An Inspector Calls

A Metropolitan Police Inspector called upon the Saatchi Gallery in North London last month, ordered the removal of two artworks and a publication related to the exhibition ‘I am a Camera’, and threatened prosecution for failure to comply.

The charges would be for contravention of the Protection of Children Act 1978 which outlaws the taking, showing or possession of indecent photographs of children. The gallery refused to comply and the matter has been referred to the Director of Public Prosecutions (whose consent is required for such a prosecution).

Amidst a media frenzy of pros and cons, broadsheets and tabloids, including publication of the images complained of, no mention appears to have been made of a law which appears to allow such an exhibition to take place – a matter to which we shall return later.

The offending artworks are photographs taken by the artist Tierney Gearon, who is a former fashion photographer, and are a series of 15 snapshots of family holidays; her two children, aged six and four, are shown naked or partly naked playing on the beach or, in one case, her son is urinating in the snow. Indecent? Not according to Charles Saatchi from whose personal collection of artworks the exhibition has been drawn; not according to Jenny Blyth, the show’s curator; and, more significantly, not according to their lawyer, Geoffrey Robinson, QC, who sent to the Director of Public Prosecutions his written opinion that there are no sexual overtones, and therefore no elements of indecency, in the innocent nakedness portrayed.

On the other hand, the News of the World views the artworks as ‘a revolting exhibition of perversion under the guise of art’, and readers’ letters in that newspaper, and others, variously complained that the children in question were too young to give informal consent to their images being used; that the children’s trust had been betrayed and that the photographs in question should never have been published in the same newspapers whose hypocritical editorial stance was to condemn them.

The issues are serious and difficult to resolve: there is a world of difference between artwork which elevates the spirit and that which appeals to the darker side of human nature; it was ever thus in art historical terms. In the UK during the last century or so there has been a tendency for authorities to seek out creative works which might be insulting, offensive, abusive, degrading, obscene or pornographic – at the expense or risk of denying freedom of expression. And, as Chris Smith, UK’s Culture Minister, recently commented in relation to this particular case, there is a ‘need to strike a balance between protection of children and the right to freedom of expression’ (Guardian March 12 2001) – implying that he was supportive of the gallery’s right to show the works.

In that latter connection, the media reminded everyone how in the 1960s the then Arts Minister Jennie Lee had written to the Home Secretary complaining about the police raid on the Robert Fraser Gallery with a view to prosecution for a show of what they regarded as obscene work by Jim Dine, and similarly in relation to the raid on the Victoria and Albert Museum concerning graphic works by Aubrey Beardsley.

The Guardian’s leader of March 10 2001, under the caption ‘Off the Wall’, concluded that ‘the police must leave these pictures alone’. Indeed; but the police say they were acting upon complaints received from members of the public who had seen the photographs at the gallery, and they have a duty to investigate. So, where does – and should – the balance lie?

At the outset of this piece, reference was made to a law which could and should have resolved the matter – in the gallery’s and artist’s favour: The Indecent Displays (Control) Act 1981. This statute seeks to strike a fair balance between freedom of expression and public protection, and is simply drawn: it is a criminal offence to display ‘indecent matter’ to the public, and offenders face two years imprisonment and/or an unlimited fine. Whether the matter is indecent is for a jury to decide according to ‘recognised standards of propriety’ – in other words, members of the jury will know it when they see it (a bit like the popular definition of art).

However, there are several important exceptions and defences to this particular measure aimed at protecting the public: if a warning notice is clearly displayed on the exhibition premises, which patrons must pass by and see, forbidding entry to those under 18 years of age and explaining that material is on view which may be indecent, and/or if such notice makes it clear that payment for entry is specifically to view indecent material (a provision designed to legitimise licensed sex shops).

Even more importantly, televisual broadcasts are exempt (because there are strict codes governing broadcasting standards, breach of which jeopardises broadcasters’ licenses); as are buildings owned by the Crown or local authorities (which are assumed to be responsible in any event); as are performances of plays and showing of films (licences at jeopardy). Finally, a specific exemption from this criminal law provision applies to indecent displays ‘in an art gallery or museum and visible only from within’.

And so the UK Parliament has created a balanced and sensible scheme, now ten years old – unamended and unchallenged – which recognises that it is for art gallery or museum curators to decide what is or is not appropriate for public exposition. That said, however, it could be argued that the Protection of Children Act 1978 still applies to the artist who took the photographs of her children. The only previous similar incident recorded in the UK in recent years was when the ITN broadcaster Julia Somerville was threatened with prosecution under that Act in 1995 (when family snaps of her children bathing at her home were reported to the police by the chemist developing the film); the case was not pursued. On March 16 2001, the Director of Public Prosecutions announced that there would be no prosecution of the Gallery nor the artist. Let us hope that in future public officers do not proceed with indecent haste to investigate stories said to them by journalists seeking only to promote sales of their newspapers.

© Henry Lydiate 2001

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.