The story of how porn was legalised in the UK at the end of the 1990s.
On two sunny days at the end of July 1999, history was being quietly made in London. A sober legal hearing took place which could have enormous impact on the way we live. But, because the legal hearing concerned pornography, and because the end results weren’t what the tabloids, the TV news editors and the government would have liked, most people remained blissfully unaware of what happened… just as they remained unaware that hardcore porn had been legal in Britain – by admission of the police, the customs and the home office – for the last year.
The historic event in question was a meeting of the Video Appeals Committee, a little-known body made up of ‘the great and the good’ that exists to decide in the cases of video companies disagreeing with the BBFC’s decisions. For this hearing, the committee consisted of children’s author Nina Bowden, Neville March Hunnings (lecturer at the London School of Economics), John Wood CBE (chair of the committee and former chair of ACAS), feminist author Fay Weldon, and Professor Philip Graham, Chair of the National Children’s Bureau and Emeritus Professor of Child Psychiatry, Institute of Child Health, London. Clearly then, not a bunch of slavering liberals determined to unleash porn onto an unsuspecting British public, despite the claims of the Daily Mail and various demented MP’s.
The two companies in question at this hearing, Sheptonhurst and Prime Time, had good reason to feel aggrieved: seven of their films (Carnival International Continental Version Video trailer – The actual video had been classified containing the same scenes! – Wet Nurses 2 Continental Version, Miss Nude International Continental Version, Horney Catbabe, Nympho Nurse Nancy, TV Sex and Office Tart – mostly retitled versions of American films) had been refused R18 (sex shop sale only) certificates because they contained on-screen penetration shots, oral and anal sex, etc. This refusal was despite the fact that in 1997, several films of a similar nature – Batbabe, The Pyramid, Ladies Behaving Badly, Strap On Sally 5 etc. – had been passed by the BBFC in versions that would be referred to by the industry as ‘mediumcore’ – a strange hybrid of the hardcore and cable TV versions of films, showing full penetration, but only in short bursts and not in close-up. It was a fudge that BBFC head James Ferman had come up with over lunch with a Home Office official as a way of diverting people from unlicensed, illegal sex shops into licensed premises by giving them at least a bit if what they wanted – before that, R18 titles were still resolutely softcore, stronger than was allowed at 18 but still no raunchier than the average top shelf magazine. To convince people to buy officially licensed product, it was agreed that the product would have to actually be worth buying. Unfortunately for Ferman, none of this was made official – there was no paper trail of approval for his liberalisation. When Labour took power that summer, new Home Secretary Jack Straw – no fan of porn, it has to be said – went mad. He demanded an immediate reversal of the new policy. This clearly did not go down well with video labels who had just been given a taste of liberalisation and would now have to go back to releasing films that no one wanted.
In 1998, Sheptonhurst – the company behind the Private sex shop chain and run by David Sullivan – had successfully appealed against the refusal of a certificate to a mediumcore version of Makin’ Whoopee. At that appeal, the Committee had decided that the film did not fall foul of the Obscene Publications Act (despite containing hardcore scenes) and should therefore be passed. Following that decision, the BBFC again passed a handful of other similar films, but when new head honcho Robin Duval (replacing the long serving Ferman, who was practically forced from office by the political interference of Jack Straw) found out what was happening, he immediately put a stop to it. No matter that over twenty films had now been passed and were on sale; no matter that the BBFC had lost the previous appeal. Duval, who had been hand-picked by Straw for this very reason, disapproved of porn, and was not about to allow it to be legally released in Britain. The next batch of R18 titles were promptly turned down.
Of course, having already lost the obscenity argument, the BBFC faced real problems in justifying further bans when the two companies naturally appealed. In fact, it wasn’t until the appeal date was drawing near that they pulled their master stroke, and decided to defend the ban on the basis of potential harm to children. By hiding behind the emotional image of the ‘damaged’ child, the BBFC revealed itself to be both desperate and cowardly, and all concerned knew that after this, there were no defences left. Lose, and the BBFC would have to reconsider their stand on porn.
The defence opened with Sheptonhurst’s lawyer, David (now Lord) Pannick, reminding the committee about their Makin’ Whoopee decision, before systematically tearing the BBFC’s case apart. As he pointed out, the whole point of the R18 rating was to cover material which was, by definition, wholly unsuitable for children. That’s why the tapes can only be sold in licensed sex shops, of which there were only eighty in Britain (sex shop licensing rules allowed local authorities to set their own limit on how many could open, a number that included zero – many local authorities took full advantage of that to issue blanket bans on shops). Pannick discussed the fact that the BBFC no longer claimed the films to be obscene, and commented on the fact that the Crown Prosecution Service rarely prosecute this sort of material… and if they do, juries don’t convict.
