Question: what do Lady Chatterley’s Lover (1928), Last Exit to Brooklyn (1964) and Inside Linda Lovelace (1974) have in common? Answer: they were all subject to failed prosecutions under the Obscene Publications Act 1964 (OPA). Next question: what do the Protection of Children Act 1978, the Video Recordings Act 1984, the Criminal Justice Act 1988 and the Criminal Justice and Immigration Act 2008 have in common? Answer: they are all attempts to circumvent the OPA, whose provisions the illiberal and censorious have long agitated against as overly liberal and ‘permissive’. Thanks to the last of these measures, those suspected of possessing the ‘wrong’ kind of pornography can now look forward to having their homes and offices trashed by the police and their reputations publicly dragged through the mud; if convicted, they could languish for up to three years in prison. So how did we arrive at this extraordinary state of affairs?
Under the OPA it is an offence to publish (but not merely to possess) an obscene article, or to have such an article for publication for gain. For the purposes of the Act, an article is deemed obscene ‘if its effect … is, taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all circumstances, to read, see or hear the matter contained or embodied in it’. Thus to be obscene, an article must be more than simply sexually explicit and must have considerably more serious effects than merely shocking or disgusting certain people. These effects have to be considered in respect of those likely to seek it out as opposed to the ‘average’ or ‘reasonable’ person, or those deemed ‘vulnerable’. Works have to be judged by their ‘dominant effect’, that is, taken as a whole and not simply on the basis of their more lurid passages, and the Act also contains a ‘public good’ defence, by which those accused of publishing obscene material can argue that publication is in the interests of science, literature, art or learning. And although the Act makes no overt reference to current standards of acceptability in the area of explicit imagery, one of the great virtues of the ‘deprave and corrupt’ test is that it does, inevitably, move with the times in this respect. As Geoffrey Robertson and Andrew Nicol put it in Media Law, in an obscenity trial ‘the collective experience of 12 arbitrarily chosen people is assumed to provide a degree of familiarity with popular reading trends, with what is deemed acceptable on television and at cinemas and on the Internet and with the degree of explicitness that can be found in publications on sale at local newsagents’.1
A VAGUE AND ILL-DEFINED LAW
Thus in obscenity cases the bar for the prosecution is set high – far too high for certain sections of opinion. The first serious attempt to circumvent the OPA was the Protection of Children Act 1978, which, like so many examples of bad legislation in this field, came into being on the back of a moral panic spearheaded by Mary Whitehouse and the press. This made it an offence to take, make or distribute images of young people under sixteen which were deemed merely indecent, a concept which the courts have proved worryingly unable to define except in the broadest terms such as ‘offending against recognised standards of propriety’ or ‘shocking, disgusting and revolting ordinary people’.2 Furthermore, the simple act of showing such an image to another person, even without any money changing hands, counts as ‘distribution’. And merely accessing such an image on the Internet without actually downloading it can constitute an offence, as it would be stored in the browser’s cache. Moreover, most of the defences available under the OPA are absent. The Criminal Justice and Immigration Act 2008 defined indecent photographs of a child so as to include: (a) a tracing or other image, whether made by electronic or other means, which is derived from a photograph or pseudo-photograph; and (b) data stored on a computer disc which is capable of conversion into an image of a kind which falls within the ambit of the Act. And in 2009 the Coroners and Justice Act made it illegal to possess drawings and computer-generated images of young people engaged in sexual activity; this is now known colloquially as the Dangerous Cartoons Act. For the purposes of this battery of child protection legislation, a young person is defined as someone under eighteen, or if the ‘predominant impression conveyed’ is that they are under eighteen.
Not content with this, however, the Criminal Justice Act 1988 then made it illegal even to possess an indecent image of a child, as well as increasing the maximum penalty for the offence to five years imprisonment and/or an unlimited fine. And in May 2008 the Ministry of Justice announced new proposals to make it illegal to possess drawings and computer-generated images of under-aged children engaged in sexual activity.
