Submission from the British Board of Film
Classification
I have been asked to provide your Committee
with a brief note about past instances where the BBFC has had
cause to intervene with video works on the basis of potentially
blasphemous content. I hope the following may be useful.
The BBFC is the authority designated by Parliament
under the Video Recordings Act 1984 to classify video works for
distribution in the UK. In making a decision as to the suitability
of a video work for classification the Board is required to consider,
amongst other factors, whether or not the work in question is
likely to be found illegal under UK law. Along with other relevant
legislation (including the Obscene Publications Act, the Protection
of Children Act, the Cinematograph Films (Animals) Act), blasphemy
is one of the issues the Board assesses when making a classification
decision. In fact since my arrival as Director of the board in
January 1999 there have been no cases in which the Board has sought
to intervene with a video work on these grounds. However, our
records show that since the introduction of the Video Recordings
Act in 1984, the Board has cut three works and rejected one on
the grounds of potential blasphemy.
Cuts were made in the following cases:
1. In 1987 a cartoon video (The Big Bang)
was cut by 10 seconds to remove a sequence in which an animated
version of God appeared to be having sex and then uttered an expletive.
2. In 1988 a low budget horror film (Catacombs)
received 12 seconds of cuts to remove a sequence in which a priest
is punished for his gluttony by Christ. In the sequence removed
by the Board, a statue of Christ came alive and stabbed the priest
to death with a nail he had pulled from his ankle.
3. In 1990 an underground movie by cult
American film maker John Waters (Multiple Maniacs) was
cut by 4 minutes 53 seconds to remove an entire sequence set in
a church in which a male transvestite buggered himself with a
rosary. The shots of the transvestite were intercut with footage
of Christ moving through the Stations of the Cross.
I enclose extracts from the relevant BBFC Annual
Reports detailing these decisions.
Additionally, the Board refused in 1989 a video
classification altogether for a 19 minute short film entitled
Visions of Ecstasy. In this film, which was described by
its maker as a meditation on the visions of St Teresa of Avila,
there was a lengthy sequence in which a woman dressed as a nun
(representing St Teresa) straddled the figure of Christ on the
Cross. The woman was shown kissing His wounds, lips, face and
body, and moving in a manner which indicated sexual intercourse.
In refusing the video a classification certificate,
the BBFC's Director James Ferman commented to the distributor:
"The video work submitted by you depicts
the mingling of religious ecstasy and sexual passion, a matter
which may be of legitimate concern to the artist. It becomes subject
to the law of blasphemy, however, if the manner of its presentation
is bound to give rise to outrage at the unacceptable treatment
of a sacred subject. Because the wounded body of the crucified
Christ is presented solely as the focus of, and at certain moments
a participant in, the erotic desire of St Teresa, with no attempt
to explore the meaning of the imagery beyond engaging the viewer
in an erotic experience, it is the Board's view, and that of its
legal advisers, that a reasonable jury properly directed would
find that the work infringes the criminal law of blasphemy."
At the time the BBFC sought an opinion from
Richard Du Cann QC, who confirmed the Board's view that the work's
treatment of its theme was "not suitable for classification
on the grounds that it infringes the criminal law of blasphemy.
The foundation for my view is that in my opinion a reasonable
jury properly directed on the law would convict". The blasphemy
law was understood by the BBFC at the time in the following terms,
as expressed in the House of Lords decision in R v Lemon
(1979):
"Every publication is said to be blasphemous
which contains any contemptuous, reviling, scurrilous or ludicrous
matter relating to God, Jesus Christ, or the Bible, or the formularies
of the Church of England as by law established. It is not blasphemous
to speak or publish opinions hostile to the Christian religion,
or to deny the existence of God, if the publication is couched
in decent and temperate language. The test to be applied is as
to the manner in which the doctrines are advocated and not to
the substance of the doctrines themselves."
The Board's decision was subsequently appealed
against to the independent Video Appeals Committee. This Committee
was constituted under Section 4(3) of the Video Recordings Act
so that distributors could challenge what they regarded as unduly
censorious decisions by the Board. In the case of Visions of
Ecstasy, the Committee found in favour of the Board and the
Appeal was therefore dismissed.
