The Censor and the State

 The R18 Story: Chapter 10

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The Censor and the State, or Why Makin' Whoopee! Matters
 

The BBFC seek a Judicial Review
 

The R18 Story, the legalisation of hardcore: Chapter 10: Winter 1999/2000

By Julian Petley

From the Journal of Popular British Cinema, published in February 2000

An expanded version of the Guardian Article published in November 1999


R18 StoryIn August 1999 the Video Appeals Committee (VAC), established under the Video Recordings Act, announced that seven videos which the British Board of Film Classification (BBFC) had refused R18 certificates (the licensed sex shop category) should be passed. These were Horny Catbabe, Nympho Nurse Nancy, T.V. Sex, Office Tart, the trailer for Carnival (International Version), Wet Nurses 2 (Continental Version), and Miss Nude International (Continental Version).

Robin DuvalHowever, on 28 September, BBFC President Andreas Whittam Smith and Director Robin Duvall announced they were seeking Judicial Review of the decision because, in the Board's view, it is based on a definition of harm which is an incorrect interpretation of the Video Recordings Act. The VAC judgement, if allowed to stand, would have fundamental implications with regard to all the Board's decisions, including those turning upon questions of unacceptable levels of violence.

So, as this last sentence demonstrates, this story has implications far beyond the fate of seven mildly pornographic videos. As the 'video nasty' saga clearly demonstrated, the censorship of works which few wish to defend establishes precedents which are then invoked against works of a different order. Furthermore, anything which threatens to give further credence or force to the deeply problematic 'harm' provisions of the amended Video Recordings Act needs to be viewed with grave concern. Finally, this saga may also provide some pointers to the future direction of the BBFC under its new leadership, and takes us to the heart of what state video censorship entails.

How this state of affairs came about is a long and complex story. But it's one worth recounting, since it demonstrates that the Home Office appears to be determined to play a more direct and active role than it already performs in the censoring and classifying of videos in this country.

The story of the R18 began in 1982, when the Local Government (Miscellaneous Provisions) Act 1982 required sex shops and cinemas to be licensed by their local authorities. A condition of the license is that nobody under 18 may enter the establishment. Local authorities can keep out sex shops entirely by refusing to issue any licenses. The same year the Cinematograph (Amendment) Act required local councils to licence all commercial cinema clubs, thus closing a loophole in the law which sex cinema clubs had exploited in order to show uncensored films. A new cinema certificate (R18) was created by the BBFC and Home Office for films screened only in these specially licensed clubs. According to a Home Office circular: the classification will be applied to films which, while not portraying illegal acts or extremes of sexual perversion or horror or violence, are likely to be more explicit than films at present given an 'X' certificate (1).

In 1983 the BBFC asked its legal advisers to draw up, in consultation with the Home Office and Director of Public Prosecutions (DPP), guidelines governing the issue of the R18 certificates. All the Home Office's recommended amendments were incorporated. Counsel's Opinion which, according to the BBFC, remains the only overarching policy document on the 'R18', recommended twelve general principles which have ever since formed the substance of BBFC policy on standards at R18. In particular, the Opinion stated that straightforward heterosexual or homosexual activity between consenting adults will be permissible so long as the scene does not focus solely or dominantly upon the genital organs. 'Long shots' of sexual activity will be more acceptable than 'close-ups' (2).

It is sometimes suggested, not least by the BBFC itself, that these measures represented a partial enactment of the 1979 Report of the Committee on Obscenity and Film Censorship, chaired by Bernard Williams. This was commissioned by a Labour government in 1977 but ditched by the incoming Tories as unacceptably liberal (3). In the light of future developments around the R18, it is important to understand that this sensible package of proposals for regulating pornography has never been put into practice.

Williams argued that (a) terms such as 'obscene', 'indecent' and 'deprave and corrupt' should be abandoned as having outlived their usefulness (4); (b) it is neither necessary nor desirable to give the law the task of trying to suppress all pornography … the law should primarily aim to restrict pornography so that it will not be offensive to the public, and to satisfy the widespread feeling that young people should not be exposed to material of this kind (5); (c) pornographic material should be restricted to shops to which people under 18 are not admitted; (d) these shops should not be specially licensed or taxed or subject to different planning controls from other shops because the pressures which would be placed on planning authorities when they were considering an application to open a pornography shop were unlikely to be based strictly on planning and amenity grounds and it would be undesirable, by requiring special permission for such shops, to arouse expectations that other kinds of objection would be relevant (6) ; and (e) the only material which should be specifically prohibited is that in which harm has been done to those involved in its actual production, including all material involving young people under sixteen.

