We can celebrate for the outcome in R v Peacock, argues Alex Antoniou, but obscenity law is not dead; at least, not yet

The Obscene Publications Act 1959 (OPA or the 1959 Act henceforth), passed over half a century ago, was quite recently wielded against Michael Peacock, a male escort professionally known as ‘sleazy Michael’, who had been accused of distributing obscene DVDs for gain. His determination to challenge this ‘arcane and archaic legislation’ was vindicated on 6 January 2026 when a unanimous jury in a landmark obscenity trial at Southwark Crown Court returned a not guilty verdict.

The facts

The defendant in R v Peacock was charged on indictment with six counts under the 1959 Act for distributing allegedly obscene DVDs. The recordings at issue had been advertised for sale on the Internet and Craigslist. Mr Peacock had been selling them from his flat in Brixton. Officers from SCD9, the Metropolitan Police unit investigating human exploitation and organised crime (the former Obscene Publications Squad of the Met), came across Mr Peacock’s services and operated an undercover test purchase in January 2009. Six DVDs were deemed obscene and Mr Peacock was prosecuted.

The content of the publications

The recordings at issue featured hardcore gay sexual activities: fisting (the insertion of five fingers of the fist into the rectum of another male); urolagnia (in Peacock, men urinating in their clothes, onto each others’ bodies and drinking urine; aka ‘golden showers’); and BDSM[1] (in this case hard whipping, the insertion of needles and urethral sounds, electrical ‘torture,’ staged kidnapping and rape, whipping, as well as smacking of saline-injected scrotums).

This is exactly the kind of material that the Crown Prosecution Service (CPS hereafter) and the police have long claimed was still considered obscene by the jury. More precisely, the CPS has devised a list of ‘material most commonly prosecuted’ within the framework of England’s obscenity law. Far from providing an exhaustive list, they state that ‘it is impossible to define all types of activity which may be suitable for prosecution’.

The official CPS guidance refers not only to the depiction of acts that are necessarily non-consensual, but also to a fair number of sexual activities that may be entirely consensual. The activities contained in the DVDs at issue are not illegal in themselves, but their representation in publications may fall foul of the OPA and therefore attract criminal liability.

No one contested the legitimacy of consenting to being fisted or punched in the testicles. More to the point was the question of who might see it happening, which exposes the disparity between what the law permits consenting adults to do and what permits them to see, hear or read of others doing. In other words, what was on trial in R v Peacock was not sex, but rather the depiction of sex.

Most people charged under the 1959 Act plead guilty, since a not guilty plea and a court case resulting in a guilty verdict could lead to a more severe sentence. Many pornography producers have been reluctant so far to challenge the presumption that practices involving fisting and urination are obscene; hence, this supposition had endured. However, Michael Peacock’s decision to pursue this case constituted the first test of the OPA before a jury for many years, thereby challenging the so far uncontested views of the police and the CPS on what is obscene.

The obscenity test

The long title of the Obscene Publications Act 1959 provides that the purpose of the Act is ‘to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography.’ Section 1 features the much-criticised ‘deprave and corrupt’ test, according to which:

[…] an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

To deprave means ‘to make morally bad, to debase or to corrupt morally.’[2] To corrupt means ‘to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin a good quality; to debase; to defile.’[3] Whether the material in question would deprave and corrupt its likely audience is a question of fact for the jury to consider.

It is the potential effect of the article on its likely audience that matters, so an article cannot be inherently obscene in isolation from it. The publication in question does not have to be judged against the society as a whole or against particularly impressionable people, unless they are part of the likely readers, viewers or listeners. In other words, whether an article is obscene depends on what is being or is going to be done with it; hence, where a case is tried on indictment, the jury must put themselves in the shoes of the likely audience.

The CPS stated that it was in the public interest to prosecute Mr Peacock: ‘The prosecution was not only about the content of the material, but the way in which it was being distributed to others, without checks being made as to the age or identity of recipients’. They maintained that customers were not aware of the explicit content and the defendant paid no attention to the identity of his buyers. As the recorder, James Dingemans QC, also remarked in his summing up, ‘in a civilised society, lines must be drawn.’

The jury was not convinced though. People likely to see the DVDs at issue were gay men specifically looking for this type of material. Peacock stated that in fact customers asked him for specific titles or niches and knew exactly what they were buying. In essence, the jury had to decide whether knowledgeable customers with certain sexual proclivities, who had actually sought out and paid for DVDs featuring a specific niche of porn, would be depraved and corrupted by it.