In the years since the original legislation was passed, case law has developed which suggests, according to Robertson and Nicol, that only ‘pictures with some element of lewdness or sexual provocation’ are covered by the Act.3 However, this has not prevented the police from seizing, or threatening to seize, material which does not remotely fit this description, and they have done so with a frequency and a determination which suggests a concerted effort to deter the collection, publication or exhibition of images which the law, vague and ill-defined though it is, was surely never intended to catch. For example…
In 1991 the businessman Lawrence Chard was arrested and charged for taking around thirty pictures of his wife and children in the back garden of their home. The children, who had been swimming, were naked. The film processors tipped off the police, who arrested Chard in front of his children, who were then quizzed by social workers. When the case came to court fourteen months later he was unanimously acquitted, but by now the family’s life had been comprehensively wrecked; they were forced to change their name and move to a different part of the country. As a result, the magazine Amateur Photographer launched a Campaign for Common Sense, aimed at photographic processors, following which a whole string of similar cases came to light.
Ron Oliver is a renowned photographer specialising in family portraits, a selection of whose works is held by the Bibliothèque Nationale. Some of his clients ask him to photograph their children naked. In January 1993 police raided his studios and seized his entire body of work – more than 20,000 prints. Two months later, he was arrested again, this time along with Graham Ovenden, an internationally respected artist, art critic and photographer who specialises in pictures of children, sometimes naked. Many of the 2,500 works seized were part of Ovenden’s extensive collection of Victorian photographs, including works by George Bernard Shaw and Lewis Carroll. According to the Daily Mail, 13 March 1993, in an article entitled “The porn victims from high society’: ‘up to 100 children – many from upper-class families – are thought to have been victims of a porn ring which could have been operating for 15 to 20 years’. In reality, the ‘porn ring’ was simply a loose association of artists which included Peter Blake, Graham Arnold and David Inshaw, all of whom had previously been members of the Pre-Raphaelite-inspired Brotherhood of Ruralists. After a campaign by Sir Hugh Casson, David Hockney and Laurie Lee among others, and after what the Daily Mail, 7 July 1995, called ‘months of often heated talks with detectives’ the charges against Ovenden were dropped and his property returned, although no apology was made. The Daily Mail helpfully noted that Oliver’s studio is ‘next door to a playschool’. Unwilling to put up with this kind of harassment by the police and press, Oliver left the country.
In November 1995 the newsreader Julia Somerville and her partner Jeremy Dixon were questioned into the early hours by police about photographs of their seven-year-old daughter naked in the bath. They had taken these to Boots to be processed, and the processing staff called the police. One or other of these two parties then gave, or sold, the story to the press, with entirely predictable results. After four weeks the Crown Prosecution Service (CPS) announced that it was letting the matter drop.
Robert Mapplethorpe’s photograph of a three-year-old girl, Rosie, was removed from an exhibition of the artist’s work at the Hayward Gallery in September 1996 after the gallery took advice from the Clubs and Vice Squad of the Metropolitan Police. The picture’s subject, Rosie Bowdrey, now 22, was quoted in the Independent, 15 September, as saying that: ‘I think this is all so stupid, everyone should see the picture.’ She also described it as ‘a very, very sweet picture, it captures childhood innocence’.
In March 2001 the Saatchi Gallery mounted an exhibition entitled I am a Camera. Prompted by journalists from the News of the World (which fulminated against ‘a revolting exhibition of perversion masquerading as art’ and a ‘degrading exploitation of child nudity for commercial gain’), the police insisted on the removal of two pictures which Tierney Gieron had taken of her children. They also threatened to prosecute the publisher of the exhibition catalogue, Edward Booth-Cliborn, unless he removed it from distribution, and voiced concerns about a picture by Nan Goldin. However, both the gallery and the publisher made it abundantly clear that they would robustly defend any action taken against them. Furthermore, without commenting on the case directly, the culture secretary Chris Smith was quoted in the Guardian, 12 March, to the effect that: ‘I am much more worried about paedophile material that’s available on the Internet than about an art gallery somewhere in the middle of London’, and warned that: ‘we must be very careful in this country before we start censoring things that are happening, either in newspapers or in art galleries’. Shortly thereafter the CPS instructed the police to drop the case as there was insufficient evidence to provide a realistic prospect of conviction. According to the Daily Mail, 16 March 2001, the decision was made ‘despite strong protests from the police’, who feared that a ‘dangerous precedent has been set which will help lawyers representing sex offenders’.
The Saatchi row resurfaced in October 2007 when the Nan Goldin photo about which the police had expressed concerns in 2001, Klara and Edda Belly-Dancing, was seized from an exhibition of her work at the Baltic gallery in Gateshead. No further action followed, since the CPS made it clear that it had already declared this picture not to be indecent at the time of the Saatchi furore. In which case, one wonders why on earth the police seized it and threatened the gallery in the first place. Taken in conjunction with the other cases noted here, it is hard to avoid the conclusion that legislation designed to protect children has actually unleashed a good deal of zealotry and moral entrepreneurship aimed at adults, and at artists in particular – albeit constrained, much to the irritation of the police, by the calmer counsels of the CPS.