This is not how the BBFC presents Williams: when films were brought under the Obscene Publications Act in 1977, the legal test became whether or not a work had a 'tendency to deprave and corrupt' likely viewers. For the Board, violent sex, or sex without consent, were the elements most likely to have a harmful or anti-social influence. In 1979, the Home Office Committee on Obscenity and Film Censorship (the Williams Committee) reached similar conclusions, while noting that the courts were still finding mere visual explicitness obscene, even when the sex was both non-violent and consenting. The Committee recommended that prohibition should be reserved for socially harmful material, while restriction or segregation should be sufficient remedy for sexually explicit matter whose appearance in ordinary cinemas or shops might prove offensive to reasonable people (7). The BBFC then goes on to argue that this distinction was acknowledged by Parliament (8) in the enactment of the 1982 Acts outlined above, and the creation of the R18.

However, this is seriously misleading. Firstly, the Williams Committee and the BBFC are operating with different notions of harm, the Committee limiting itself to the harm done to certain participants in pornography, whilst the Video Recordings Act was amended in 1994 (in the wake of the Bulger case) to require the BBFC, when considering classifying any video, to have special regard ... to any harm that may be caused to potential viewers or, through their behaviour, to society by the manner in which the work deals with - (a) criminal behaviour; (b) illegal drugs; (c) violent behaviour or incidents; (d) horrific behaviour or incidents; or (e) human sexual activity. Secondly, Williams argued that the material segregated from public view in specialist shops should not be censored at all, unless it fell into the extremely narrow 'harm' category, whilst, in reality, sex shops have never been permitted to carry anything other than a very toned-down range of pornography, thus encouraging illegal sex shops to flourish.

In 1983 the Attorney General wrote to the BBFC about the difficulties which could arise from the Board's intention to rely on legality as the criterion for certification. However, he agreed to provide the Board each month with the results of Obscene Publications Act (OPA) cases, purely to enable the Board to form its own judgement in a very imprecise field … The fundamental difficulty is that juries' attitudes seem to vary so widely (9). Thus began a liaison process with the DPP's Office (now the Crown Prosecution Service [CPS]) over the standards being applied in obscenity proceedings. According to the BBFC this advice fell away in the 1990s, making it difficult for the Board to keep in touch with judicial standards. They decided that knowledge of Section 2 proceedings under the Obscene Publications Act (OPA) before a jury would have to suffice, since few records were being kept regarding Section 3 forfeiture proceedings before magistrates (10). However, according to a more recent BBFC document, the CPS have made it clear for about ten years that what they call 'straight sex' was no longer prosecuted under Section 2 because juries were unlikely to convict (11).

In order fully to understand the R18 controversy and its wider implications it is vital to understand the differences between Section 2 and 3 proceedings under the OPA.

Under the 1959 Obscene Publications Act, if the police seize material they believe to be obscene, the CPS has to decide whether to prosecute for a criminal offence under section 2 or to go for a civil forfeiture under section 3. Section 2 cases can be heard either by magistrates or by a judge and jury, but defendants who opt for the latter run the risk of a tougher sentence if found guilty. If the CPS opts for section 3 then the material is brought before local magistrates, who can either release it or issue a summons for its forfeiture. In the latter case, any interested party can contest the summons.

If it is contested, however, the case could well be heard by the same magistrate who signed the search warrant under which the material was originally seized and then later issued the summons for its forfeiture! As Geoffrey Robertson puts it, in the very act of issuing the summons, the magistrate has expressed a view, without hearing argument, that the material is at least prima facie obscene. The defendant then has the almost impossible task of convincing the bench in public that it was wrong in private … He feels that the hearing is really a dispute between him and the court, with the court doubling as final adjudicator (12). Those who believe that only hard core porn is at risk from such procedures should remember that in the 1960s Section 3 proceedings were used to force the closure of Olympia Press, which had introduced the British to Lawrence Durrell, J.P.Donleavy, Samuel Beckett, Jean Genet and William Burroughs. More recently, in Manchester, 'God's Cop' James Anderton was able to use a combination of Section 3 and a compliant magistracy to wage an obsessive personal vendetta against Lord Horror publishers Savoy Books (13).

