Obscene Publications Act 1959

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Obscene Publications Act 1959
Royal Coat of Arms of the United Kingdom (HM Government).svg
Long title An Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography.
Citation c.66
Introduced by Roy Jenkins
Territorial extentEngland and Wales [1]
Dates
Royal assent 29 July 1959
Commencement 29 August 1959
Other legislation
Amended by Obscene Publications Act 1964
Status: Amended
Text of statute as originally enacted
Text of the Obscene Publications Act 1959 as in force today (including any amendments) within the United Kingdom, from legislation.gov.uk.

The Obscene Publications Act 1959 (c. 66) is an Act of Parliament of the United Kingdom Parliament that significantly reformed the law related to obscenity in England and Wales. Prior to the passage of the Act, the law on publishing obscene materials was governed by the common law case of R v Hicklin , which had no exceptions for artistic merit or the public good. During the 1950s, the Society of Authors formed a committee to recommend reform of the existing law, submitting a draft bill to the Home Office in February 1955. After several failed attempts to push a bill through Parliament, a committee finally succeeded in creating a viable bill, which was introduced to Parliament by Roy Jenkins and given the Royal Assent on 29 July 1959, coming into force on 29 August 1959 as the Obscene Publications Act 1959. With the committee consisting of both censors and reformers, the actual reform of the law was limited, with several extensions to police powers included in the final version.

Contents

The Act created a new offence for publishing obscene material, repealing the common law offence of obscene libel which was previously used, and also allows Justices of the Peace to issue warrants allowing the police to seize such materials. At the same time it creates two defences; firstly, the defence of innocent dissemination, and secondly the defence of public good. The Act has been used in several high-profile cases, such as the trials of Penguin Books for publishing Lady Chatterley's Lover and Oz for the Schoolkids OZ issue.

Background and passage

Obscene publications were, historically, something for the canon law; the first prosecution in a court of common law was not until 1727. [2] Prior to the passing of the 1959 Act, the publication of obscene materials within England and Wales was governed by the common law and the Obscene Publications Act 1857. The common law, as established in R v Hicklin [1868] 3 QB 360, set the test of "obscenity" as "whether the tendency of the letter published is to deprave and corrupt those whose minds are open to such immoral influence and into whose hands the publication might fall", while the 1857 Act allowed any stipendiary magistrate or any two Justices of the Peace to issue a warrant authorising the police to search for, seize and destroy any obscene publications. [3] It was generally accepted that the existing law was heavily flawed, for several reasons. Firstly, the so-called "Hicklin test" from R v Hicklin was both unduly narrow and unyielding; it did not, for example, take into account the intentions of the defendant. Secondly, the test meant that individual sections of a published work could by analysed and the entire work declared obscene, even if the rest of the work was fairly mild. Thirdly, there was no defence based on the public good, and no opportunity to submit evidence showing the artistic merits of the work, and fourthly, works could be destroyed without the author or publisher even being informed and given an opportunity to speak. [4]

During the 1950s, efforts started to attempt reform of the law. Following the prosecution of several notable publishers, the Society of Authors formed a committee (with Norman St John-Stevas as legal advisor) to recommend reform of the existing law, submitting their proposals and a draft bill to the Home Office in February 1955. Instead of the wholesale reform the Society hoped for, the government instead chose limited reform through the Children and Young Persons (Harmful Publications) Act 1955 dealing with horror comics, which kept the Hicklin test but required that the work as a whole be examined. The Society and sympathetic Members of Parliament then attempted to introduce a Private Member's Bill, but this was quashed by the ensuing general election. Another Private Member's Bill was successfully introduced in March 1957 and sent to a committee. Composed of a mix of censors and reformers, the committee's recommendations were mixed, consisting of both conservative (further powers of search and seizure for the police) and liberal (the use of expert evidence attesting to the work's artistic merit) proposals. [5]

