Who makes the laws in the UK? Nul points if you answered “parliament”. And a loud QI raspberry if you attempted “the courts”. Because while that is the theory, the practice, as revealed in all its ridiculousness by a recent Obscene Publications Act case, would seem to be that tis the Crown Prosecution Service who act as judge, jury and executioner.
Plus a special mention to the British Board of Film Censors — sorry, Classifiers — who trail along in their wake.
The outing in question came with the trial of one Michael Peacock for distribution of obscene material. It would, I suspect, rate as pretty rank as far as the average Daily Mail reader was concerned, what with content like full-hand fisting, urination, staged kidnapping and rape, whipping, and some pretty nasty stuff involving saline solution and testicles.
However, that’s not the issue. For, in its wisdom, parliament decided to rule that material was obscene if, taking account of all circumstances, it “tended to deprave and corrupt”. Not ’cause the readers of middlebrow newspapers to explode’ — though to read a few opinion pieces on the result, that’s exactly what some seem to believe the law is.
Now run your mind round that idea. It may be argued that society has no business having any laws about what material may be published or distributed. I guess a fair few reading this piece might agree with that proposition. Still, if you’re going to have such a law — and here, perhaps, I don’t entirely see eye to eye with some of the experts advising on the Peacock brief — better to have a law drafted in terms of its effect on the casual recipient of the material and, the most important consideration, to allow a jury to decide whether the material is proven to have that effect.
The same with laws on race hatred, or scandalising a policeman, or causing panic in a crowded theatre.
Over time, three quite distinct positions have evolved. The first, which I don’t go along with, is that nothing that is said should ever be regulated by law. The mirror image of that, which I also disapprove of, is that language that upsets or gives offence should be punished.
In between is the idea that language that has a specific effect should be capable of being examined. Incitement to hatred, where the outcome is real harm to someone is, for me, the proper domain of the law. As, too, is the old chestnut: shouting “fire!” in a crowded cinema.
However, saying “fuck!” in front of a policeman? Well, as the courts have said on several occasions: nah! its just a word. Police officers hear it often. If they are so easily upset, they need to find another job.
Back, though, to the OPA, Peacock, and arguments on the internet. Over the last few years I have increasingly hit upon an irritating trend. In arguments on the law, I am inclined to go back to first principles. To read the statute: to evaluate the language in the light of similar statutes; to read previous cases; to look at judgments and precedents. It gives me a better grounding in what the law means. And it shows very clearly that the law is not an open-and-shut thing. It lives. It breathes. It is open to interpretation.
No more. For my average bar room opponent doesn’t do any of that. No: he simply hies himself to the CPS web site and looks up CPS guidance on the law — which is usually expressed in pure black and white.
Which might be why the CPS came such a cropper over Peacock. For their website states that “suitable for prosecution” are realistic portrayals of rape, extreme sadomasochistic material, torture with instruments and fisting.
Oddly, they make no mention of a bizarre rule that appears to have crept in over the years: fisting with four fingers is OK (because it isn’t really fisting) whereas using the full hand is decidedly depraving.
Fascinating. One can see where they are headed with this. But there is a slight flaw in their guidance, and it is simply this: that in general, when juries have been asked to reach a conclusion about obscenity, they are nothing like as sure as the CPS. Which might not be an issue if you accept the sovereignty of the jury.
Actually, though, where the law is calibrated in this way, in terms of what a jury might consider corrupting, a sensible person might think it incumbent upon the CPS to pause from time to time to take the pulse of the nation.
They don’t, though. They were sure of the rightness of their case before the trial of Mr Peacock. And, bizarrely, they remain just as sure after the trial. As a spokesman put it after the event:
The fact a jury has acquitted someone does not mean that the guidance is incorrect. There was clearly a case to answer as the judge allowed the jury to consider all the evidence. We cannot speculate on why the jury acquitted Michael Peacock.
