OBSCENE PUBLICATIONS (Hansard, 22 November 1954)

§ Lieut.-Colonel H. M. Hyde (Belfast, North)
I am glad to have this opportunity of raising the subject of obscene publications even in the limited context of an Adjournment debate and at this inconveniently late hour. It is a subject which is of particular interest and importance to all those who, on the one hand, are concerned with the country's moral health, especially with the moral health of its young, and on the other hand, to all those who value our tradition of literary freedom.
People are puzzled by the apparent anomalies and inconsistencies of the present law of obscene libel. For instance, they wonder why material known as crime comics or horror comics, some of it of a decidedly objectionable character, is allowed to enter the country unchecked, or in some cases to originate here, while, at the same time, the law permits a bench of county magistrates, as happened recently, to order the destruction as obscene of all copies found by the police in a bookshop of Bocaccio's "Decameron," a work which has been regarded as a literary classic throughout the civilised world for the past 500 years.
The procedure for dealing with obscene publications falls into four parts. The law can be invoked to prosecute a publisher, a printer or an author for the common law misdemeanour of publishing an obscene libel. On the other hand, the Obscene Publications Act, 1857, often called Lord Campbell's Act, operates in a different way, in a rather unique way, in that it does not directly concern the author or the publisher, but merely the article itself and the shopkeeper or retailer who stocks it. Then there is the Customs Act, 1876, under which obscene publications and other articles can be seized at the port of entry, and, fourthly, the Post Office Act, 1953, under which articles similarly can be seized in the post.
The test of obscenity was laid down nearly 100 years ago and is still the law 1013 today. It was laid down in the leading case of Regina versus Hicklin by Lord Chief Justice Cockburn. He said: The test of obscenity is this: whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. That is the test and it is so applied today, although the manner of the application has varied as times have changed. It has been approved by the present Lord Chief Justice in a recent case.
The drawback of the test is its rigidity. In the first place, it has airways been applied hitherto in connection with sex matters, but if one takes the words "obscene" and "immoral" they are not strictly speaking in the dictionary sense exclusively applied to sex, though many people appear to think that they are. Like other hon. Members I went to see the exhibition of crime and horror comics which is being held under the auspices of the National Union of Teachers. To my mind there is no doubt that the tendency of some of these publications is to deprave and corrupt, but, hitherto, no attempt has been made to apply the test to this class of literature.
Secondly, the test does not constitute sufficient safeguards to reputable publishers and authors, as distinct from mere purveyors of pornography. On strict interpretation it leaves the publisher, in effect, to prove that his publications are suitable reading matter for an innocent schoolgirl. It is true that the more enlightened judges nowadays are careful to tell juries that they must consider the tastes and standards of today in deciding what is likely to deprave and corrupt. In this connection, we had the summing up of Mr. Justice Stable in a recent case, of the prosecution of the publisher of an American novel called "The Philanderer."
On the other hand, some judges still apply the test as if they were living in the times of Chief Justice Cockburn. In a more recent case than that of "The Philanderer" when a well-known publisher was prosecuted, the Recorder directed the jury that A book which might not affect the mind of an archbishop might affect the mind of a callow youth or a girl just budding into womanhood. 1014 The Cockburn test is purely speculative. It regards neither the author's or the publisher's intention, nor the merit of the work. It is solely concerned with its hypothetical effect on a susceptible reader. Expert literary or scientific evidence is not admissible and this evidence cannot be considered by the magistrate or put to the jury. As long ago as 1908 a Select Committee of both Houses considered the question of indecent literature and recommended that evidence of this kind should be considered in the courts. It might be interesting if the Under-Secretary could tell the House why that recommendation was not followed up.
A more elastic test has been evolved in the American courts. They have discarded the innocent schoolgirl test for some time in favour of a more rational and up-to-date test which considers the dominant effect of the matter complained of.
There are other anomalies in connection with this matter which time only permits me to mention very briefly. Where works are seized under the Act of 1857 the onus is on the occupier or owner of the premises to show cause why the works complained of should not be destroyed. The author and publisher have no right to be heard although, in practice, it is only fair to say that some magistrates make a point of hearing what they have to say.
Secondly, there is no time limit between the date of the publication of the work complained of and subsequent action taken. Works which have circulated freely from a number of years may suddenly become the subject of criminal proceedings through the act of some interfering busybody.
