The Act New section 66H of the 1998 Act: Interpretation Part 5: Criminal Law Section 64: Exclusion of classified films etc.
462.This section provides an exclusion from the scope of the offence under section 63 for classified films.
463.An “excluded image” is defined in subsection (2) as an image which forms part of a series of images contained in a recording of the whole or part of a classified work. A “recording” is defined in subsection (7) as any disc, tape or other device capable of storing data electronically and from which images may be produced. This therefore includes images held on a computer.
464.The effect of the exclusion is that a person who has a video recording of a film which has been classified by the British Board of Film Classification and which contains images that, notwithstanding their context, might be caught by the offence in section 63, could not be liable for prosecution. The fact that the images are held as part of a BBFC classified film takes them outside the scope of the offence.
465.However, the effect of subsection (3) is that the exclusion from the scope of the offence does not apply in respect of images contained within extracts from classified films which must reasonably be assumed to have been extracted solely or principally for the purpose of sexual arousal. Essentially the exemption for an image forming part of a classified work is lost where the image is extracted from that work for pornographic purposes. Subsection (7) defines “extract” to include a single image.
466.Subsection (4) provides that when an extracted image is one of a series of images, in establishing whether or not it is of such a nature that it must reasonably be assumed to have been extracted for the purpose of sexual arousal, regard is to be had to the image itself, and to the context it which it appears in the series of images. This is the same test as set out in subsection (4) of section 63. Subsection (5) of section 63 also applies in determining this question.
467.The effect of subsection (5) is that in determining whether a recording is a recording of a whole or part of a classified work, alterations due to technical reasons, such as a failure in the recording system, or due to inadvertence, such as setting the wrong time for a recording, or the inclusion of extraneous material such as advertisements, are to be disregarded.
468.Subsection (6) makes it clear that nothing in section 64 affects any duty of a designated authority to take into account the offence in section 63 when considering whether to issue a classification certificate in respect of a video work.
469.Subsection (7) sets out the definitions used in this section. Subsection (8) states that section 22(3) of the Video Recordings Act 1984 applies. The effect of section 22(3) is that where an alteration is made to a video work in respect of which a classification certificate has been issued the classification certificate does not apply to the altered work.