The committee's proposals were published in March 1958, and a new bill was introduced under the Ten Minute Rule, failing to gain the requisite support. After A. P. Herbert stood for Parliament on a platform of obscenity reform, the Home Office had a change of heart and introduced a new bill through Roy Jenkins in 1959, [6] a compromise between the aims of the campaigners and the goals of the Home Office. [7] It was introduced to the House of Lords by Lord Birkett, [8] received the Royal Assent on 29 July 1959, and came into force on 29 August 1959 as the Obscene Publications Act 1959. [9]

Act

The Act is relatively short, divided into 5 sections, the fifth covering the extent of the Act and its commencement date. Section 1 covers the test to determine if something is obscene; an article is taken to be obscene if the entire article "is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it". The test is based on "persons"; DPP v Whyte [1972] AC 849 established that it was not sufficient for an individual to be depraved or corrupted, it must be that a significant number of people likely to read it would become corrupt. [10] "article" is defined within Section 1 as anything containing material that is read or looked at, any sound recordings and any film or other picture record. [11] A publisher, as used in the Act, is also defined in Section 1; "publisher" is taken to mean anyone who "distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire", or "in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it". [12] The Criminal Justice and Public Order Act 1994 amended this section to include the transmission of the article electronically. [13]

Section 2 covers the actual prohibition of publishing "obscene material". Section 2(1) creates a new offence, "publishing an obscene article", which replaces the common law misdemeanour of "obscene libel" which was previously the crime. [6] Somebody can be found guilty of this regardless of if it was done for profit or not. [10] Where the article is a film, the consent of the Director of Public Prosecutions is required before a prosecution can commence. [14] Section 2(4) states that, where an article is obscene, no other common law charges should be brought, and it should instead be dealt with through the 1959 Act, intended to limit prosecutions to those crimes found in this Act. [15] Section 2(5) creates a defence of "innocent dissemination"; if the publisher can prove that they did not anticipate any obscenity problems, and did not examine the article in question for such issues, they cannot be convicted. [16]

Powers of search and seizure are covered by Section 3, which also repealed the Obscene Publications Act 1857. [15] This section allows a Justice of the Peace, if satisfied that there are reasonable grounds to believe obscene publications are kept on certain premises for profit, to issue a warrant for that location. [17] This warrant allows a police officer to enter the premises, search them and remove any suspect publications; if such publications are found, the officer can also take records relating to the businesses trade. The articles must then be brought before a magistrate and either forfeited by the owners or returned. The owner, author or publisher of the articles, or the person from whom they were seized, may appear before the magistrate to argue why they should not be forfeited. [18]

Section 4 creates the defence of public good, which applies both to prosecutions for publication of obscene materials and to the forfeiture proceedings described in Section 3. This allows for a valid defence if the defendant can show that the publication of the materials was justifiable as for the "public good", which is defined as "in the interests of science, literature, art or learning, or of other objects of general concern". [19] Experts and their testimony are admissible for determining the value of such publications. [20] This section was initially treated very strictly by trial judges, but this attitude was reversed after the 1976 trial of the book Inside Linda Lovelace , where the jury found the publishers not guilty despite the judge saying that "if this isn't obscene, members of the jury, you may think that nothing is obscene". Three years later the Williams Committee recommended that restrictions on written pornography be lifted, and these restrictions have been largely abandoned. [21]

Notable prosecutions under the Act

Lady Chatterley's Lover trial

The first noted prosecution under the Obscene Publications Act was of Penguin Books in R v Penguin Books Ltd. [1960] for publishing Lady Chatterley's Lover . [22] The book, which contained the use of the words "fuck" and "cunt" multiple times, along with sexual scenes, was banned completely in England and Wales until the conclusion of the trial; by the mid-1980s, it was on the school syllabus. [23] Penguin Books relied on Section 4's "public good" defence, with academics and literary critics such as E. M. Forster and Helen Gardner testifying at the trial that the book was one of literary merit. The trial at the Old Bailey eventually ended with a not guilty verdict, allowing the book to be openly published and sold in England and Wales for the first time since it was published in 1928. [24] This trial and its verdict is seen as heralding "a new wave of sexual 'morality' for which the 1960s is now famous". [25] Graham Lord wrote that the case "was the first trumpet call of the permissive society, the moment many believe that British morality, manners and family life began seriously to deteriorate". [26]

