Obscenity and Obscenity Trials

The only obscenity is something called British Justice

An important avenue of porn distribution in the UK is via mail order. Many of these companies are based in mainland Europe and only have a skeletal duplication and distribution operation actually in the UK. The police have been hounding one particular operation for some time and last December (1999) it came to trial. However the jury could not come to a decision and so it was declared a mistrial. The case will recommence sometime this year, July at the earliest.

To date the case has cost the tax payer more than £500,000. What a criminal waste of money on something that is no longer considered obscene by anywhere near enough number of people to justify this horrendous persecution.

This is the story as relayed to me by one of the defendants

18.02.00

I have had links with the porn industry for around seven years. I first started printing video catalogues for a Dutch company called Premier Choice way back in 1993/4. They consisted of the same kind of material as the Canamax catalogue over which I was prosecuted. I also printed a catalogue for Jennifer Clifford and numerous other Dutch companies and these were all printed, packed and posted by myself from premises in York, just over the road from York Central Police Station.

I had a visit from York police during 1995 asking about pornography and my involvement in it. The raid and search lasted around two hours, and they had present a female officer from the paedophile squad in Manchester. She assured me that there was nothing in the catalogue that bothered her in the least. I then asked the superior officer at the scene whether or not I could continue to print the material found. His answer was that he had no idea!! Surely I said you are the law man, and must know whether or not I can carry on, his reply was don't ask me, ask the vice squad!! Unbelievable no!!!

Okay so off they go, and on I go with the printing and distribution of the catalogues. I now travel very regularly between the U.K. and Amsterdam, as I am now designing the catalogues myself, as well as printing them in York. This carries on until the 17th December 1996 when I am raided at my home in York at 7a.m. by HM Thieves & Exercise They had intercepted some video sleeves that I had designed (and as my printing company was no longer in operation) and had printed in Holland. I asked for samples to be sent back to me for my portfolio. They took all my computer equipment, effectively killing my design business in the process. What a shite Christmas that was. So, six months later I'm in Amsterdam and get a call from my Lawyer. Out of the blue, the case is dropped, and they would like to return all my equipment!!

Six months of uncertainty for no good reason, but as I realised over the next few months, this is how Customs work. I was stopped at every airport and dock that I used, and on one occasion at East Midlands, I was strip searched and internally searched on suspicion of importing pornographic material, what did they think, I could get a  vhs tape up my arse!!! They then took from me a video I had purchased in the U.K. about body piercing on the premise that it contained obscene material!! My car has been stripped down at Hull docks, again on the premise that I was importing obscene material, a computer I had with me was seized, but returned within a week when pressure was applied by my lawyers.

OK so I feel I've been persecuted, but then we get back to the latest case. Happily working away, doing nothing more than I have previously, and without prosecution I might add, I am raided again, this time at my parents house This is in May 1998. All my computer equipment is once more seized, I am hand cuffed in front of my parents and read my rights. Thousands of brochures are also seized and I am told I am being arrested on suspicion of distributing prornographic material, namely Canamax brochures Edition 2 and 3.

Down to the local nick and I am questioned by the local plod outlined as follows:

• What do you know about pornography, you realise you've been arrested for distributing pornography don't you.
• Yes I do, and that's not  illegal to the best of my knowledge.
• Well it is
• Wrong pal, I think you must be thinking of obscene material, now that would be illegal!
• Yes it would, and that's what we'd like to talk to you about, obscene material
• I do not distribute anything that is obscene, all the stuff I do is completely consensual and is only thought to be obscene by you!

Anyway on we went for around half an hour as they tried to tell me I was in really deep water, that Manchester OPS were involved and that it would go well for me if I told them what they wanted to hear. When they realised I was not interested in helping them, they stopped the interview, but not until another officer asked me if, should the case go to Crown Court and a jury found the material obscene, would I agree with this verdict, I answered with a resounding NO!!!

After releasing me on bail, the copper who asked the final question took me to one side, and told me strictly off the record that he felt the whole thing was a load of bollocks, and that he wished he wasn't involved. After much toing & froing between my lawyers and one DC Stephenson in charge of the investigation, it was decided that after 10 months I could have my computer equipment back. This was duly delivered to my associates house, where I found that none of it worked, and a few grands worth of Apple Mac was down the pan. I was told I could get no compensation from plod, as they worked when they had them!!!