Magistrates are not required to give any reasons for their decisions, so Section 3 proceedings add nothing to obscenity case law. Section 3 may have no criminal consequences but it does deprive publishers of what ought to be their right to trial by jury, and of other safeguards of the criminal law. In essence, it is nothing more than a quick and convenient form of local censorship carried out by those probably not best fitted for the task. It's thus difficult to disagree with Geoffrey Robertson and Andrew Nicol that Section 3 proceedings serve little purpose other than to waste the time of the police and the local magistrates' courts. An order for forfeiture made by justices in one district is of no use as a precedent in others (14). But although these cases do not set precedents in the sense intended by Robertson and Nicol they do have extremely serious ramifications - not least for the R18, as we shall shortly see.

Williams' unwillingness to see sex shops licensed had by 1987 been amply vindicated. That year the BBFC lamented: There was no reason [pace Wiliams] in 1985 to assume that local authorities would grant so few sex shop licenses that the dearth of licensed premises would make the 'R18' unviable in commercial terms. But this has been the case, with the result that a great many sex videos which might be more appropriately confined to licensed sex shops are being voluntarily bowdlerised by the distributors in an effort to achieve an '18' certificate (15).

Three years later, the BBFC was concerned that, with the coming of the Single European market, tapes involving violence towards women would be imported along with tapes portraying mutually consenting sexual activity of a non-violent kind which is beyond BBFC guidelines simply because of the degree of sexual explicitness. Much of this will disappear under the counter, with no attempt made to distinguish the non-violent, mutually loving sex tapes from those which associate pain and humiliation with sexual arousal. Only classification can do that, but a barely viable sex-shop category means that the Board will be unable to accommodate most of these continental sex tapes, and the black market for a widely divergent range of material will grow and no doubt flourish (16).

Paradoxically, however, it had also become clear that a degree of explicitness was possible in 18-rated 'sex education' videos without any press hysteria or official comeback. The Board concluded that the degree of caution imposed on the R18 category was disproportionate to the current climate of public taste and tolerance (17) and the guidelines were slightly relaxed. Another indication of the 'current climate' came in 1994, when Scotland Yard's Obscene Publications Branch told the Board that it could now assume that the British no longer believe that what they themselves do with their sexual partners could be 'depraving and corrupting' on screen. And in April 1996, at an in-house seminar at the BBFC, it was decided that it might be possible to start a gradual process of liberalising standards at R18 (18).

Janes FermanEven more significantly, in June that year, James Ferman met with Tom Sackville, Parliamentary Under Secretary of State for the Home Office. According to a record of this meeting, Supt Hoskins of West End Central Police stated that consumer demand was not being satisfied by material supplied through the licensed sex-shops and had asked Mr Sackville to speak to the BBFC about passing material with a higher degree of explicitness (though not obscene), still well short of European standards, to meet the demand and decrease the need for black market material (19).

At an Examiners Meeting in July 1996, BBFC Deputy Director Margaret Ford suggested that the Board drew up a checklist to help it determine how much more could now be allowed at R18. The following December she drafted R18 Interim Guidelines and, after these were discussed with the Director, Principal Examiner and Vice-Presidents, they were issued to the examiners. The first R18 to be passed under the new dispensation was The Pyramid, and in February 1997 this was presented to the examiners as a benchmark for the Interim Guidelines; in particular these now permitted shots of a more explicit degree, previously prohibited, such as: long shot to medium/medium close shot images of penetration, oral sex and masturbation (20). Just how the Guidelines had evolved up to this point (and would evolve beyond it) is revealed by the following table (21):

DETAILS OF 'R18' STANDARDS 1985-1999

Breakdown of standards to include specific images acceptable and images liable to cuts. Both sets of standards were subject to works being consenting, non-violent and legal and not containing practices such as: necrophilia, bestiality, paedophilia, use of excrement, whipping, slapping, bondage, gagging etc.