The film's maker and distributor then took the
unusual step of appealing against the ban to the European Court
of Human Rights. The court, however, decided that the reasons
given for the ban by the Board and the Video Appeals Committee
were relevant and sufficient and the decision was not "arbitrary
or excessive". The Court noted in their judgement that:
"Freedom of expression constitutes one
of the essential foundations of a democratic society. As paragraph
2 of Article 10 expressly recognises, however, the exercise of
that freedom carries with it duties and responsibilities. Amongst
them, in the context of religious beliefs, may legitimately be
included a duty to avoid as far as possible an expression that
is, in regard to objects of veneration, gratuitously offensive
to others and profanatory".
The court therefore recognised that the refusal
to grant Visions of Ecstasy a certificate was intended
to protect the rights of others in line with the duty in Article
10. In concluding in favour of the BBFC, the Court drew in particular
upon the precedent established by the case of Otto-Preminger-Institut
v Austria (1994) "where the Court had accepted that the
respect for the religious feelings of believers can move a State
legitimately to restrict the publication of provocative portrayals
of objects of religious veneration". The Otto-Preminger case
involved a private body which operated a cinema in Innsbruck which
was open only to limited membership. It wanted to show the film
Council in Heaven, restricting it to members only aged
17 upwards. Its advertisements for the film made the offensive
religious content apparent. The European Court, however, found
the showing to be a public offence which infringed the "rights
of others" under Article 10—even though it was accepted
that Christians would be unlikely to choose to see the film.
As a result, Visions of Ecstasy remains
banned from distribution in the UK on the grounds of blasphemy.
I enclose the relevant pages relating to the
Board's decision on Visions of Ecstasy from our 1989 Annual
Report, together with the judgement of the Video Appeals Committee
from the same year. I also enclose a summary of the findings of
the European Court of Human Rights as detailed in the Board's
1995-96 Annual Report.
5 July 2002
EXTRACTS FROM
BBFC ANNUAL REPORTS
1987
30. Ten cuts were required in seven different
videos during 1987 to remove 7½ minutes of material the Board
considered unsuitable for viewing in the home. Among the reductions
was the comic scene of cocaine-snorting in the video of CROCODILE
DUNDEE, one of the most popular cinema films of 1986-87. Here
small trims were required to remove not only the actual sight
of sniffing, which on video now happens off-screen, but all dialogue
reference to the nature of the substance by the sympathetic leading
lady, who on film suggested an uncritical attitude towards the
recreational use of cocaine. When the film was classified in early
1986, cocaine was not a major drug of abuse in Britain, and the
scene was found acceptable because of its attractive comic tone.
A year later, when the video was submitted, cocaine use had become
a problem even for teenagers, and caution was called for in respect
of a scene that might be viewed in the family setting for many
years to come.
MANNERS
31. Britain is a country in which linguistic
codes of behaviour are felt to be important by a great many people,
and the increasing use of four-letter words in American films
has endangered the acceptability of many otherwise unproblematic
films or videos for the UK family audience. Virtually no films
are made in America any more in which the language is unambiguously
"U", and it is hard to recall any Hollywood "PGF"
film of recent years that does not include at least a few lavatorial
expletives. These the Board accepts in moderation at "PG",
although it continues to hold a very firm line in not permitting
any sexual expletives at all in films classified for pre-teenagers.
Many distributors prefer to cut such language on film in order
to admit the family audience, but video companies usually take
the "15" uncut, which may reflect some cynicism about
the extent to which parents ignore the categories in the home.
If so, this is a worry, since many videos are classified "15"
not on manners grounds but because of the disturbing nature of
the contents. We would prefer to have the TV versions of such
films with less offensive language than to be asked to impose
cuts which might damage the scene in other ways. Still, in 1987,
four video features were cut to remove instances of bad language
so as to achieve a less restrictive category.
BLASPHEMY
32. It is rare that the issue of blasphemy
is raised in respect of films or videos, but in 1979, the House
of Lords confirmed the common-law definition of blasphemy as "any
contemptuous, reviling, scurrilous or ludicrous matter relating
to God, Jesus Christ, the Bible, or the formularies of the Church
of England . . .". The Lords also ruled in this connection
that it was the act of publication in offensive terms rather than
any intention to be blasphemous which was the deciding factor.