I had in the meantime bought new equipment and was trying to build up my business once more, as I had been told on numerous occasions that the case wouldn't get to Magistrates, never mind Crown. The case was heard at Harrogate Magistrates Court in September of 1999, fully sixteen months from my arrest, and we were told that the case would be heard at York Crown court six weeks hence. It wasn't!! The CPS had not given my barrister any of the evidence they were going to use against me, and therefore my legal team approached the trial Judge who then told the CPS that they had until the Friday to accede to our wishes, or he would throw the case out. They didn't manage it, so of course I have a  drink to yet another waste of my time and the public purse, but what's this, the Judge has changed his mind, and now gives the prosecutors another six weeks to get their act together!!! Never trust a copper or a Judge!!

On we go and we appear at the plea hearing, me on two charges, and my co-defendants on nine, namely nine videos they feel are obscene. I've been told they have no chance of successfully prosecuting me on brochures, so I'm in good spirits. When we get to the court house, they old bill have changed the indictment to one of conspiracy to distribute obscene material, namely brochures and videos, so now they have me on nine counts as well. Talk about moving the goalposts, even Ronaldo couldn't have scored through this pair of constantly moving ones!!!

So they have done all they possibly can, had all the help they can get, and we actually go to trial in December 1999. The trial lasted 11 days, cost a fortune, there were five of us in the dock, all with our own barristers, and all of us on legal aid! We end up with a jury of ten because on old guy reckoned he knew one of us, and an old dear was bored after about half a day and wouldn't watch any more! The jury was split 5 men and 5 women, and after being out only one hour, came back and told the Judge, (who wanted a unanimous verdict, as this was a landmark case) that they could not get the required verdict. He sent them back out, telling them to try their best, and he would bring them back at 4.30 p.m. When they came back the answer was the same, so the Judge said he would accept 9-1, impossible said the jury foreman, well that's my best offer said the Judge, if you're sure you cant make that then you are all dismissed!! We were told that the majority were in our favour, but it wasn't good enough. I am now waiting to find out if I have to go through a re-trial, though once again I've been told it is highly unlikely, so out of the last four years, I have spent 3 of them on Police bail, that's the great British justice system for you. In the process, I have lost a partner, a business and a lot of computer equipment, and have not been convicted of anything at all. My name, address and photo have been plastered over all the local papers, and many of the nationals, yet I am told there can be no compensation at all for the grief of the past two years. The British justice system is stacked against the individual, and there seems little if any chance that this will change.

Selling Satellite Porn

This is the story of a Trading Standards prosecution which was initiated slightly before the porn guideline changes in mid 2000.

Mark Smith tells his story in his own words

July 2000

Where to begin? It's quite a long story so I'll try not to ramble too much.

I've been watching satellite porn since 96 when the only dedicated porn channels were Rendezvous and Eurotica, SCT had just started up but the smart card needed to view the channell was embedded in their own dedicated decoder and you also needed a receiver that could receive a 'clamped signal, so I, like most people stuck to what could be received with a D2-Mac decoder.

I was always lending or giving tapes to friend, neighbours and family and at the end of 97 I decided to start making multiple copies with the sole intention of selling the copies I planned to make.

First of all I purchased official viewing cards for SCT, Rendevous/Eurotica and Eros after first making sure that were no plans in the pipeline to proscribe the channels mentioned. Then I bought 8 Toshiba VCR's and one Panasonic VCR, a title generator, a video processor, a Kramer distributor/amplifier and a time base corrector. I placed adverts in the local press and waited for my mobile to ring, and ring it did. I was putting two films on each three hour tape so each tape was lasting roughly two and a half hours. I was selling four films for ?20, 8 for ?30 and 12 for ?40. People loved the prices, the picture quality and the service (1 to 2 hour free local delivery). Pretty soon I had a large base of very regular customers who were glad to have found someone who didn't want to rip them off.

