§ 2.46 pm.
§ Order of the Day for the Second Reading read.
§ LORD BIRKETT
My Lords, I beg to move the Second Reading of this Bill. I do not think it will be necessary to make any extensive draft upon your Lordships' time and patience, for although the Bill is an important one, the subject with which it deals difficult and complex, and the field it covers very wide, nevertheless I think it should be quite possible to explain to your Lordships' House, with reasonable brevity, the purposes of the Bill.
The formal stated purposes of the Bill are to amend the law relating to obscene publications; to provide for the protection of literature, and to strengthen the law against pornography. These purposes were discussed, debated and considered at very great length in another place, and they come before your Lordships' House after several years' consideration in another place. The origin of the Bill was that a Committee of the Society of Authors were aggrieved, and quite deeply aggrieved, by certain prosecutions which took place in the year 1954. Those prosecutions were of publishers of high standing and very reputable firms, and they brought to a head the dissatisfaction which had been widely felt about the state of law dealing with obscenity, not particularly by authors or publishers or by the literary world in general, but by all those who were concerned with the administration particularly of the criminal law, such as the police and, indeed, the Home Office.
The Bill was introduced into another place in the year 1955, and for a time it made no headway whatever. It is not necessary to trouble your Lordships with the subsequent history of the Bill or the changes in its fortunes, but there are two matters, I think of importance, which may affect your Lordships' judgment upon the whole Bill. In the year 1957. two years after the introduction of the earlier Bill, a Select Committee was set up in another place to consider the law dealing with obscenity and obscene publications. It sat for two Sessions of Parliament; it called before it every interest concerned with the matter, such as the police, the Department of the 490 Director of Public Prosecutions, the Public Morality Council, authors, publishers and so on, and the Bill which comes before your Lordships this afternoon contains many of the recommendations which were made by that Select Committee.
The second matter which I think it is important your Lordships should have in mind is that although the Bill manifestly owes a great deal to the skill, knowledge and assiduity of the Members of another place—and I am told that I may pay special tribute to the honourable Member for Stechford, who introduced it there—as it stands to-day it owes very much to the help and co-operation of Her Majesty's Government. The Home Secretary showed a very sympathetic attitude towards the Bill, and the practical help of the learned Solicitor-General has been widely appreciated. It is altogether proper that this afternoon, in moving the Second Reading in your Lordships' House, I should acknowledge, with gratitude, the help and co-operation of Her Majesty's Government. I am sure I may say of my noble and learned friend who sits upon the Woolsack that, with his customary kindness, that consideration will be extended by him here, as I am certain it will be by noble Lords in every part of the House. Therefore I will just submit that this Bill, although far from being a perfect Bill (indeed, I have come to the conclusion that no perfect Bill upon this complex and difficult subject will ever be introduced), does nevertheless reconcile diverse views in a practical way and constitutes a distinct step forward so far as the law on obscenity is concerned and in the public interest.
Before I turn to deal quite briefly with the actual clauses of the Bill, perhaps it would assist your Lordships if I were to say a word or two about what I will call the machinery of the law as it exists at the moment with regard to obscene publications. The basis of the law is the Common Law; it is a Common Law misdemeanour to publish obscene matter. The section of the Magistrates Act, 1952 —I think it is Section 19, or it may be Section 16—provides that that Common Law misdemeanour may be tried summarily if the defendant consents, and in that event the magistrate is empowered to impose a fine of up to £100 or imprisonment up to six months, or both; but so far as the Common Law misdemeanour 491 is concerned, upon indictment there is no limit either to the fine or to the imprisonment. Your Lordships may recall that the Criminal Justice Act, 1948, abolished the sentence of penal servitude. Up to that moment it had always been the usage of the courts that when a sentence of imprisonment was imposed the maximum was two years; but since the passing of that Act there have been at least four decisions in which it has been authoritatively laid down that the amount of the fine or the amount of the imprisonment is entirely within the discretion of the court, for any length of time, always providing that the sentence is not inordinate.
I think that that is all that need be said about the situation under Common Law. Perhaps as I leave it I may say this: that until the year 1772 there was no such offence known to the Common Law as the publication of what is now termed an obscene libel, using the word "libel" in a sense in which we do not ordinarily use it. In the term "obscene libel", the word "libel" is taken from a Latin diminutive from the indictment which meant a little book, which is quite different from the use we ordinarily give to the word "libel". Until 1772 there was no such offence. It is a good illustration of what the English Common Law can do, for it was always supposed that matters of obscenity or matters concerning public morals were the exclusive concern and jurisdiction of the spiritual courts, the Ecclesiastical Courts. Indeed, in a famous case ten years before 1727 so great a legal figure as Chief Justice Holt had declared that there was no power of the law to deal with obscenity. In 1727 a man named Curll, presuming upon the situation, published pornography on a wholesale scale. Steps were taken to bring him to trial and, after much dispute and with some doubts on the part of some judges, this offence, the Common Law misdemeanour of publishing an obscene libel, came into our law and is in our law to-day.
Apart from the Common Law—and, as your Lordships will hear in one moment, this Bill does a great deal to affect the Common Law—there is a very important Statute which I must mention. It is the Statute called the Obscene Publications Act, 1857, sometimes known as Lord Campbell's Act, because Lord Campbell 492 introduced it into this House. In a word, that Act provides a summary procedure whereby obscene publications may be searched for by the police on premises and seized, and, by due process of law, if the case is made out the obscene publications may be destroyed. Very crudely that was the purpose and the effect of the Obscene Publications Act, 1857. Your Lordships will observe that no new offence was created in that and nobody could be convicted under that Statute. All that could be done was that if the case was made out the offending matter might be destroyed.
In this House the Bill was very strongly opposed, notably by Lord Lyndhurst, who made a speech which is still most interesting to read, and by Lord Brougham, and the objection which they made is one that has been raised almost ever since. They said that the Bill was too severe, in that it would injure the true interests of literature; and they cited the classics, Rochester's poems, plays of Wycherley and Congreve and so on. I mention the point for this reason. Lord Campbell said in this House:It is not within my most distant contemplation that works of literature should he affected by this Bill at all. This Bill is aimed exclusively at those who have the single purpose of corrupting the morals of youth or of shocking the conscience of reasonably minded people.In a word, my Lords, the Bill of 1857 was introduced into this House and went through the House of Commons and became law because it was a Bill aimed at pornography or, in modern language, dirt for dirt's sake. I do not suppose that anywhere in this House there is a noble Lord who would not be extremely keen that the strongest possible measures should be maintained in our law against pornography of that kind. I think that that is probably all that it is really necessary to say with regard to what I will call the machinery of the law.
