The Act Commentary on Sections Part 2 - Criminal offences Section 63:  Exclusion of classified film, etc
369.This section provides an exclusion from the scope of the offence under section 62 for excluded images.
370.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. A classified work is a video work in respect of which a classification certificate has been issued by an authority designated under section 4 of the Video Recordings Act 1984.
371.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 (BBFC), and which contains images that, despite their context, might amount to a “prohibited image of a child” for the purposes of the section 62 offence, will not be liable for prosecution for the offence.
372.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.
373.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 62. Subsection (5) of section 62 also applies in determining this question.
374.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), due to inadvertence (such as setting the wrong time for a recording) or due to the inclusion of extraneous material (such as advertisements), are to be disregarded.
375.Subsection (6) makes it clear that nothing in section 63 affects any duty of a designated authority to take into account the offence in section 62 when considering whether to issue a classification certificate in respect of a video work.
376.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.