In
1996, shortly before the Tories fell from power, Home Office Minister
Tom Sackville advised the British Board of Film Classification that "the
strictness of the R18 guidelines has led to a flourishing black market
which could only be contained if customers were induced to patronise
licensed premises by the introduction of rather more explicit sex videos
than had so far been legally available." 1 To this end, the
BBFC liberalised its guidelines for the R18 category and permitted the
distribution to licensed sex shops of what can only be called "medium
core" tapes - hard core softened by, generally, the removal of
close-ups and ejaculation.
All went well until "New" Labour came to power, and Home Secretary
Jack Straw discovered what was going on. No doubt mindful of the
apparently all-important Daily Mail constituency, he took the big
stick to the BBFC in no uncertain terms and, amongst other things,
ordered an immediate and complete halt to the liberalisation of the R18
category. 2
At a hearing of the Video Appeals Committee in July 1999,
which came about as a direct result of R18 video distributors' anger at
the BBFC's enforced volte face , the Board was unwilling to
discuss the effect of its change of policy on the black market in
illegal sex videos since, it said, no research had been done in this
area. This isn't in fact the case, but anyway, all they need to do is
stroll along the streets around them in Soho, London's red light
district, and visit a few shops and they will very soon gauge the extent
and nature of that market. Whether or not they themselves realise the
role which they and, more significantly, their political masters have
played in the creation of this hydra, the fact remains that it is
possibly the most undesirable consequence of the many ill-conceived
attempts to stop the circulation in Britain of pornographic movies,
whether on film or video.
One of the gravest misconceptions of government is that the sexual
mores of the entire population can be regulated by act of parliament.
Such a statute is the Obscene Publications Act, passed in 1959 and
subsequently strengthened and amended to allow every conceivable method
of reproducing obscenity (even "data stored electronically") to be
represented. The fundamental flaw of the Act is that its definition of
obscenity remains that which was first formulated in 1867.
The original Obscene Publications Act was introduced in 1857. This
permitted magistrates to destroy books they deemed immoral found within
their jurisdiction. The act did not, however, define obscenity; this
task was left to Sir Alexander Cockburn, Lord Chief Justice of the Court
of Common Pleas, who, in 1867, famously defined it as matter which tends
"to deprave and corrupt those whose minds are open to such immoral
influences, and into whose hands a publication of this sort may fall."
3
The OPA was introduced (as a private member's bill by Roy Jenkins)
in November, 1958, a time when book and theatre writers were becoming
disturbingly outspoken, particularly about sexual matters, and there was
every indication that the malaise would spread to the more popular media
of film and television. The bill sailed through parliament, becoming law
in less than eight months, because the wording of the act was
essentially that of an eminent Victorian, and official standards of
sexual behaviour had hardly altered in well over a hundred years.
The dawn of sexual liberation, and with it the questioning of
Victorian attitudes, was, of course, only months away. As early as 1962
the convictions of two Soho shopkeepers, Clayton and Halsey, were thrown
out on appeal because the police who arrested them had to admit that
they had been neither depraved nor corrupted by what they had bought.
4 This case resulted in the Obscene Publications Act, 1964,
which attempted to paper over a crack by making it an offence not simply
to trade in obscene articles, but to possess them with an intention to
trade.
The act made the law no easier to interpret, even by judges. It
was precisely because the judge at the Oz trial in 1971
misdirected the jury, reminding them of the dictionary definition of
obscene ("repulsive, filthy, loathsome, lewd") that James Anderson and
others, publishers of the notorious "schoolkids' issue" of Oz ,
were acquitted on appeal. 5
In recent years judges and juries, those who grew up during and
after the sexual revolution, have found it increasingly difficult to
believe that the "vanilla" porn (consensual, non-violent, non-kinky sex)
which comprises most of the product on open sale in Britain has the
capability to deprave or corrupt those who choose to buy it. Even on the
much rarer occasions, when more extreme behaviour is depicted, a
conviction is by no means guaranteed. According to Colin Davis, senior
litigator with law firm W.H. Matthews, "We call on expert evidence on
whether the drinking of urine is harmful, and the general consensus
tends to be that it's all right, provided it's kept at the right
temperature."