Perhaps your Lordships will be kind enough to turn to the Bill itself. I can deal, I hope quite briefly, with the provisions of the Bill. Clause 1 deals with the test of obscenity. Perhaps I may just say that that matter has always been the very great difficulty in this complex and difficult field. The law at the moment is as it was laid down in an important case, The Queen v. Hicklin in the year 1868. That was a case under Lord Campbell's 493 Act where a Wolverhampton metal dealer had sold publicly some pamphlets called The Confessional Unmasked. It was alleged that these pamphlets, published by a militant Protestant society, were obscene. The magistrates ordered the police to seize them, and 250 were seized. The justices before whom the matter first came condemned the pamphlet as being obscene. On appeal to quarter sessions the recorder revoked the order. In consequence, an appeal was made to the Queen's Bench Division and the Court, over which Chief Justice Cockburn presided, with Mr. Justice Blackburn and Mr. Justice Lush sitting with him, decided the case and overruled the recorder.
In the course of that case the Court adjourned for a few moments before delivering judgment. They came back and Chief Justice Cockburn delivered the first judgment. In the course of it, the laid down the test of obscenity which has been the English law ever since, and it is still the law to-day. Whether it was a considered phrase, or whether it was extempore I really do not know, but he said:The test of obscenity is 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 such a publication might fall.I am not one of those who deride the standard of the Victorian age. On the contrary. But ideas change; tastes change from generation to generation; and it has for a long time been felt that the test laid down in 1868 by Chief Justice Cockburn is no longer applicable to modern conditions. I see that my noble and learned friend Lord Denning is to take part in this discussion this afternoon. In his book, The Road to Peace, he deals with the definition laid down by Chief Justice Cockburn, and states his opinion that it is inadequate for our modern age and, if rigorously applied, would deprive us of some of our much esteemed freedom. He further speaks about the futility of test, and gives his reasons.
It has been very widely felt that the test of 1868 certainly needed revision. Whilst I am not going to debate it—this is perhaps not the time or the place—perhaps I might just say this. The test offends, I think, rather a fundamental matter in the criminal law. It has always 494 been held that our criminal law should be certain: that men should know of assurity what they may do and what they may not do; and, secondly that if a criminal offence is to be created it must be done by Parliament and not by the Courts. It may be said that the definition of 1868, which has virtually been Statute Law ever since it was declared, offends in those two particulars. There is, however, something just a little deeper. Your Lordships will observe that the tendency referred to in the test of obscenity is not a tendency to shock or to disgust, either by the nature of the language employed or by the theme with which the subject matter, the book or whatever it may be, deals, but "to deprave and corrupt;" and the test is whether it tends to depravity or corruption in the minds ofthose whose minds are open to such immoral influences and into whose hands the publication may fall".In a word, in the case of an author writing on a serious topic, for modern minds and mature minds only, if the books fell into the hands of some immature child it might be said that the tendency was to deprave and to corrupt; and there is your Common Law misdemeanour. Indeed, Lord Campbell himself was naturally careful about the morals of youth. And Chief Justice Cockburn, in the course of his judgment, explained what he meant by a tendency to depravity and corruption, by saying that it created impure thoughts in the mind; in other cases it was extended to the stimulus of impure thoughts, and then it was extended still further by suggesting that it tended rather to destroy public morals. Indeed, in 1877, when Charles Bradlaugh and Mrs. Annie Besant were prosecuted for publishing obscene matter, all they did was to publish a pamphlet, which it was admitted was extremely well written, advocating birth control. To show how very much ideas change, the learned Solicitor-General of that day who prosecuted Charles Bradlaugh and Mrs. Besant, and who later was Lord Chancellor, Lord Halsbury, said about the publication:Do not tell me that doctors support it. I have no hesitation in describing it as filthBut the importance of the matter is the extension of the dictum of Chief Justice Cockburn. Of course, it really 495 means—I leave it at this—that, if the test is rigorously applied, The Reeve's Tale, in Chaucer, Romeo and Juliet, The Diary of Samuel Pepys, Tristram Shandy, as examples taken at random, fall within the ban. It is enough for me to say that it has been widely felt that, while it is important that pornography should be, struck at with vigour, and everybody would support such action. we ought to be extremely careful not to injure true literature. My Lords, let me say this and be done with it. In my submission to your Lordships, the freedom to write is a great freedom. Your English writer, must be free and permitted to depict the thoughts and feelings of his own generation, the habits, the customs, the, prejudices and the weaknesses which form the complexity of human behaviour. the ideas which are current in all sorts and conditions of man—he must be able to set them down not only for his own, generation but, it may be, for the generations that are still to come.
In Clause 4 of the Bill there is a provision which I think will be of great service in seeing that true literature is not endangered or injured, while pornography, dirt for dirt's sake, receives the strongest possible condemnation. The test which is now suggested in Clause 1 (1) of this Bill is thatFor the purposes of this Act an article"—and "article" is defined in subsection (2), and a book is clearly included—shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as tend to deprave…"Taken as a whole" are extremely important words; they are in fact at the present time the usage of the Courts, There was a time when isolated passages were taken from books and were presented to the jury as the test. I suppose that that derives from the fact that in the ordinary case of criminal libel it was necessary to set out in the indictment the actual words, but it was never so necessary in the case of what is called an obscene libel; and if you are going to judge a book you must not select just some paragraph or passage which may offend certain people, but you must take the dominant effect of the whole book. When James Joyce's Ulysses was 496 the subject of a prosecution in the United States—it has never been prosecuted here—some quite interesting judgments were delivered there about the freedom of the writer and about the necessity to look at the document as a whole. Therefore, these words have been put into the Bill, but they are in truth and in fact the usage of the courts at the present moment.
The test described in this Bill is whether the document willtend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.The Hicklin test has thus been transformed to cover all literate humanity, and asks: What is the price of the book? Is it a Pan, a Penguin or one from a private source? Where was it bought—in a pornographic shop, in a store, or at the counter of the National Library? What were the circumstances attending the publication—the honest purpose of the writer and his sincerity? All these matters must be taken into consideration before the test of obscenity is satisfied. Subsection (2) of the same clause defines "article", and subsection (3) defines "publication". I ought to say a word upon that.
My noble and learned friend who sits on the Woolsack tells me that it is desired by Her Majesty's Government that the definition of "publication" should be extended, and just before I came into the House I saw the suggested Amendment. As I understand the Amendment, it would read:distributes, circulates, sells it, lets it on hire, gives or lends it;and then there is a subsection to be added. All I would desire to say this afternoon is that whilst I cannot, here and now, say that that Amendment will be acceptable—because we should very much like to consider it, particularly as it affects stage plays—I do not think there will be the smallest difficulty in coming to an agreement satisfactory to everybody on the extension of the term "publication".