Thirdly, there is no uniformity of penalties or practice; an offence which may cost a bookseller or publisher £10 in. Edinburgh may cost £100 in London and £400 in Lancashire. Also, the publisher and printer are invariably prosecuted, but the author is only sometimes proceeded against, even when he is within the jurisdiction of the court.
Lastly, the Customs can seize allegedly obscene matter and destroy it without having recourse to the courts and without any opportunity being given to the author, publisher, or importer of being heard.
1015 In the field of remedies, my right hon. and gallant Friend the Home Secretary has stated in this House, on 21st October, that he agrees there are defects in the law and that there are aspects of this matter which concern authors and publishers particularly. The idea of a censorship is generally repugnant to most people in this country. We have not had a censorship of books since the end of the 17th century and there are few people who would like to see it reintroduced today. As an immediate remedial step, I would suggest to my right hon. and gallant Friend that a Departmental committee might be appointed to inquire into the whole subject, similar to that which was recently set up to investigate the problems of homosexuality and prostitution.
My right hon. and gallant Friend might also consider the appointment of a committee of authors and publishers drawn from the Authors' Society and the Publishers' Association, as well as from other trade bodies—particularly those connected with the distribution of literature—to advise him on trends in the publishing and literary world.
I would with respect suggest that the Home Secretary should take some administrative action, which does not, of course, involve the introduction of legislation. In the sphere of horror comics or crime comics I suggest that he might instruct the police to seize some of these publications and so promote a test case to see whether this type of literature can be brought within the test of obscenity—the Cockburn test which I have already mentioned. Under the procedure of the Act of 1857 comics would then be brought before a magistrate who, if he thought fit, would make an order for their destruction. There should then lie an appeal on the point of law involved to a divisional court of the Queen's Bench Division.
Secondly, I suggest that in proceedings under this Act my right hon. and gallant Friend should issue a direction to magistrates that they should always hear what the author and publisher have to say, when they are available, as well as the shopkeeper and retailer who stocks the works complained of. I would also suggest that he issues instructions that no action beyond the stage of seizure by the police should take place without the 1016 consent of the Director of Public Prosecutions being obtained. That would rectify a serious injustice and also bring about a measure of uniformity in this type of proceedings.
These suggested remedies would seem to be the minimum requirements regarding a matter which has considerably disturbed the public conscience and I earnestly commend them to my right hon. and gallant Friend the Home Secretary.

§ Mr. Roy Jenkins (Birmingham, Stechford)
This is a matter of some importance which is causing a great deal of concern, and I am grateful to the hon. and gallant Member for Belfast, North (Lieut.-Colonel Hyde) for raising it even at this hour of the morning.
The hon. and gallant Member put his finger on two points of difficulty, the first being the inadmissibility under the decision as laid down by the Cockburn judgment of the intent of the author. The second, which it is impossible to avoid, is that there is a feeling that there is an unusual discrepancy in the summing-up from some judges. The hon. and gallant Member instanced the judgment of Mr. Justice Stable recently and there is a sharp distinction with some other summings-up of Sir Gerald Dodson in other cases.
The point on which I disagree with the hon. and gallant Member is his suggestion about a Departmental committee. I feel that that might result in the matter being shelved for some time. The experience of the 1908 Joint Committee of the two Houses would not suggest that that was an effective way. Under the auspices of the Society of Authors a fairly representative committee has just been instituted to look into this matter and it is hoped that it will report to the Home Secretary before Christmas.
The Chairman is Sir Alan Herbert and there are a number of publishers and authors as members, including Mr. W. A. R. Collins, Mr. Rupert Hart-Davies, Mr. V. S. Pritchett, Sir Herbert Read and Mr. Walter Allen. I hope that the Home Secretary will bear that in mind in considering the specific suggestion of the hon. and gallant Member.

§ The Joint Under-Secretary of State for the Home Department (Sir Hugh Lucas-Tooth)
The House will be grateful to my hon. and gallant Friend the Member for Belfast, North (Lieut.-Colonel Hyde) for raising this important matter. There are here two interlocking questions. One is the right treatment of obscene publications generally, and the other the right treatment of so-called "horror comics." I think the House will feel that that is not a happy name and know that my right hon. and gallant Friend has indicated that he does not like it. The only other name which I can suggest is "objectionable magazines." I do not think that it is much better, but it avoids the suggestion of comicality.
