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 19th
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 History11 , “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
Panorama13) 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
Squad15
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 Independent18,
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.
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 Blue21, 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 Flint23.
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, Censored27,
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.