Since the Board is enjoined by its Letter of Designation to "continue
to seek to avoid classifying works which are obscene . . . or
which infringe other provisions of the criminal law," this
is a legal issue we must bear in mind, and in 1987, it was found
to apply to one scene in a full-length adult cartoon in which
scurrility was the essence of the comedy. A scene showing the
drawn figure of God apparently copulating in the clouds was deleted
both on film and on video, together with an obscene line of dialogue
put in the mouth of the cartoon deity. The cut lasted approximately
10 seconds.
1988
BLASPHEMY
26. The question of blasphemy was raised
in 1988 primarily in connection with the film THE LAST TEMPTATION
OF CHRIST (see Appendix II), where lawyers assured us the charge
could not be substantiated. On video, on the other hand, there
was one work which seemed to us to treat the figure of Christ
on the cross with crudeness verging on contempt by enlisting the
figure in the action of a horror movie. The scene was one in which
an ineffectual chocolate-guzzling priest is punished for the sin
of gluttony by the statue of Christ, who removes the nail from
his own ankles to stab the priest to death. The shockingness of
the treatment was cut by the Board with no perceptible damage
to the film.
THE SEX-SHOP
CATEGORY
27. The final September deadline for backlog
videos covered not just all English-language films from 1940 to
1970, but all works not primarily in English which remained unclassified.
Many sex video distributors had availed themselves of the three-year
period of grace by removing the English-language soundtrack and
substituting music and sub-titles, with the result that many such
tapes were not submitted until the last few months before the
deadline. During 1988, 51 of these were classified "R18"
for supply in licensed sex-shops only, thus removing them from
the attention of customers who had no wish to encounter them.
Cuts in this category are to remove material which in the Board's
view is depraving and corrupting in the meaning of the Obscene
Publications Act, in particular scenes of forcible or sadistic
sex (cross-referenced under sexual violence). Other cuts in this
category are to scenes in which the degree of visual explicitness
is such that a significant number of courts would be likely to
find the work obscene, as witnessed by the results of obscenity
cases in England and Wales supplied to the Board by the Crown
Prosecution Service. Standards in these matters vary in different
parts of the country, although there is a tendency for juries
to acquit in obscenity cases where the sex scenes are wholly consenting.
The Board remains unconvinced that such erotic visuals are truly
depraving and consulting, but it has always erred on the side
of caution, and in 1988, it was the explicitness of sexual depictions
in many of the tapes submitted just before the deadline which
resulted in 20 of these "R18" videos requiring cuts,
to a total of nearly 51 minutes in screen time.
1989
EXTRACT FROM
THE PRESIDENT'S
INTRODUCTION
The best laid plans of public bodies are at
the mercy of history and economic pressures. And so the deadline
for classifying every video in the shops was succeeded not by
a pause for retrenchment and reassessment, but by an urgent need
to expand. This was the Board's task during most of 1989 in order
to keep pace with the unprecedented demand. A thriving and now
respectable video industry exceeded all forecasts with its brisk
volume of submissions, while at the same time trading standards
officers were starting to discipline the laggards and to demand
a steady flow of expert evidence from the BBFC. That the Board
was able to meet these demands out of its own resources is a matter
of some pride.
The distinction which the Board seeks to draw
between manners and morals, offence and harm, is never straightforward.
There is to some extent a moral issue which underlies manners,
since the injuries which follow from breaches of civility may
be deeply felt. A mannerly society is one that considers the feelings
and susceptibilities of individuals, and consideration for others
can be seen as a moral issue. Parental concern about bad language
in videos viewed in the home is one such issue, for which stricter
classification is a remedy, not a panacea.
Another area in which consideration for others
is paramount is blasphemy. Rumours on that score proved unreliable
when focused in 1988 on the film THE LAST TEMPTATION OF CHRIST.
This turned out to be a reinterpretation of Christ's life and
passion rather than a scurrilous attack. By the time the video
version was released in 1989, the storm had passed, but in the
autumn, the issue surfaced again with a short video about the
supposed sexual fantasies of St Teresa. In British law, blasphemy
is distinct from heresy, having nothing to do with questions of
doctrine or dissent. Issues of conscience may be fully debated
in Britain, but a degree of civility is enjoined on those who
attack the deepest religious feelings of believing Christians.