One has to search the darkest recesses of one's mind to conceive
the kind of pornography which corrupts rather than merely stimulates. Of
course there's always child pornography, which is indefensible for all
sorts of reasons. But, please, do let us try to remember that the chief
of these is that it's illegal to have sex with a child in the first
place, whether filmed or not. Furthermore, paedophilia is a relatively
rare, highly specialist and deeply secret vice, and thus the idea that
the legal availability of Buttman's Big Tit Adventure would lead
irrevocably to kiddie porn being rented at Blockbuster is utterly
absurd, and none the less so for being so commonly expressed.
The Obscene Publications Act is an ass because it is impossible for
many of us to relate to its 19 th century puritanism. It is
extraordinary that the act has been continually updated, most recently
in 1994, without the dreaded "deprave and corrupt" test ever being
challenged. (In 1979 the Williams Committee, appointed by Labour to
enquire into obscenity, indecency and censorship, recommended that the
test should be whether materials "can be shown to harm someone," 6
but, as demonstrated by the controversy over the "harm" test
inserted into the Video Recordings Act after the furore following the
murder of James Bulger, this standard is equally contentious.) 7
Although the new OPA rapidly became the bane of both the lawmaker
and the lawbreaker's existence, it is in fact a vast improvement on its
predecessor. In 1959 the defendant gained the right to put his case
against destruction of materials by the claim that what appeared to be
filth was actually "in the interests of science, literature, art or
learning, or of other objects of general concern." The act also allowed
works to be judged as a whole and not simply in terms of their more
explicit sections, and specified that the audience for such works must
be one likely to encounter it, not a hypothetical child or adult
passer-by. Thus the law that was intended to banish obscenity succeeded
only in opening the door for both Lady Chatterley's Lover and
Deep Throat .
The latter was almost certainly an unintended beneficiary of the
OPA, which actually called itself "an Act to@provide for the protection
of literature; and to strengthen the law concerning pornography." 8
Of course, this simplistic and common-sensical distinction
between "literature" and "pornography" was soon to prove unworkable.
Penguin took the risk of publishing Lady Chatterley in paperback
precisely because it could be defended as "literature", and the
prosecution's famous remark about "wives and servants" demonstrated all
too clearly the kind of snobbery and fear of the populace that lay
behind traditional establishment thinking on the pornography question.
9
However, when in 1977, Deep Throat, a print of which was
smuggled into the country and shown at David Waterfield's Exxon cinema
club in Islington, north London, was prosecuted, this, too, was cleared
of obscenity, which certainly suggests that standards were changing. The
only reason the film has never been screened publically, nor sold
legitimately in the U.K., is that it does not have a BBFC certificate.
At least one distributor planned officially to import the film, but no
one has submitted it for censorship.
The essential vagueness of the OPA, designed to ensure justice for
even the director of a blue movie (as long as he has a glimmer of talent
and a halfway decent lawyer), is seen by some as the proper law for the
British people. "It's an unsatisfactory compromise, but on the other
hand, it's better than going to one extreme or the other," a Crown Court
judge explained to me. "We're basically a tolerant society. We don't
care to follow any particular strict rule book, but just to do things on
an ad hoc basis, case by case, without really understanding where
we're going."
The system has been responsible, nevertheless, for forty years of
blatant abuse of authority, wasted time and wasted public money, during
the whole course of which almost nothing banned has stayed banned and
virtually no convicted pornographer has learned the error of his ways.
On the contrary, illegal sex traders have become more skilful in
manipulating the law. In Soho, most of the people running the porn
industry have criminal records. It has always been thus, although the
most lawless period was the mid-1970s, when Soho was controlled by
vicious thugs running protection rackets. And these were just the
police.
Hardcore porn movies proliferated in the 1970s because
entrepreneurs like John Lindsay, David Waterfield and Derek Cox thought
they had found a way of circumventing the OPA by opening cinemas with a
"members only" policy. The scheme had worked very well for live drama
since the 1950s, when even some West End theatres became clubs to show
plays banned by the Lord Chamberlain. But nobody was sure of the
legality of the enterprise, and very soon the police began to take
advantage of the uncertainty. Police corruption, much of it involving
the porn industry, climbed to the very highest echelons of Scotland
Yard, although its full extent was revealed only later. 10
Although gangsters were operating in Soho (they have done since the
1930s and they still do), the area was, according to Ray Selfe, who
operated eight sex cinemas during the 1970s, "a friendly little
community." The Maltese, who appeared omnipresent, were in fact mainly
front men, subservient to British villains, most of whom seemed to model
themselves on the racketeer played by Peter Sellers in Never Let Go
. "All I was frightened of was the police," claims Selfe.