Stass Paraskos trial

In 1966 an exhibition at Leeds College of Art of paintings by the Cyprus-born British artist Stass Paraskos, entitled Lovers and Romances, was prosecuted by the City of Leeds police and the Director of Public Prosecutions under the Vagrancy Acts of 1828 and 1837, and the Obscene Publications Act 1959. [27] When the exhibition opened it was allegedly visited by a local school group, the leader of which objected to an image depicting a woman masturbating a man. The exhibition was raided by the police and closed down. [28] Despite luminaries of the art world speaking in Paraskos's defence, including Herbert Read and Norbert Lynton, and a message of support from Britain's Home Secretary Roy Jenkins, Paraskos lost the trial and was fined twenty-five pounds. The case was later cited in the report of a working party convened in 1968, under the chairmanship of John Montgomerie, by the Arts Council of Great Britain, to review the obscenity laws in England and Wales. In this report it was suggested the artist should not have been prosecuted in this case, even if the works of art were deemed obscene, as he was not the publisher as defined by the Obscene Publications Act. [29]

Schoolkids Oz trial

Schoolkids Oz, which prompted the Oz obscenity trial. Oz Mag Number 28.png
Schoolkids Oz, which prompted the Oz obscenity trial.

In 1971 the editors of Oz were tried for publishing obscene materials, specifically the Schoolkids Oz issue. Oz was an underground magazine with a circulation of 40,000 which aimed to challenge the "older generation's outdated beliefs and standards of behaviour and morality". For its 28th issue, 20 teenagers were invited to contribute and edit it. The published version was 48 pages long, with the front consisting of a sheet from the French erotic book Desseins Erotiques, which depicted four naked women licking each other and performing sex acts. Inside were articles about homosexuality, lesbianism, sadism and a cartoon strip which showed Rupert Bear "ravaging" a "gipsy granny". [30] John Mortimer acted for the defence, and after the longest obscenity trial in English legal history the defendants were convicted. [31] After a three-day hearing in the Court of Appeal of England and Wales, this conviction was overturned; [32] the Court of Appeal recognised 14 errors of law and a large number of errors of fact in the trial judge's summing up to the jury. [33]

Later cases

Later cases have included:

Impact and assessment

The Act was found deficient[ by whom? ] in a variety of ways. Firstly, the test meant that "sting" operations where the police purchased "obscene" materials were not considered sufficient evidence of publication, since the police were not considered easy to "corrupt" due to their regular exposure to the materials. [42] It also meant that prosecutors often had to prove that purchasers were unaware of the obscene nature of material on sale prior to purchase, as those who actively sought out such material were deemed unlikely to be corrupted by it. [43] Secondly, the offer of such materials for sale was not held to be publication, since it was merely an invitation to buy, not an actual purchase. Thirdly, the courts held in Straker v DPP [1963] 1 QB 926 that negatives for photographs could not be forfeited if it was not intended to publish them, regardless of their obscene nature. [44] As a result, the Act was amended by the Obscene Publications Act 1964, which created the offence of "possessing obscene articles for publication or sale" [45] and also extended "obscene materials" to cover photographic negatives. [46] Another criticism levelled at both Acts was that they failed to define "obscene" properly, relying on the old common law definition and giving no help to the judge or jury as to how to apply it properly. [47] The National Campaign for the Repeal of the Obscene Publications Acts (NCROPA) was set up in 1976 by the actor David Webb; it operated until the late 1990s. [48]