The Video Appeals Committee confirmed the Board's legal advice
that the video under review was blasphemous in tone and treatment
and that the Board had no choice but to refuse it a certificate.
During the hearing and afterwards, the Board reaffirmed its view
that it was invidious in a modern pluralist society that the law
should single out only one religion for protection, echoing Lord
Scarman's judgment in the House of Lords (1979) that "in
modern Britain it is necessary not only to respect the differing
religious beliefs, feelings, and practices of all, but also to
protect them from scurrility, vilification, ridicule, and contempt."
The line between fair comment and gratuitous insult is never clear,
but it is a line the Board attempts to draw with the greatest
care.
Video violence was less of a problem in 1989,
since fewer extreme examples seem to have been imported by British
distributors, most of whom are by now familiar with BBFC policy
on the need to limit both the quantity and intensity of violence
which films and videos regularly deliver to children, teenagers
and young adults. The Broadcasting Standards Council in its 1989
Code of Practice cited public concern that regular exposure to
violence may desensitise an audience, adding that "a society
which delights in or encourages cruelty or brutality for its own
sake is an ugly society, set on a path of self-destruction."
This is a line the BBFC has pursued for many years, and it welcomes
signs that such principles will inform the transmission standards
of all the multifarious satellite and cable services which will
soon compete with broadcast TV and video for the supply of home
entertainment in Britain. In 1989, the Board began to apply such
principles to the classification of films for satellite television.
****
37. Only one video was refused a certificate
in 1989, having been found blasphemous in the legal sense, the
first time in the Board's history that a film or video has ever
been rejected on those grounds. Cuts for blasphemy had been required
in two videos in previous years, but in 1989 an 18-minute erotic
video raised problems of a different sort. Unlike THE LAST TEMPTATION
OF CHRIST, the treatment of the crucifixion here was informed
not by its meaning as an act of redemption or martyrdom, but by
its erotic power in the visualised fantasies of a nun. For much
of its length, it focused on the body and blood of the crucified
Christ in a context of imagery the Board has come to associate
with soft pornography.
38. BBFC misgivings were confirmed by leading
Counsel, who advised that blasphemy is committed when the tone,
style and spirit in which God, Jesus Christ or the Bible is treated
is so contemptuous, reviling, scurrilous or ludicrous as to outrage
and insult the feelings of believing Christians. In its letter
of rejection, the Board explained that the problem was related
not to the work's sexual imagery, which remained within the limits
of the "18", but to the fact that for a major proportion
of the work's duration, these sexual images were focused on the
human figure of the crucified Christ. If the male figure were
not Christ, the letter stated, or if the overt expressions of
sexuality between the nun and the Christ figure were removed,
the problem would not arise. Since the BBFC must avoid classifying
works which infringe the criminal law, the producer's reluctance
to cut left it no choice but to refuse a certificate. This was
appealed, and the written decision of the Video Appeals Committee
is summarised on pages 17 to 20.
THE VIDEO
APPEALS COMMITTEE
48. Under Section 4(3) of the Video Recordings
Act, the Video Appeals Committee hears appeals against BBFC decisions
more restrictive than the distributor thinks appropriate. Only
one appeal was heard during 1989, the sixth since the Act came
into force. For the first time, it was an appeal against the Board's
refusal to grant a classification certificate to a video work,
in this case the work entitled VISIONS OF ECSTASY. The grounds
for the refusal were equally unprecedented: blasphemy, a common-law
test that had fallen into disuse until 1979, when it was validated
by the House of Lords in a landmark judgment.
49. In the Home Secretary's Letter of Designation,
the Board is enjoined to "avoid classifying works which are
obscene in the meaning of Obscene Publications Acts or which infringe
other provisions of the criminal law." Strong advice, but
as the Board's Counsel pointed out in the hearing, it is given
force by the Court of Appeal's ruling in 1976 that "no licensing
authority may give its consent to that which is unlawful"
[R v Greater London Council ex parte Blackburn].
