HC Deb 29 March 1955 vol 539 cc307-13

In any prosecution brought under this Act a person who wrote, drew or composed or printed or published the work in respect of which the prosecution is brought, shall be entitled, if he desires, to appear and to be represented in the proceedings and to be heard by the court upon the question whether the work is such a work as is described in section one of this Act.— [Mr. Roy Jenkins.]

Brought up, and read the First time.

Mr. Roy Jenkins

I beg to move, That the Clause be read a Second time.

We seem to have been getting on so well and in such a friendly fashion that one can hardly recognise the Committee when one compares today's sitting with our previous sittings. We have had the Under-Secretary telling us that it was perfectly reasonable to move Amendments in Committee. We were very glad to hear that surprising view expressed from the Treasury Bench. We followed that up with a general good feeling all round, with support from the Government Front Bench, to whch my hon. Friend the Member for Devonport (Mr. Foot) referred, and by the Government accepting the last Amendment.

That concession and the concession about the consent of the Attorney-General are important. I am not underestimating the importance of either point. I am grateful to the Home Secretary for going as far, but I feel that those concessions have not completely cleared up all the possible difficulties in relation to the Bill. The proposed new Clause deals with perhaps one of the main points of outstanding importance. The provision in the Clause is a very reasonable one indeed. There can be no question at all of the Clause in any way weakening the Bill or in any way making it more possible for people to disseminate horror comics or objectionable publications of any sort.

The Clause tries to provide against one of the difficulties which has existed in the law relating to objectionable literature up to this time. That is the position in which action is taken against the bookseller but not against the author or publisher, or perhaps against the bookseller and publisher and not against the author. In each case the bookseller is the most likely person to choose to plead guilty in order to avoid trouble to himself. There is then no possibility of the person whose good name is more directly involved than the bookseller's having the opportunity of offering a defence for the book.

This is a difficulty which I can illustrate by giving one example. I hope that I shall not be accused, not by the Chair but by the Government Front Bench or the Opposition Front Bench, of taking the matter too wide, but in considering how the law works in practice in a comparable field we have to refer to the law in relation to obscene publications. There was an example in relation to the sale of Havelock Ellis's book " Sexual Inversion," in which Havelock Ellis prepared an elaborate defence which he could not present because the bookseller pleaded guilty and the author's case was prejudged. The fact that we are here dealing with a smaller and narrower issue is no reason why it should be dealt with in an unfair and unreasonable way.

Those who draw, write or in any way produce horror comics may be highly undesirable people, but that is no reason why, if the work for which they have been responsible is made the subject of a criminal charge, they should not be given an opportunity to come before the court to say why, in their view, it ought not to be the subject of a charge. That seems to me an absolutely elementary principle of British justice. I hope that the Clause will not be rejected on the ground, to which the Solicitor-General came very near on a previous Amendment, that because this is not the position with regard to the whole law relating to obscene publication, we cannot put this provision in the Bill. We can make a small start here, and I make no secret of the fact that I hope that it will be extended over a wider area.

This is a provision which cannot weaken the Bill, but which can give people who may have their good names besmirched a reasonable chance to deploy before the court the defence which they wish to put for their work.

9.0 p.m.

The Solicitor-General

The hon. Member for Stechford (Mr. Roy Jenkins) points out that the matter of grief in the sense of causing some person to be aggrieved in this context has really arisen in the wider field of obscene publications. But I want to make the point to the Committee that that is really a different case for this reason. This Bill is creating a criminal offence by the selling, letting for hire and so forth of these publications, but under the Obscene Publications Act no offence is created at all. The retailer is not defending under that statute. All that happens is that the particular publication is seized, and one well knows from professional experience how exasperated is the author of a publication which has been seized because he cannot go before the magistrate and say how admirable a work it is because he has no status to be there.

But with this kind of prosecution the position is different, because here a publication cannot be condemned unless there is somebody before the court who is being challenged on the ground that he has committed a criminal offence by, as the case may be, selling or letting for hire or printing or publishing the publication. He has got to be there. I would suggest that there is much less risk dealing with the publications we are here dealing with than with some work of art or of literary merit.

But there is this difficulty in practice. Under this new Clause, the prosecution have got to give an opportunity to the person who drew or composed one of these horror comics to be there in person. That would be very difficult in some cases because the creators of these masterpieces of offensive art are not so proud of their work that they sign it. We would have the greatest difficulty in finding out who they are. How on earth one is to provide an opportunity for these people to come before the court to defend their works I do not know.

I cannot provide an opportunity to defend the work unless I notify about the prosecution. But supposing the artist of one of these series of horror pictures happens to be in Philadelphia. I make no accusation against any particular place in the United States, from which I understand many of these publications come. But how can I afford an opportunity to such a person to gratify his desire if I am dealing with the matter on a police basis if I do not know who he is because he does not own his work? Therefore, what is the good of this provision if I do not know the artists concerned?

There is another difficulty. Suppose we are dealing with works where there are stories told in pictures. I speak rather in ignorance of the matter, but I believe it is found that only one artist relates to one story, but there might be found a number of artists relating to a number of stories and there would be some delay at getting them all identified and giving them the opportunity of gratifying the desire to which this new Clause relates. Under what status do they come?