After having watched large parts of the ‘hard core’ male-on-male DVDs over several hours during the trial and after having been carefully warned against sentencing out of any impulse of homophobic antipathy, the jury, who presumably had not be depraved and corrupted in the process, decided – in less than two hours - that the material under consideration is unlikely to ‘deprave and corrupt’ the viewer. They found Peacock not guilty on all counts. Interestingly enough, the defendant’s lawyer, Nigel Richardson, stated that, although the jurors were initially shocked, they looked quite bored very quickly.

The significance of the outcome: the bright side

The outcome in R v Peacock has been warmly welcomed. The case hit the headlines and the media pronounced the 6January 2012 ‘a great day for sexual liberties. […] For gay rights campaigners and for every one of us that believes in social and sexual liberty, it’s a day to make a five-digit victory sign.’

The defendant’s solicitor, Myles Jackman, who provided support for the defence case, commented that: ‘The jury’s verdict - in the first contested obscenity trial in the digital age - seems to suggest “normal” members of the public accept that consensual adult pornography is an unremarkable facet of daily life.’

Moreover, Feona Attwood, a Professor of Sex, Communication and Culture at Sheffield Hallam University who attended the trial, asserted that the law has been overtaken by new understandings of how people think about sexuality and the portrayal of sex and remarked:

I think the law does not make sense. All the evidence that was heard was about whether the material had the ability to harm and corrupt. The question now is, what does that actually mean? What is significant is that the jury understood [the issues at stake].

David Allen Green, Solicitor and New Statesman legal blogger also welcomed the verdict and commented that:

[…] obscenity is a curious criminal offence, and many would say that it now has no place in a modern liberal society, especially when all that is being portrayed in any ‘obscene material’ are the consensual (if unusual) sexual acts between adults.

Previous prosecutions under the OPA related to written material also ended in failure. Penguin Books were unsuccessfully prosecuted in 1960 under the same statute for publishing DH Lawrence’s Lady Chatterley’s Lover after its acquittal on an obscenity charge in the USA.

The parade of distinguished figures of the English intellectual life to provide expert evidence rendered the case a cause célèbre in England. The British obscenity law has been marked by seminal cases since: H Selby’s prosecution in 1968 for his frank portrayals of drug use, street violence, gang rape and homosexuality in his 1964 novel Last Exit to Brooklyn, the Oz magazine trials in 1971, the trial of D Britton’s novel Lord Horror in 1989, the Inside Linda Lovelace trial in 1977.

What do these cases have in common? They were all subject to failed prosecutions (the convictions in Lovelace, Oz and Lord Horror were overturned on appeal). After the Court of Appeal overturned the conviction in Inside Linda Lovelace, the Metropolitan police were reported as saying that if that work was not obscene, then nothing was. Thus, there had grown an assumption that the written word fell outside the scope of the 1959 Act.

There are two exceptions to this rule: the publication of the Little Red Schoolbook in the early 1970s, containing chapters on sexual intercourse, masturbation and abortion, found to be obscene, as well as the more recent Girls (Scream) Aloud case, which in the summer of 2009 provoked much comment about the CPS abandonment shortly before trial of the prosecution of Darryn Walker, who had been charged with publishing a ‘popslash’ fantasy on a blog involving the mutilation, rape and murder of each member of the girl band by their coach driver.

In both cases the key factor that prompted the prosecution was that the potential audience was likely to be people of impressionable age and thus more vulnerable to being depraved and corrupted.

The verdict in R v Peacock clearly demonstrates that public opinion in 2012 has moved on considerably with respect to supposedly obscene visual material as well. Peacock has clarified the law in respect of fisting and urination pornography. Hence, the CPS above mentioned list needs to be reviewed in light of this latest judgment.

The outcome in Peacock rearranged the boundaries of the British obscenity law and stresses that the Act’s history appears to be littered with cases like these, revolving around who can be corrupted and who cannot. As Myles Jackman put it, Peacock could be ‘the final nail in the coffin for the Obscene Publications Act in the digital age.’

Furthermore, the not guilty verdict also confirms that society has become more comfortable with the idea of consent in sexual activities and less condemnatory as far as unusual sexual predilections are concerned. As Dr Brooke Magnati observes, ‘the ethics of sex are entirely about consent. Anything else is hollow moralising.’

Peacock clearly shows that the general public, based on appropriate guidance, is absolutely able to distinguish between real corruption or actual harm and what consenting adults opt for.

Catherine Stephens, activist with the International Union of Sex Workers, commented: ‘In a week that has also seen the collapse of the Sheila Farmer trial for brothel keeping, it is time to decriminalise the sexual activities of consenting adults, whether or not they are in front of a camera. These two trials were an appalling waste of public resources: the law as it stands does nothing to enhance the safety either of the general public or those who work in the adult industry and often actively increases the dangers we face.’