Acceptable Images

  Period 1 April 1985 - February 1997
Period 3 October 1997 - November 1998
Period 5 January 1999 to present
Period 2 February 1997 - October 1997
Period 4 December 1998 - January 1999

(see note below)

Genital Exposure
  • inner labia
  • vulva,
  • brief erection shots,
  • passing shots of anus
  • medium close shots of genitalia
  • erection shots (non-contact) no restriction
  • lingering shots of anus
Sexual Penetration
  • indications of shaft insertion
  • medium close shots of penetration
  • penetration by finger and dildo/vibrator
Masturbation
  • friction against genitalia
  • labial stimulation
  • penis stroking
  • all
Group Sex
  • troilism/group sex
  • troilism/group sex
Oral Sex
  • mechanics of head bobbing
  • medium and medium close shots
Dialogue
  • unlimited if restricted to consenting and non violent references
  • occasional words indicating verbal abuse
Semen
  • on non-erogenous body areas e.g. back, limbs but minimal
  • minimal, on bodies, but not on faces
  • ejaculation in medium/long shot

Judgements on whether to cut and mitigating arguments for stronger material could still be made on grounds of e.g. 'De minimis', filmic values, brevity, and humour.

Although the standards were essentially the same in Periods 2 and 4, James Ferman wrote further cuts lists to remove close shots and medium close shots to meet his intention of drawing the line slightly short of Makin' Whoopee! standard.

Images to be cut

Images to be cut, unless 'de minimis'
  • Distension of inner labia, sight of clitoris
  • Erect penis in close sexual contact
  • Insertion of finger or other instrument
  • Clear sight of stimulation of penis
  • Clear sight of oral-genital contact
  • Ejaculation, semen on mouth, face or sexual organs
  • Sexualisation of anus (this changed in practice once age of consent was lowered to 18, but distension
    of anus and clear exposure of anus continued to be cut)
  • Anilingus (by 1996, passing implication of anilingus allowed)
  • Pain, humiliation, coercion, implication of coercion
  • Close-up of ejaculation
  • Sustained sight of semen
  • Close-ups of genitals during penetration
  • Close-ups of genitals during oral sex
  • Penetration of vagina with foreign object
  • Pain, humiliation, coercion, implication of coercion

 

Makin' Whoopee DVD coverIn the light of later controversies about the R18 ( which will clarify the above reference to Makin' Whoopee!), it is crucial to understand here is that, for all the explicit language employed in the table, even the BBFC's liberalised guidelines do not permit what is generally understood to constitute hard core pornography. As Linda Williams points out in her definitive study of the subject, this operates on the principle of 'maximum visibility', and well-lit close-ups of male and female genitalia, of penetrations of one kind or another and, crucially, of ejaculations have become essential ingredients of most mainstream hard core. As Stephen Ziplow's The Film Maker's Guide to Pornography puts it: if you don't have the come shots, you don't have a porno picture (22). And you most emphatically do not, in close-up, in R18s which, even at their most 'liberal', are resolutely 'medium core': a hybrid form of 'vanilla porn' put together from at least two versions of the same film – a hardcore one and a soft US cable television one – and which also sometimes contain toned-down scenes specially shot for Britain.

Meanwhile, the non-viability of the unreformed R18 category was underlined by the BBFC in 1997 when it revealed that since 1996 only 27 tapes had been classified R18 whilst 153 sex videos were cut to 18 at their distributors' insistence. This amounted to 10 hours of sex being excised, all of it meticulously detailed by the BBFC examiners in what must be the most soul-destroying use of professional expertise yet invented (23).