Clause 2 lays down the penalties. I have told your Lordships that at Common Law there is no limit to the imprisonment or fine. The Select Committee suggested these figures, and the promoters of the Bill thought it wise to 497 back this decision of the Select Committee. As a result Clause 2 (1) reads:any person who, whether for gain or not, publishes an obscene article shall be liable—Your Lordships may feel that some of those terms are rather severe, but they are the decision of the Select Committee, and it will be seen that what is now defined by the Bill is a summary offence in place of the Common Law misdemeanour of obscene libel. Your Lordships will observe that under subsection (2) of Clause 2 a period of twelve months from the commission of the offence is substituted for six months, which is the customary time; and the power to deal with the Common Law offence summarily, under the Magistrates Courts Act, 1952, is abolished.
- (a) on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months;
- (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both."
Subsection (3) of Clause 2 says merely that:A prosecution on indictment for an offence… shall not be commenced more than two years after the commission of the offence.Subsection (4) provides thatNo prosecution shall be brought for an offence at common law consisting of the publication of any matter contained or embodied in an article where it is of the essence of the offence that the matter is obscene.That abolishes, so far as the articles named in the Bill are concerned, the Common Law misdemeanour to which I have referred. Subsection (5) gives the definition of innocent dissemination. Your Lordships debated and discussed that matter during the passage of Children and Young Persons (Harmful Publications) Act, 1955; and you will possibly consider it quite just and proper that if a man proves he had not examined an article, and had no reasonable cause to suspect that he would be made liable, and can satisfy a court upon that, he should not be convicted. Subsection (6) limits the publication so that the test of obscenity is not made too wide. The publication only shall be looked at and the question of obscenity shall be determined without regard to any publication by another person unless it could be reasonably expected that the publication 498 by another person would follow. In other words, this test of obscenity is applied only to the publication before the court; and unless it can be shown that another publication flowed from it and so extended the area of publication, no other publication will be taken into consideration.
Clause 3 of the Bill, with eight subsections, merely does away with the Obscene Publications Act, 1857, of Lord Campbell, as your Lordships will see from subsection (8), and substitutes a very much stronger summary procedure against pornography. I need not read the clause at length, but I would draw your Lordships attention to the fact that in the first subsection there are added words providing that where:there is reasonable ground for suspecting that, in any premises in the petty sessions area for which he acts, or on any stall or vehicle in that area, being premises or a stall or vehicle specified in the information, obscene articles are, or are from time to time. kept for publication for gain, the justice may issue a warrantThat provision is inserted at the instance of the police, who gave evidence before the Select Committee that many pornographic articles could not be searched for, or seized, because they were not on premises within the meaning of the Act; and that stalls or vehicles were habitually used for that purpose. Under this Bill it will he within the power of the police, to seize and search such stalls or vehicles. There is just one point to be added on subsection (1). Under the Act of Lord Campbell it was necessary, before a defendant could be convicted, for the prosecution to prove a sale. That has gone and it now means that the wholesaler in pornographic literature, as well as the retailer, can be struck at. The prosecution had immense difficulty from time to time in proving the sale, which was essential to be proved under the Act.
Subsection (2) of Clause 3 gives another additional power. Under the present law it is impossible for the police to seize documents and books. If they searched and found obscene articles they could seize those articles and bring them before the justices; but they could not seize the books to show the extent of the trade and matters of that kind. Now they will be able to do so, because that very valuable additional power has now been given. Subsection (3) deals merely with 499 the procedure for bringing the alleged obscene articles before the justices; it provides that a summons may be issued to the owner or occupier of the premises where the goods were found, and he must come forward to the court and show cause why they should not be destroyed. There is a provision that if the person summoned does not appear an order cannot be made unless service of the summons is proved.
Under subsection (4) there is again a new right. In a case involving a publication called The Well of Loneliness, in which many years ago I appeared as counsel for the defence, the book had been written by a Miss Radclyffe Hall. The case, under the Act of Lord Campbell, came before Sir Chartris Biron in the courts, and the authoress had no voice whatever. When she attempted to speak she was sternly told by the magistrate that she would be ejected if she said another word. I may add that I had to read that book several times before I could discover the alleged obscenity, and it is now on sale in almost every bookseller's shop. That case shows that the extension of the doctrine of the Obscene Publications Act went to the theme, as it did in The Well of Loneliness; for the book was destroyed on the ground, not that there was a word of obscenity in it, not that there was an offensive expression from start to finish, but because of the theme of the book and Miss Radclyffe Hall had not condemned it. Under subsection (4), in addition to the person summoned, the man who has the premises or shop, the owner or author may come to the court and may claim to be heard, and will be heard, on the ground that he is defending the article against the charge of obscenity.
Subsection (5) deals with the machinery of appeal, with which I need not trouble your Lordships. Under subsection (6) there is a new provision which is rather topical at the present moment, because if a seizure is made and the proceedings fail before the justices, the justices have power to award costs against the informant who has caused the proceedings to be made. Subsection (7) provides that:The question whether an article is obscene shall be determined on the assumption that copies of it would be published in 500 any manner likely having regard to the circumstances in which it was found…All that that means is this: that before one can seize and search one must give some evidence that one has reason to believe that on the premises or the stall, or wherever it may be, there are articles which are to be published or likely to be published for gain. This is the section by which the only test of publication is that it is likely in the special circumstances in which seizure was made. I have dealt with the clause very roughly and crudely, but Clause 3, with all its subsections, is in substitution for Lord Campbell's Act, which is repealed by subsection (8) of Clause 3.
Finally, my Lords, there is Clause 4, a very important clause, which I will not explain at any great length. It states:A person shall not be convicted of an offence against section two of this Act"—that is, the publication of an obscene article—and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.The promoters of this Bill believe that to be a very valuable thing. It is designed in the true interests, not of the author or of the publisher but of literature in general. The value of the work in question will now have to be considered from a literary point of view, from a scientific point of view, from an educational point of view or from the point of view of any other merits. If there be passages in the book which are objectionable, or are felt to be objectionable, it must be considered as a whole; consideration must be given to whether those passages are relevant to the author's purpose and to the question whether he could have depicted the life he desired to depict in any other way.
Under subsection (2) of Clause 4 the opinion of experts may be admittedas to the literary, artistic, scientific or other merits of an article…Under the present law, in prosecutions for obscene libel scientific evidence has always been admitted. When Chief Justice Cockburn tried the case of Charles Bradlaugh and Mrs. Besant (and was, I must say, very favourable indeed to them) he allowed scientific evidence to be called and questioned the witnesses far 501 beyond the limits of the scientific evidence, ascertaining whether there was anything improper in the publication of the pamphlet. Scientific evidence is always admissible. I would submit that evidence of specialists, where special knowledge is required, is permissible too. But it is now proposed to allow evidence to show whether a publication is of artistic or of literary value; and the promoters of the Bill believe that Clause 4 will do a great deal in the interests of literature.
