Obscene Publications Act 1959

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]

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]

The Act was found deficient 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.

• Obscenity
• Obscene Publications Act 1964
• Section 63 of the Criminal Justice and Immigration Act 2008
• Civic Government (Scotland) Act 1982
• Pornography in the United Kingdom

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