Keeping films legal

With movie producers pushing the boundaries of good taste to the limit, the lawyers advising the British Board of Film Classification have plenty on their plates, reports Stephen Ward

The British Board of Film Classification (BBFC) is rarely out of the news.

Sir Quentin Thomas, who took up his post as the new president in August, has already voiced the opinion that without new legislation, the board may not be able adequately to safeguard the public against damaging pornographic videos.

This summer, there was also controversy over the 'Spiderman' movie, which had been restricted to over-12s because of its violent scenes, excluding the small children its merchandise and pre-release publicity had attracted.

Several local authorities ignored the certificate and let children in.

Then the board, which is responsible for giving a classification certificate to every movie and video released, introduced a '12A' category, which will allow children under 12 to see films given a '12' certificate if accompanied by an adult.

But this picture of disputes, sex and violence does not reflect the daily reality of the board, which classified 500 films and 9,000 videos last year.

Patrick Swaffer, one of two partners at London firm Goodman Derrick who act as the board's legal advisers, says: 'In 99.9% of cases there is no legal issue.'

And in those where there is, the board - which has used Goodman Derrick for several decades - knows enough itself without needing to trouble lawyers.

Mr Swaffer says: 'They are a phenomenally experienced bunch of people, so you're not talking about a client who's constantly bringing minor queries.

They have a very sophisticated approach to what they do and they understand the issues.'

The board has a group of examiners.

The most contentious material will be looked at by the full-time director, Robin Duval, and in certain cases by the president and vice-presidents who are part-time.

'Normally, if I am asked questions, it would be after the film had been looked at by Robin or the presidential body,' Mr Swaffer says.

Where lawyers are consulted by the board, it is not on which classification to give a film - what age it is suitable for - but where there is a question about the legality of something in the film.

Clearly the board does not want to pass something illegal for transmission.

Only one Act of Parliament specifically covers film - the Cinematograph Films (Animals) Act 1937 - which makes it illegal to show any scene involving actual cruelty to animals.

The main areas apart from that, Mr Swaffer says, are the Protection of Children Act 1978, under which it is illegal to show indecent photographs of a child under 16, and the Obscene Publications Act 1959 (OPA), which kicks in where a work if taken as a whole 'has a tendency to deprave and corrupt a significant proportion of those who see it'.

Mr Swaffer says: 'The position of the board is they have to have regard to the standards which are normally applied in OPA prosecutions and convictions.

It is a very difficult standard to determine.'

And he says there is a further category to consider other unlawful material.

Last year, one tape featured grainy images of sexual activity in a hotel room, which appeared to have been filmed without the consent of the women involved.

When asked for evidence that the participants had all consented to being filmed, the distributor withdrew the work.

Mr Swaffer says in all these areas where it becomes highly specialist, he takes advice from counsel.

'I'd readily admit that if it's an area of real difficulty I'd have no embarrassment about going for advice.

It happened recently when I thought there was a difficulty with the Children Act.

They disagreed.'

Mr Swaffer says he was not called in over the 'Spiderman' classification case.

'It was obvious from the guidelines it was just not a legal issue,' he says.

The board has written guidelines for what certificate should be granted.

These were drawn up after widespread consultation, and recently renewed.

But the certificate is not binding on local authorities.

Each authority has the option to license cinemas to show films.

The BBFC certificate is only advisory, which was why local authorities were able to vary its guidance on 'Spiderman'.

But while film classification is advisory, video classification by the board, although on similar principles, has a statutory basis, and it is these procedures which have given lawyers the most work in recent years.

The Video Recordings Act 1984 requires the board to certify videos, and they cannot be sold without a certificate.

And while the appeal against film classification is internal to the board, then to each local authority, for video there is a formal legal procedure.

John Wood, chairman of the Video Appeals Tribunal, is a former deputy Director of Public Prosecutions (DPP), a former DPP for Hong Kong, former head of the Serious Fraud Office and for six years until his retirement, a conultant with Denton Hall (as was), then the London office of US firm Morgan Lewis.

He says: 'There is a difference between film and video - video is seen by under-18s because they are left lying around.

Shopkeepers do sell to under-18s, whereas cinema managers can control pretty strictly who comes into the cinema.'

He adds: 'Most appeals are the 18R category, which are videos only sold to a small number of people through sex shops.

Two recently have been violent, and we have upheld the board's rejection of a certificate on those two.

The latest combined violence and rape.'

He says precedent is a difficult area, because no two videos are the same - if they were the second would not be made.

'So you have to judge on merits.' He says the proceedings are analogous to an employment tribunal.

One lawyer has almost cornered the market in fighting these claims.

Central London entertainment lawyer Henri Brandman, a sole practitioner, acts for a number of clients in the adult film industry.

He has represented several of them in cases involving the BBFC.

He says 'In 1998, the BBFC refused a certificate to one movie, "Making Whoopee".

I was instructed to appeal the decision to the Video Appeals Committee.

The appeal was successful.

'The next year, proceedings went a step further.

The BBFC decided not to grant 18R status to seven films, including "Nympho Nurse Nancy" and "Office Tart".

I was again instructed to appeal the decision, which was, once more, overturned.

The BBFC took the appeal body to court in judicial review proceedings.'

The judicial review failed and the 18R certificate stood.

'The guidelines as to what was acceptable in 18R-rated videos were then relaxed, which was good news for the distributor, Sheptonhurst, which had pursued the right to certification on both occasions,' he says.

This judicial review led to Sir Quentin's call for legislation to haul the boundaries back to where they used to be.

Although these cases are rare - on average around one appeal a year - they are argued at a high legal level.

The last case was Anthony Lester QC for the board against David Pannick QC for the distributors.

The previous case was Andrew Caldecott QC against Mr Pannick.

Mr Swaffer represented the board against Mr Pannick for a distributor in the case before that.

The judicial review of the Video Appeals Committee raises the possibility that a film-maker might seek to bring a judicial review of a film classification.

In a 1970s case, Lord Denning said the board could not be joined to a challenge to a refusal by the Greater London Council to allow a sex video to be shown.

Mr Swaffer says: 'Lord Denning said the board was a body unknown to the law.'

But he would not rule it out in future: 'Judicial review being what it is, it would be difficult making that statement today.'

So, it looks as though amid the hundreds of routine showings, the likes of 'Nympho Nurse Nancy' will continue to keep some lawyers busy.

Stephen Ward is a freelance journalist