Current situation

It has become evident in recent years that there is a disparity between what is deemed to be offensive under the Act and what would be regarded as offensive by a significant proportion of the general public. This may be due to the age of the law or an indication that the UK has become a diverse and multicultural society. [49] In 1996 there were 562 cases brought, in which 324 individuals were convicted. [50] Even with this small number of trials, a third of convictions resulted in prison sentences, and only a small number of cases went to jury trials. [51] The number of prosecutions has fallen, from 309 in 1994, 131 in 1999, 39 in 2003 to 35 in 2005. [52] [53] This decline may be partly due to the behaviour of modern jurors, who are less likely to consider material as depraving and corrupting, and are reluctant to convict defendants for the private use of material amongst consenting adults. [43] Another reason for the decline may be the range of alternative legislation which can now often be used in place of the Act. Suggestions given by the Crown Prosecution Service include:

The Act continues to have a significant impact in English law, as its precedents serve to provide a definition of obscenity that is used in other legal contexts. For instance, anything deemed likely to contravene the Act is prohibited from videos awarded an R18 certificate by the British Board of Film Classification. A list of the categories of material most commonly prosecuted under the Act is published by the Crown Prosecution Service. [54]

Following a public consultation, the Crown Prosecution Service published guidelines in 2019 indicating that pornography depicting consenting adults engaged in legal acts would no longer be prosecuted under the Act, provided no serious harm was caused and the likely audience was over the age of 18. The guidelines also clarified that material that is purposefully obscene can be justified as in the public good if it is "in the interests of science, literature, art or learning". [55]

See also

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), is a landmark decision by the United States Supreme Court where the court redefined its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.

Obscene Publications Acts United Kingdom legislation

Since 1857, a series of obscenity laws known as the Obscene Publications Acts have governed what can be published in England and Wales. The classic definition of criminal obscenity is if it "tends to deprave and corrupt," stated in 1868 by Lord Justice Cockburn, in Regina v. Hicklin, now known as the Hicklin test.

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark case before the United States Supreme Court which redefined the Constitutional test for determining what constitutes obscene material unprotected by the First Amendment.

Obscene Publications Act 1857 United Kingdom legislation

The Obscene Publications Act 1857, also known as Lord Campbell's Act or Campbell's Act, was a major piece of legislation in the United Kingdom of Great Britain and Ireland dealing with obscenity. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material. The Act superseded a 1787 Royal Proclamation by George III titled Proclamation for the Discouragement of Vice. The proclamation commanded the prosecution of those guilty of "excessive drinking, blasphemy, profane swearing and cursing, lewdness, profanation of the Lord's Day, and other dissolute, immoral, or disorderly practices". Prior to this Act, the "exposure for sale" of "obscene books and prints" had been made illegal by the Vagrancy Act 1824. but the publication of obscene material was a common law misdemeanour The effective prosecution of authors and publishers was difficult even in cases where the material was clearly intended as pornography.

Stanley v. Georgia, 394 U.S. 557 (1969), was a United States Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law, in the form of mere possession of obscene materials.

The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.

Artistic merit

Artistic merit is the artistic quality or value of any given work of art, music, film, literature, sculpture or painting.

<i>R v Butler</i>

R v Butler, [1992] 1 S.C.R. 452 is a leading Supreme Court of Canada decision on pornography and state censorship. In this case, the Court had to balance the right to freedom of expression under section 2 of the Canadian Charter of Rights and Freedoms with women's rights. The outcome has been described as a victory for anti-pornography feminism and the Women's Legal Education and Action Fund, but a loss for alternative sexualities.

Vagrancy Act 1838 United Kingdom legislation

The Vagrancy Act 1838 was an Act of Parliament in the United Kingdom, signed into law on 29 July 1838. It amended the Vagrancy Act 1824 to provide that any person discharged from custody pending an appeal against a conviction under that Act who did not then reappear to prosecute the appeal could be recommitted. It also provided that the penalty established by that Act for exposing indecent prints in a street or highway would extend to those who exposed the same material in any part of a shop or house.