Some sex cinemas were raided several times a day. Police working
for the Obscene Publications Squad would storm in, removing projectors
and films and terrorising the clientele by taking names and addresses.
The only way managers could avoid victimisation was to pay up. "You
bought your own justice," Derek Cox revealed on Channel 4's series
Secret History 11 , "The more you paid, the better
justice you got."
The most swingeing reforms of the sex industry as a whole rained
down like thunderbolts during the first half of the 1980s, although the
only purge that could be described as a benefit to the community was Sir
Robert Mark's crackdown on the criminals working for the Metropolitan
Police, which saw nearly 500 officers removed from their jobs (though
very rarely prosecuted).
The Indecent Displays (Control) Act, 1981, effectively banished
porn forever to the back of the shop, and was responsible for the now
familiar come-on displayed at the front door ("WARNING. Persons passing
beyond this notice will find material on display which they may consider
indecent. No admittance to persons under 18 years of age.")
The Local Government (Miscellaneous Provisions) Act, 1982, gives
local authorities the power to insist that sex shops and cinemas within
their jurisdiction are licensed. Some use these powers to ban such
enterprises altogether, others simply to limit their number and
location. Those which do decide to permit them are actually onto a good
thing; for example even the London Borough of Islington, where there has
long been a tradition of "anything goes," recently increased its licence
fee from £1510 to £7000. However, the large number of authorities
refusing to licence sex shops at all has made considerable difficulties
for the BBFC's R18 sex video category, since such videos can only be
sold in licensed sex shops and the nationwide scarcity of such
establishments has meant that the R18 is barely a viable commercial
proposition.
Finally the Cinemas Act of 1985 closed a loophole in the 1952
Cinematograph Act through which cinema clubs had hitherto managed to
avoid being licensed by local authorities. Now any screening which was
"promoted for private gain" fell within their ambit. However, these
measures aimed at the kind of operation run by porn pioneers were
largely useless since, by the time they came into being, video had
already replaced cinema as the main porn medium.
Video, however, was never for one moment going to be allowed to
escape the clutches of the censorious in heavily regulated Britain. In
this respect the so-called "video nasties" were an absolute gift to
moral guardians and especially to the press, most notably the Daily
Mail . The resulting Video Recordings Act, 1984, turned out to be a
particularly blunt instrument by making it a criminal offence to trade
in uncertificated video recordings. The simple absence of the BBFC mark
of approval on a video could justify its seizure and prosecution,
thereby obviating an obscenity trial whose successful outcome for the
prosecution was by no means assured.
Most devastatingly for the character of Soho, the General Powers
Act, 1986, gave Westminster City Council additional means to regulate
the number of sex establishments in the West End, thus making the area a
nicer place for tourists to spend their money. By 1987 Soho's fleshpots
had been reduced (from the record high in 1980 of 163) to five sex
shops, three striptease theatres, and two cinemas. The advertising
agencies moved in and every coffee shop increased the price of its
cappuccino.
By the end of the 1980s, led by London's example, the UK had become
ostensibly porn free. Naturally the stuff was still there under the
counter, but the days of neon signs proclaiming the wares were long
gone. At the time it seemed unlikely that sex traders could possibly be
re-grouping for an onslaught on the reinforced might of the anti-porn
laws, but that is exactly what was happening. By 1993 unlicensed sex
shops, selling uncertificated porn, were again a common sight in Soho.
Empty threats of further legislation were heard. The "scandal" was
exposed in a sensationally hypocritical episode of the TV documentary
series Beam and Da Silva . 12
Seven years on, Soho looks much the same. To the casual visitor it
must appear as though the dirty square mile has returned to its halcyon
days, the 1970s. But there is one major difference. There is no longer a
need for a small-time businessman to slip a bent copper a backhander.