Jack StrawIn July 1997, Customs and Excise seized tapes sent to distributor Nigel Wingrove's Purgatory Films. At the same time Wingrove discovered the BBFC's liberalisation process. His lawyers informed Customs, but they replied that the BBFC had not told them about it and, furthermore, Customs had not changed their own criteria for determining obscenity (see below).Wingrove sent Margaret Ford a copy of Customs' letter and asked her to inform them of the changes to the R18 guidelines, which she did. Customs themselves then wrote to the Home Office Policy Unit expressing their surprise at the BBFC's actions, and Jack Straw ordered a halt to the whole liberalisation process. Indeed, when BBFC Vice-President Lord Birkett was summoned before Straw, considerably more than a mild rebuke was administered, as the unfortunate Birkett, appearing on a Panorama programme on pornography, described the atmosphere at the meeting as 'inquisitorial' and Straw as manifesting a 'genuine sense of outrage'. Indeed, when Panorama asked Straw to comment on the whole affair he issued a statement which said that Lord Birkett … failed properly to exercise his responsibilities. This may sound innocuous enough but, judged by the rules which govern political discourse at these exalted levels, it is actually a metaphorical smack in the face or, as the Panorama presenter John Ware put it, a full frontal attack on a retired senior public servant - which is perhaps why the Home Office then tried to withdraw it and substitute something more anodyne, claiming that it had been put out as the result of a 'technical error'! (24). It is also significant that press stories casting doubt on Ferman's future had begun to appear almost as soon as Labour came to power (thus strongly suggesting hostile briefings), and that Straw released to the press his letter criticising Ferman in the strongest possible terms for his unacceptable, unilateral decision to liberalise the law. He also let it be openly known that he was reviewing Ferman's position and, in December 1997, vetoed the appointment of Lord Birkett as the new BBFC President, imposing Andreas Whittam Smith instead.

When Straw ordered the BBFC to cease its liberalisation policy he also told them in writing that: material is obscene if it is successfully prosecuted under section 2 of the 1959 Act or if it is ordered to be forfeited by a magistrate under section 3 (25). And this is why it is so important to understand the implications of section 3 of the OPA. For, if Straw insists that the BBFC must take account of section 3, then as long as magistrates continue to issue forfeiture orders in the arbitrary fashion described above, then the more liberal decisions of juries in section 2 cases will count for nothing.

The Customs issue, too, is crucial here. The 1876 Customs Consolidation Act gives Customs the powers to prevent the importation of indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles, and this was incorporated into the Customs and Excise Act, 1952. In fact, since Customs lost a case in 1986 involving a life-size rubber sex-doll, it is now possible to import material that officers might deem 'indecent' but the coming of the Single European Market has certainly not reduced Customs' powers to seize material which they deem pornographic nor, apparently, their eagerness to do so (26).

But how do Customs decide what is obscene? On the above-mentioned Panorama a minder repeatedly intervened to prevent an officer from answering this. However, they actually have what can only be called an index of proscribed images, which runs as follows (27):anal fisting, analingus (sic), bestiality, bondage, buggery, coprophilia, cunnilingus, defaecation (sic), domination, ejaculation, enemas, fellatio, insertion of an object, intercourse, masturbation, necrophilia, paedophilia, sado-masochism, scatophagy, troilism, urination (urolagnia), vaginal fisting. Once Customs officers have seized material containing any of the above, they usually proceed to a civil forfeiture hearing before magistrates, and readers will by now be able to guess its likely outcome.

The important point about the above list is that, amongst the more unusual practices, we find 'ejaculation' and 'intercourse', the staple ingredients of most hard core pornography. Thus as long as the Home Office is prepared to insist that nothing should be passed at R18 which appears on the Customs index, it is extremely hard to see what videos in this category possibly could contain whilst still remaining remotely commercially viable, especially given the existence of a black market which inevitably flourishes in such circumstances.. But, much more seriously, the very existence of such a list, and in particular the precedents which it apparently sets far beyond the bounds of our harbours and airports, shows just how mistaken is the widespread belief that nowhere in Britain is a crude 'laundry list' approach taken to decide whether or not certain material is obscene.

Thus the combined efforts of Customs and the Home Secretary brought to an end the trial liberalisation period, during which 30 tapes were passed at R18 (though not necessarily without cuts). In 1998 Ferman noted that: for the first time it became clear that the intentions of Parliament in handling the problem of non-violent erotica through segregation rather than prohibition would be impossible to implement given the very strict standards applied in the magistrates courts (28). In November 1997 the original R18 guidelines were reissued.