This was an interesting point, as the BBFC, in a later press release, claimed that similar material was still being convicted in court. This is true, but needs qualifying. All such convictions were under Section 3 of the Obscene Publications Act, which is basically a destruction order signed by a magistrate. No jury is involved, and so any such convictions are irrelevant in terms of legal tests of public morality (unless you believe that magistrates are an accurate cross section of the public!). Tales of magistrate corruption and collusion with police forces abounded at this time, and so Section 3 convictions seemed to be the very definition of ‘unsafe’.
Pannick suggested that the BBFC were trying to use the same regulations that cover subscription TV channels, and suggested, not unreasonably, that this was wholly wrong. He pointed out that the content of magazines sold in sex shops is now considerably stronger that any of the material in the videos under appeal. Indeed it was – full-on hardcore had been sold quite openly for a few years – and not just in sex shops. We were told of a recent case at Southwark Crown Court were a jury took just thirty minutes to acquit hardcore magazines which included cum shots. And these were being sold in a normal newsagents.
Pannick closed his argument by suggesting that we cannot realistically suppress material designed for adults on the basis that children or ‘abnormal people’ might come into contact with it. He also slipped in a final, rather jaw-dropping bit of information: in November 1998, the BBFC consulted the police, HM customs and the Home Office, and were told that consensual explicit sex was no longer considered obscene.
Time for a pause: the authorities in Britain said that hardcore porn was legal in 1998. But they didn’t tell the public or anyone else, and HM Customs continued to seize and destroy material that they knew was legal, safe in the knowledge that they’d never have to explain their actions in court. A disgraceful state of affairs, I’d suggest…
The BBFC’s case, presented by their somewhat soporific lawyer Lord Lester (who would, in later years, face his own sex scandal), was clumsy, flawed and defensive in the extreme. Much of the talk was of morals, suggesting that the real aim of the Board (and it’s puppet-master Jack Straw) was to outlaw sexual images which didn’t fit into its own narrow view of ‘decency’. They suggested that the R18 is no defence against children seeing films, because after all, won’t morally bankrupt sick fucks like you, dear reader, just leave your porno lying around the house for every neighbourhood child to see? Taken to its logical extreme, this argument ultimately suggests that all censorship is useless, and should therefore be done away with – after all, 18-rated films are also considered unsuitable for children. But logic was thin on the ground during this speech. After all, here was the BBFC’s lawyer arguing that softcore – including softcore that would go to the very edge of hardcore with simulated or edited sex scenes – was unsuitable for kids but wouldn’t harm them, while hardcore would. That a moving image on a video is far more dangerous than a still image in a magazine. That the internet didn’t already exist.
Then came the witnesses. A Dr Milovich was the BBFC’s ‘star’. We all had to leave the room while some case evidence of individual child trauma was discussed (to protect privacy, apparently, though why names couldn’t be changed was beyond most observers). What we were allowed to hear was pretty laughable. In nineteen years as a child psychiatry specialist, she’d come across less than six cases of children having been adversely affected by porn – and in each case, other factors played a more significant part in the childrens’ problems. Much of her evidence seemed to come from a poll in – wait for it – Cosmopolitan, that well-known psychiatric journal. This ‘research’ claimed that one in seven people have seen porn before the age of ten. But ‘porn’ was defined in the respondents own terms, and included Page Three and pin up calendars. That the numbers were so low under those definitions is remarkable.
Milovich herself summed up the usefulness of her contribution when she admitted “I’m not an expert on this area” – an extraordinary comment for the one ‘expert witness’ to make!
We then had testimony from Clive (aka Frank) Sullivan – brother of David, and Marketing Director of Sheptonhurst. Sullivan conceded that the videos may be harmful to children, but repeated his lawyer’s comments that children were unlikely to see them anyway. He explained that all Sex Shops have notices reminding customers to keep such material away from minors. He also pointed out that there had been no complaints from the authorities that children had seen the videos, and made it clear that kids could never enter a sex shop – the risks to the license were simply too great.
The day ended with Prime Time’s Greg Hurlestone making a statement, in which he explained how the films were already edited for the UK, and reminded the panel that this sort of material had already been passed previously. No one, at this time, was asking for (or hoping for) full liberalisation, just a level playing field and some sense of consistency.
By this time, it’d reached 5pm, and any hope that this would be a speedy case had long since disappeared. In fact, as the assorted journalists, anti-censorship campaigners and BBFC board members (one of whom quizzed me extensively about global porn trends during a break!) left, the main topic of discussion (beyond the BBFC’s clearly incompetent performance) was whether or not we’d actually finish by the close of the second day.