Supt. Martin Jauch, head of the Metropolitan Police's Clubs and Vice
Unit, successor in 1995 to the discredited Obscene Publications Squad,
confirmed (on BBC television's Panorama 13 ) that it
is not worth his while to target individual unlicensed shops.
The unit now prioritises operations run by big-time gangsters for
whom porn may be a little sideline to their main business - counterfeit
goods, prostitution, drugs, and sometimes all three. The moral seems to
be, "If you work in porn, don't get greedy." Porn baron David Sullivan
was of this opinion as long ago as 1983, when he was released from a
nine month jail sentence for living off the earnings of prostitutes. "If
you make it in any other field, you get the Queen's Award for Industry,"
he observed. "You make it in our industry, they send you to prison."
14
The responsibility of policing Soho's rogue traders now falls
largely on the zealous Trading Standards officers of Westminster City
Council. "We will never give up," Gordon Powell, Project Leader for
Enforcement, assured me. Much of Westminster's work in the field is
undeniably in the public interest. There have been too many tales of
teenagers charged hundreds of pounds for soft drinks in clip joints, and
women assaulted by cowboy minicab drivers. Regrettably the atmosphere in
unlicensed sex shops can be almost as intimidating. The staff is
deliberately rotated so that the assistant who sold you an unwatchable
umpteenth generation copy, or perhaps even a blank tape, will not be the
same person to whom you return it for a refund you won't get.
Realising that a blanket ban on porn is not going to make the
problem go away, Westminster wants to administer quality control. Last
summer the Council increased its quota of sex shop licences. This
solution is merely a palliative. Business men and women do not want to
spend £19,570 a year on a licence to sell sex articles that must not
include unexpurgated porn. The legitimate trader is better off opening a
bar and paying £30 for a licence to serve alcohol. The criminal knows
that the demand for forbidden goods by far outweighs the incessant
hassles with the authorities.
The answer to the most often asked question, "Why can't unlicensed
premises be closed down?", lies in the legislation which manages to
protect the trader but not the consumer. Trading Standards officers can
remove suspect goods, but can't issue a Closure Order until the
illegality of the materials and the identity of the trader is
established in court. Staying out of court is a game the criminal can
play sometimes for years, usually because of the difficulty in tracing
the guilty leaseholder. "Disguising the trail is an old art," says
Powell.
How is this possible? "Everybody" knows who owns the premises that
house virtually all Soho's unlicensed sex shops. In fact these premises
are owned by one man. But the millionaire in question, last dragged into
court by Westminster in 1983, was able to convince magistrates that he
was unaware of the nature of the business conducted in his property.
Moreover, both he and the man to whom he sub-let a shop were awarded
costs against Westminster. He has subsequently demanded, and received,
apologies from newspapers that have claimed he runs sex shops. The
subject is no longer one for discussion. "I'm not going to go into that
area," is Powell's only comment.
Around the rest of the country, Trading Standards officers spend
very little of their time raiding sex shops. Counterfeit or sub-standard
products, some of which could cause injury or death, are the main
concern, and there is general acceptance that any raid on a sex shop is
little more than a token. "Peter," who spent ten years as a senior
Trading Standards officer in southern England, feels he did what was
required. "It's difficult to say loosen up," he told me. "There's a
legitimate moral argument against porn. You can't dismiss it and say
it's too trivial to deal with."
Trading Standards do not act of their own volition, only at the
request of police or public. Members of the public usually do not
complain about what the shop sells, but the undesirable clientele it
attracts. A sex shop that opens near a school will be lucky to survive a
fortnight. After making a test purchase and establishing that a video is
uncertificated, the Trading Standards official returns to the shop,
accompanied by police if it is felt there is a risk of violence, and is
entitled to remove the stock plus video recording equipment and signs
advertising the business.
If he feels he has covered his tracks adequately, the owner
normally re-stocks and re-opens immediately, at which point Trading
Standards tend to give up. If they wish to pursue the case, they may
find that the company leasing the shop is registered in Gibraltar or
Liechtenstein and therefore untouchable. In 1998 the BBC documentary
series Fraud Squad 15 followed Birmingham Trading
Standards officials, who were determined, perhaps because they were
being filmed by the BBC, to nail a local "Mr Big."
Unable at first to locate any documentary evidence linking Peter
Gold to the lease of his shop, officials eventually secured his arrest
by tracing a cheque paid by Gold's wife to the Electricity Board. The
moral? "Cash only." Speaking on Panorama , journalist John Ware
declared, "Everyone agrees the black market is out of control." No one
knows precise figures, but proceeds from the illegal sex trade must
contribute substantially to Britain's gargantuan black economy, now
reckoned by John Burton, senior economist at Birmingham University, to
cancel out more than 20% of the annual gross domestic product, the
equivalent of £10,000 for every citizen of the British Isles. 16
Purely because it is run by criminals, the sex trade, today
comprising mostly video shops and a variety of "hostess" bars, really is
a dirty, sordid business. The exceptions that prove the rule are two
long-established Soho shops, Corniche and Maxim's, noted for their
friendly, knowledgeable staff. Otherwise, sex traders offer a service to
the public that would land a butcher or baker in jail if they tried
something similar. Writing in The Guardian in 1998, Julian
Anderson advised, "Never tell the guys who work as hustlers for the peep
shows to fuck off@I did that once when still in my teens and the guy
chased me down Old Compton Street with a knife." 17
Regular punter "Daniel" has been threatened with a gun for not
buying anything. On another occasion he went to a shop near Leicester
Square and asked for a specific title. The assistant said he had it in
the back of the shop. "He brought out something in a brown bag," Daniel
remembers. "I asked if I could look at it. He said, 'No. It's £40.' I
tried to leave and he obstructed the doorway. I narrowly managed to
escape when other people arrived."
The assistants in adult video stores are mostly male, in their
twenties, friends of assistants in other stores. Everyone drifts into
the business, from related work, and out again relatively quickly.
"Alex" came to London from Glasgow in 1988. Within a couple of years he
was skint. Always interested in "pushing your limits, seeing what you're
made of," he worked in a male brothel, and as a dominatrix's assistant,
before serving in several sex shops in the mid-1990s. Around the same
time, "Larry," a Londoner who had done work on David Sullivan
publications, was behind the counter in a shop specialising in bondage
and domination tapes. Alex and Larry don't know each other.
Of the two, Larry was trained to be sneakier. Whatever the punter
asked for - S&M, shit and piss, kids, animals - it was always in stock.
In reality, only mild bondage ever was. The customer who required more
outré thrills would be given something else, or a blank. If he came back
to complain, he was a "screamer." He would be served by a different
assistant, who would apologise and hand over a replacement. If this
assistant was feeling mischievous, the replacement was also a blank.
Only the most determined screamer eventually got an approximation of his
original request. For obvious reasons, the lowlife who paid more than
£100 and expected to get kiddie porn or snuff never returned.
Alex, on the other hand, was never aware such tricks of the trade
existed. He did get an interview for the job, but it was perfunctory. He
was warned that, if there was a raid, he would be prosecuted, but if
this happened, not to worry, because his fine would be paid. As it
turned out, Alex never suffered a raid because he worked the evening
shift, 6pm to midnight, and Trading Standards are "nine to five kind of
guys." His work entailed "sitting in a freezing cold shop with an
ill-tuned TV for hours on end, ripping off Japanese tourists." How?
"It's unfortunate, but sometimes you say fifteen pounds to a Japanese
person and they think you've said fifty."
The word was out that the way to elude the Local Government
(Miscellaneous Provisions) Act was to keep only a small percentage of
sex videos on the premises. The rest of the stock consisted of
second-hand books bought at boot sales. This was because the act defines
a sex shop as one selling sex articles "to any significant degree." "We
dubbed it Soho's literary renaissance," says Alex.
Usually the videos were on open display, but sometimes instructions
were received to hide them under the counter. Today some video shops
stock no videos at all. Since the advent of the cellular phone,
individual tapes, stored in nearby flats, can be rushed round as
requested. As Daniel found, a specific title is not an available option.
But then Daniel is not the average British punter, who is normally in
need of a genre, like "girl/girl" or "milk maids", rather than the
latest work by Michael Ninn. "They're not connoisseurs, they're
wankers," scoffs Larry. "People coming in asking for one film were
irritants." Alex agrees: "They were just mugs."