The following July, at a meeting of the Orwellian-sounding Enforcement Sub-Group, a recently formed consultative body consisting of representatives from the Home Office, BBFC, Customs, Police and CPS, Home Office officials again insisted that forfeited material was obscene. The police reiterated their familiar problems in obtaining successful prosecutions even under section 2, but agreed nonetheless to compile a 'tape of acts' which had been subject to forfeiture under section 3.

The same month Makin' Whoopee! was passed by the Video Appeals Committee. During the liberalisation period, the Board had already issued an interim R18 certificate for this, on the basis of which its distributor, Sheptonhurst, had purchased rights to similar-strength works. But, in April 1998, after Straw's intervention, the Board refused to pass it without cuts, on the grounds of possible obscenity. Sheptonhurst appealed not only because an interim certificate had been issued but also because the BBFC had already passed comparable material. They also argued that in considering Makin' Whoopee! the BBFC should have formed its own opinions rather than apparently acting on instructions from the Home Office.

At the end of its lengthy judgement the VAC concluded that: the police and Customs and Excise have indicated that this is the type of material they would take to a Magistrates Court for forfeiture but the evidence, such as it is, presented to us indicates that at least one court takes a different view in relation to magazines, and that the Crown Prosecution Service has advised against forfeiture proceedings in relation to magazines and videos of the same type. There is no doubt that Magistrates Courts reach inconsistent decisions on obscenity. It is unsurprising they should do so, given the widely subjective views held in respect of pornography. They concluded that Makin' Whoopee! may offend or disgust but it is unlikely to deprave or corrupt that proportion of the public who are likely to view it (29).

Christine Stewart of the Home Office wrote to the BBFC pointing out that the most that can be said is that video works containing more or less comparable material to that in Makin' Whoopee! are likely not to be considered obscene by the VAC. It does not automatically follow from this that all the material which is likely not to be found obscene by the VAC is automatically suitable for classification(30). The letter then went on to raise the issue of 'harm' as defined by the Video Recordings Act, and this shift from obscenity to harm as the grounds for a ban prefigures the Board's own shifting position in the run-up to the appeals of July 1999, as we shall see below.

Thus, at the third meeting of the Enforcement Sub Group, in November, Ferman attempted to demonstrate that the Board did indeed ban or cut on the basis of harm, showing a compilation of clips from various titles containing sequences of spanking and bondage which had been cut even during the liberalisation period. However, the Home Office legal adviser, Stephen Bramley, raised the spectre of children being harmed by seeing an R18 work, although of course this was exactly why Parliament had originally decided that R18 works should be restricted to specially licensed premises forbidden to people under 18.

Interestingly, at this point the BBFC's new President, Andreas Whittam Smith, appears to have been supporting the liberalisation process, because we learn that several days after the meeting … Whittam Smith commented informally to Mr. Ferman that he felt the meeting had gone well and that the silence of the Home Office officials on whether the Makin' Whoopee! standard was a defensible position gave the Board room to manoeuvre. Mr. Ferman considered this sufficient grounds to proceed cautiously with a drafting of 'R18' guidelines to a level just below the most explicit shots contained in Makin' Whoopee! (31). Ferman then presented a compilation of video clips to the examiners showing the limits of explicitness which he believed fell within the parameters of Makin' Whoopee! Examiners were instructed to apply these newly liberalised standards, which in essence represented a return to those of the earlier trial period.

Between November 1998 and January 1999 seven titles examined at these new standards were referred to Ferman, who found them too explicit and removed close shots and medium close shots of sexual organs and activity. However, the second period of liberalisation was to prove shortlived as, in January 1999, the new BBFC Director, Robin Duvall, put all R18 work on hold and in effect re-instated the original guidelines. In February Duval, made a presentation to the Home Office regarding the implications of Makin' Whoopee! and warned of the likelihood of an appeal over further titles. However, once again 'Home Office officials made it clear that they did not regard Makin' Whoopee! as an acceptable benchmark in the light of enforcement practice in relation to the Obscene Publications Act around the UK' (32).

In July the appeal duly came up. It was brought by Sheptonhurst and Primetime Promotions over the titles listed at the start of this piece, all of which the Board had refused to pass at R18 unless all shots of penetration by penis, hand or dildo as well as shots of a penis being masturbated or taken into a woman's mouth were removed. Once again the grounds of appeal were the Board's inconsistency, with Makin' Whoopee! inevitably cited as a precedent.

