OBSCENE PUBLICATIONS (AMENDMENT) (Hansard, 23 March 1976)

Mr. Tim Kenton (Mid-Sussex)

I beg to move, That leave be given to bring in a Bill to amend the Obscene Publications Acts 1959 and 1964; and for connected purposes. The preamble to the 1959 Act reads, An Act to amend the law relating to the publication of obscene matter, to provide for the protection of literature and to strengthen the law concerning pornography. The preamble to the 1964 Act starts with the words, An act to strengthen the law for preventing the publication for gain of obscene matter. Clearly, the intention expressed in those preambles is not being achieved. It is necessary only to go into any bookshop or any bookstall at any railway station to see that books and magazines are everywhere on sale that most of us, in common sense, would call obscene.

As with prohibition in the United States in the 1920s, two courses are open to Government if the intention of an Act is being evaded—either to annul it or to amend it. I wish to take the latter course and to amend these Acts, because I believe that genuine pornography does, in the words of D. H. Lawrence, offer an insult both to sex and to the human spirit. These Acts are important for the protection of the young and of other vulnerable members of our community—the young, because the transition from childhood to normal sexual life is traumatic enough without having to cope with perversion and physical cruelty as well, and the other vulnerable people because latent abnormality can be exacerbated by obscene literature to the point of danger. The Cambridge rapist was an example of this.

We have a particular responsibility for the young. The argument for making pornography harder to obtain is based in part on the premise that it is the duty of the mature mind to help the immature distinguish between what is normal and what is excessive. I suspect that there is no one in the House who as an adolescent did not snigger over a dirty book borrowed from a friend. But the very fact that such books were not easy 209 to get hold of created a sense of discrimination in our minds. That which was freely available was normal. That which was hard to obtain was abnormal.

Now that hard porn, soft porn and medical sex handbooks are all equally available, how much more difficult is it for an immature mind to distinguish between normal sexual practice and that which the vast majority of society would regard as excessive and offensive?

My amendments, therefore, have two aims, in order to restore to the law the purpose that was intended when these Acts were passed. The first is to make it harder for those who produce pornographic material to find purveyors for it. The second is to make it harder for impressionable members of the community to learn about obscene literature from the Press and other media and thus be stimulated to buy it.

Prosecutions under these Acts have been hampered by the attempt to put a strict legal definition on the word "obscene". In dictionaries the meaning of the word varies from "repulsive" to "lewd". In the 1959 Act it is defined as tending to deprave and corrupt. This definition has proved unsatisfactory. What member of a jury can in honesty persuade himself that he knows when the border line is crossed between disgust and depravity, or which article will lead to a continuing process of corruption of himself or of the public at large? Only by removing the precise definition of the word "obscene" can we make it possible for juries to reach decisions according to their own instinctive judgment. I do not believe that they will find this all that difficult.

A Californian court is quoted as holding that obscenity is a particular genus of speech and press which is as recognisable as poison ivy. Clearly, the jury's view of what is obscene will change in line with contemporary standards, and that is as it should be. I propose that the test of obscenity in the 1959 Act should be omitted and that no new definition should be inserted.

It is, however, right that if any publisher, bookseller or author wishes in good faith to obtain advice whether a certain publication will be considered obscene, there should be someone to whom he 210 can turn. I provide in my Bill that a special committee, among the members of which will be a representative of the Director of Public Prosecutions, will be appointed by the Home Secretary to advise him on prosecutions. Anyone will be able, on payment of a fee, to seek advice from this committee whether it considers a particular article obscene. Guidance will thus be available, and unnecessary expenditure of public funds on some unsuccessful prosecutions will be avoided.

I see no advantage to our society from the extensive Press reporting of court proceedings of prosecutions under these Acts. Although the media try their best to exercise discretion, the only effect of such reporting is to stimulate demand and to make more widely known the titles of pornographic articles. This is what Sheridan, in his play "The Critic", called the "collusive puff", guaranteed to increase sales. I propose in my Bill that the same restrictions on the reporting of judicial proceedings should apply to obscene publication cases as apply to divorce cases following the Judicial Proceedings Act 1926.

Finally, there is the difficult problem that the defence, under Section 4 of the 1959 Act, may call in expert witnesses with the aim of establishing that publication is in the public good. This has befuddled juries between a decision on obscenity and a decision on the public good. Experts have trailed clouds of obscurity round what at times could be straightforward matters. So I provide in my Bill that the jury should first decide the basic question whether an article is obscene. Only after they have made up their minds that it is obscene will the defence have the right to plead that, none the less, the public good justifies publication, and then to call in their expert witnesses.

I realise that this is a very complex subject, and I have approached it with trepidation, but it is a matter about which many people are gravely concerned. Public opinion has a commonsense view at any time as to what constitutes obscenity. It is that that I have tried to re-establish. I should have liked to introduce an amendment to prevent the sale of pornography and of indecent articles to those under 18, but that is 211 wider-reaching and I hope that the Home Office will take that point on board in an overdue review of the whole subject.

The amendments that I have suggested are few and moderate. They do not interfere with our liberties, but they will diminish some of the harm that can now be done by obscenity to the young, to the disturbed members of our society and to the sad people who take part in portraying obscene acts. Hon. Members on both sides will prepare the Bill and I trust that it will command the support of the whole House.