In UK law, pornography as such is not illegal. It only becomes so if and
when it qualifies as being obscene according to the provisions of the Obscene
Publications Act 1959. The legal test of obscenity in that Act, is the notorious
deprave
and corrupt yardstick. This is the test the authorities apply, though nobody can
demonstrate that anybody has ever been depraved or corrupted by a particular
obscene
article.
In practise, what this means is that The police and customs officers simply apply their
own idiosyncratic subjective and inevitably inconsistent standards, even though they
always claim that their decisions are based on what they know to have been successfully
prosecuted in the courts in the past. But this measure too, is deeply flawed because the
courts themselves are notoriously inconsistent in their judgements. For example, an item
found obscene in one court will often be found not obscene in another,
No-one can therefore state categorically that a particular item is obscene in the eyes of
the law, and the outcome of any prosecution is effectively a lottery.
However, mere possession of obscene material is not in itself an offence, but
could be so if illegally imported. Moreover, the showing of any obscene article
on one's private possession, to another person, whether a friend or not, has incredibly
been interpreted by the courts as publishing. So strictly speaking, this is an
offence under the 1959 Act, whether for gain or not.
However with material involving or depicting children under the age of 16, the criteria
applied, according to the protection of Children Act 1978, is quite simply that of
indecency, which is not subject to the deprave and corrupt limitation of the
OPA's obscenity test, and as such it is interpreted by the courts much more broadly, and
often recklessly. Furthermore, under Section 160 of the Criminal Justice Act 1988, mere
possession of such indecent material (of under 16 year olds) , became a criminal
offence, which has recently allowed the police to concern themselves with even the most
innocuous material. What's more, the onus is on any defendant charged with possession of
material in which those involved appear or seem to be underage, to prove
otherwise (quite often an impossibility).
With regard to the importation into the UK of allegedly
obscene material,
although the provisions of the Customs Consolidation Act (dating back to 1876!) still
apply, which prohibit the importation of indecent or obscene material,
customs officers now apply the obscenity test of the OPA, Not that this gives much cause
for comfort.
HM Customs and Excise officers are given frighteningly wide powers to deal with obscene
material, possibly rivalling those of the Third Reich! Their main weapon, where a small
number of items is concerned, is the confiscation of the offending material (again often
depending on the idiosyncratic and subjective whims of their officers).
The OPA doesn't legally apply to Customs. They might use it as a guideline as
part of their policies, but the test that they use is the milder 'considered to be
indecent or obscene' rather than the ' ... deprave and corrupt...' one stipulated by the
OPA. The laws they use are given at the end of the notice of seizures that they hand out.
They use the Customs and Land Management Act (CLMA) which defines a 'considered to be
indecent or obscene' criteria, and this is the criteria that they are legally entitled to
use. The difference is quite large; under the OPA, something is only obscene if it can be
found obscene and convicted as such by a jury (innocent until proven guilty), whilst under
the CLMA, only one individual customs officer has to consider the film obscene. The burden
of proof is then reversed. If you take Customs to court, then you have to prove that
seized material is not obscene, rather than them prove that it is. It's easy to see why
Customs are so desperate to cling on to this criteria trather than have to use the OPA.
But if they suspect you of being a commercial importer, carrier or dealer, you will
almost certainly be arrested, strip-searched and taken under escort to your home which
will then also be searched.
If you wish to challenge a so-called simple confiscation order, you can do so within 28
days. The case (which is a civil, not criminal hearing), will then be heard before
magistrates, where again the onus is on you to show that the material is not obscene, is
not therefore illegal and consequently should be returned to you. Not an easy task,
because in practice magistrates invariably rubber-stamp customs seizures - and you may be
liable for costs, too.
Customs officers are now permitted to exercise a personal use tolerance clause
which instructs them not to seize small quantities of obscene material (so you're
allowed up to three books or magazines), providing none of the items depict children, and
there are no duplicate items, and there is no suspicion that the individual is a regular
visitor abusing this tolerance.
(And not that this tolerance clause also excludes video tapes, films,
laserdisc and computer discs which will still be seized).
However, in the supposedly free West where freedom of expression is rightfully taken
for granted, such big-hearted concessions to us repressed Brits are hardly likely to fill
us with paroxysms of joy. Effectively British state nannyism and hypocrisy still pervades.
