There are small number of criminal law cases that all law students can be relied upon to remember, depending upon when they studied law. R v Brown is probably one of the most easily remembered – the House of Lords were asked to decide whether a group of sado-masochistic homosexuals who willingly consented to various practices including genital torture could be convicted for assault occasioning actual bodily harm under section 47 and/or wounding under section 20 of the Offences against the Persons Act 1861 (yes to both –  2 All ER 75).
Older lawyers may more readily recall R v Penguin Books Ltd  Crim LR 176, more readily remembered as the Lady Chatterley’s Lover trial. This was a prosecution brought under the Obscene Publications Act 1959, as there were a number of objections to the frequent use of the word “fuck” and to the use of the word “cunt” in D H Lawrence’s book, as well as to the descriptions of the sex between the gamekeeper Oliver Mellors and Constance, Lady Chatterley. However, Penguin Books were found not guilty, being able to rely upon the defence that the book had literary merit. The prosecution was criticised for being out of step with 1960s social norms and common understanding of what was obscene.
For current law students, the case of R v Peacock may also obtain a certain notoriety. Michael Peacock was tried in the Southwark County Court for a number of offences under the Obscene Publications Act 1959 as a result of his supplying DVDs that were said to contain obscene material, including pornography that includes gay fisting, urolagnia and other BDSM acts. As he was cleared on all counts by the Southwark jury on 6 January 2012, it is safe to say that the social mores of the Twenty-first century have moved on significantly from the 1960s, as by giving a not guilty verdict the jury found that such material cannot be considered to deprave or corrupt.
There case showed the number of oddities about the way obscenity is considered for prosecution. It is clear that under the Crown Prosecution Service current guidelines on obscenity, some acts which, even considering R v Brown, are lawful, are considered to be obscene. The current Crown Prosecution Service guidelines on charging under the Obscene Publications Act state:
“It is impossible to define all types of activity which may be suitable for prosecution. The following is not an exhaustive list but indicates the categories of material most commonly prosecuted:
• sexual act with an animal
• realistic portrayals of rape
• sadomasochistic material which goes beyond trifling and transient infliction of injury
• torture with instruments
• bondage (especially where gags are used with no apparent means of withdrawing consent)
• dismemberment or graphic mutilation
• activities involving perversion or degradation (such as drinking urine, urination or vomiting on to the body, or excretion or use of excreta)
Unless any of the factors listed above are present within the given case, the Crown Prosecution Service will not normally advise proceedings in respect of material portraying the following:
• actual consensual sexual intercourse (vaginal or anal)
• oral sex
• mild bondage
• simulated intercourse or buggery
• fetishes which do not encourage physical abuse.”
This means that in practice pornographic film producers tested the boundaries by, for example, adopting what is (was?) known as the “four finger rule” so that they avoid criminal prosecution for depicting fisting.
However, the outcome of this case depended upon what the jury considered to be acceptable – they had the responsibility to decide whether the acts being shown in the DVDs were likely to deprave or corrupt a viewer so as to be obscene under the Obscene Publications Act. Whilst there was much speculation on social media and blogging channels about where the boundaries might have been drawn, with references to the “four finger” rule, the degree of penetration for fisting and other boundaries concerning the BDSM acts discussed in the case, it is clear that the jury were un-phased.
The result will be that the more of the CPS points in the top list above will drop down into the second list, but many are now arguing that the Obscene Publications Act itself has had its day. Whilst the Peacock case sets the boundaries for what is obscene as at the date of the verdict, there are still practices that have not been put before a jury. For example, after Peacock urolagnia would seem to be permissible, but not coprolagnia. Is that a sensible distinction?
Many will question the reason for the continuation of the old 1959 Act, given that possession of extreme pornographic images has been an offence since January 2009 (section 63 of the Criminal Justice and Immigration Act 2008). Parliament decided to define extreme images as ones which portrays, in an explicit and realistic way, an act which (a) threatens a person’s life; (b) results, or is likely to result, in serious injury to a person’s anus, breasts or genitals; or (c) involves sexual interference with a human corpse. Images portraying a person performing an act of intercourse or oral sex with an animal (whether dead or alive) are also extreme images under the 2008 Act.