The current obscenity test has attracted much censure for being out-of-date. It was workable at the time when there was a consensus on sexual values enforced by religious teaching, but, nowadays, sexual attitudes are so diverse that the concept of a common set of values is not viable. Moreover, the current test is based not on the offensiveness of any material, but on the effect it has on its potential audience. Hence, it is argued that the test is ‘paternalistic – it robs the viewer of their rational status. […] [it is] one from a different era that offends our most basic personal autonomy.’ Its consequence is that individuals’ private choices are regulated by what the police, the CPS and ‘twelve shopkeepers’[4] consider as tolerable.

Last, it should be noted that certain ‘torture’ scenes included in the DVDs in question are practically what the recently enacted ‘extreme porn’ law seeks to outlaw. Given that the new criminal offence of possession of extreme pornographic images is intended to catch ‘only material that would be caught by the OPA were it to be published in this country’ it may be argued that Peacock clarifies what types of material it is legal to possess under the extreme pornography provisions in the Criminal Justice and Immigration Act 2008, under section 63 of which fisting may be considered as: ‘an act which results, or is likely to result, in serious injury to a person’s anus, breasts or genitals.’

Not much scope for celebration: the dark side

The Metropolitan Police has pledged to meet with the CPS and the British Board of Film Classification (BBFC) to review the current guidelines on obscenity. The BBFC has been rejecting works citing the current interpretation of the OPA. On which basis do they order the cutting of a certain work? They simply take into account the police and CPS aforementioned guidance on what they believe members of a jury would find obscene. Peacock questions the whole edifice of film classification, since the BBFC position thus far has been that the CPS has a good idea of what would be considered as obscene by a jury.

Certain prohibitions can now be dropped, but it remains to be seen how the BBFC will take Peacock on board, since it is still entitled to order re-editing of a film based on its own guidelines. Urolagnia may now generally be allowed, yet changes may be required as a condition of classification, if a submitted work raises concerns over its degrading content. Furthermore, some allowances may also be made for fisting under the proviso that it does not cause any discomfort to participants and forms part of a ‘moderate, non-abusive, consensual activity.’

Currently, fisting is restricted to the ‘four finger’ rule, which irrationally means that depictions of fisting are legitimate as long as the thumb is not inserted into a participant’s anus. However, ‘strong physical […] abuse, even if consensual, is unlikely to be acceptable,’ while the infliction of pain or acts in a sexual context which may cause lasting physical harm, whether real or simulated, won’t be tolerated.

As far as BDSM scenes are concerned, it may be argued that Peacock won’t significantly impact on the BBFC policy, especially in light of R v Brown (1992) (aka the Spanner case), the House of Lords judgment which remains effective law and established that a defendant may be convicted of unlawful wounding and assault occasioning actual bodily harm in the context of sado-masochistic activities inflicting injuries neither transient nor trifling, despite the fact that the acts were committed in private, that the participant on whom the injuries were inflicted consented to the acts in question and did not sustain any permanent injury.

Therefore, the OPA still exerts a fair influence over the policy of organizations such as the BBFC. The latter will more likely continue to restrict BDSM scenes by employing different justifications. It remains to be seen whether the UK film industry will see the implementation of more liberal classification standards.

In addition, section 3 of the OPA is still active: this allows the CPS and the police to seize and bring supposedly obscene material before a magistrate, who can in turn issue an order for its destruction. This is usually the preferred option for the majority of defendants, since charges under section 3 are brought against the material in question rather than its publisher or distributor.

Does the Peacock outcome really usher in a new epoch of sexual liberation? Jane Fae, writer on IT and the Law and an expert on the working of obscenity law in the UK, asserts that although the verdict in Peacock heralded the end of an era for proponents of greater freedom of expression in the erotic arena, the political prognosis for current obscenity law is rather pessimistic in the long run.

It is important to bear in mind that not everyone is delighted with Peacock. The CPS stated that it respected the jury’s verdict, yet they stood by their decision to prosecute. Mediawatch-UK, which campaigns against violent, sexually explicit and obscene material in the media, suggests that the outcome in Peacock calls for the strengthening of obscenity laws, rather that its abolition. For them, the not guilty verdict is actually a red flag of the malfunction of the current law.

Commenting on the trial outcome, the director of the organisation, Vivienne Pattinson, pointed to the lack of concrete guidance as to what constitutes obscene and the difficulties in obtaining a conviction. ‘As a society we are moving to a place where porn is considered as kind of fun between consenting adults, but porn is damaging.’