Day two of the Video Appeals Committee hearing was just as stiflingly hot as the first, and there was a constant confusion over just what to do about it – opening the windows meant that the general racket of Soho’s streets drowned out much of what was being said. There were far fewer observers this time round – most journalists had clearly decided that one day of personal observation was enough, and were simply waiting on the result. The ‘hardcore’ that remained were mainly BBFC employees, current and former censors (including James Ferman, who slipped in and was completely ignored by everyone), and die-hard anti-censorship campaigners – a strange mix to be sure. It’s a pity that more mainstream scribes didn’t stay the course, because the first witness of the day would be the new BBFC head censor Robin Duval, who would have to justify his actions.
Duval was still fairly new at the job. When Ferman had been forced to retire, Straw turned down the BBFC’s choice of new President, Lord Birkett, and instead appointed his mate and poodle Andreas Whittam-Smith, ex-editor of The Independent, and a man who showed his qualifications immediately by telling Jeremy Paxman on Newsnight that he’d never seen a porn film – or even Reservoir Dogs, for that matter. Although the President of the Board has been traditionally little more than a figurehead, Whittam-Smith (soon re-named ‘Witless-Smith’ by critics) signalled that he intended to have a hands-on approach.
Duval, Ferman’s replacement as ‘Director’ of the BBFC, came from the ITC, and in some ways seemed like a breath of fresh air. In what seemed to be a calculated attack on his predecessor, he quickly lifted the bans on several of Ferman’s personal bête noire’s – The Exorcist, The Texas Chain Saw Massacre and Driller Killer. But if Duval was ‘soft’ on violence, he seemed to have a curious hatred of sex – though in fairness, he was probably just doing what Straw had demanded. When the Makin’ Whoopee appeal was lost, the Board could have accepted the decision and changed their rules. They didn’t, and that was why we were all here today.
As a witness, Duval was incredibly defensive. Denial was the order of the day. At times, it seemed as though he was reluctant to admit that any ‘hardcore’ had been passed by the board. His answers would have made a politician proud – fumbling, fudging and avoiding direct responses, he attempted – and painfully failed – to justify the BBFC’s position, and the switch in defence from obscenity to ‘harm to children’.
Sheptonhurst lawyer David Pannick forced Duval to concede that all R18 films, whether hardcore or not, are wholly unsuitable for children. He also admitted that there was no research into the effect of liberalisation by the Board, because – get this – it would be embarrassing for people! So, in order to avoid having to ask the public about their viewing habits and possibly causing a few red faces, the Board were prepared to use their own prejudice as guidelines. Nice.
Of course. penetration was allowed in some 18 rated films. Sex education tapes, for one… arthouse movies like The Idiots for another. Duval claimed that children would be able to differentiate between, say, The Lovers Guide and Office Tarts, because of context. Duval clearly hasn’t realised that VCR’s, unlike TV sets, have fast forward buttons, which most viewers use to reduce any sex ed. video to a series of thrusts and gobbles.
Duval’s main justification for this new series of refusals was that the Video Recordings Act (the infamous piece of 1984* legislation that made censorship mandatory for all video releases) is more stringent than the Obscene Publications Act, given that it talks about ‘possible effects’ on people likely to see the material. Duval felt that, sex shop restrictions or not, that kids would invariably see these films. Yet as was pointed out, the difference between 18 and R18 tapes has traditionally been so slight – often a matter of seconds – that it became pointless. In the BBFC’s closed little world, these trims and edits made all the difference – to anyone else, the logic of why some versions had to be restricted to sex shops while others could go on general sale would have been lost.
There were several more curious moments in Duval’s evidence. The ever-widening definition of ‘childhood’ again came into focus when he expressed special concern about how this material might affect sixteen and seventeen year olds. Given that the age of consent in the UK is sixteen, this is a bizarre logic: people who can be legally sexually active might still be damaged by watching sexual activity a year or so before they are legally allowed to. Then again, despite the ‘harm to children’ defence, Duval clearly felt that such images are unsuitable for anyone – he also trotted out the possible damage to ‘maladjusted’ people as a reason to ban these films.
Ultimately, Duval’s defence was weak and unconvincing. Listening to him trying to justify refusing a certificate to the trailer for Carnival, when the full film had been passed only ten days earlier, was quite painful.
After closing arguments from the lawyers, the assembled masses shuffled off to await the final verdict, which we were told would take some weeks. On my way home, I popped into Maxims Video in Soho – just yards from where the hearing took place. Here, amongst the several hundred hardcore tapes on open sale, the ludicrous nature of the whole thing was brought into sharp focus. The BBFC were trying to stop something that has already happened. By allowing the sale of consensual hardcore sex films, they could at least ensure protection for the producers, the performers and the customers.