A MASSIVE AND DRACONIAN APPARATUS OF STATE VIDEO CENSORSHIP
When in 1979 the arrival of home video made it possible for people to see films which the then British Board of Film Censors, now the British Board of Film Classification (BBFC), would have either cut or banned outright had they been submitted to them for cinema exhibition, there was of course an outcry from the censorious and illiberal. As is by now well known, in July 1982 the Director of Public Prosecutions (DPP) mounted a test case against S.S. Experiment Camp (Sergio Garrone, 1976), I Spit on Your Grave (Meir Zarchi, 1978) and Driller Killer (Abel Ferrara, 1979) in order to test whether the Obscene Publications Act, which had hitherto been used to prosecute only material deemed pornographic, could also be employed successfully against material whose problem, from the authorities’ point of view, was violence. They succeeded, and further prosecutions under the Act followed. The problem was, however, that films which were found guilty in certain courts were equally found not guilty in others – The Evil Dead (Sam Raimi, 1981) having a particularly chequered history in this respect, its 47 appearances in different courts resulting at least in part from the fact that the video’s distributor, Palace, outraged the police and the DPP by having the temerity to defend it in court and to encourage video dealers to do likewise. This unpleasantly vindictive campaign led to Judge Owen Stableford, at Snaresbrook Crown Court in July 1985, criticising the DPP for bringing the administration of justice into disrepute and ordering it to pay Palace’s costs of over £20,000.
Nonetheless, those for whom the arrival of home video spelled nothing less than the end of civilisation as we know it were determined to fashion a law which would regulate the new medium far more effectively than the OPA had done thus far.
It is all too often forgotten that the first attempt to introduce video censorship in the UK was actually undertaken by a Labour backbencher. This was Gareth Wardell, the MP for Gower, who in December 1982 introduced a ten-minute-rule bill ‘to prohibit the rental of video cassettes of adult category to children and young persons’. In the event, it failed to get government approval and was dropped. However, after the Tory election victory in June 1983, amidst an ever-swelling torrent of ‘video nasty’ scare stories in the press, Wardell proposed a Commons motion to the effect that ‘this House urges Her Majesty’s government to introduce forthwith legislation to control access by children to video nasties, thus honouring its election pledge’. And when the Video Recordings Bill duly appeared the following month it was supported as eagerly by Labour as by the Tories, partly out of genuine conviction (greatly strengthened, of course, by woeful ignorance of the actual contents of any contemporary horror films) and partly out of determination not to be portrayed as ‘soft’ on morality by the Tories and the client press.
But although the Video Recordings Act (VRA) was originally represented simply as a means of ridding the country of a few ‘video nasties’, what it in fact created was a massive and draconian apparatus of state video censorship whereby any feature film sold or rented in Britain on video had to be classified by the BBFC. Titles of which the Board disapproved were cut, and not infrequently banned outright. But the beauty of this scheme, from the authorities’ point of view, was its sheer simplicity and the way in which it by-passed the OPA: from now on it would simply be illegal to supply a feature film on video (and now DVD) without a BBFC certificate. And the penalties for breaking the law are remarkably severe, including an unlimited fine or imprisonment for up to two years; indeed, even supplying a classified DVD or video in breach of its age restriction (for example selling an ‘ 18’ rated video to a 15-year-old) can result in a fine of £5,000 and up to six months in prison.