At first the Board had appeared to be basing its refusal to grant certificates on the obscenity issue, but then, at the last minute, it switched to the 'harm' provisions of the Video Recordings Act, which, as we have seen, the Home Office itself had already flagged up. Forced to take on board the issue of inconsistency, the BBFC informed the VAC that: it is correct that the Board for a short period relaxed the guidelines for material classified at R18 …. At the prompting of the Home Office, the guidelines have been reconsidered in the light of consultation with Customs and Excise, the Police and the Crown Prosecution Services. The more stringent guidelines have been reintroduced to ensure the Board's guidelines run parallel with the guidelines and practice of Customs and Excise and the Police (in relation to Section 3 forfeitures) (33). Readers must judge for themselves in what sense the Home Office actions detailed above could be construed as 'prompting'.

The BBFC lost the appeal. The VAC argued that 'there is nothing to stop the Board changing its mind but it should not do so arbitrarily' and that the Board has been precipitate in introducing new regulations without adequate consultation or adequate research or adequate warning to the industry (34). That it had no choice in the matter is not considered since the Home Office was entirely absent from the proceedings. And yet, surely, it is the recent role of the Home Office in this affair which raises the most serious questions of all.

It is now a commonplace that, up until the end of the Second World War, the President of the BBFC was a political appointee carrying out explicitly political functions (35). But after the War, so the argument goes, although the Home Office still approved appointments to the Board's upper echelons, this was largely a formality, and the organisation became less concerned with overtly political matters. However, Straw's various actions, detailed above, in the wake of his discovery of the BBFC's liberalisation of the R18 guidelines, clearly suggest that he sees the Home Office as having a good deal more than a purely formal relationship with the Board.

Given the Home Office's active encouragement of the BBFC's liberalisation policy in the later days of the Major government, Straw's known antipathy towards pornography (Panorama quoted him condemning it as 'nasty, degenerate and worthless'), and his furious public reaction on discovering what the Board was doing, it is reasonable to assume that it is he who is driving forward this particular issue (an assumption that is very much confirmed by off-the-record conversations with Home Office civil servants). Furthermore, this is hardly surprising given the importance which New Labour attaches to policies relating to personal behaviour and morality. However, the personal cannot simply be divorced from the political and ideological, and thus it could be argued that the present government's use of the BBFC to attempt to stamp out sexual material of which it disapproves is the contemporary equivalent of pre-war governments using it to censor political or ideological viewpoints which they found objectionable. After all, in 1996, the year before he became Prime Minister, Tony Blair stressed the need to create the 'Decent Society' through 'a new social morality' (36), and New Labour's attachment to the ideology of communitarianism has increasingly led it to propose restrictive measures (on single mothers, teenagers out in the evenings, or Straw's famous 'aggressive begging' by 'winos, addicts and squeegee merchants') which are characterised by their 'intrusiveness into spheres generally marked out as private by liberal politics' (37).

As Will Hutton has put it: as evidence of social fragmentation mounts, there is an increasingly shrill cry to remoralise society - in which morality is regarded as the prohibition of individual actions backed by repressive legislation. Economic and social reforms, which might address the roots of these problems, are seen as a return to what has failed; instead the future is one of moral individuals, caned at school, smacked at home and wary of steep punishment in prison fixed by automatic sentencing, who keep their families together and so stand as bulwarks against social implosion ... Nor does the talk of admonition and prohibition stop there. The climate which produces constraints and bans does not begin and end with school expulsions and longer sentences for offenders of all ages; it extends seamlessly into the censorship of books, films and theatres (38). That this was actually written about the last Conservative government but equally well applies to the present Labour one is significant enough in itself. But it also demonstrates, I would suggest, that the forces of moral conservatism, whether Labour or Tory, have now themselves discovered the truth of the adage about the personal being political. So, whereas the BBFC and its political masters once preoccupied themselves with representations of relations between capital and labour, now it is relations of a much more personal, intimate kind - for once accurately summed up by the phrase 'sex and violence' - which obsess them. And where once they turned for help to specialists in political propaganda and counter-subversion, now they seek advice from psychologists, psychiatrists and paediatricians - those 'engineers of the human soul' so crucial to the ways in which authority over the self is exercised in contemporary societies.