The VAC decision came rather more quickly than expected. By a four to one majority, the Committee rejected the Board’s arguments, and found in favour of the video companies. In the opinion of the committee, “we do not, in general, prevent adults having access to material just because it might be harmful to children if it fell into their hands. We might have taken a different view if there was evidence that the effects were affecting more than a small minority of children or were devastating if this did happen.” The BBFC, in their press release, continued to claim that such material was still being convicted (but not by juries, remember!), and expressed their on-going concerns about the effects of porn. The press statement ended with the somewhat ominous statement “in the light of the Video Appeals Committee’s decision, the Board is considering how it should now proceed.” But what was there to consider? After losing two appeals using different arguments, surely it was time for the BBFC and their government puppet-masters to finally accept that public morality has changed; opinion has moved on, and the sooner that we moved into line with the rest of Europe, the better it would be for everyone. As it turned out, the battle wasn’t quite over.
Egged on by Jack Straw, the BBFC were not about to admit defeat. They took the remarkable step of seeking a Judicial Review against their own appeal committee. The VAC decision was made at the end of September 1999, but the case didn’t reach the High Court until May 2000, when both parties put their cases once again, this time to Mr Justice Hooper.
Many outside observers had little hope about the outcome of this case, suspecting possible government interference or pressure. The final decision took weeks to be reached, and the result shocked everyone: once again, the BBFC had lost. Justice Hooper rejected the BBFC’s arguments that the VAC had misinterpreted the wording of the Video Recordings Act, and declared that the tapes in question could not be considered either obscene or harmful to children.
Although the right wing tabloids (and their TV equivalent ITN) finally took notice of the case and reported the result in typically ‘shock-horror’ style, there was surprisingly little public reaction. And even the papers found something far more interesting for the front pages, and no-one seemed inclined to make a big deal of the result. Perhaps in light of this, the BBFC finally threw in the towel, dropped plans for a further appeal and granted certificates to the ‘magnificent seven’. They also announced that, in light of the court decision, the guidelines for R18 tapes would be redefined.
For most people, this suggested that the restrictions would be lifted on ‘mediumcore’ material, allowing actual penetration and oral sex to be shown, but not at length, not in close up and still forbidding cum-shots. There were also rumours coming from the Home Office that Jack Straw – the one person outside the BBFC who was outraged beyond belief by the court decision – was considering rewording the Video Recordings Act, possibly even dropping R18 as a classification. In fact, the Home Office did publish a consultation paper about R18 titles in July, suggesting several ways of preventing children from accessing such titles. These included increased fines for mail order sales (which had always been technically illegal, though the laws were never previously enforced) and making it a criminal offence to show a child an R18 tape. But by the time the paper was made public, things had moved on further than anyone would have expected.
On July 18th, the barriers finally came down. The BBFC issued their new R18 guidelines. Now, it was okay to show ‘aroused genitalia, masturbation, oral-genital contact including kissing, licking and sucking, penetration by finger, penis, tongue, vibrator or dildo, non-harmful fetish material, group sexual activity, ejaculation and semen’. There was no restriction on length, close-up or anything else. In other words, the bulk of mainstream consensual hardcore was now considered acceptable. The floodgates were open, and a slew of uncut hardcore movies were submitted for classification… and passed uncut. A quarter of a century after the rest of Europe, British punters could not go to their local sex shop and buy hardcore videos legally. Of course, this had the unexpected effect of now rendering the seven films in the appeal as redundant, and the distributors had to resubmit the fully uncut versions.
After a few months of denial, H.M. Customs – so long acting as a law unto themselves – finally conceded defeat, and changed their guidelines to match those of the BBFC. Before long, the concept of ‘legal pornography’ had taken hold and, with a lack of any evidence to suggest that the new rules had led to an increase in ‘harm’, and the genie of the internet now already out of the bottle (and so making the liberalisation a bittersweet experience for video labels, many of whom came and went fairly quickly as sales of tapes and DVDs at £40 plus a pop were eaten away by a surfeit of free porn online), the battle would move on to ‘dangerous’ or ‘abusive’ sexual acts, extreme porn and open access to online smut. Those battles are still being fought now…
* Ironically, in 2009, it was found that the Video Recordings Act had not been legally binding thanks to incomplete paperwork, and a replacement act using exactly the same wording had to be rushed through parliament. Opportunist distributors like Ben Dover too advantage of the brief gap before the law was finally made legal to release uncertified titles of his work that could be sold, quite legally, through mail order. Society did not collapse as a result.
DAVID FLINT
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