50. The written decision of the Video Appeals
Committee, signed by its President, Peter Barnes CB, gives a full
account of the issues:
". . . the Board based its refusal solely
upon the ground that the work was blasphemous according to the
Criminal Law and made it clear that it would have granted an `18'
category Certificate if the male figure had been anyone other
than Christ."
The Panel says it is in no doubt that, under
its designation,
"the Board should refuse a Certificate if
it decides that in all probability publication could constitute
a criminal offence and that . . . a reasonable and properly directed
jury would convict."
"Indeed, where it is sufficiently plain
that publication could be an offence, the Board might itself be
at risk of being charged with aiding and abetting were it to grant
a Certificate."
"We consider that on appeal from a decision
of the Board, the Panel of the Video Appeals Committee should
adopt the same criteria but, in reaching its decision, must take
into account any new factors which may have arisen since the Board
considered the case [evidence from witnesses, arguments by Counsel
for the parties, affidavits etc]."
"We did not however find it at all easy
to ascertain and apply what we take to be the present law of blasphemy."
Reference is then made to the "Gay News"
case and to the judgment of the House of Lords:
". . . Lord Scarman said that it was unnecessary
to speculate whether an outraged Christian would feel provoked
. . . to commit a breach of the peace, the true test being whether
the words are calculated to outrage and insult the Christian's
religious feelings, the material in question being contemptuous,
reviling, scurrilous or ludicrous matter relating to God, Jesus
Christ, or the Bible or the formularies of the Church of England
. . .."
". . . Lord Diplock said the material must
be `likely to arouse a sense of outrage among those who believe
in or respect the Christian faith'."
"In the present case the Board's Director,
Mr James Ferman, said in evidence that the Board's view was that
the video was `contemptuous of the divinity of Christ'. He added
that although the Board's decision was based upon its view that
the video is blasphemous (Blasphemy being an offence which relates
only to the Christian religion), it would take just the same stance
if it were asked to grant a Certificate to a video which, for
instance, was contemptuous of Mohammed or Buddha."
There follows a lengthy description of the 18
minute work, which is:
"shot throughout in semi-darkness to a background
of sombre music and [in the] complete absence of any dialogue.
At the beginning one sees a young nun in a black habit piercing
the palm of one hand deeply with a large masonry nail until the
blood begins to flow. She writhes in pain and spreads the blood
over her naked breasts and clothing…. . . she knocks over
a silver chalice and proceeds to lick the wine from the floor.
After further writhings she faints or loses consciousness. The
remainder of the work is clearly intended to portray her `visions
of ecstasy' whilst in this state.
"In this second part we see the nun, now
dressed in a white habit, standing with her arms held aloft above
her head by a cord of white muslin suspended from above and tied
round her wrists. A second, near naked, female form slowly crawls
towards her. Upon reaching her, she begins to caress the nun's
feet and legs, then her midriff and naked breasts, and finally
to engage in passionate kisses with her. Throughout this sequence
the nun appears to be writhing in exquisite erotic sensation.
"This sequence is intercut . . . with [one]
which shows the nun with the body of Christ just after the Crucifixion
when the cross has been lowered to the ground with Christ still
upon it. It becomes clear that at this stage He is still just
alive. The nun first kisses the stigmata of his feet before moving
up his body and kissing or licking the gaping wound on his right
side. Then she sits astride him, seemingly naked under her habit,
moving in a motion which viewers may take to be one reflecting
intense erotic arousal (reinforced by the intercut shots of her
reaction to the attentions of the female figure) and proceeds
to kiss Him upon the lips. There follows a close-up shot lasting
some three or four seconds in which, by the movement of his lips,
Christ appears to respond to her kisses. Finally the nun entwines
her fingers with those of Christ and, as she does so, the fingers
of Christ are seen to curl upwards in response. This close-up
shot also lasts some three of four seconds and brings the video
to an end.
"Although throughout this description we
have referred to the central character just as `the' nun, we accept
without reservation that the figure [the film-maker] had in mind
was St Teresa of Avila, a sixteenth century Carmelite nun who
is known to have had ecstatic visions of Christ although, incidentally,
these did not start until she was 39 years of age—in marked
contrast to the obvious youthfulness of the actress who plays
the part.
