UK Law: Obscene Publications

Chris Ashford has written an excellent report of the trial:

On Friday 6 January 2012, a historic case came to a conclusion in Courtroom 7 of Southwark Crown Court in Courtroom 7. Michael Peacock was unanimously acquitted, after a four-day trial that saw the outdated obscenity law of England and Wales in the dock.

Peacock had been charged under the Obscene Publications Act 1959 for allegedly distributing obscene gay DVDs, which featured fisting, urolagnia ('watersports') and BDSM.

Peacock had advertised the DVDs through Craigslist, his own website (which also promoted his services as a male escort), and in a magazine. The Human Exploitation and Organised Crime Command (SCD9) or London's Metropolitan Police --- which encompasses the former Obscene Publications Squad --- saw the advert and began an investigation.

...Read the full article

R v Peacock

Michael Peacock has been acquitted of all charges after a unanimous jury decision to find Peacock not guilty on 6 counts of obscenity.

Michael Peacock (referred to in the gay porn world as Sleazy Michael) had been charged for distributing supposedly obscene DVDs including representation of gay fisting, urolagnia and BDSM.

The trial was heard before the Southwark Crown Court. The films in question feature: gay fisting (the insertion of five fingers of the fist into the rectum of another male); urolagnia (in this case men urinating in their clothes, onto each others' bodies and drinking it); and BDSM (in this case hard whipping, the insertion of needles, urethral sounds and electricaltorture ). Also there was an example of a staged non consensual scene.

The Obscene Publications Act 1959 features the contentious and ambiguous deprave and corrupt test, whereby an article (for example a DVD) is obscene if it tends to deprave and corrupt the reader, viewer or listener. The Test is defined in Section1 of the Act as:

An article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, 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.

Peacock was represented by Nigel Richardson and Sandra Paul of Hodge Jones and Allen

Myles Jackman, a solicitor specialising in obscenity law, said this outcome was a significant victory for common sense suggesting that the OPA has been rendered irrelevant in the digital age .

In a tweet, Jackman said that SCD9, the Metropolitan Police unit dealing with human exploitation and organised crime, will meet with the Crown Prosecution Service and the British Board of Film Classification to review guidelines on obscenity.

And of course the authorities will be considering whether the law itself now needs changing. No doubt nutter campaigners will now be pushing for something new to replace the OPA now that it no longer supports their censorial views.

Speculation: So what may be the outcome at least in terms of BBFC censorship of R18s?

The BBFC have been cutting all such material citing the current interpretation of the Obscene Publications Act. But now of course this will change. The BBFC will still be at liberty to cut scenes off their own bat. And indeed the board has been regularly cutting scenes involving penetration by objects that could possibly result in harm justified via its own guidelines.

I think there will be a few changes welcomed by all sides. The current prohibition of female squirting leaves everyone totally baffled as to why. This prohibition can now be rapidly dropped. Perhaps urolagnia can now be generally allowed albeit with restrictions when it is considered by the censors to be degrading.

Perhaps something similar with fisting which could be generally allowed with a proviso that it must not be seen to be causing any discomfort to those participating.

The BDSM issue is not going to be easy. The current ban is at least easy to explain. To allow any level of hurt beyond trifling may prove very difficult to define. Maybe it is still banned by legislation examined during the notable Spanner Case, the judgement of which basically disallows people from giving consent to be hurt. So perhaps the BBFC will just switch justifications but continue to ban BDSM.

And I don't suppose that the non-consensual scene will impact BBFC guidelines at all. This will no doubt continue to be banned from R18s.

It is impossible to define all types of activity which are suitable for prosecution; however, the following categories are those most commonly used:

• sexual acts with children
• sexual assaults upon children
• portrayal of incest
• buggery with an animal
• rape
• drug taking
• flagellation
• torture with instruments
• bondage (especially where gags are used)
• dismemberment or graphic mutilation
• cannibalism
• activities involving perversion or degradation (such as drinking urine or smearing excreta on a person's body)

Unless any of the factors listed above are present within the given case, the Crown Prosecution Service will not normally advise proceedings in respect of material portraying the following:

• actual consensual sexual intercourse (vaginal or anal)
• oral sex
• masturbation
• mild bondage
• simulated intercourse or buggery
• fetishes which do not encourage physical abuse.