In July '98 I bought a card for Channel Bizarre which turned out to be good move as the picture quality was very good and they showed quite a few English films. Unbeknown to me trading standards had decided to set me up for a fall and in September '98 I got a call from a 'man in Uxbridge asking if I could meet him to get some films to him. During the conversation the bloke mentioned that he had a pal who was a dog handler and did I stock dog sex films as he wanted to have a joke on his pal. I told him that I didn't touch that sort of stuff. Anyway we arranged a meet in Uxbridge and he turned up in an un-marked white DAF van. I sorted him 4 films and off he went. In November 98 the same bloke phoned again and this time he said that the films had been good but did I have anything stronger, it turned out that he wanted me to supply films with girls between the ages of 14 and 15. I told him that the closest we had was the Dutch Seventeen type of film and that we would not deal in films with underage girls. He had 12 films from me this time.

This horrible, cowardly, snivvling little shit turned out to be a 'technical assistant from Hillingdon trading sub-standards called Ronald Smart, he's slim, about 5'10 with very curly dark brown hair. In Febuary 99 Martin King ( quite tubby, about 5'9, about 34 with light brown hair combed into a side parting, looks like a real mummy's boy with a sad penchant for white socks ) from Hillingdon sub-standards accompanied by two of his cronies (one asian and a very skinny chinese bloke with a funny shaped head) and three plod turned up at my door at 8.30am to search my house. They took all the stuff I was using and said they'd be in touch. I received 2 letters from them in March and April asking if I'd come to their office for an interview which I declined and then in September they came back and gave me a form to say they were taking action and I was to be in court in October.

After a couple of appearances I elected for a trial by a jury and the case was put to Isleworth Crown Court. After a couple of false starts the trial got under way on Tuesday July 4th 2000. I was charged under the video recordings act on three counts of supplying an unclassified video work and three counts of possessing an unclassified video work with intent to supply. I had based my defence on the video recordings act, the part of it that says it is a defence to the charge if the person supplying the films had a reasonable belief that the films had a classification certificate of some kind issued by the BBFC. My barrister argued that it was a ridiculous situation that the government could if they wished ban the channels from which I was taping these films but choose not to but if I tape them and sell them for even 1p then I was a criminal. He told the jury that anyone could tape these films, own them, lend them, give them away with no problem and so the governments argument about protecting children was obvously not true and if anyone can tune in to these satellite stations and watch/tape the films why would anyone consider it to be illegal to sell the films ( copyright wasn't part of the case ).

Of course sub-standards denied that they'd tried to entrap me into supplying them with beastiality films or under age girls and their barrister kept me on the stand for about an hour but I told the jury that I was so sure that if I stuck to using official viewing cards for legally available channels that anyone could watch if they so wished then I could be doing no wrong.

I was a bit worried because the jury consisted of 6 women (2 were middle aged and 1 was quite old) and 6 men but then one of the men had to drop out. The judge whilst doing me no favours at least made it very clear to the jury that there was no paedophilia, beastiality or violence in the films. The jury were only out for just over an hour before returning a unanimous verdict of not guilty on all counts. They showed great commonsense and intelligence in being able to see through the prosecutions smoke screen of legaleese and gobble-de-gook and character smearing. For this reason I would like to nominate them to your hall of fame.

What I didn't mention about this defence is how risky it is. The burden of proof is reversed when using this defence. It ceases to be the prosecutions job to prove a persons guilt, instead it becomes the defendants job to prove their innocence and yet despite this the jury still saw how absurd the current situation is regarding blue movies.

Well, I think that's about it, for 18 months I had to live with the worry of possibly going to prison because sub-standards were not big enough to say "this shit is harmless, lets go and get someone dealing in nasty stuff" all they wanted was a result of some description, nice to know where your tax goes isn't it?

Question: When is disgusting not obscene?

By David Pannick QC

From the Law Report section of the Times, September 1998

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.

Offsite Article: The Oz Obscenity Trials

From 1967 until 1973 Oz was the irreverent colour supplement of the London underground press. In June 1971 the editors (Jim Anderson, Felix Dennis and Richard Neville) went on trial at the Old Bailey for, among other things, conspiring to corrupt the morals of young children and other young persons by producing an obscene article, sending said article through the mail, and publishing obscene articles for gain. Had they been on trial for obscenity alone, the maximum penalty would have been a fine of £100 or 6 months imprisonment. However, the use of an (archaic) conspiracy charge meant that there was no limit on the fine or sentence that could be imposed.

See article from pers-wlv.ac.uk

See article from en.wikipedia.org