Both questions are unsuitable for discussion on an Adjournment debate, because the essence of both is whether the present law should be amended. It would be out of order now to discuss an amendment of the law, and I certainly do not propose to try to get round that rule. As I cannot deal with the real issues which are involved, there is some danger perhaps of my giving a false impression in my reply to this debate. It might be thought that I was hiding some unwillingness to take action behind a procedural technicality or even that I was treating lightly what is a very serious matter. I want to say right away, therefore, that this is a very serious question, which raises moral issues, and impinges on what has been called the freedom of the pen, which is one aspect of the freedom of speech generally.
I would, therefore, start by giving the House an explicit assurance that my right hon. and gallant Friend is fully alive to the importance of this question and of the public concern about it. The House will remember that my right hon. and gallant Friend recently received a deputation led by the Archbishop of Canterbury. My right hon. and gallant Friend and the other Ministers concerned are now giving the most careful consideration to this question and in particular to the representations which were made by the Archbishop. A statement will, of course, be made in due course.
May I say something about the general question of obscene publications. First, I should like to point out that the enforce- 1018 ment of the law in this respect, as in other respects, is not a matter for the Home Secretary, who cannot give instructions to anyone with regard to a prosecution. The question of prosecutions is a matter for the chief constables and the Director of Public Prosecutions. The Home Secretary cannot even properly express any opinion whether or not a particular publication is an offence. What he can do is to refer particular publications to the Director of Public Prosecutions. For example, the Director of Public Prosecutions has seen a number of these objectionable magazines and he has expressed the view that proceedings in respect of such publications are unlikely to be successful.
If it is desired to take more stringent action or less Stringent action in the courts against any class of publication, then it will be necessary to amend the law. That is a matter with which I cannot deal now and I cannot, therefore, give my hon. and gallant Friend the answers to a great many of the points which he has put.
My hon. and gallant Friend referred to the report of the Joint Select Committee of 1908, and asked why successive Governments have done nothing to implement the recommendations of that Committee. The main recommendation was that there should be power to prosecute summarily in these cases, and that recommendation has already been implemented to a considerable extent by the Criminal Justice Act, 1925, which is now incorporated in the Magistrates Courts Act, 1952. That Act gives power to take these cases summarily, with the consent of the accused.
The second recommendation, to which my hon. Friend principally referred, was in fact one of a somewhat extraordinary kind. The Committee said: A provision should also be inserted to exempt from the operation of the Act"— that is, the Act proposed by the Committee— any book of literary merit or reputation or any genuine work of art. The Committee consider that it would be almost impossible to devise any definition which would cover this exemption. It went on to suggest that the matter should be left to the discretion of the magistrates. As an expression of ideal opinion, that recommendation was admir- 1019 able and would, I think, be agreed in all parts of the House, but it is equally clear that the Committee itself was quite satisfied that, beyond expressing the ideal, it was unable to suggest any method by which it could be carried out.
I turn now to the problem of these objectionable magazines. The subject was discussed on the Summer Adjournment in 1952, when I answered for the Government. The hon. Member for Coventry, North (Mr. Edelman) asked for a committee to be set up to consider the matter and my hon. and gallant Friend the Member for Belfast, North has made a similar request. The demand for a commission or committee is often a convenient way of also arguing the desire for legislation. I will not say that that was in my hon. and gallant Friend's mind today; probably he had both thoughts in his mind. I cannot now deal with the legislative aspect, but on the narrow question of the value of a committee I agree with the hon. Member for Stechford (Mr. Roy Jenkins). In the present case the facts are known. Any hon. Member who saw the exhibition arranged recently by the National Union of Teachers will have grasped the facts. There is not a great volume of law involved, although the law may not be altogether clear. Public opinion has been fully canvassed.
1020 The circumstances are, therefore, quite different from those surrounding the problem of homosexual offences and prostitution, where there was ample scope for a committee to work. Here there is not. The issues are questions of definition and of procedure, and in the Government's view those are matters which do not lend themselves to investigation by a committee.
The hon. Member for Stechford has told the House of a committee of authors and publishers which has been set up to consider the matter from an expert point of view, and I assure him that if that committee makes recommendations to my right hon. and gallant Friend, he will certainly give them the most careful consideration. Indeed, we should welcome suggestions from them.
I have necessarily dealt somewhat quickly with the many aspects of this broad question. Even if I cannot give a full answer to the points which hon. Members have raised, because of the rules of order, I can assure hon. Members that they will be fully considered by my right hon. and gallant Friend in coming to a conclusion about the appropriate action which should be taken.