The decision has been recognised as a potentially important recognition of sexual freedom, and it has also been pointed out that this might undermine the whole basis of the regulation under the Obscene Publications Act. Those who have been pleading guilty up until now might now decide that it is worth contesting the charge if it is believed that, as in this case, juries are likely to acquit. However the problem in this area is not just that the law might be in disarray or out of date, but that there are (at least) three separate legal regimes for the regulation of pornographic material, each of which is aimed at the regulation of completely different things.
The oldest regime is that of indecency, which can be traced back to the Vagrancy Act 1824. Indecency uses a test of the subjective reaction of the viewer—did the ordinary man or woman find the material to be shocking, disgusting and revolting—and is focused on capacity of this reaction to disrupt public order. Thus from the Vagrancy Act 1824 onwards, through a range of statutes concerned with police and civic government, the public display of indecent images was linked to their potential to disturb the peace. The concern was less with the conduct as such, but with the place of display and the understanding of appropriate public behaviour. Thus the law was not aimed at the enforcement of general moral standards of conduct, but the regulation of public order.
|Would you let your servants|
read this book?
Third, there is the more recently introduced regulation of extreme pornography introduced in England and Wales by the Criminal Justice and Immigration Act 2008 and (slightly differently) in Scotland by the Criminal Justice and Licensing (S.) Act 2010. The regime here is more muddled. In a recognition that such images are distributed digitally and that it is accordingly difficult to trace the producer or criminalise the distributor of such images, it criminalises possession of the images. However, the test of an extreme image is a combination of the (reasonably precise) listing of specific forms of extreme practice in the legislation, and the older common law test of obscenity (i.e. an image must be both extreme and obscene). The Act thus collapses any distinction between private and public spaces to criminalise according to the moral judgment of the obscene character of the images.
Aside from the fact that, as this brief discussion shows, the law is complex and hard to articulate clearly, what is obviously missing is any clearly articulated rational basis for the law in this area. the Obscene Publications Act might well be undermined by the Peacock case, but there may be no advance at all if prosecution are then taken for extreme pornography, since this just reproduces the test for obscenity - and the criminalisation of possession is potentially even more illiberal. More importantly, this requires us to reflect more systematically on what we want to regulate in this area and why. There are surely good grounds for preventing the display of obscene images in public places, just as there are for protecting individuals involved in the production of pornography against exploitation and violence, just as there may no longer be grounds for criminalising something just because it is disgusting to particular individuals or groups - but these are completely different objects and the law should be revised so as to articulate its aims more clearly.