Inevitably, of course, the VRA created a considerable underground market for the original versions of videos cut or banned by the BBFC. Denied legal access to vast swathes of horror cinema in particular, fans began trading unclassified videos at collectors’ fairs and through the advertising sections of magazines such as The Dark Side and Samhain. However, as I have pointed out in some detail elsewhere,4 it was not long before this amateur and extremely low-level activity came to the attention of the police and trading standards officers, who were clearly determined to enforce the VRA to the last dot and comma. For it is important to understand that Clause 1 (5) of the Act states that ‘supply of a video recording’ means ‘supply in any manner, whether or not for reward, and, therefore, includes supply by way of sale, letting on hire, exchange or loan’. Thus in May 1992, police and trading standards officers, both of which groups one would have thought had better use for taxpayers’ money, launched the first of a whole series of raids on the homes of video collectors across Britain. During the course of the following years, terrified teenagers were repeatedly to find themselves the victims of oppressive and threatening behaviour from these officials, who also ensured the maximum negative publicity for their victims at both local and national levels by assiduously briefing the ever-credulous and sensation-hungry media against them, resulting in screaming headlines such as ‘Snuffed out: cops swoop to seize 3000 sick killer videos’ (Daily Star, 8 May 1992) and thoroughly misleading statements such as ‘a nationwide network selling snuff videos of torture, mutilation and cannibalism has been smashed in a massive undercover operation’ (Daily Express, 8 May 1992).
What such hyperbolic nonsense concealed, of course, was what many would consider a grotesque waste of public funds, a serious abuse of legal process, and a considerable infringement of human rights. People had their lives turned upside down (in many cases, for example, having their savings accounts books taken and photocopied, and their bank accounts investigated), were publicly dragged through the mire, had their right to a fair trial prejudiced, and, on several occasions, were dealt with by police officers whose utter ignorance of the kind of material with which they were dealing should have instantly precluded them from working on cases of this kind. Thus, for example, the victim of a police raid told me that ‘after long arguments with a vice squad officer about myths concerning “video nasties” and “snuff” movies he went on to say that if he hadn’t caught me in time I would have moved on to child porn’, whilst another related how, during a raid, the police had found a pair of child’s mittens and seemed distinctly unwilling to believe that these were a memento of the collector’s childhood. Whilst being driven to the police station an officer asked him if he had ever been sexually abused, and ‘seemed genuinely to think that these films, in his words, “lead on” to child pornography’.5
In May 2008, a new measure to circumvent the Obscene Publications Act came into being. This was the Criminal Justice and Immigration Act, now known colloquially as the Dangerous Images Act, which makes it an offence even to possess, let alone to distribute, an ‘extreme pornographic image’. The Act defines an image as pornographic if ‘it is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal’ and as extreme if it is ‘grossly offensive, disgusting or otherwise of an obscene character’ and ‘if it portrays, in an explicit and realistic way, any of the following’:
(a) an act which threatens a person’s life,
(b) an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals,
(c) an act which involves sexual interference with a human corpse, or
(d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive), and a reasonable person looking at the image would think that any such person or animal was real.
Those found guilty of possessing such images can be imprisoned for up to three years. This draconian piece of legislation has its origins in the simple fact that, thanks to the increasingly global nature of communications, and not least the development of the Internet, British subjects are now able to access material which the OPA would have made it extremely difficult to distribute in former times. As the Parliamentary Under-Secretary of State at the Ministry of Justice, Lord Hunt, put it in a Lords debate on the Bill:
This legislation has been proposed because the controls in the Obscene Publications Act are much more easily evaded these days by the use of modern technology, namely the Internet, which makes it much easier to use and distribute and therefore easier to possess. As most such extreme material is hosted abroad, controls on publication and distribution are no longer sufficient.6
Obviously the new communications media do pose a challenge to all national systems of media regulation, but they pose a particularly acute one to the British authorities, habituated as they are in matters pertaining to sexual imagery to exercising a degree of control which citizens of other democracies would regard as simply intolerable and enforcing ‘official’ standards of taste and decency which they would (and indeed do) find utterly ludicrous. Naturally, the British government finds it quite incomprehensible that Johnny Foreigner does not adopt its standards in this matter (as opposed to regarding them as a bizarre anachronism) but even it realises that it is so out of line with other countries that arriving at any kind of transnational standards of acceptability is a complete impossibility. However, rather than sensibly leaving well alone, they decided that, as they could not criminalise the distribution of material emanating from abroad of which they disapprove, they would simply criminalise its possession instead.
