Do we need the Obscene Publications Acts?

"The Obscene Publications Act equally protects the less innocent from further corruption, the addict from feeding or increasing his corruption"- Lord Wilberforce in DPP v Whyte [1972]

The Obscene Publications Act 1959 s.1 commences by defining the test of obscenity:

"For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items 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. 'Article' means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures."

The 1959 Act s.2  (as amended by the Obscene Publications Act 1964) states:

"Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable .."

Section 3 of the Act provides a quite frequently used power of search and seizure and seized items may be forfeited.  Section 4 is a defence of "public good" which might apply where the publication is in certain interests set out in the section (e.g. science, literature etc).

The offence is an 'either-way' offence - triable either in the Magistrates' Court or the Crown Court.

At the heart of this legislation are the words "tend to deprave or corrupt."  This begs the question - who would be depraved or corrupted? The legislation refers to those persons who are "likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it."

The inclusion of the formula "deprave or corrupt" harks back to the earlier law laid down by the Court of Queen's Bench in R v Hicklin [1868] where Chief Justice Cockburn said that the Obscene Publications Act 1857 (now repealed) allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."

In the Lady Chatterley case, Justice Byrne articulated the meaning of the words 'corrupt' and 'deprave' - "To deprave means to make morally bad, to pervert, to debase or to corrupt morally.  To corrupt means to render morally unsound or rotten, to destroy the moral purity or chastity, to pervert or ruin good quality" - Penguin Books [1961]. This statement does little to assist since it opens up further questions such as 'what is morally bad or morally unsound?' etc. Ultimately, it is a question of fact for the jury or the magistrates.  However that may be, Justice Byrne dictum was approved by the Court of Appeal in Calder and Boyars [1969].

In DPP v Whyte [1972], the House of Lords said that deprave and corrupt refer primarily to the effect on the minds, including the emotions, of persons who read or see the article.  This case also held that the Act was not merely concerned with corruption of the innocent but it also extended to protect those who were less innocent from further corruption.

The most recent prosecution brought under the 1959 Act is R v Peacock; a case described by one article in the Guardian as a victory for sexual freedom. Mr Peacock was charged with six counts of  publication of obscene material.  The material - recorded on DVDs - depicted acts which are not necessarily unlawful in themselves, though it is fair to say that the material would not be acceptable to many and perhaps a lot of people would be disgusted by it were they to come across it. Mr Peacock was acquitted on all counts.

On the facts of the case, the prosecution was in line with the Crown Prosecution Service's Charging Practice relating to the factors which would be likely to lead to prosecution (see CPS Obscene Publications).

It may be that the jury's decision has demonstrated the unsuitability of this old legislation with its outdated and difficult phraseology. Nevertheless, is the jury's decision to be taken as a rejection of State regulation of obscene material? Almost certainly not. It is much more likely that the jury merely considered that, on the facts as they saw them, the material would not tend to deprave and corrupt those persons who were likely, in all the circumstances, to see it. 

Questions remain. To what extent is it justifiable for the state to intervene in these matters? Many argue nowadays for minimal intervention. However, it is a valid view that intervention is necessary though there will be disagreement as to where lines should be drawn.

Some will think that if the 1959 Act is not capable of catching the kind of material in question in R v Peacock then the Act is hardly 'fit for purpose' and ought to be replaced with an Act which would catch it. As recently as 2008, Parliament enacted legislation aimed at certain forms of extreme pornography - see the Criminal Justice and Immigration Act 2008 section 63 which creates the offence of possession of an extreme pornographic image as defined by the Act.  It is to be hoped that Parliament will find time to review the law and consider the whole question of obscenity and indecency in relation to publications, images and the like  and the ever-evolving forms taken by modern media.

ObiterJ is the author of the Law and Lawyers blog. Click here to follow ObiterJ on Twitter.