"From the writings of St Teresa herself,
and . . . of others, there seems no reason to doubt that some
of her visions were of seeing the glorified body of Christ and
being shown his wounds but . . . apart from the age discrepancy—a
comparatively minor matter—we were made aware of nothing
which would suggest that Teresa ever did anything to injure her
hand or that any element of lesbianism ever entered into her visions.
More importantly, there seems nothing to suggest that Teresa,
in her visions, ever saw herself as being in any bodily contact
with the glorified Christ. As one author, Mr Stephen Clissold,
puts it: `Teresa experienced ecstasy as a form of prayer in which
she herself played almost no part'. So, in view of the extent
of the artistic licence, we think it would be reasonable to look
upon the video as centering upon any nun of any century who, like
many others down the ages, had ecstatic visions.
"There is also another reason for taking
this stance: unless the viewer happens to read the cast list which
appears on the screen for a few seconds, he or she has no means
of knowing that the nun is supposed to be St Teresa, nor that
the figure of the second woman is supposed to be her Psyche. And
he or she in any event may well be unaware that Teresa was a real-life
nun who had ecstatic visions.
. . . although we have thought it proper to dwell
at some length with the `St Teresa' aspect, we are of the opinion
that in practice, when considering whether or not the video is
blasphemous, it makes little or no difference whether one looks
upon the central character as being St Teresa or any other nun.
The appellant, in his written statement, lays
stress upon the undoubted fact that the whole of the second half
consists of Teresa's vision or dream. Hence, he says, the video
says nothing about Christ, his figure being used only as a projection
of St Teresa's mind, nor was it his intention to make that figure
an active participant in any overt sexual act. Although we quite
appreciate the logic of this point of view, we have reservations
about the extent to which a vision or dream sequence can affect
the question of whether what is pictured or said is blasphemous.
It would, for instance, be possible to produce a film or video
which was most extremely contemptuous, reviling, scurrilous or
ludicrous in relation to Christ, all dressed up in the context
of someone's imaginings. In such circumstances we find it hard
to envisage that, by such a simple device, it could reasonably
be said that no offence had been committed. If in our opinion
the viewer, after making proper allowance for the scene being
in the form of a dream, nevertheless reasonably feels that it
would cause a sense of outrage and insult to a Christian's feelings,
the offence would be established.
In the opinion of a majority of the Panel the
video did not, as the appellant claims, explore St Teresa's struggles
against her visions but exploited a devotion to Christ in purely
carnal terms. Furthermore they considered that it lacked the seriousness
and depth of `The Last Temptation of Christ' with which Counsel
for the appellant sought to compare it. Indeed the majority took
the view that the video's message was that the nun was moved not
by religious ecstasy but rather by sexual ecstasy, this ecstasy
being of a perverse kind—full of images of blood, sado-masochism,
lesbianism (or perhaps auto-erotism) and bondage. Although there
was evidence of some element of repressed sexuality in St Teresa's
devotion to Christ, they did not consider that this gave any ground
for portraying her as taking the initiative in indulged sexuality.
They considered the over-all tone and sprit of
the video to be indecent and had little doubt that all the above
factors, coupled with the motions of the nun whilst astride the
body of Christ and the response to her kisses and the interwining
of the fingers would outrage the feelings of Christians, who would
reasonably look upon it as being contemptuous of the divinity
of Christ.
In these circumstance the majority were satisfied
that the video is blasphemous, that a reasonable and properly
directed jury would be likely to convict and therefore that the
Board was right to refuse to grant a Certificate. Hence this appeal
is accordingly dismissed."
51. There is a sting in the tail, however,
since the decision was not unanimous. A sceptical minority, "whilst
being in no doubt that many people would find the video to be
extremely distasteful," apparently took the view that in
the present climate on a blasphemy charge, "it is unlikely
that a reasonable and properly directed jury would convict."
52. The implications for future policy are
twofold:
(1) If the Board is convinced that the publication
of a particular video work could constitute a criminal offence
and that a reasonable and properly directed jury would convict,
it has no choice but to refuse a certificate; but
(2) There can never be certainty where a
jury is concerned, and the Board's judgment must rest on a balance
of probability.