This alone constitutes an extraordinary abridgement of individual liberty which may well fall foul of the European Convention on Human Rights. Indeed, in its pre-legislative scrutiny of the Bill, the Joint Committee on Human Rights noted that the government had already indicated that it felt that the seriousness of the proposed offences justified interference with Articles 8 and 10 of the Convention, which concern, respectively, an individual’s right to private life and their right freely to receive and impart information (including information which is offensive or unpalatable). However, the Committee was concerned whether ‘the definition of the new offence is sufficiently precise and foreseeable to satisfy the requirement’ that interferences with these rights must in accordance with the law.7 In particular it wondered whether an individual user of pornography would be able to know whether their possession of a particular image would constitute a criminal offence, and noted that ‘an assessment of whether an image is or is not “extreme” is inherently subjective’.8 However, highly subjective, not to say deeply moralistic, factors lie at the very heart of the Act’s definitions of ‘extreme pornography’, and played a major role in every stage of its gestation. Thus in the consultation document which sparked off the whole process in August 2005, the material which the government wished to make it illegal to possess was described variously as ‘abhorrent’,9 ‘degrading’10 and ‘repugnant’.11 And, announcing the consultation, Home Office Minister Paul Goggins, stated that ‘this is material which is extremely offensive to the vast majority of people, and it should have no place in our society’. Indeed, as I pointed out in my response to the consultation, the government’s mind was clearly so firmly made up on this matter that the whole exercise was a complete sham. And when in August 2006 the Home Office issued a press release announcing that it was indeed going to take action against ‘extreme pornography’, Home Office Minister Vernon Coaker was at pains to point out that it was doing so because ‘such material has no place in our society’ and because it wished to send out ‘a strong message – that it is totally unacceptable and those who access it will be held to account’.12 Entirely unsurprisingly, then, vague and loaded words such as ‘grossly offensive’ and ‘disgusting’ have found their way into the Act itself, even though subjective language such as this should have no place in legislation. However, barely had the Second Reading of the Bill commenced in the Commons than the Secretary of State for Justice and Lord Chancellor, Jack Straw, was denouncing this ‘vile material’ as ‘deeply offensive’.13 But as the Labour MP Ian Mikardo put it in a Commons debate prompted by one of the ill-fated Tory attempts in the 1980s to tighten up the OPA, the test of gross offensiveness
focuses upon the instant response of shock or disgust to particular pictures, either visual or conjured up in words. The party to the action is described as a reasonable person, but that is merely a code for a tribunal that will decide the issue. A reasonable person will not decide; the magistrate or jury – if there is a jury trial – will decide, and the term ‘reasonable person’ is really a code name for them. As judges and juries will, of course, always regard themselves as reasonable, they will test the material according to their own personal, subjective and immediate responses.14
Subjective and moralistic responses were again very much to the fore in the government’s attempts to defend the measure in the Lords against a rising tide of concerted Liberal Democrat opposition led by Baroness Miller of Chilthorne Domer. Thus in response to a point raised by her, Lord Hunt stated that
the noble Baroness asked whether, having viewed these images at Charing Cross police station a couple of weeks ago, I then felt violent or that I would indulge in some offence. I actually felt very sick, because they were pretty disgusting images, and I frankly find it horrific that they are available and that people can see them. I am sorry, but I do not take this very liberal approach of ‘If it does no harm to the people taking part, why should we worry about it?’ I do worry about it, and about the access that people have to that kind of disgusting material. I am afraid that is my position… We are targeting that material not on account of offences which may or may not have been committed in the production of the material, but because the material itself, which depicts extreme violence and often appears to be non-consensual, is to be deplored… It is appalling that this material is available and we have to do something about it.15
Nor does the Act’s invocation of the ‘reasonable person’ let it off the subjective hook. The ‘reasonable person’ (who is quite distinct from the ‘average person’) is a useful legal fiction which denotes a reasoned and informed outlook on a legal question and is well known in areas such as negligence and contract law. For example, a negligence case might well turn on whether the defendant’s conduct was culpable because it fell short of what a reasonable person would do to protect another individual from the foreseeable risks of harm. However, there is a very considerable difference between a jury being asked to decide how a reasonable person would act in such circumstances and how a reasonable person would judge an image – in particular, whether or not they would judge it ‘to have been produced solely or principally for the purpose of sexual arousal’. To quote again from Ian Mikardo in the 1987 OPA debate: ‘there is a difference between reasonableness in respect of a fact, such as negligence, and reasonableness in respect of perception. The Bill is about perception. Nothing is more indeterminate, vague and subjective than a perception.’16
But a juror in an ‘extreme pornography’ case would also be required to determine whether the material in question portrays certain acts in an ‘explicit and realistic way’ and whether a reasonable person looking at the images of those acts would think that the persons or animals depicted therein were ‘real’. Again, this is a vain attempt to put a gloss of objectivity on what are bound to be subjective judgements, but in order to understand how on earth any government could think it necessary – and indeed possible – to legislate in matters pertaining to realism and verisimilitude, we need briefly to explore the genesis of this measure.
