So is the British Board of Film Censors quite within the law when it comes to banning — or rather, not passing — Human Centipede 2 for release to dvd?

In the old days (pre-1984) this would have been a simple question of whether that film, or bits of it were “obscene” according to the Obscene Publications Act 1959. There are problems with that, though. Items are obscene (and therefore not to be published or distributed) if they “tend to deprave or corrupt”.

How do you know if that is the case? Er, you don’t, until after a jury has pronounced. The BBFC mostly has to guess, and while it is advised by prosecutors and police as to what is likely to be found guilty, police and cps do get it wrong. OPA prosecutions fail: they are a dying breed.

So despite the BBFC muttering darkly, sotto voce, about the Centipede possibly being obscene, that is a bit of a red herring. More to the point is the Video Recordings Act 1984 (or rather the cover version of same, hastily passed in 2010 when it was discovered the original hadn’t been legislated correctly), whose section 4a requires them, in rating a work to “have special regard .. .to any harm that may be caused to potential viewers”.

But hold on: the BBFC keep talking about “potential harm to viewers” — which is not quite the same as “harm to potential viewers”. It is on this basis that they quite proudly point to cuts not merely in icky adult stuff, but also demands that film-makers exercise “responsibility” in kids’ films. No footage of children creeping into washing machines, for instance.

So have they got the law wrong? Yes. No. Maybe. The real culprit here appears to be Mr Justice Mitting, who back in January 2008 sternly rapped the Board’s knuckles for passing Manhunt 2 as suitable to be played by gamers. This, he suggested “could be harmful to youngsters”. Moreover, the BBFC had misinterpreted the term [in the Act] as referring to actual harm when it should be considered in a wider sense of potential harm.

On the surface, it looks as though the judge might just have extended the scope of the VRA, either accidentally or by design, to give it rather more teeth than it had originally. Is he wrong? Only a successful appeal could tell us that.

In the meantime, those boldly proclaiming on the internet that they’ll be getting their own copies of this movie anyway should beware. Without a BBFC rating, a depiction of rape involving barbed wire wrapped round someone’s penis sounds very much like a realistic depiction of an act likely to do serious harm in a sexual context.

In other words, “extreme porn”, possession of which is a criminal offence, liable to punishment by means of a fine, community service or prison. You have been warned!