There was general agreement that the arguments from both sides were comprehensive and well presented.

Personally, based on the evidence, I think that Carl Daft deserves to win. The VAC are not stupid and I expect they will have seen through any attempts to fudge the issues. In this case, I think the BBFC didn't quite have the confidence to allow an uncut release, mainly because of their stupid "10-year" rule. They tried to reduce the cuts to a minimum, on the assumption that the distributors would comply. Unfortunately, they didn't reckon on an appeal and I don't think their case really adds up. One question I'm sure the VAC will consider is: "if the BBFC really have a problem with the title, why didn't they simply ban it completely ?".

Finally, as a matter of interest, it does appear that some of the "nasties" have suffered similar "token" cuts on video (e.g. most of Dario Argento's films). Surely now is the time for the BBFC to put the sorry "video nasty" era behind it ? Now that Andreas Whittam Smith has stated that it is "...my and the Board's view that adults should be able to make their own viewing decisions", surely now is the time for the BBFC to stop cutting material intended for adults ?