New Clause.—(ADMISSIBLE EVIDENCE.) (Hansard, 29 March 1955)

§ Mr. Roy Jenkins
I beg to move, That the Clause be read a Second time.
This Clause, as its language may indicate, is to some extent analogous to an Amendment to Clause 2 which was moved at an earlier stage in the Bill, though it covers a slightly different point, to which I shall refer in a moment.
As I understand the position from the arguments adduced upon the previous Motion, there are two alternative lines of approach to this question. The first is that no publication which can possibly be brought under the Bill can have any merit of any sort and the second is that if it has any merit it becomes the more damaging, and one must be especially careful of works which may be well drawn and have artistic merit, because they may nevertheless be corrupt. I suggest that those are two contradictory points of view.
The point about expert evidence is a fairly simple one. In considering whether a publication is objectionable there ought always to be a possibility of rebuttal on the ground that although the publication might be held by some people to have certain undesirable effects upon some other people, nevertheless it has certain substantial advantages. It would certainly be legitimate to argue that witnesses who had expert knowledge of the subjects dealt with, knew the publication, and were prepared to testify in its favour, should be allowed so to do.
Under the existing provisions of the law of obscene libel no such evidence is admissible; neither would it be under the provisions of the Bill. I freely admit that the new Clause applies with much greater force to the wider issue which we have had in our minds throughout our discussions. For that reason I shall not press the new Clause nearly as strongly as I should if we were dealing with that wider issue, but it is conceivable that the question may arise in the case of matter proceeded against under the Bill, and I therefore ask the Joint Under-Secretary to consider whether it is not reasonable to insert such a provision.

§ Sir H. Lucas-Tooth
The proposed new Clause is unnecessary. In view of the type of publication with which the Bill is concerned and the fact that no proceedings 315 can be taken without the consent of the Attorney-General, it is most unlikely that a court would ever require to hear evidence about the sort of matters referred to in the new Clause. I apprehend that in any circumstances in which it was thought necessary to call evidence of this kind, such evidence would clearly be admissible, even without the Clause. I do not think that that evidence could possibly be relevant to the question, but if any relevant evidence of an expert kind were required I imagine that it would be admitted in the ordinary way.

§ Mr. Jenkins
I think that the hon. Member is under a genuine misapprehension, which I should like to clear up. Here again we come to the borderline between the law of obscene libel and the law which the Bill would institute, but I should have thought that it would be within the knowledge of the hon. Member that in at least one of the cases in which action was taken in relation to the offence of obscene libel during the last year, expert evidence of the highest calibre was available to the court but was held to be not admissible.
Why does the hon. Member think that if such evidence existed it would be held to be admissible under the Bill without the new Clause, whereas, during the last year, it has been clearly held not to be admissible in cases relating to the offence of obscene libel?

§ Sir H. Lucas-Tooth
The law relating to obscene libel is quite different from that which would be enacted by the Bill. I do not say that any such evidence as the hon. Member suggests might be brought would always be admissible, but what I do say is that if, in some circumstances which I find it difficult to envisage, such evidence were relevant to the question whether or not the publication tended to corrupt, I apprehend that the court would admit it.
In any event I must therefore tell the Committee that the proposed alteration is unnecessary and for that reason the proposed new Clause should not be added to the Bill.

§ Mr. Roy Jenkins
The remarks which the Under-Secretary of State has made show—and I do not say this disrespectfully—an astonishing ignorance of the problem with which we are dealing. I understand that expert evidence has been 316 held to be admissible under the general law because the test of corruption is purely objective. We can only have this objective test where there is a tendency to corrupt. That is repeated in the Bill and it becomes irrelevant that the work has other merit.
I was shocked to hear the Under-Secretary of State say that he does not appreciate that point, and that the Amendment is unnecessary on that ground. One of the main burdens of our complaint against the Government is that, even having got the consent of the Attorney-General, we cannot think that he might make a mistake. We are continually having to accept that if the Attorney-General says that a prosecution must take place it is inconceivable that anything other than a highly undesirable work is involved. That is not in line with all past experience of the law, and I therefore ask the Under-Secretary to look closely at the matter again in case there is a possibility, which, I admit, is rather remote, that he will correct his previous statement.

§ Mr. Charles Fletcher-Cooke (Darwen)
Lord Justice Denning has said that everything that is relevant is admissible and everything that is irrelevant is inadmissible. The only reason why the evidence that the hon. Member for Stechford (Mr. Roy Jenkins) wishes to adduce might be ruled out is on the ground that it tends to usurp the functions of the court and to answer the very questions which the court itself must answer. It wishes to produce an expert in morals among other things who will decide what it is the court's function and sole function to decide. I am not sure whether that is the reason why such evidence is inadmissible under the law of obscene libel and I do not know whether it applies to this question.
The hon. Member has at least made out a case of doubt, and I would ask my hon. Friend the Under-Secretary of State to look at it again and consider whether the reason why the proposed new Clause is unnecessary or objectionable is for the reason I have suggested, that it seeks to usurp the functions of the court. We all know how dangerous experts are if they seek to dictate what the court shall decide. If that is the reason why the proposed new Clause is objectionable, then I should be against it.

§ Mr. Foot
In the absence of the Attorney-General, the Committee should be able to dispose of this matter quickly. Surely the Under-Secretary would be willing to say that he will look at the proposed new Clause in view of what has been said on both sides, and will make a statement on the Report stage. The Amendment previously moved was concerned partly with the same subject. The Under-Secretary might see whether on a question of law he was correct in what he told us, and whether he will reconsider the whole matter and make a further statement at a later stage.

§ Sir H. Lucas-Tooth
From what my hon. Friend the Member for Darwen (Mr. Fletcher-Cooke) said I understood that he put the case as I tried to put it, but in a slightly different way—although I think that I agree with what he said. It amounts to this. If the evidence is relevant it will be admitted. If it it not relevant it is no good saying that by law it shall be admitted. As it will be irrelevant it will be quite unnecessary to admit it. There is no point, therefore, in saying that the court shall admit evidence which is not relevant.

§ Mr. Roy Jenkins
To clarify the position perhaps the Joint Under-Secretary will answer a question. We have necessarily to deal with a hypothetical case. If proceedings were taken against a book on the grounds that it was an obscene libel would the court admit as relevant evidence that it had been reviewed by the " Observer," " The Times Literary Supplement," the " Spectator," the " New Statesman " and even the " Tribune "?

§ Sir H. Lucas-Tooth
I should not regard anything relating to the law on obscene publications as being relevant to this Bill, as I have said on at least three occasions.
318 I must tell the hon. Member for Davenport (Mr. Foot) that this point has been very fully considered and that, for the reasons which I have given, I cannot really hold out any hope that we are likely to take any different view in regard to it.