So, my Lords, I present this Bill for its three purposes: the proper amendment of the law of obscenity; for the work it does in protecting that which is perhaps among the most valuable things which our country can possess, its literature, extending through very many centuries; and, finally, to strengthen the law against that evil thing which ought to be most sternly suppressed, pornography. For these reasons, I beg to move that this Bill be read a second time.
§ Moved, That the Bill be now read 2a.—(Lord Birkett.)
§ 3.26 p.m.
§ LORD PETHICK-LAWRENCE
My Lords, this matter is, of course, no Party question, and therefore my Party take no Party line with regard to it. But I feel convinced that I can say with assurance that most of those, at any rate, if not all, who sit behind me in this House will endorse the view I am proposing to express. We have heard from the noble Lord, Lord Birkett—and it was no surprise to us—a masterly explanation of this Bill. I do not remember ever having listened in this House to so detailed and yet so concise and convincing a speech dealing with an intricate subject like the one to which we are addressing ourselves to-day. He has covered the ground so fully that it would be superfluous on my part to describe or further illuminate the principles of this Bill.
Perhaps I may be allowed to say just this, however. For several years past I have been in close association with the two principal authors' societies: the Society of Authors and the P.E.N. Club. I have known and appreciated the very strong objections which they have to the obscenity laws as they have been, and still are, and will be, until this Bill 502 becomes law, because they felt that there were cases—there might be several cases —in which perfectly good, valuable and important books that it was desirable that persons should read could be and would be defamed by being classed as obscene libels; and that, I think, would be injurious to the publisher, to the author and to others, and would limit the opportunity the public would have of reading a book of literary and scientific and social importance. Therefore I have watched with the greatest interest the various attempts since (I think the noble Lord said) 1955, when the first Bill of this kind was introduced, to carry such a Bill into law and to get it through its various stages in the other place and to present it to your Lordships' House. I am certainly very happy that at last a Bill has been found of which the House of Commons could approve almost unanimously; and that is the case with this Bill which the noble Lord has presented to us for Second Reading to-day.
I am not going into the details of the Bill because the noble Lord has explained them so fully and so clearly, but the two main points about which the authors' societies were distressed were the fact that a book was not judged on its merits as a whole—whether it was for the public good; and, secondly, that in any trial for obscenity the proper persons, the author and the publisher, could not necessarily get a hearing in the courts at all. Those two serious evils are remedied by this Bill. The Bill is by profession a compromise Bill, and as such does not fulfil wholly the aspirations of those who introduced the original Bill in 1955. But though it is a compromise Bill, the compromise is, I believe, one that commends itself to both sides.
It is not for me to speak for the Government—no doubt the noble and learned Viscount on the Woolsack will give the Government's point of view when lie comes to wind up this debate—but I am entitled to speak for the authors' societies, and I will read to your Lordships what they say. Starting with the P.E.N. Club, I have here a letter from the secretary. He says:I think I can say definitely that the Bill is regarded as a compromise measure but we feel that if it is passed into law the position will have been immeasurably improved.503 The secretary of the Society of Authors writes:You may certainly say that the Bill has the approval and support of the Society of Authors.In the course of his letter, he refers me to an article which appears in the Author, the publication of that Society, in which it is said:The Bill"—which the noble Lord is introducing—embodies all the original objectives of the Herbert Committee except…that the Director of Public Prosecutionsis not made responsible for all proceedings in the case. That is part of the compromise, and the article goes on to explain that it does not regard that omission as of first-rate importance. It says, further, that as one of the principles which have been embodied in the present final draft of the Billan author and publisher will have the right (hitherto denied to them) to he heard in the defence of a book which it is proposed to destroy.My Lords, there really does not remain anything further for me to add. It is a compromise Bill. I believe that the noble and learned Viscount the Lord Chancellor will say that it has the approval of the Government. It certainly has the approval of both these two authors' societies, whose words I have read to your Lordships this afternoon; and I think the House will be fully justified in giving what I hope will be unanimous approval to the Second Reading of this Bill.
§ 3.33 p.m.
§ LORD DENNING
My Lords, I, too, would thank my noble and learned friend on his very clear exposition of this Bill. Here we have the continual question: where to draw the line between the proper use of freedom on the one hand, and the abuse of it on the other. To write literature is the proper use of freedom: to indulge in pornography is the abuse of it. It is, indeed, a continual problem. Even during the last day or two your Lordships will have seen that freedom of speech carries with it the freedom to criticise any sentence of the courts: but if any person should impute improper motives to a judge or a magistrate, that is an abuse of freedom. It is always a question of striking the 504 right balance. I believe that, on the whole, this Bill does it, but I would suggest that it does not strengthen the law against pornography quite enough. I say that because, if you read the definition of "publication" in the first clause, you will see that it is confined to the dealer who distributes, circulates, sells or lets these articles. A wide field of pornography or obscenity is not covered.
Let me give you some illustrations concerning photographs and films—one has seen them in the courts—which deal with such things as nude bodies; obscenities whether hetero-sexual, homosexual, lesbian or sadist, portrayed in that way. Films can be smuggled into this country from another country exhibiting all those obscenities—and this was in the report of the Commissioner of Police for a cost of only some £50, and they are displayed in private circles, the price of £2 and £3 being paid for a seat. That type of obscenity is not covered by the definition of "publication" in this Bill.
Let me take another instance, which occurred in Liverpool only a little while ago. A bookseller obtained a perfectly reputable medical book and displayed it in his window, opening it at a page on which there was a diagram of the female sex organs. He did it for the purposes of his trade, to attract people to his shop. That is not covered by the provisions of this Bill. Nor, indeed, are the many cases where the police arrest a homosexual and find in his possession photographs which he has used to show to small boys or others, as the case may be. Nor are the organisations which employ photographers to photograph models, and who pay £3 an hour to these people for these nude photographs.
It is said that the matters which I have mentioned should be left for the Common Law to deal with, and should not be dealt with by this Bill. Let me tell your Lordships that the Common Law rests on only two old cases, which should be brought up to date. The first one was in the days of Charles II, in the year 1664. That was the case which started all our law on obscenity. In 1664 Sir Charles Sedley exposed his bare body on a balcony in Covent Garden, and accompanied his action with many obscene expressions. He was brought before the courts; the courts said it was high time 505 this was an offence, and he was convicted. But they said that he was a member of an ancient family of the county of Kent and they did not want to ruin him but to reform him, and they only fined him 2,000 marks, the coinage of the day, sent him to prison for one week, and bound him over to be of good behaviour for three years. That one case is the foundation of our law on what I may call visual obscenity.
The remaining case, in 1875, was where there was a booth on Epsom Downs on Derby Day, inside which there was a grossly indecent exhibition. We have not the details, but there was a payment for entrance; and that was held to be a Common Law offence of obscenity. Our law against such matters as those about which I have told your Lordships—of these films which can be brought into England and shown in this surreptitious way—depends entirely on those two cases. Surely such conduct should also be brought within this Bill: not just left to the old Common Law, but brought within these new enforcement provisions. It is said that if this were done it might strike at stage plays or at public films, but I trust that the authorities—the Lord Chamberlain and the British Board of Film Censors—know well how to protect those publications. All I ask is for the law to be strengthened by making that definition of "publication" cover the instances which I have given. I understood that my noble and learned friend on the Woolsack was going to propose an Amendment. I hope the Amendment will be such as to cover those cases. That is my first point.
My second point is this. I wonder whether the Bill goes far enough in the protection of literature, because this "defence of the public good", as it is called, is a separate matter altogether. Your Lordships will notice that the first subsection says that an article is obscene if it tends to deprave and corrupt persons who are likely to read, see, or hear it. It is only after it is found against the publication that it tends to deprave or corrupt, as a separate and distinct issue altogether, that the defence have to say: "I justify this for the public good." It seems to me that if it has already been held that it tends to deprave and corrupt those who are likely to read, see or hear it, it is very difficult for the defence to prove that it is for the public good. 506 The two things are almost inconsistent, and this question of the interests of literature and art ought not to be in a separate definition at the end of the Bill; it ought to be brought into the very definition of obscenity itself.
Let me again draw upon the old law in this matter. Until 1868 there was no difficulty; the interests of literature came well into the purview of the courts. My noble and learned friend referred to the case in 1727, in which a pornographer who issued a pamphlet, whose contents your Lordships can easily judge by its title—Venus in the Cloister: the Nun in her Smock—was convicted. But only six years later, in a case before Lord Hardwicke (Dr. Samuel Johnson is the only one who records it and surely he had a good interest in literature) Richard Savage, the poet, was indicted for obscenity. He had written a pamphlet called The Progress of a Divine: the Profligate Life of a Curate in his Progress from a Curacy to a Deanery. Lord Hardwicke ruled that the test of obscenity was whether there was an intent in the mind of the author to promote the practice of vice, and he exalted the literary qualities of Richard Savage's work. Savage was acquitted. Even in 1733, as that was, it was decided, in the interests in literature, that the merits of a work had to be taken into consideration. It was only when we came to 1868, in mid-Victorian times, that it was ruled that the courts do not look into the merits of a book or at the good objects of the person who wrote it.
I should like to test this final clause by taking two specimen cases and asking whether they would now be justified under our law. I would take the case of The Queen v. Hicklin in 1868, referred to by my noble and learned friend. It was a case where a Protestant movement published a pamphlet seeking, as they thought, to expose the dangers of the confessional. What they did was to select extracts from theological writers in Latin describing in that language all the vices which flesh is heir to, and on the opposite pages they put the English translation, their comment being that this was issued for the instruction of priests and showed how they might put their ideas into other people's minds. The object of the pamphlet was perfectly good or justifiable, but it was held to be obscene, and the 507 court could not look into the merits of it. Of course, if it was any defence to say that it was for the public good, there might be a conflict of opinion on the Bench, depending on religious opinions. Is that the right way to judge of such a matter as this?
The other case I would cite is that of Lady Chatterley's Lover, by D. H. Lawrence. This book has recently been held to be obscene by the Supreme Court of Japan. I wonder whether it would be so held in this country under this clause. Is it justified as being for the public good? I would ask that the clause in defence and protection of literature be so expressed that works like that, whether literary works or works of criticism or of one kind or another, should not be in a separate category where the defence has to justify that they are for the public good, but should be part and parcel of the test of obscenity. It should be held that the court should consider the merits of a work in the interests of literature, science, art, learning or of other objects of general concern—in effect, therefore, that this last clause should not be a separate defence but should come into the test of obscenity. These are in the way of small points. The Bill as a whole is very welcome, because it does a great deal to put the law on the right footing. I put forward these suggestions only in the hope that they may effect a small improvement.
§ 3.46 p.m.
§ LORD SHACKLETON
My Lords, in the light of the great eloquence and learning of the noble and learned Lord, Lord Birkett, who moved the Second Reading of this Bill, and of the noble and learned Lord, Lord Denning, I am rather like my noble friend Lord Pethik-Lawrence in having little that I can add beyond stating my own interest as a friend of those who have on occasion been placed in jeopardy by the uncertainty of the law in this matter. The noble Lord, Lord Birkett, referred to certain cases in 1955. In that year there were five prosecutions of publishers, all of them of repute. I do not know whether this Bill would have completely freed them from the risk of prosecution, but in two of those cases the publishers were acquitted in two cases there were convictions, and in one—and this is perhaps the most objectionable of all— 508 the jury disagreed, not once I understand but twice, and the distinguished publisher, Mr. Frere, one of the best-known names in British publishing, found himself in an intolerable position.
None of your Lordships, I hope, is likely to find himself in jeopardy as a writer, either under the existing law or under any future law; but publishers are in a different position. They have to take decisions on whether it is in the public interest to publish something and whether they might be faced with a financial loss—because publishing can be a very hazardous trade; and as one publisher, Mr. Warburg, said, the risk of a publisher finding himself in court faced with a charge of this kind must be a severe discouragement to publishers to show the boldness and freedom of thought that in a free country we expect to find from our publishers, as we expect from our writers.
I am encouraged by the clear indication so far that your Lordships will not hold up or seriously alter a Bill which, after so many tedious days of discussion in another place and outside, has finally been brought to us. Until I heard the noble and learned Lord, Lord Denning, I was inclined to make a plea that the addition which the Government had in mind of the words "to lend or to give" should not be made. This was discussed in another place, and on a free vote it was decided that the proposed words should not be added. I confess, however, that the force of the argument of the noble and learned Lord is such that, unless some stronger arguments are produced to the contrary to make me feel that this extension is unnecessary, I must support the noble and learned Lord.
I should like to know whether it will achieve the purpose which the noble and learned Lord seeks to achieve, but I take it that he is satisfied that it will be adequate. However, we shall have an opportunity of discussing this matter in Committee. All I would say now is that it will be for the Government to make it abundantly clear that it is necessary, and that there is no other device of law by which these undesirable tendencies and developments can be covered. We live in a country which is free from censor-ship, but there are other countries, not so far away, where censorship is still practised. As our country, our democracy 509 and our people mature, I hope that less and less will it be necessary for the law to provide protection in these matters; and I am sure that that is a sentiment which will commend itself to the noble and learned Viscount on the Woolsack. So I hope that, when this particular matter comes before us again, we shall look at it with great care.
I feel that it is desirable that this Bill should not be changed too much. We frequently have the argument, as we have had on other occasions, that to attempt to improve a Bill on which there is agreement outside Parliament involves the danger of the disruption of that Bill. That is obviously an argument that we ought to be chary of accepting. Nevertheless, this Bill has had a chequered career, and I hope that it will not be placed in jeopardy by changes which will send it back to another place for debate all over again on some of the matters on which agreement was finally achieved. I would add just this. It will now be for the police to do their duty, both under this Bill, and, I would say, under existing legislation, in dealing with pornography. I hope that when this Bill is passed into law the rather unenviable reputation which this country has, that it combines the most flourishing trade in pornography with the least security for serious writers, will disappear.
§ 3.52 p.m.
§ LORD SOMERVELL OF HARROW
My Lords, my excuse for troubling your Lordships for a few moments in support of my noble and learned friend Lord Birkett and of this Bill is that from 1936 to 1945, when I was Attorney-General, I lived with the subject to some extent. I had an arrangement with the then Director of Public Prosecutions that any question of obscene libel or any form of libel, would be referred to me if he thought that there was a possibility of prosecution. So my knowledge of the allegedly obscene writings from 1936 to 1945 was quite considerable, and there were one or two conclusion's which formed in my mind. I was at that time rather in favour of what I know has been discussed—namely, central control. But that has been rejected, and the present Attorney-General put forward some formidable arguments against it. I should not for a moment wish to raise that issue on this Bill, not only on the 510 principle that "dog does not eat dog," but because I may well have been wrong.
The other conclusion to which I came was that it would be, I think, almost impossible to find a formula which would, as it were, be bound to give a clear lead to prosecuting authorities, and indeed to the courts, in all cases which might arise. It is one of those difficult areas on which public opinion changes from time to time, and every sort of ingredient may enter into any particular case in different degrees. The other general conclusion to which I came, which your Lordships may think is in slight contradiction of what have just said, is that, broadly speaking, there is little difficulty in distinguishing between pornography and the class of case which it is intended to protect by Clause 4 of this Bill. They really differ as chalk from cheese.
I should like to say a word or two on the point made by my noble and learned friend Lord Denning on Clause 4. He said that it might have been, as it were, brought up into the definition. Well, it might have been. But I hope—and I think this will happen—that the Bill, when it becomes an Act, like the allegedly obscene matter, will be read as a whole, and will be approached ab initio having regard to the fact that Clause 4 is there. My noble and learned friend thought that Clause 4 might be altered, but I think there is great force in what fell from the noble Lord, Lord Shackleton, that the fewer alterations that are made at this stage the better. Clause 4 does, I think, assume that the interests of literature are an element n the public good, and that may to some extent meet the point raised by my noble and learned friend. Something in the nature of Clause 4 is obviously an essential ingredient in any intelligible policy on this matter. I would only say, in conclusion, casting my mind back to the matters that I endeavoured to have in mind when I was considering cases during that period, from 1936 to 1945, that this Bill seems to me to set out in clear words considerations of that sort, and I very much hope that it will reach the Statute Book.
§ 3.58 p.m.
§ LORD CHORLEY
My Lords, on the whole I should like to support the Motion that this Bill be read a second time. The noble and learned Lord, Lord Birkett, who moved the Motion, 511 was kind enough to indicate to me the other day the main considerations on which he proposed to ask your Lordships to give the Bill a Second Reading. Unfortunately, I had an engagement which prevented me from being here at the time when he was expounding them, no doubt with his usual felicity and cogency. I do not think there is much to add, and certainly nothing which I could add in anything like the language for which the noble and learned Lord is famous, in support of this Bill. But as one who has taken a great interest in the problem of civil liberties for many years, and also had the interesting, and in some ways burdensome, task of teaching our criminal law to Bar students for a number of years, I should like to say that, in so far as this Bill makes the law more certain—and I feel that it does —it will, if your Lordships accept it in its present form, undoubtedly be of considerable advantage from the point of view of the administration of the law and from the point of view of the problem which the police come up against from time to time in deciding whether they will prosecute in cases of this kind.
The law relating to obscene publications in this country has, I think one can say, never been particularly satisfactory. Even at Common Law the situation was not, in my reading of legal history, at any rate, at all a satisfactory one, and the Act of 1857, which Lord Campbell intended to lead to an improvement in the situation, as has often been pointed out, resulted in a worse situation than ever, largely as a result of the interpretation put upon it by the famous Lord Chief Justice, Lord Cockburn. Indeed, of recent years I do not think it would be untrue to say that this country has been the laughing stock of most civilised countries in respect of this particular matter. Therefore, if this Bill does liberalise the law, as it appears to do, at any rate to some extent, and to make it more certain, undoubtedly it will have achieved a most valuable and important public objective. I cannot myself feel that it goes quite as far as I should have liked it to do. Undoubtedly over the centuries this country has, from the legal point of view, been the great leader of the world in respect of the safeguarding of the civil liberties, upon which our democratic institutions have been built 512 up and secured. While, perhaps, this aspect of the matter is not absolutely in the front line of civil liberty problems, nevertheless it is a very important aspect from that point of view.
Having looked at this subject over a number of years, I should have liked to see a Bill which went rather further than this one does. Nevertheless, as the noble Lord, Lord Shackleton, has pointed out, a compromise has been effected over a number of years and with a great deal of to-ing and fro-ing in another place. It seems to me that, on the whole, those of us who feel that the Bill might have gone further will be well advised to accept this compromise, and try to get the Bill on the Statute Book as soon as possible without any further arguments and delays. Therefore I feel strongly in sympathy with the views of the noble Lord, Lord Shackleton, who addressed your Lordships a minute or two ago. Even if I were assured that by waiting for a year or two I would get a Bill which I should like better, I should be tempted to give my vote for this particular measure, because it seems to me important that we should get an improved situation and get a measure upon the Statute Book which leads to a more liberal and, above all, a more certain state of the law. That argument does not need to be rubbed in any more. I think that this Bill will undoubtedly achieve that object; therefore, for what it is worth, I lend my support to the noble Lord.
§ 4.4 p.m.