In 2003 Jane Longhurst was asphyxiated by Graham Coutts, who visited Internet sites which contained pornography involving violence. He was subsequently found guilty of her murder. As a result, her mother Liz organised a 35,000-strong petition calling for the banning of such sites, in which she was vociferously supported by the moral watchdog mediawatch-uk, her MP Martin Salter and her daughter’s MP David Lepper. Inevitably the Daily Mail became a cheerleader for the cause, on 30 September 2004 running an article headed ‘My sister was murdered by a man obsessed with violent Internet porn. So why won’t anyone help me to close these websites down?’, which argued that the murder was ‘unequally disturbing in that it could have happened only in this high-tech age, committed by someone whose murderous fantasies were fuelled by appalling images freely available on the Internet’. That the court case produced no evidence whatsoever of a direct causal connection did not stop Salter and Lepper agitating remorselessly until they bounced this measure onto the statute book.
In other words, the government, terrified as always of being painted as ‘soft’ on such matters, produced a completely unnecessary, woefully ill thought out and thoroughly oppressive measure in response to a single incident – invariably the worst possible basis for legislation of any kind, as evidenced by the Dangerous Dogs Act 1991. Of course, it goes without saying that forcing adults to take part in sexual activity against their will is quite rightly a crime, and any measure which helps the police to track down the perpetrators of such acts deserves support. But this most emphatically is not such a measure; it is aimed not at the perpetrators of such acts but at those possessing what might be images of them – and of a very great deal else as well.
The main problem for the government in formulating this measure was that it wanted to avoid the situation in which, as Lord Hunt put it in the Lords, the prosecution would have
to prove that the events being depicted had actually taken place – that a person’s life had actually been taken or that a life-threatening injury had been inflicted; in short, that a very serious crime had taken place. That would place an insurmountable burden on the prosecution, particularly when so much material is produced abroad.17
One wonders if Lord Hunt has ever heard of Interpol, but, whatever, absolving the authorities of any need to prove that the images in question do indeed depict the commission of actual crimes widens the scope of the legislation to a truly alarming degree.
Thus, for example, a vast range of BDSM (bondage, domination, sado-masochism) material falls fairly and squarely within the ambit of the Act. Such material exists largely for the purposes of sexual arousal, may well be deemed grossly disgusting, offensive or obscene by the uninitiated, and may involve violence which certainly appears to be non-consensual, even though, in fact, the vast majority of it is merely role-playing by entirely consenting participants. As Susan Sontag put it:
to be involved in sadomasochism is to take part in a sexual theatre, a staging of sexuality. Regulars of sadomasochistic sex are expert costumers and choreographers as well as performers, in a drama that is all the more exciting because it is forbidden to ordinary people.18
Our legislators may not have read Sontag, but during the period of nearly three years in which the Act was in gestation they received literally hundreds of remarkably well-informed submissions making this point in one way or another – and entirely ignored them.
However, the net is cast even wider than this. Thanks to the government’s mulish insistence – again, flying smack in the face of a great deal of expert opinion which it received – on including ‘explicit and realistic’ portrayals of certain acts within the remit of the legislation, the possession of certain entirely fictional feature films could well be a criminal offence. Films classified by the BBFC are exempt from the Act, but there is a huge range of unclassified material available from abroad on DVD at the click of a mouse. Particularly at risk, of course, are films which include both real sex and simulated violence. Examples which immediately spring to mind are Joe D’Amato’s Emanuelle Around the World (1977) and Oswaldo de Oliveira’s Bare Behind Bars (1980), many of the films of Jess Franco, and indeed whole swathes of European horror, crime and sex films which took advantage of relaxed censorship regimes in countries such as Italy and Spain from the late 1970s onwards. The fact that DVDs of these movies are easily available not simply from specialist dealers but from Amazon.com, hardly a sink of depravity, is the clearest possible indication that the standards of acceptability which this government is attempting to impose on British subjects are simply wildly out of kilter with those everywhere else in the democratic world.