Given the number of cases I have covered over the years in which the CPS has been every bit as sure as they are here, right up to the door of the court room — only to have their case laughed into oblivion within minutes of the judge taking a peek at it — I am less convinced. It is only a year or so since North Wales Police and the CPS claimed that a man in a tiger suit who engaged in a sexual act, before turning to camera and delivering a punchline (believed to be “beats making Frosties commercials for a living”), constituted “a realistic depiction of sex with an animal”.
They also claimed that neither they nor the police had been able to work out how to turn up the sound on said clip, thereby causing massive waste of public funds simply because the CPS have problems with films. Which brings us neatly back to the BBFC (and the police).
For when it comes to what you or I may watch at the cinema or on DVD, the BBFC must make judgment calls. Does this film breach the law? Is this film obscene? Only they are not judicially trained. So the best they can do — as they have told me down the years — is take advice from ‘experts’ in the field. These experts include, they have also claimed, the police and legal advisers at the CPS.
Funny that, since every time I have asked the CPS they have said approximately what they said again this time:
The CPS co-operates with regulatory bodies in areas where the interests of our organisations intersect, in order to share information and identify best practice where relevant. However, the CPS does not give legal advice to regulatory bodies, who enforce their own particular responsibilities and codes of conduct and may seek their own legal advice in order to do this.
Is there, perhaps, some philosophic wafer of difference between “co-operating with” and “giving legal advice”? I guess they intend for there to be, simultaneously exonerating both bodies from any responsibility for anything.
That is also, undoubtedly, how just a couple of weeks after a jury decided that film depicting urolagnia (urination in a sexual context) was not obscene, the BBFC simply carried on as though nothing whatsoever had happened.
Cutting 2.35 seconds from a film entitled The Best of Lucy Law because it happened to feature that practice, the BBFC issued a statement saying:
The role of the BBFC is not to decide the law but to enforce it, and in this we will be guided by the law enforcement agencies. In relation to this case, the CPS have stated that the fact that a jury has acquitted someone does not mean that the guidance is incorrect.
A spokeswoman later added: “The CPS is the body with responsibility for prosecuting offences investigated by the police. It is not our business to second guess them and we have no intention of doing so.”
This is making my head hurt… (It reminds me of days when I worked in a consultant capacity and I would inform the managers of a company of some egregious mistake made by their staff or systems that I had just witnessed — only to be told I couldn’t have, because their processes would not allow it.)
The CPS reckons that the whole of the OPA can be reduced to a shopping list, even though that is not how the law was drafted, because they say it can. A jury — the real arbiters of the law — has just decided that several items on that list don’t necessarily belong. Sure, they haven’t set a legal precedent. But you’d think any rational government body would get the hint: juries possibly have a different view of what constitutes obscene.
And then there’s the BBFC, who they don’t give legal guidance to — no sir! — but with whom they sat down and chatted after the case for at least long enough to explain to them that it didn’t matter what juries were doing: the CPS still knew best.
Worst of all, the BBFC bought it. They did not, as one might expect of a rational organisation, sit back and go: there’s reality, and there’s what a bunch of lawyers say reality is — let’s choose reality.
They have, too, quite possibly opened the door on a future very mucky civil action against them: because if they insist on claiming they have no ability to examine what the law is other than by sitting at the feet of the CPS, sooner or later, some film director is going to grow exasperated and take them to judicial review.
In the end, it may be that obscenity law has no place in 21st Century Britain. The CPS may imagine that they are doing their utmost to defend the status quo, to keep the old law alive.
Or there is an alternative scenario. That all this meddling is about as edifying as… well, as edifying as putting a defendant through hell because you think a man in a tiger suit is a real tiger. That far from upholding the law, it creates contempt for it: and that in the long run, while the CPS are busy carving themselves a position as UK lawmakers extraordinaire, supplanting courts and politicians along the way, theirs will be a hollow victory. Because in taking the prize, they will trash it.
In setting themselves up as ultimate arbiters of what the law is, they will only destroy all respect for it. Did I say “nul points”? I think so.