53. During 1989, the full membership of
the Video Appeals Committee was as follows:—
President:
Peter Barnes CB, former Deputy Director of Public
Prosecutions
Members:
Nina Bawden FRSL JP, novelist, President, Society
of Women Writers and Journalists
Richard Hoggart FRSL, former Professor of English
and Warden of Goldsmiths College, University of London
Dr Neville March Hunnings, lawyer and author,
editor Common Market Law Reports
The Hon Mrs Sara Morrison, member of the Annan
Committee, and former director, Channel Four Television Company
Ltd
Dr Faith Spicer OBE JP, psychotherapist and
founder Director, London Youth Advisory Centre
Laurie Taylor, Professor of Sociology, York
University
T J Taylor, Assistant Director, Department of
the DPP
Fay Weldon, novelist and playwright
Sir Brian Young, former Director-General, Independent
Broadcasting Authority
BBFC ANNUAL REPORT
(1996-97)
VIDEO APPEALS COMMITTEE
The Video Appeals Committee is independent of
the Board and was constituted under section 4(3) of the Video
Recordings Act to hear appeals from submitting companies against
any decision of the Board which they consider stricter than warranted
by the work itself.
Over the 12 years from 1985 to 1997, 11 appeals
have been lodged, one of which will be heard in January 1998.
Of the other 10, five appeals were dismissed and five granted,
the most recent having been heard just before this report went
to press. Six appeals were against the awarding of a "R18"
sex shop category to videos designed primarily as sex entertainment.
Three of these appeals were granted and three refused. Since the
appropriate borderline between "18" and "R18"
has always been a matter for debate, it is a pity that so few
appeals have been heard on this issue. A significant body of case
law would have been useful.
Of the other four appeals, one was against the
Board's rejection of a Pakistani video calling for the assassination
of Salmon Rushdie, which, in the view of the Board's legal advisers,
constituted a clear case of criminal libel. The appeal was upheld
when a letter was received from the novelist to say that he would
not press a libel charge, since that would be contrary to the
"freedom of expression" guaranteed by the European Convention
on Human Rights. Despite the issuing of an "18" certificate,
the video was never released in Britain.
Two decisions of the Appeals Committee to endorse
the Board's refusal of a certificate were referred to higher courts
in 1996, the first time this had occurred in the Board's entire
84-year history. In both cases, Board judgment was vindicated.
One case turned on the criminal offence of blasphemy,
with the Board taking the view that it had no choice but to reject
the video Visions of Ecstasy as blasphemous, since it was
bound by its terms of reference to avoid classifying works which
infringe any provisions of the criminal law. The Appeals Committee
agreed, and the appellant took his case to the European Court
of Human Rights, claiming a violation of his right to freedom
of expression under Article 10 of the European Convention. The
case was heard in March 1996, and the judgment was delivered in
November. In its written judgment, the Court had to determine
whether the Board's decision to refuse a certificate was justified
under Article 10 as a restriction "prescribed by law"
which "pursued a legitimate aim" that "was necessary
in a democratic society". To all these questions the Court
answered yes, ruling, inter alia, that:—
(1) "the Board had acted within its
powers".
(2) "the appellant could, with appropriate
advice, reasonably have foreseen that certain scenes in the film
could fall within the scope of the offence of blasphemy".
(3) The Boards decision "had been intended
to protect against seriously offensive attacks on matters regarded
as sacred by Christians".
(4) "Blasphemy law did not prohibit
the expression of views hostile to the Christian religion or of
any opinion offensive to Christians. What the law sought to control
was the manner in which such views were advocated. The extent
of insult to religious feelings had to be significant."
(5) "Visions of Ecstasy portrayed the
crucified Christ in an act of an overtly sexual nature. The national
authorities had considered that the manner in which such imagery
had been treated placed the focus less on the erotic feelings
of the character than on those of the audience (which was the
primary purpose of pornography). They had further held that no
attempt had been made to explore the meaning of this imagery beyond
engaging the viewer in a `voyeuristic erotic experience'. The
public distribution of this video could therefore outrage and
insult the feeling of believing Christians and constitute the
offence of blasphemy."
(6) The reasons given to justify the decisions
of the BBFC and the Video Appeals Committee "could be considered
both relevant and sufficient and the interference could not be
said to be arbitrary or excessive."