The assistant's nominal employer is the front man, who hangs around
near the shop in case of an emergency, calls in at the end of the day to
pick up the "packet" (takings), and again once or twice a week to
replenish the stock. "Dave," a front man interviewed by the
Independent 18 , revealed, "If I'm not around, something
usually goes wrong. If we get raided, I've got to get more copies done
and up to the shop as quickly as possible. It's the front man's
responsibility to get [the assistant] out, pay fines. Or I might have
to cover rent - £500 a day - if we've had a bad day." Rent is paid to a
messenger, who in turn delivers to the next link up the chain.
Neither Alex nor Larry ever came close to learning the identity of
Number One. The only clue Larry ever picked up was when "A guy came in
once. Mediterranean. I wouldn't mess with him." Alex suspects that,
shortly after he began the job, his allegiance was tested:
"Dodgy-looking guys would come in the shop and say things like, 'Is your
boss around? What's his name?'" (Researching this article, I made the
mistake of asking similar questions. I was asked if I wanted my legs
broken.)
Coincidentally, Alex and Larry both now work in other branches of
the entertainment business. "I don't frequent Soho very much these
days," says Alex. He has no interest in whether porn is legalised or
not. "It's one gang or another," he shrugs. "It's either the government
or gangsters and it doesn't really make an awful lot of difference who's
taking the money."
Police and council officials would not be struggling, Canute-like,
to turn back the tide of pornography had the first line of defence not
been breached. It says much for the diligence of smugglers and the
incompetence of H.M. Customs and Excise that an estimated 95% of the
hardcore on sale in the UK does not originate here. 19
Home-grown porn has been mass-produced since the 1950s, when the work of
Harrison Marks was far more popular than foreign imports. But since the
arrival of video at the end of the 1970s, British product has all but
disappeared. A new generation of British hardcore directors, headed by
Steve Perry (aka Lindsay Honey) and Frank Thring, emerged in the 1990s,
but their unexpurgated work is better-known in the U.S. Most British
viewers now automatically assume that the hardcore tape they buy is
either of an American production or from Continental Europe.
This "indecent and obscene material@which is not legally for sale
or hire in the UK," is prohibited from importation under another
ancient edict, the Customs Consolidation Act of 1876. The Customs and
Excise Management Act of 1979 gives the offender (the person who
attempts to bring the material into the U.K. or is the addressee) the
opportunity to pay a forfeit, "a sum of money determined by the
Commissioners," which saves everyone the trouble of a court case. If the
opportunity is taken, which it usually is, the material is destroyed.
Customs and Excise always appear embarrassed when talking about
their mid-Victorian regulations. Customs officer Ian Minter was
prevented from speaking his mind on the Panorama programme by a
"press minder" who was seen vetoing questions. All journalists who
telephone a customs officer are re-routed through the press office, but
I was lucky enough to get hold of the "assessment sheet" of forbidden
sexual activity. Apparently this helpfully alphabetical list, originally
compiled in the mid-1980s, is "regularly reviewed in conjunction with
the Home Office" so that it reflects contemporary rulings by the courts.
In spite of this, the current sheet, reproduced here, still includes
activity, e.g. intercourse and masturbation, on which courts rarely
convict.
- Anilingus
- Bestiality
- Bondage
- Buggery
- Cunnilingus
- Defecation
- Domination
- Ejaculation
- Enemas
- Fellatio
- Fisting - Anal
- Fisting - Vaginal
- Intercourse
- Masturbation
- Necrophilia
- Paedophilia
- Sado-Masochism
- Scatophagy
- Troilism
- Urination
Attempting to import indecent and obscene material is like playing
Russian roulette. Most of the time nothing will happen, but if the
bullet is in the barrel, that's it. In 1997 "Desmond", a film archivist,
was informed by Customs and Excise that a 16mm copy of a blue movie made
in 1921, sent to him from the U.S., had been seized. 14 By
patrolling the borders of our country, Customs and Excise seem to have
lost track of developments in the interior. To the men with the white
chalk, it's still 1876.
David Flint is probably Britain's leading sex film historian,
prolific contributor to everything from Knave to Wonderland
Traveller (a Japanese guide to London). In 1994 he flew into
Manchester airport from Holland with a bag containing 18 tapes including
Debbie Does Dallas and Inside Marilyn 2 , as well as
others that were to be his downfall, films he was intending to write
about for his magazine Divinity . Flint was arrested
and imprisoned in a cell. During a twelve hour interview, customs
officers decided to organise a raiding party on his home. Here
officers removed a further 70 tapes, plus computer disks and paperwork.