In the ordinary kind of case which would arise one would expect that the retailer, having had his stock of what were thought to be obvious horror comics seized, would prefer to plead guilty than advertise that he sold such wares. Is the court not to be able to accept that plea of guilty until it has found and given an opportunity to a variety of American artists to come and explain that these are not horror comics at all? Are proceedings in justice to be held up until that is done?

I do not at all mock at the underlying idea in this Clause in relation to the wider field to which the hon. Gentleman spoke, which is not here in question. But I submit it would be most impracticable to apply a Clause of this kind which is really unworkable to the kind of publication with which we are dealing. For that reason, I do not advise the Committee to accept the new Clause.

Mr. Foot

I think that the learned Solicitor-General is quibbling. The purpose of my hon. Friend's new Clause is very simple. It is that if an author or an artist wishes to defend himself, and feels that he ought to be able to do so, he should not be prevented because the newsagent, or someone else being prosecuted, pleads guilty.

Is it beyond the legal ingenuity of the Government and the Solicitor-General to devise means whereby a man so smeared should have the right to defend himself? I do not think that it is. I have no exaggerated opinion of the legal department of the Government, but I believe that if the Government desired to give the man this protection they could do so. Instead of even discussing this new Clause, to decide whether some words might be changed in order to provide this protection, the Solicitor-General has said, " Oh, no, the thing is entirely impracticable."

It is a perfectly simple purpose which my hon. Friend has in mind, and one which is desirable; as is illustrated by the law on obscene libel, the only experience we have in the operation of this kind of law. Yet the Solicitor-General does not make any attempt to discover whether there is some way to protect a man charged with having engaged in this kind of act, if he wishes to defend himself. The illustration given by my hon. Friend is exactly apposite. Havelock Ellis's book was put in court and a charge made against the bookseller, who pleaded guilty. Havelock Ellis was unable to defend himself, because the bookseller pleaded guilty. An author has no protection, and we are asking that he should be protected.

If these people are guilty of these horrific crimes, they should have the right, at any rate, to defend themselves, if they wish. To say that it is impossible to devise any legal method by which they can be secured seems to me to be an outrage on commonsense. It would be much better were the Solicitor-General to apply himself to the case which has been put, and to say that if a man's work is to be judged in this way, he should be able to defend himself if he wishes.

Mr. Keenan

Is it not possible for an author or artist to be brought forward as a witness?

Major Lloyd-George

So far as we know, the artists and authors do not live in this country at all, and we cannot prosecute outside this country. We do not even know their names. I have seen a good many of these publications, but in no publication which I have seen has an author or artist ever signed his name.

Mr. Ede

In the early 19th and late 18th Centuries one of the ways in which books like " The Age of Reason " and " The Rights of Man " were suppressed was by prosecuting the wretched booksellers, and even their assistants. I have no doubt that we all have a pretty low opinion of people who thought that those works were worthy of prosecution.

From what the right hon. and gallant Gentleman has said, I take it that the reason he does not expect to prosecute any of the authors and artists concerned is because he believes that they live outside the jurisdiction—

Mr. Rees-Davies

The Home Secretary cannot do so under Clause 2, where it states: A person who prints, publishes, sells or lets on hire…. shall be guilty… Authors and artists are entirely excluded. Therefore they will never be heard in this matter at all.

Mr. Ede

I am very grateful to the hon. Gentleman for drawing my attention to that. If, in fact, it is the position that even if they were in this country they could not be proceeded against, that might in certain circumstances, well throw an unwarranted singleness of prosecution—if I may use that phrase—on the wretched bookseller or his assistants, who, presumably, would be liable for aiding and abetting the sale of the documents.

I hope it will be made quite clear that if either an author or an artist concerned with these publications can be found within the jurisdiction, and the Attorney-General finds that there is a case against the publication written or drawn by such a person, steps will be taken to see that proceedings are taken against him and that the wretched bookseller or the librarian is not left to bear the whole brunt of the matter.

Mr. Rees-Davies

I rise because I am sure that there has been some confusion on this point, and because I wish to support every word which my hon. and learned Friend the Solicitor-General has said. Clause 2 is directed at the printer, the publisher and the retailer only. There is a reason for that. The author has not been included, because, in practice, he is quite unable to be found.

What happens in practice is that the person who wants to purvey this muck gets hold of a number of young artists who are willing to draw this class of material. They do the drawings from which the matrices or the plates are made. Those may well be in foreign countries or in this country, but mainly abroad. Therefore, from the purely practical point of view, I can conceive of no person who had written, drawn or composed the material on those plates wanting to appear before the court.

I agree with every word of the principle put forward by the hon. Member for Stechford (Mr. Roy Jenkins). I can imagine nothing worse than the case in which an author of repute has signed his name to a book and is not allowed to appear in court because another person has advised the publisher to plead guilty. Though I am entirely with the hon. Gentleman in this, we should not confuse this Bill and the circumstances in which such a case would arise with the case of the author who may be proceeded against under the Obscene Publications Act.

There is such a sharp divergence that I cannot agree that in this instance there is any case for putting it into this Clause. Quite frankly, I do not believe that any counsel would find it of any asistance in this case.

Mr. Roy Jenkins

The hon. Member for the Isle of Thanet (Mr. Rees-Davies) started off by saying that he endorsed every word of his hon. and learned Friend, but 1 am bound to say that I found his tone rather different from that of the Solicitor-General. I found it more sympathetic and more convincing, and, in view of that, I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn.