Obscene Publications Act

Obscene Publications Act 1959 s.1(1)

An article shall be deemed to be obscene if its effect ... is such as to tend to deprave and corrupt persons who are likely ... to read, see or hear the matter contained in it.

Obscene Publications Act 1959 s.2(1)

A person who publishes an obscene article, or who has an obscene article for gain, shall be liable ... to imprisonment for a term not exceeding three years ...

Obscene Publications Act 1959 s.2(5)

A person shall not be convicted ... if he proves that he had not examined the article and had no reasonable cause to suspect ...

Calder Publications v Powell [1965] 1 All ER 159, DC

The publishers of Cain's Book were convicted under the Act, and their appeal to the Divisional Court was dismissed. The book advocated taking drugs and described the favourable effects of doing so; there was a real danger that those into whose hands the book fell might be tempted to experiment with prohibited drugs.

DPP v A & BC Chewing Gum [1967] 2 All ER 504, DC

A company produced bubble gum in packets containing picture cards for children to collect; the pictures showed various battle scenes, some of them depicting extreme violence. Since the cards would have fallen mainly into the hands of children, the question was whether children (rather than reasonable adults) might have been depraved or corrupted by them, on which point expert evidence could be heard. The Divisional Court upheld DD's conviction.

R v Calder & Boyars [1968] 3 All ER 644, CA

DD published the book Last Exit to Brooklyn, describing the depravity and degradation of life in Brooklyn in a compassionate and condemnatory way. Allowing DD's appeal against conviction, Salmon LJ said a book that shocks and horrifies people and turns them against the activity being depicted, doesn't tend to deprave and corrupt and hence is not obscene. Moreover, it must be such as to tend to deprave and corrupt a significant proportion of those who read it, though not necessarily a majority of them.

R v Anderson [1971] 3 All ER 1152, CA

The publishers of Oz Schoolkids' Issue were prosecuted in respect of articles dealing with drugs and various sexual activities; the judge told the jury that they should convict if they found the material to be repulsive, filthy, loathsome or lewd. Quashing the conviction (except on a count of sending an indecent article through the post), Lord Widgery CJ said obscenity means more than just shock or disgust, and involves an element of moral harm.

DPP v Whyte [1972] 3 All ER 12, HL

The owner of a pornographic bookshop was prosecuted under the Obscene Publications Act, but the magistrates accepted his defence that his customers were middle-aged men who were already depraved and corrupted. Reversing the Divisional Court, the House of Lords allowed the prosecutor's appeal and remitted the case to the justices with a direction to convict: the customers were probably not beyond hope of redemption, and it was enough that some of the material might fall into the hands of those who could still be corrupted.

Handyside v United Kingdom (1976) 1 EHRR 737, ECHR

A was the publisher of the Little Red Schoolbook, which was meant for children over 12 and included sections on masturbation &c. Copies were seized and destroyed under s.3 of the Obscene Publications Act. The European Court said this did not amount to a breach of Art.10: member states had a margin of appreciation as to what was necessary for the protection of morals in a democratic society, and could take into account the contemporary views of their society.

Under s.3, a magistrate may issue a warrant for the seizure of obscene articles; the person from whom they were seized (together with the owner, author and publisher if appropriate) may then show cause why the articles should not be forfeited and destroyed. This applies whether or not a prosecution has been instituted.

An argument against forfeiture may be based on the assertion that

• the article is not obscene, or
• its publication is for the public good, or
• it is not kept with a view to gain.

There is an appeal from the magistrates' decision to the Crown Court, which examines the evidence again and decides the case on its merits.

Roandale v Commissioner of Police [1979] Crim LR 254, CA

Police officers seized 170 000 copies of allegedly obscene magazines. PP sought an injunction to compel the police to place these before the magistrate immediately, but the judge's refusal was upheld by the Court of Appeal. Lord Denning MR said the police were required to take the material to the magistrate within a reasonable time, and could be challenged through judicial review if they failed to do so, but given the amount of material involved in this case a delay of six weeks was not unreasonable.

R v Snaresbrook Crown Court ex p Commissioner of Police (1984) 79 Cr App R 184, DC

Police seized more than 150 000 allegedly obscene magazines and other material and took them in due course before the magistrates. The magistrates ordered most of the material to be forfeited, and the publishers appealed to the Crown Court. Judge Stable QC said he would consider only a representative sample of 6-12 items of each kind (to be selected by agreement between the parties) and make his decision based on that. The Divisional Court refused an application for judicial review of this decision: the judge was entitled to take account of the scale of the problem, said Watkins LJ, and so long as the sample was properly representative, the procedure he proposed was a reasonable one.

Obscene Publications Act 1959 s.4(1)

A person shall not be convicted of an offence ... and an order for forfeiture shall not be made ... if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.

Public good is a separate question from obscenity and must be considered separately: an article may be for the public good and still be obscene. Obscenity is generally a matter exclusively for the jury, except where the likely effects of the material (particularly on a limited class of readers) are thought to be outside their everyday experiences, but in relation to the "public good" defence expert evidence is admitted as a matter of course.

R v Penguin Books [1961] Crim LR 176, Byrne J

DD were the publishers of Lady Chatterley's Lover, and were prosecuted under the Obscene Publications Act 1959. Their defence was that although the book contained passages explicitly describing sexual activities, the work (by D H Lawrence) had literary merit and so was permitted. The jury found DD not guilty.

DPP v Jordan [1976] 3 All ER 775, HL

A newsagent D was charged with possessing obscene articles for gain, and proposed to call doctors to testify that pornographic magazines were of psychotherapeutic value as aids to masturbation, helping those with repressed sexual fantasies to release their fantasies without acting them out in full. The House of Lords upheld the judge's refusal to admit such evidence: "other objects of public concern" was not wide enough to cover this. Obiter, Lord Wilberforce said expert evidence might have been relevant had the court had to consider the effects of the material on a small group of sexual deviants.

Attorney-General's Reference (No.3 of 1977) [1978] 3 All ER 1166, CA

The owners of a bookshop were prosecuted for possessing obscene materials for gain, but were acquitted by the jury after arguing that pornographic magazines could be used for teaching people about sexual techniques, and so were in the interests of "learning". On a reference by the Attorney-General, the Court of Appeal said this was not "learning", by which the Act meant "the product of scholarship", and the judge should have directed the jury accordingly.