§ VISCOUNT BRENTFORD
My Lords, I, too, desire to support the Second Reading of this Bill, although I cannot claim to offer your Lordships any personal experience as an author. I have never embarked upon that particular profession, but I think I happen to be the only member of your Lordships' House who was a member of the Select Committee to which the noble and learned Lord, Lord Birkett, referred in his opening remarks. I thought that it might conceivably be helpful if I expressed the views which I know struck me upon that Committee as a result of what the noble and learned Lord quite rightly said was an exceedingly exhaustive inquiry into the whole of this problem. I appreciate that the Bill which was then before Parliament is not the same Bill as is now before 513> your Lordships' House, but the problem with which we were confronted is the same, and the evidence which we received, I think, would undoubtedly have been the same evidence had there been a Select Committee inquiring from the basis of this particular Bill.
As has been made quite clear already, the Bill has two main objects, and to myself, having been through all the evidence and heard everything that was said to us on that Committee—and I would stress that this is only a personal view of my own—the first of those objects is a comparatively unimportant one. I stress again the word, "comparatively", because I know from what has already been said this afternoon that that first object is considered by several of your Lordships to be of great importance, and I know that it is of great importance to a number of authors. But I hope to be able to convince your Lordships that, compared to the whole problem which we are seeking to resolve by this Bill, that first object is of comparative unimportance. I would define the first object, not so well as has already been defined to your Lordships, as the freedom for authors of repute to write as they think fit on matters which some people would consider to be of doubtful taste.
The second object, one which I personally consider to be of vital importance to the community, is to help to free the community from the presentation to it, by typescripts, photographs, films and books, of purely filthy, contaminating and disgusting dirt. That is what is generally referred to as pornography: what the noble and learned Lord, Lord Birkett, so rightly described, in a much better phrase, as "Dirt for dirt's sake." I think one must almost add to that, "Dirt for money's sake". With regard to the first object, the question of the author's right of freedom, we heard a very great deal of evidence, and I think we probably heard the opinions of those best qualified to represent the people who claim to have suffered as a result of the existing law. Having referred to the existing law, may I say, in passing, how personally grateful I am to the noble and learned Lord for the clarity and brilliance of his exposition of the present law which I think, at this late, almost too late, stage I, as a general practitioner in the law, now understand for the first time in my life.
514 The question of the author's right loomed so very large that one of the things which not only I but some of my colleagues on the Committee were continually seeking to ascertain was how it could be assessed in volume—how many books were in fact concerned; how many authors were prejudiced or felt frustrated as a result of the present law; what proportion of the total publication of works was involved in the sense of literary frustration, and what proportion was known to be pornographic. The utmost we could ascertain—and there appeared to be no exceedingly clear evidence was that under this first heading during the past ten years or so a total of some five books had been challenged in our courts. Not all those books had been condemned, nor had they been subjects of prosecution. Some had been destroyed. There was one case in which the book itself, in one edition, was held not to be obscene, but when it came out in an illustrated edition it was held that the illustration rendered the whole obscene, and consequently a destruction order was made.
I mention those facts particularly to indicate that it is not an overwhelming problem; that the number of books even challenged is comparatively small. So far as we gathered from the police, from Scotland Yard, from the provincial police, and from the Customs and Excise, they virtually disregarded that type of book. They had no interest in it. They were not out to try to catch and condemn per se books of that quality or class. In fact they were carrying on their duties in a logical, common sense sort of way which I am quite sure would have met with the approval of any of your Lordships. In fact one of the few things upon which both Sir Alan Herbert and the Commissioner of Police agreed was that one of these books which were challenged they had both found so boring that they had not been able to complete their reading of it. That is why I venture to say to your Lordships that, in my personal opinion, on this aspect of the matter, this point of the Bill, the object is comparatively unimportant.
After all, authors of repute, if they do suffer to some extent as a result of having a destruction order made on their books or their book, can always recoup themselves, if in fact they are authors of 515 repute, by writing another book on the right side of the borderline. It is so vitally essential not to lower that borderline, because if you lower the borderline for books of repute or works of literary or artistic merit you automatically raise the borderline for pornography. And despite what the noble and learned Lord, Lord Somervell of Harrow, said just now, they are not so different as "chalk and cheese", and I hope to give your Lordships an illustration that the borderline is very narrow indeed.
Before I come on to that, however, it is only fair to add one thing. We did have evidence that it was not only the actual number of books which had been challenged in the courts, which led to a sense of frustration among authors, but also the fact that other books had not seen the light of day, and had not been published, because of the attitude which was adopted towards them by operatives throughout the printing and publishing trades. They themselves, apparently, exercise a certain amount of censorship: they feel that if a book which they are asked to set up in print is one which may be challenged in the courts it is contrary to their dignity and their propriety that they should have anything to do with it. Now, my Lords, I do not think I am the only one in this House who has a great respect for, and confidence in, our jury system in this country; and if trade union operatives, or non-trade union operatives, adopt the view that it would be undesirable to publish something which they are asked to set up in print I myself would have a very great respect for their opinion. It may well be that what they would consider it undesirable to publish would, in fact, be the general view of public opinion. To my mind, to the extent that authors and publishers have been frustrated from this cause I have little sympathy with them, because I think that the cause was probably a very good one and that more likely than not that exceptional and peculiar jury censorship, or censorship by jury system, operated in the right way.
To turn shortly to this question of pornography, I would remind your Lordships that there is no definition of pornography apart from the definition that we have in Common Law, which has been 516 referred to, of obscene publication; and the nearest we could get to what is pornography was obvious obscenity. But I venture to submit that, with the exception of those of you who have held the office of Secretary of State for Home Affairs and those noble and learned Lords who have held high judicial office, it is exceedingly unlikely that any one of you has any real conception not only of the extent but also of the type of the material we are referring to when we talk about pornography. The real vital object of this Bill is to strengthen the hands of the police and the other authorities in trying to stamp out this bestial and filthy trade.
As the police themselves know it, pornography is that which is calculated to appeal, either by the written word or by photography, to the most bestial aspects of sexual intercourse and sadism. If you compare the number of those five books to which I have referred which have been challenged in the courts with the amount of the pornographic material which is seized or destroyed, or is made the subject of prosecutions in this country, your Lordships will, I think, understand why I consider that the first object of the Bill is comparatively unimportant.