The principal factors influencing whether a prosecution under section 2 [as opposed to forfeiture under section 3] is required are:

• the degree and type of obscenity together with the form in which it is presented: for example the impact of the printed word will be less than the same activity shown in film or photograph
• the type and scale of any commercial venture should be taken into account
• whether publication was made to a child or vulnerable adult, or the possibility that such would be likely to take place
• where publication took place, especially if material can be readily seen by the general public, for example in a newsagents or market
• the defendant's antecedents, especially where there has been a previous conviction, or caution, for a similar matter
• The degree of participation of the proposed defendant(s). This becomes relevant where the defendant can employ the statutory defence that he had no knowledge of the contents of the material under section 2(5) of the 1959 Act.

...Read full article from cps.gov.uk

Update: Guidelines Updated

9th January 2012.

Sometime after October 2008 but before the R vs. Peacock trial the CPS updated their guidelines which now read:

The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:

• sexual act with an animal
• realistic portrayals of rape
• sadomasochistic material which goes beyond trifling and transient infliction of injury
• torture with instruments
• bondage (especially where gags are used with no apparent means of withdrawing consent)
• dismemberment or graphic mutilation
• activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
• fisting

The principal factors influencing whether a prosecution under section 2 is required are:

• the degree and type of obscenity together with the form in which it is presented: for example the impact of the printed word will be less than the same activity shown in film or photograph;
• the type and scale of any commercial venture should be taken into account;
• whether publication was made to a child or vulnerable adult, or the possibility that such would be likely to take place;
• where children are likely to access material of a degree of sexual explicitness equivalent to what is available to those aged 18 and above in a licensed sex shop, that material may be considered to be obscene and subject to prosecution. This applies to material which is not behind a suitable payment barrier or other accepted means of age verification, for example, material on the front page of pornography websites and non-commercial, user-generated material which is likely to be accessed by children and meets the threshold. see R v Perrin, [2002] EWCA Crim 747;
• where publication took place, especially if material can be readily seen by the general public, for example in a newsagents or market, or websites easily accessible to children;
• the defendant's antecedents, especially where there has been a previous conviction, or caution, for a similar matter;
• the degree of participation of the proposed defendant(s). This becomes relevant where the defendant can employ the statutory defence that he had no knowledge of the contents of the material under section 2(5) of the 1959 Act.

The Criminal Injustice Act 2008 increased the maximum sentence for publishing obscene material from 3 to 5 years.

Comment: What obscenity warrants five years?

From Phantom on the Melon Farmers Forum

I find it interesting that the increase of the maximum sentence for obscene publication from 3 years to 5 years seems to have drawn very little attention.

From what I understand the increase was a perverse reaction by the government to having pointed out that their DPA would create a penalty for possession that was as long as publication.

Naturally this had been intended as an argument for the proposed sentencing for the DPA to be shortened. But hey, who at the Home Office and the Ministry of Justice follows logic?

So instead one proposed a lengthening of the publication sentence in tandem with the creation of the possession law.

Obviously, given the outrage of the DPA, the creation of greater severity within the OPA went virtually unchallenged.

Nonetheless, we face the nonsensical situation whereby at a time when more and more people are engaging in what is effectively ‘publishing'
 on the internet, via blogs and user generated content, we are making the punishment more severe.

Not merely are you now to show extreme care of what you watch, but the consequences for making an error of judgment when uploading to a user generated content site have just become more severe.

In essence the chill factor is being deliberately increased. The people of Britain are to fear taking part in any activity involving pictures on the net. Five years in prison. Think of it, folks. What possibly would warrant five years in prison?

As child abuse is dealt with under other laws, this merely concerns pictures of adults for adults.

Five years. There are pretty severe crimes you can commit to be given five years in jail.
But I think anything obscene by now is deemed a severe crime under Labour.

I cannot for the life of me imagine just what obscenity warrants five years.