OBSCENE PUBLICATIONS (Hansard, 15 March 1955)

§ Mr. Roy Jenkins (Birmingham, Stechford)

I beg to move, That leave be given to bring in a Bill to amend and consolidate the law relating to obscene publications. This Motion seeks to introduce a Bill which is, in broad outline, what has sometimes been referred to as the Herbert Bill; in other words, it is the Bill which was drafted by the committee set up under the auspices of the Society of Authors, of which committee Sir Alan Herbert and, later, Sir Gerald Barry, acted as chairman. It was a committee which had a distinguished membership among publishers, authors, critics and other people associated with these matters.

The need for the Bill arose largely out of five cases during 1954, in which publishers of the highest repute in this country were accused of the common law offence of obscene libel. Those five cases had varying results. Two of them resulted in the acquittal of those who were charged, two of them in convictions, and in one the jury twice disagreed. On the third trial the case lapsed because, as is the practice, the Director of Public Prosecutions then offered no evidence.

Out of these five cases there arose concern on at least three grounds. In the first place, it was felt that the law was in an extremely uncertain state, and that it was difficult to reconcile the way in which it was being applied in some cases with the way in which it was being applied in other cases. There was a most marked difference between the summing up in some of these cases and in some of the others.

In the second place, it was felt that on the basis of the law stemming from the famous Hicklin judgment of 1868, an obscurantist and almost ridiculous literary censorship could, in certain circumstances, be imposed.

In the third place, it was felt that a real danger might arise, and I think that this danger would have been a present danger had the fifth and most famous of these cases—the one in which the jury twice disagreed—gone the other way, as it might have gone by the narrowest of margins. There would then have been a very present danger that printers, who are also indicted under the terms of the law, and librarians, might themselves have begun to apply a censor- 1128 ship still more rigid than that which the law could possibly sustain in order to safeguard themselves. This, clearly, would be a dangerous and undesirable state of affairs.

When, as a result of these cases, the law came to be looked at in more detail, it was clear that beyond these three broad facts there were a number of anomalies and difficulties about the present state of the law. First, it was clear that the purpose and intention of the author and the publisher were not relevant matters in deciding what the verdict should be. A particularly ridiculous state of affairs arose in one of these cases in which counsel for the prosecution continually asked, whilst reading out passages of which he complained, what possible purpose could the author have for including this passage or that passage in the novel? And, of course, under the law as it stands the one person who could have answered that, the author, was not able to do so because it was totally irrelevant to the matter which was before the court.

The second difficulty is that no defence was provided for, no defence is permissible, on the grounds of the literary merit, the artistic merit, the scientific merit or any other merit of the publication.

Thirdly, no expert evidence can be called. In one of the cases a number of literary critics of the highest standard, who had reviewed the book in question in journals of repute and had given it prominent reviews, were present in court but were not able to be called to give evidence. One would have thought that in deciding whether a book was published for a pornographic or corrupting purpose it would be relevant that literary critics of the highest understanding had thought it worth while to review the book. But such evidence is totally inadmissible as the law stands.

Fourthly, there is no certainty whether it is isolated passages or the dominant effect of the work in question which has to be judged.

Fifthly, curious though it may seem, there are no maximum penalties laid down for an offence against this section of the law. A penalty without limit except, I suppose for the death penalty, might be given if it were so wished.

These defects in themselves amount to a reason for a reform of this section of 1129 the law, and in my view, and in the view of the committee which drafted this Bill—and, I hope, in the view of the House this afternoon—make it necessary to introduce a clarifying and, if possible, a liberalising Measure to give greater security to works of good intent. That is the purpose of the Bill which was produced and submitted to the Home Secretary before Christmas, and it is the Bill which I am seeking leave to introduce this afternoon.

Its central feature can be summed up in the following brief paragraph from the Explanatory Memorandum: The question of intention is declared to be relevant, and the court is required to consider among other factors: (a) the dominant effect of the publication, (b) evidence of its corrupting influence if any. (c) literary or other merit of the publication, (d) the type of persons among whom it is likely to circulate. I know there are certain difficulties about this question of intent. The "Daily Telegraph" this morning had an article which bore upon this. I speak in this matter very much as a layman and not as a lawyer, but I am encouraged to do so in the happy knowledge that the majority of hon. Members are laymen and not lawyers, although I am also glad to have the support of a number of distinguished hon. and learned Members for my Bill.

I know that people are inclined to say that the intent of somebody publishing a pornographic or corrupt publication is never to corrupt anybody but that his intent is to make money; but surely this is a problem which the law has to face in other fields. In the crime of murder the intent in this sense of the person doing the murder is often to obtain a sum of money or some other advantage from the death of a person. None the less, his intention in the legal sense to promote the death of the person has to be shown and is an essential part of the crime.

I think it is important, in this respect, not to confuse the question of motive with the question of intent. I believe that if we act on the basis of intent, as we have done in the Bill, and that if recklessness in the sense of apprehending the evil which might follow, without necessarily desiring it, is also put in as a reason for conviction, we should have a Measure which would be at once liberal and practical. I think we could advance in this way.

I now come to my last main point. It may be asked: does the Bill conflict with 1130 the Children and Young Persons (Harmful Publications) Bill, which is now before the House of Commons? I think I ought to say that before this Bill was introduced it was the intention of the committee which drafted the Bill which I am seeking leave to introduce to cover horror comics as well by extending the meaning of "obscene" to cover horror, violence, and so on. We are in no way opposed to dealing by legislative means with the question of horror comics, but we want it to be based on intent and not upon the objective basis which is in the Bill at present. Therefore, there is no necessary conflict there at all.

In the second place, during the Second Reading of the other Bill we were continually told that it was not right to be opposed to that Bill because we wanted another and a different Bill. I would again say today that it is not right to be opposed to this Bill because one is in favour of another and a different and a narrower Bill.

There is a third point here, one which "The Times" Brought out in its leading article this morning. If the Children and Young Persons (Harmful Publications) Bill goes through—I think it is generally accepted, and the Government have indicated that it will go through with some amendments, partly in the direction of what I have said—a very anomalous position will arise. As "The Times" said this morning, there will be: … a partially reformed law covering one corner of the field of corrupting publications and a miscellany of defective laws covering the rest. "The Times" went on to urge the Home Secretary and the Government to seize the present opportunity to cover the whole field. I wish the Government would do so. If the Government cannot do it, let us at least introduce this Bill this afternoon.