In addition, the truth is in numbers. Latest figures indicate a substantial fall in the number of prosecutions under the OPA: the volume of offences in which a prosecution commenced in magistrates’ courts in 2008-9 was 152, compared to 82 in 2009-10 and 71 in 2010-11.

Ironically, it is just after this that prosecutions under the new sections introduced in January 2009 (ss 63-7 of the Criminal Justice and Immigration Act 2008) related to extreme pornographic images have dramatically increased in the last two years: according to the CPS, in 2009-10 prosecutions were brought in respect of 213 offences, whereas in 2010-11 the number of offences reached 995.

It is noteworthy that these latest figures released relate only to possession of extreme pornographic images portraying bestiality. Between 2009 and 2010, nearly 2000 offences under sections 63-67 of the CJIA Act 2008 reached a first hearing in the magistrate’s court. Note also that the ‘extreme porn law’ has shifted criminal responsibility from the producer, who is more likely to have access to appropriate legal advice, to the consumer.

Thus, anti-censorship advocates must stay alert: a meticulous review of obscenity law might ensue, but in the current climate of sexualisation anxiety it is likely that we will see not the end of obscenity but the widening and strengthening of existing laws, such as the ‘extreme porn law’ in the CJIA 2008, which constitutes an attempt to circumvent the OPA (just like the Video Recordings Act 1984).

In light of this, it may be argued that the OPA has functioned as a bulwark against more draconian and repressive regulation.

Concluding remarks: obscenity law is not dead; at least, not yet.

The result in Peacock does not set any precedent. It is not binding upon other courts and may be overturned by a higher court. Theoretically, it is possible for the police to arrest and charge someone under exactly the same circumstances, over exactly the same recordings now.

On the one hand, it has certainly whittled the CPS list down to half of the ‘likely to be found guilty’ representations. The verdict might discourage the police and the CPS from future prosecutions. To put it bluntly, we should expect more fisting and urination in porn films hereafter.

Image, left: Peacock celebrating outside Southwark Crown Court.

But on the other, with a dedicated ‘extreme pornography’ squad (the London Metropolitan Police’s Abusive and Extreme Images Unit) and many previous defendants pleading guilty rather than having their fetishes publicized during court proceedings, it may be argued that Peacock was merely another episode in this ongoing saga of unnecessary, expensive and unsuccessful obscenity prosecutions.

The intrinsically patriarchal obscenity law calls for radical amendments, not for simplistic legislative changes, by adding more unworkable and fundamentally intrusive offences, such as the newly introduced extreme porn provisions. The disappointing conclusion must be that one of the areas of law in urgent need of reform is less likely to receive it.

It is argued that the Ministry of Justice (MoJ) has a duty to protect the public from obscene publications; hence, they have no plans to amend the legislation and the law on assault regarding sexual consent. As Myles Jackman, a solicitor with a special interest in obscenity law, pointed out in an interview on the BBC Radio 4 PM programme regarding the implications of the verdict in R v Peacock,

[…] the MoJ, along with the BBFC, the police and the CPS are perfectly happy to shift the burden on to juries, instead of actually saying we need to re-evaluate what is obscene and what is not. They are saying, no, defendants, like Michael Peacock, they must go to court, they must go through the trauma of the process of thinking they may go to prison as a consequence of that and that is clearly not a desirable state.

The stressful, excruciating and expensive vagaries of the process should not be neglected: homes and offices raided by the police; the uncomfortable moment of arrest; the never-ending meetings with lawyers; revelations about an individual’s privacy and names publicly dragged through the mire.

Overall, the verdict in Peacock suggests that ‘the British stereotype of being prudish and conservative may not be completely true.’ While many commentators rushed to hang the flags of sexual freedom out and rejoice over the fact that the OPA is ‘on its last legs,’ the case heard before Southwark Crown Court has implications far beyond Michael Peacock’s acquittal.

Its true significance will emerge in the long run. It has re-ignited the debate concerning the abolition of obscenity laws, just like blasphemy law in 2008, and has kicked off a major discussion with two potential implications: first, according to the best case scenario, Peacock might lead to the 1959 Act being dispensed with on the basis that it is no longer applicable in modern day Britain; second, the worst case scenario, Peacock may result in a consultation and eventually in new legal provisions that will replace the old OPA (presumably with a stricter one) or even in the expansion of the existing list in the ‘extreme porn’ law.

Time will tell. In a nutshell, we can celebrate for the outcome in R v Peacock, but we can certainly not remain quiescent and complacent.