  References

1. Quoted in Paper 1, 'The 'R18' Category and Licensed Outlets. Historical Background - Chronology 1975-1996'. This and Paper 2 (see below) are internal BBFC documents not intended for wider circulation. Some of this material has already been published in Julian Petley, 'What's in and what's out', The Guardian Review, 5 November 1999: 6-7.
2. Ibid.
3. A.W.B. Simpson, Pornography and Politics: The Williams Committee in Retrospect (London: Waterlow, 1983); Mary Whitehouse, A Most Dangerous Woman? (Tring: Lion Publishing, 1982).
4. Home Office, Report of the Committee on Obscenity and Film Censorship (London: HMSO, 1979): 159.
5. Ibid: 114.
6. Ibid: 116-117.
7. BBFC, Annual Report 1998, 39-40.
8. Ibid: 40.
9. Paper 1.
10. BBFC, Annual Report 1997-98: 38.
11. Paper 1.
12. Geoffrey Robertson, Obscenity: an Account of Censorship Laws and their Enforcement in England and Wales (London: Weidenfeld and Nicolson, 1979): 96.
13. Julian Petley, 'Savoy scrapbook', Index on Censorship, 25:1 (January/February 1996): 162-166.
14. Geoffrey Robertson and Andrew Nicol, Media Law (London: Penguin, 1992): 125.
15. BBFC Annual Report for 1987: 13.
16. BBFC Annual Report for 1990: 14.
17. Paper 1.
18. Paper 2.
19. Ibid.
20. Ibid. Emphasis in original.
21. Ibid.
22. Quoted in Linda Williams, Hard Core: Power, Pleasure and the 'Frenzy of the Visible' (London: Pandora, 1991): 93.
23. BBFC, Annual Report 1996-97: 17-18.
24. Panorama, 'Porn Wars', 2 November 1998.
25. Paper 2.
26. See Julian Petley and Mark Kermode, 'The censor and the state', Sight and Sound, 8:5 (May 1998): 14-18.
27. HM Customs and Excise, Volume C4: Import prohibitions and restrictions: Part 34: Indecent or obscene material: Appendix F.
28. BBFC, Annual Report 1997-98: 38.
29. BBFC, Annual Report 1998: Appendix V.
30. Paper 2.
31. Ibid.
32. Ibid.
33. Video Appeals Committee Appeals Numbers 15 and 16: Judgement.
34. Ibid.
35. Nicholas Pronay, 'The political censorship of films in Britain between the wars', in Nicholas Pronay and D.W. Spring (eds.), Propaganda, Politics and Film, 1918-45 (London: Macmillan, 1982): 98-125.
36. Quoted in Paul Anderson and Nyta Mann, Safety First: The Making of New Labour (London: Granta, 1997): 264.
37. Ibid: 246.
38. Will Hutton, The State to Come (London: Vintage, 1997): 38.



Legalisation of R18 Hardcore  Chapter 1: Jacking Off the Censor Hardcore snippets temporarily got BBFC approval in 1997
 Chapter 2: Makin' Whoopee in Summer 1998
 Chapter 3: Rumours of a Return to Porn in November/December 1998
 Chapter 4: Porn is In & Out & In & Out Again the state of play in January 1999
 Chapter 5: The Video Appeals Committee Forcing the BBFC to respect the law, May 1999
 Chapter 6: Censoring Safer Sex Discrimination at the BBFC. May 1999
 Chapter 7: Hiding Behind Children Giving up on obscenity and using concern for children, July 1999
 Chapter 8: The VAC R18 Appeal Report from the VAC Appeal, July 1999
 Chapter 9: An Appealing Victory Video Appeals Committee judgment allows hardcore, August 1999
 Chapter 10: The Censor and the State BBFC seek Judicial review, winter 1999/2000
 Chapter 11: Judicial Review Confirms Legality of Hardcore: Spring & Summer 2000
 Chapter 12: More Sex Shops Required according to Andreas Whittam Smith, November 2000
 Chapter 13: The Legalisation of Hardcore: A recap 1997-2000

 

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