Of course, it might be argued that as long as the police interpret this legislation sensibly, it will not capture the extremely wide range of material which I have suggested. However, the record of the police in the matter of allegedly indecent images of children hardly gives cause for optimism in this respect, as we have seen. Furthermore, the police were among the very few to respond positively to the consultation on this matter.19 It is also important to realise that many of the police responses were also marked by bitter resentment that those arrested and charged under the OPA had dared to avail themselves of the defences available under it, demands for more resources so that the proposed new measure could be enforced effectively, and complaints that the proposed offences were too narrow and the proposed sentences too short. It’s extremely hard to avoid the conclusion that many of the respondents regard those whom they are policing as, in the words of ‘God’s Cop’ James Anderton, the former chief constable of Greater Manchester, ‘swirling around in a human cesspit of their own making’.
The best example of this sort of attitude came not from the responses themselves but from an article by Detective Inspector Ian Winton of the Nottinghamshire police in the Nottingham Post, 31 August 2006, in which he threatened: ‘We will not hesitate in using this new legislation. Those convicted of this new offence will have to sign the sex offenders’ register which will affect not just their relationship with friends and family but also their careers. It will make many users of extreme pornography think again.’ And in his actual response, Winton argued that any change in the law should be accompanied by a widespread publicity campaign which will ‘inhibit people from “surfing” the Internet for pornography and accessing it’.
Meanwhile Detective Inspector Colin Gibson of the Economic Crime Unit, Durham Constabulary, was amongst the many arguing that the proposed measures did not go far enough. In his view:
Whilst it is accepted that it is the intention to restrict any new offence to pornographic material many would argue that this is a conservative list and leaves room for development. Not all abhorrent images are produced for sexual gratification. Some are quite clearly just obscene and offensive and without a sexual connutation [sic] yet simple possession would still fall outside of current and proposed legislation.
Detective Sergeant Keith Wharton of the West Midlands Police wanted adding to the list ‘the eating of faeces or urine’, whilst Detective Inspector Winton stated that
in our opinion acts of coprophilia (excrement, urination) within pornograph [sic] are examples of the total degradation of the person subject of such acts. It is our view that such acts are enjoyed by sadists. Likewise acts of belonephilia (needles fetish) agonophilia (pseudo rape) and other forms of extreme violence are also enjoyed by sadist [sic] and those persons with sadistic tendencies. Such tendencies would skew the mindset of the viewer of such material to believe that this is the norm. As such we feel it should not be tolerated.
Most worrying of all, however, was the response from John Francis, the General Secretary of the Police Federation of England and Wales, who argued that
the circumstances in which the material is found is not, at the present time, considered when sentencing takes place, as only the image charged can be so considered. This applies when considering the sexual nature of an image. For example, so called ‘snuff movies’ whereby persons are actually killed on screen are currently not considered for a sexual motive. The circumstances in which the images are found should be considered. There is evidence of these movies being found with a great deal of pornography, which in itself is not illegal to possess. This also applies to mutilation images, scenes of crime images of murder victims, beheadings, etc. The question to be asked is why anyone would want these images in the first place. It is the circumstances in which they are found that implies a sexual motive. However, as legislation stands at present no account can be taken of them, as it is not illegal to possess these images.
Yes, you did read that right: it is being suggested in all seriousness that if you possess images of death and violence, and if you also possess pornographic images, then you possess the former for reasons of sexual gratification.
Such responses suggest all too strongly that the police simply cannot be trusted to act reasonably or intelligently in these matters. The fact that authoritarian zealots such as these have been handed yet another excuse to batter down people’s doors in dawn raids, seize their computers, videos, DVDs, books and magazines, and ensure that their names are plastered across the local and, in the cases of the famous, national media, quite simply beggars belief. One’s fears in this respect are only heightened by Lord Hunt’s revelation that the police see this offence as ‘a further means to take illegal material out of circulation and an additional tool to deal with individuals whose behaviour may be causing concern’.20 In other words, having failed under existing laws successfully to prosecute people whom, for whatever reason, they want to see behind bars, the police have had this task greatly facilitated by conveniently catch-all legislation.
The anti-pornography clauses of the Criminal Justice and Immigration Act 2008 furnish a particularly striking example of how the government, having abandoned any pretence at regulating corporate behaviour, is ever more obsessively determined to micromanage people’s personal behaviour. In this particular instance, not trusting British subjects to use the new communications technologies ‘responsibly’, it has opted to frighten them into doing so, so that every time they buy an unclassified DVD or visit a website with sexual content they will wonder if they are breaking the law and risking being sent to prison. In other words, the government is busily installing a police officer inside the head of each and every one of us. Truly we have entered the era of thought crime.