John Mervyn Guthrie Griffith-Jones was a British judge and former barrister. He led the prosecution of Penguin Books in the obscenity trial in 1960 following the publication of D. H. Lawrence's Lady Chatterley's Lover. His much quoted remark in his opening statement as to whether the novel was something "you would even wish your wife or servants to read" is often cited as representing the extent to which the British establishment had fallen out of touch with popular opinion at the time. He failed to convince the jury at the Chatterley trial, and the publishers were acquitted.

Censorship in Japan is effectively mandated through the Article 175 of the Criminal Code of Japan with regards to pornography.

An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. The word can be used to indicate a strong moral repugnance, in expressions such as "obscene profits" or "the obscenity of war". As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity.

The publication of an obscene libel was an offence under the common law of England. Prior to the abolition by section 1 of the Criminal Law Act 1967 of the distinction between felony and misdemeanour, it was regarded as a misdemeanour. It has been abolished in England and Wales and Northern Ireland.

<i>R v Peacock</i>

R v Peacock was an English Crown Court case that was a test of the Obscene Publications Act 1959. In December 2009, the defendant, a male escort named Michael Peacock, had been charged by the Metropolitan Police for selling hardcore gay pornography that the police believed had the ability to "deprave or corrupt" the viewer, which was illegal under the Obscene Publications Act. He was subsequently acquitted through a trial by jury in January 2012.

United States obscenity law deals with the regulation or suppression of what is considered obscenity. In the United States, discussion of obscenity typically relates to pornography, as well as issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. The States have a direct interest in public morality and have responsibility in relation to criminal law matters, including the punishment for the production and sale of obscene materials. State laws operate only within the jurisdiction of each state, and there are a wide differences in such laws. The federal government is involved in the issue indirectly, by making it an offense to distribute obscene materials through the post, to broadcast them, as well as in relation to importation of such materials.

<i>R v Penguin Books Ltd</i>

R v Penguin Books Ltd was the public prosecution in the United Kingdom of Penguin Books under the Obscene Publications Act 1959 for the publication of D. H. Lawrence's Lady Chatterley's Lover. The trial took place over six days, in No 1 court of the Old Bailey, between 20 October and 2 November 1960 with Mervyn Griffith-Jones prosecuting, Gerald Gardiner counsel for the defence and Laurence Byrne presiding. The trial was a test case of the defence of public good provision under section 4 of the Act which was defined as a work "in the interests of science, literature, art or learning, or of other objects of general concern".

<i>R v Walker</i>

R v Walker was an English Crown Court case that was a test of the Obscene Publications Act 1959. It was the first such prosecution involving written material in nearly two decades and set a precedent for using the act to prosecute web fiction. In October 2008, the defendant, English Civil Servant Darryn Walker was charged with publishing an obscene story on the Internet contrary to Section 2(1) of the Act. Media controversy was generated because the story in question was a real person fiction text horror story describing the imagined murder of the members of British pop group Girls Aloud. The case was abruptly abandoned on its first day and the defendant was cleared of all charges.

The obscenity trial over the publication of James Joyce's Ulysses in The Little Review, an American literary magazine, occurred in 1921 and effectively banned publication of Joyce's novel in the United States. After The Little Review published the "Nausicaa" episode of Ulysses in the April 1920 issue of the magazine, the New York Society for the Suppression of Vice instigated obscenity charges against Little Review editors Margaret Caroline Anderson and Jane Heap. The editors were found guilty under laws associated with the Comstock Act of 1873, which made it illegal to circulate materials deemed obscene in the U.S. mail. Anderson and Heap incurred a $100 fine, and were forced to cease publishing Ulysses in The Little Review.

Stass Paraskos Obscenity Trial 1966

The Stass Paraskos obscenity trial was a notorious court case held in the northern English city of Leeds in 1966 involving an exhibition of paintings by the Cyprus-born British artist, Stass Paraskos.

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.

References

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