They informed Flint that 11 of the imported tapes and a further 11
taken from his house were forfeitable under the 1876 act, then allowed
him to go home. Under the 1979 act, Flint was fined £550, an apparently
arbitrary sum which turned out to be calculated on the street value
(£50) of each tape brought from Holland.
Flint was able to instruct solicitors used by the Redemption video
label. They advised him that the case was hopeless because of the
content of some of the tapes, notably avant garde director Ian Kerkhof's
Dead Man 2 , "with punks shitting and vomiting over each other."
Flint learned that, if he went to court, unrecoverable legal fees may
reach £4000, further that, if the magistrate found against him, there
was a possibility of imprisonment. On the other hand, the solicitors
could have the fine reduced by arguing the guilder/sterling exchange
rate! Flint, understandably, took the easier option. The final
settlement was £250 and he was allowed to collect 54 of the seized
tapes. Among them was Bare Behind Bars , banned in the UK.
"At the time, it was the worst thing that ever happened to me,"
Flint recalls. "When I was stopped, the world seemed to grind to a halt.
The cell was pretty horrific. I had no idea what was going on. When they
were at the house, I had no idea what they were going to come back with.
They're not very tidy when they do these things. My house was a mess, my
life was a mess. It was like being violated, like being burgled and the
burglar wakes you up and makes you watch."
In 1998 Flint was arrested again, this time by the Obscene
Publications Unit of Greater Manchester Police, on suspicion of selling
obscene videos. His arrest coincided with the seizure of the
Mapplethorpe book from the University of Central England and the two
incidents received national publicity. Shortly afterwards the Crown
Prosecution Service told Manchester police there was no case against
Flint to answer. The combined forces of customs officers and police
failed to make the slightest difference to his way of life. Last year
his book, Babylon Blue 21 , was published.
Mark Wright had the resources (to date, approximately £2000) to
face Customs and Excise in court, but his efforts brought him no more
satisfaction than Flint. Wright, a computer software consultant from
Coventry, flew into Birmingham airport from Holland in 1994 and was
arrested for possession of 24 tapes including Debbie Does Dallas 3
and Teacher's Favorite Pet, as well as several "video
nasties."
Wright has to date fought his case (single-handedly, having fired
his "bloody useless" solicitors) through three hearings, unsuccessfully,
but intends to go to Europe. His basic contention is that the OPA does
not prohibit the personal possession of obscene articles. As Customs had
no proof that Wright intended to trade the tapes he brought into the
UK., does this imply that importation under these circumstances cannot
be illegal?
A key case, Regina vs Henn (1978), was allowed to go to the
European Court of Appeal in 1981 to test whether the CCA was effective
in preventing the importation of obscene materials from Holland.
Dismissing the appeal, the court found that "a member state may in
principle lawfully impose prohibitions on the importation from any other
member states of articles which are of an indecent or obscene character
as understood by its domestic laws." But, Wright argues, the defendants
in this case, Maurice Henn and John Darby, were dealers, who sold
magazines and films by mail order.
"My argument," states Wright, "is that the OPA has a relative test
of obscenity based on the likely audience. [In my case] there was no
audience to whom the test could be applied." This did not wash with Lord
Justice Kennedy, who dismissed Wright's appeal at the Divisional Court
in February 1998. The report of his summing up concluded, "Although the
items were imported for private use, there was a public morality purpose
to be served in protecting the less innocent from further corruption and
the addict from increasing an addiction." 22
"Ridiculous," responds Wright. "[This] goes against the OPA
specifying publication rather than possession for personal use. Claiming
public morality as an issue got around the fact that the OPA simply
doesn't apply to personal possession. A gross abuse of the law in my
opinion." Wright has become so disenchanted with the law that he now
lives in Holland, where he has a sideline selling ex-rental tapes on the
Internet. His catalogue includes The New York Ripper, I Spit on Your
Grave and Cannibal Ferox. In the UK he would be committing a
crime.
Mark Wright is not the first person to be driven out of the UK to
seek more broad-minded cultures abroad. There are plenty from which to
choose (with the exception of Ireland and Malta, the whole of Europe.)
