Five months on from the passage of new laws on extreme porn, police forces up and down the UK appear to be using them sparingly – and not quite in the way that parliament intended.
According to sources within law enforcement, there have been two or three prosecutions on their patch under the new legislation. In each case, the crime targeted is one that crops up regularly and is organised by Chinese gangs.
Our informant explained: "It is always the same. A Chinese man is seen on the streets with a black holdall apparently trying to flog things to passers by. When stopped the holdall is discovered to contain a lot of very obviously pirated DVDs.
"There will be several copies of the latest blockbuster releases with very bad covers, and some pornography, always including some bestiality DVDs. Sometimes I think it is the same bag doing the rounds of all the stray Chinamen in the country."
According to our source, prosecutions always tended to be under counterfeiting and trademark laws. A charge under the Obscene Publications Act (OPA) has also been possible.
However, the police have now taken to adding a charge under extreme porn legislation for the bestiality DVDs. Whilst our source does not have access to national figures – and the Ministry of Justice are unable to provide such figures so soon after the new law went live – they are aware of at least two occasions where this has happened, and estimate that that it has almost certainly happened a lot more: based on the proportion of cases that they see, they suggest this new application of the law could have resulted in as many as 100 cases nationwide.
If true, this suggests critics were right to challenge claims that it was no more than the Obscene Publications Act for the internet age. In the cases described, it would have been open to the police and prosecuting authorities to charge individuals under the Obscene Publications Act.
If there was – as has been argued – no difference between obscenity as defined in the extreme porn law and the OPA version of obscenity, then the OPA would be the more appropriate legislation to apply. The material in question was obscene: those caught by the police would have been guilty of seeking to distribute it – not mere possession.
The fact that the extreme porn law was used might suggest that the prosecuting authorities have understood that whilst bestial material may be disgusting, a jury might not necessarily consider that it "depraved and corrupted" – the test that must be applied under the OPA. However, under the extreme porn law, the test is much simpler: if the material in question contains bestiality, an offence has been committed.
In this respect at least, it looks as though the new law is much more easily used than the old: it remains to be seen whether, in other areas too, the extreme porn law might not end up supplanting existing law on obscenity. ®