The Court's official Summary of the Judgment
is given in full in Appendix ?
Last year's Annual Report included a very full
account of the Video Appeals Committee's decision in June 1995
to dismiss the Appeal against the Board's refusal of a certificate
to a Brazilian women's prison film called Bare Behind Bars.
In 1996 that decision too was challenged before the courts. The
Appeals panel had accepted the Board's description of the work
as "not a prison drama, but a sex film of a familiar exploitative
kind, in which the predatory governor and prison officers are
engaged for the most part in the sexual abuse of prisoners. The
prisoners are indistinguishable, herded together naked and exposed,
being treated like animals and behaving as such. Since they have
no option but to submit to the sexual attention of their gaolers,
virtually all the sex is coercive by dint of setting. So, indeed,
is the nudity. It is the coercive, degrading and sadistic aspects
of the video which led to its being refused classification."
The Committee's unanimous judgment concluded
as follows:
"Considering this video as a whole, we were
of the opinion that the hour-long prison scenes were almost entirely
devoted to the degradation of young women, that the minor humorous
incidents were quite sufficient to offset this, and that the video
was wholly lacking in any other dramatic or artistic redeeming
feature. We are therefore … of the opinion that the Board
was justified in its refusal to grant a Certificate."
In late 1995, the Court granted leave to refer
the decisions of the Board and the Committee to Judicial Review.
The hearing was set for November 1996, Counsel were engaged and
affidavits prepared. Then, with less than 10 days to go, the application
for Judicial Review was withdrawn without explanation, and the
Appellant's lawyers agreed to meet all the Board's reasonable
costs. Not a penny has been forthcoming.
In the summer of 1997, an appeal was lodged
against the Board's refusal of a certificate to the video game
Carmageddon, a car racing game and demolition derby in
which the player is encouraged and rewarded for the killing of
innocent pedestrians. This was the first game ever submitted in
which points were given for the deliberate killing of docile,
non-combatant figures.
In the Board's view this scenario was morally
reprehensible and likely to encourage callousness towards the
sufferings of others. (See Board's Reply to the Appeal, Appendix
VI). The hearing took place on 31 October, and the result was
a split decision, three to two in favour of the appellant, as
a result of which an "18" certificate was issued. The
written decision sets out the arguments of both sides of the panel.
It will be reported on in full in next year's Annual Report.
At the beginning of 1996, the President of the
Video Appeals Committee, Peter Barnes CB, died after a short illness.
He was succeeded by John Wood CB, another former Deputy DPP. Three
other long serving members of the Committee, Richard Hoggart,
Dr Faith Spicer, and Sir Brian Young, retired in 1996, and there
were four new appointments to the Committee. Biddy Baxter, Dr
Philip Graham, Clive Hollins and Claire Rayner, all of whose backgrounds
are given below. A fifth nominee, Mary Tuck, criminologist and
former Head of the Home Office Research Unit, was to take up her
appointment in the autumn of 1996, but died quite suddenly. She
will be much missed by all who knew and worked with her.
In 1996-97, the full membership of the Video
Appeals Committee was as follows:
President:
John Wood CB, former Deputy Director of Public
Prosecutions; former Director, Serious Fraud Office; former Director
of Public Prosecutions, Hong Kong
Members:
Nina Bawden FRSL JP, novelist, President, Society
of Women Writers and Journalists
Biddy Baxter, former producer of Children's
Programmes, BBC Television; Editor of Blue Peter for 26 years;
Consultant to the Director General of the BBC since 1988.
Dr Philip Graham, Chair, National Children's
Bureau; former Professor of Child Psychiatry, Institute of Child
Health, former Consultant Psychiatrist, Great Ormond Street Hospital
for Sick Children
Clive Hollins, forensic psychologist; lecturer
in psychology, University of Leicester
Dr Neville March Hunnings, lawyer, author, editor
Common Market Law Reports
Claire Rayner, author, journalist and broadcaster
The Hon Mrs Sara Morrison, Annan Committee and
former director, Channel Four Television Co Ltd
Laurie Taylor, broadcaster and Professor of
Sociology, York University
Fay Weldon, novelist and playwright.
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