In trying to rid the UK of pornography, successive governments have made
it necessary for dozens of companies based in Continental Europe to pump
it over to us.
The most practical way of circumventing UK legislation was
developed by David Waterfield and his wife, Patricia. In 1987 they
registered the mail order companies Your Choice (straight) and Man Alive
(gay) in Amsterdam. The couple subsequently divorced and the companies
and others are now run by Patricia, who does not want to be identified
by her unmarried name ("I still have family in the UK.")
Patricia is reluctant to reveal details of her operation, but there
is little mystery about the basics. Customers send orders from the UK to
Holland, but tapes are copied and despatched by agents apparently
scattered throughout the UK. The system still manages to break quite a
few UK laws, including the Post Office Act, 1953 ("A person shall not
send@a postal packet which@encloses@any indecent or obscene article.")
Patricia's agents were among those arrested in 1995 during "Operation
Dare," the biggest series of obscenity raids ever undertaken by
Manchester police. "Customer loyalty kept us going," Patricia told David
Flint 23.
At Manchester Crown Court in 1999 it was revealed that Keith
Higginbotham, a man convicted of blowing up his Stockport home in an
attempt to avoid mortgage repayments, was also on bail in connection
with copying pornographic videos imported from Holland. "The court was
told that the obscene videos may have had a 'significant' link to the
blast," said a newspaper report. 24 The implication is that
working in the illegal sex trade drives some people to desperate
measures.
The only encouragement that UK importation laws are not set in
stone comes from Major James Scarlett, whose Tower Productions imports
naturist videos. In 1997 Newport Customs and Excise officers seized a
copy of Naturist France II: LaBorde , sent to Scarlett from
Australia, then raided his home and removed his entire stock, later
issuing a second destruction order, this time for a British tape, A
Naturist's Provence Part 2 . Both tapes were said to feature
"indecent photographs of children." 25
Scarlett appealed the order at Cheltenham Magistrates' Court on 7
April, 1998, and won his case, he says, "in about two minutes."
Scarlett claims that subsequently Customs and Excise reviewed their
guidelines and that in future they will not seize videos showing naked
children under the age of 16 if they are accompanied by adults in a
non-sexual context. "When they find someone willing to stand up to them,
they welcome it," Scarlett told me. Customs officers at Newport,
however, would not be drawn.
A sensible way forward out of the present legal minefield would
involve the acceptance that the words "indecent" and "obscene" have no
place in legal language as the concepts exist only in the mind of the
offended. The woman's ankle and the navel were once thought indecent
and, one day, the present irresolution over the obscenity of the erect
penis will probably look as silly as the fretting about pubic hair,
which, in 1963, was regarded as so obscene that it landed photographer
Jean Straker in jail.
Pornography is what the censor says it is, nothing more. Not all
fucking is pornographic, decided the BBFC in 1991, when it passed at 18
the sex education video The Lover's Guide . Then it thought the
same about the medium core 18R tapes Batbabe and Ladies
Behaving Badly . Then, purely as a result of the furious response
from the Home Office, it refused to pass uncut the virtually identical
Makin' Whoopee (1997), which it then tried to make out was
pornographic after all. Most recently, after the distributors appealed
against the BBFC's change of heart, the Video Appeals Committee
announced that it was "unanimously of the view that the video work is
not obscene within the terms of the Obscene Publications Acts and that
it should be granted an 18R certificate." 26 How journalist
A.A. Gill's words on Channel 4's debate, Censored 27,
come back to us: "If you want to be remembered as an idiot by posterity,
try to censor something."
Meanwhile, out there in the real world, beyond the confines of the
Home Office and the BBFC, hardcore pornography is losing its shock value
to such an extent that, in 1999 at Nottingham Crown Court, three sex
video makers were given conditional discharges because the judge said he
found A Thong for Europe , a contest for male strippers, which he
had seen on Channel 5, more offensive than the tapes shown in court. If
sexually explicit materials are thought by a judge to be neither obscene
nor even offensive when compared to late-night terrestrial TV, then it
can be fairly be argued that the criminalisation of pornography, and the
exploitation and intimidation that this engenders, causes far more
damage and distress to British citizens than the upsurge of masturbation
that probably would be the only consequence of legalisation.