Let me take only two years since the war—and I am deliberately omitting the year 1954, because that is a year of argument and an exceptional year in the story and history of the literature of all sorts in this country: one fairly high and one fairly low. In 1951, there were 322 convictions or destruction orders made. There were 108,000 items destroyed. There were nearly £6,000 of fines imposed, and there were sentences imposed which ran from six weeks to two years. In 1956, a comparatively low year, there were 80 convictions or destruction orders made; there were nearly 30,000 items destroyed; £1,724 imposed by way of fines, and sentences imposed which ran from two months to one year. We examined a very wide selection of this material, books from France, books and typescripts published over here, films which mostly come from the United States. May I say, in passing, that if, as I am sure is the case, the noble and learned Lord, Lord Denning, is correct in saying that this Bill is insufficient to catch these films, then I should favour 517 any Amendment which might be introduced in order to ensure that this most disgusting method of dissemination of filth is eliminated. Your Lordships will, of course, appreciate that the films we are talking about are not the ones which are seen in cinemas. They are, as the noble and learned Lord indicated, small miniature films which are shown in private clubs and private houses to a very selective audience indeed.
I can assure your Lordships that things of this sort, packets of playing cards and so on, which are smuggled into this country, and above all the mass of photographs which come in, are designed solely to titillate and excite the lowest and most bestial instincts of human nature. The majority are of a sexual character, but there are many which are purely sadistic —packets of photographs which can be bought here in London at a regular, set price showing flagellations of women by men, and vice versa, and all that sort of thing. It is not at all nice to remember having seen them, and your Lordships will appreciate that it is still less nice to have to talk about them, but I feel that it is rather one's duty, having had to investigate this matter, to do what one can to try to impress upon your Lordships the essential importance of not lowering the borderline, and of not doing anything to reduce the improvements which are contained in this Bill, and the balance which it presents, so continuing to handicap the police in their efforts to put an end to this horrible business. I know that there is not a single Member of your Lordships House who would not be horrified and disgusted to find in his own home even one of the sort of items which we are discussing today.
I have referred to this borderline and I want to come back to that in view of what the noble and learned Lord, Lord Somervell of Harrow, was saying. We happen to have had brought to our notice a production in the form of a booklet which was bought quite openly at a bookstall where, I have little doubt, many of your. Lordships buy your evening papers as you go home. That booklet was typical of its kind, containing about twenty photographs of naked women in different poses and postures. As the law stands today, that is a perfectly proper publication; it is not obscene. The reason why it is not obscene, or is not held to be 518 obscene, is because it can be claimed to be a work of artistic merit. There is artistry—it was a very well produced booklet which was shown to us—in the composition of the photographs and in the actual photography itself. There is artistry in the lighting of the photographs and in the general publication. Your Lordships may well feel that there is not a great deal of harm in twenty photographs of naked women; but you would feel that there is a great deal of harm in the two pages of advertisements at each end of the booklet. The main purpose of the booklet is simply to lead you on, or to lead on all those who can be induced to buy the booklet, so that they get further and further into the welter of this filthy business.
It is this borderline of literary or artistic merit which means so much. We tried to find out what literary merit was. None of the witnesses who came before us could, or would, claim to define it—indeed, considering the fact that the majority of them are, presumably, going to be the expert witnesses who are entitled to be called under this Bill, it will be most interesting for those learned counsel who cross-examine to refer to the evidence which they gave before the Committee as to their own capacity to express a view upon literary merit. It is, at the lowest, evident that these specialists are already disagreeing in no small measure as to what works have literary merit or not. On the one in question to which I referred just now, and which Sir Alan Herbert and the Chief Commissioner of Police found so boring, I asked Sir Alan whether he considered it was of literary merit, and he said, Yes, he supposed it was, but it was so boring. I said, "Does that not affect the literary merit of the work?" He said, "Oh, no." So I think there will be some most interesting evidence given by the expert witnesses when this matter comes before the courts.
My Lords, finally, I desire to urge your Lordships not to push the borderline back any further. It is so easy to make the dissemination of this corrupting filth more profitable—and it is the profit in it at the present time which naturally creates the market for it. I have little doubt myself that it is having a strong influence upon the present trend of juvenile delinquency. I believe that if we 519 could stop this pornography it would largely work in aid of stopping juvenile delinquency, and would strengthen the hands of the authorities to deal with the producers, the wholesalers and the distributors of this muck. I beg your Lordships, out of sympathy (and very well placed sympathy) for those authors who feel a sense of frustration owing to the possibility of challenge of their works in the courts, that you will not move the borderline back so as to make pornography still easier.
§ 4.27 p.m.
§ LORD CONESFORD
My Lords, I shall detain the House for only a very few minutes. The lawyers who have addressed the House on this Bill are of great eminence and I should not have thought it at all necessary to add anything but for the fact that my noble friend who has just addressed us said a few things with which I most emphatically disagree. I think that the reform of the law which this Bill attempts to achieve is long overdue. I believe it is necessary for all the reasons so brilliantly marshalled in the speech of my noble and learned friend Lord Birkett, with which the debate opened. I should like to join in the tribute which he paid to the work of my friend, Sir Alan Herbert, and of the honourable Member for Stechford in another place. I think that they will have enriched the law when this Bill reaches the Statute Book.
The point on which I differ from my noble friend who has just sat down is in thinking that the injury done to authors is limited by the fact that perhaps only five books were concerned. That really is not the case. As long as the Hicklin judgment laid down the law on this subject, although it may be that few serious and valuable works were endangered, there was no certainty about that; there was great uncertainty about what book might at any moment find itself the subject of prosecution. The noble Lord, Lord Birkett, mentioned some of the masterpieces of English literature, any one of which might possibly have been brought within the words of the Hicklin judgment. I quite agree that, most fortunately, successive Administrations and prosecutors were much too sensible to work the law in that way; but it is not worthy of an adult people, with a great 520 literature of the past and, I hope, with a great literature of the future, to curb itself for ever with the words of the Hicklin judgment.
That is really the only thing I wish to say, except to add one word about the speech of my noble and learned friend Lord Somervell of Harrow. I agree with him entirely. It is perhaps not surprising that I should, because I had the honour of serving him as his Parliamentary Private Secretary during the years from 1936 to 1942—although he did not give me any of these works to read. I entirely agree with him that those books which we are endeavouring to hit, the pornographic books, and those which we desire should be protected under Clause 4, are as different as chalk and cheese. I believe that that is absolutely true.
The effect of this Bill, when it becomes an Act, will make it very much easier for the prosecution to deal with pornography. If it has the effect of making people very doubtful, when they get outside the sphere of pornography, of what would be the result of a prosecution in relation to a very different type of book, I do not think that that will be any great public disaster. In fact, I believe that any reform of the law which gets rid of the Hicklin judgment as the final test and makes it easier to deal with pornography will do a great public good, even if the wording of some of the clauses (for instance Clause 4) may leave something to be desired. For those reasons I join with those who have commended this Bill wholeheartedly and look forward to its passage into law.
§ 4.32 p.m.
§ THE LORD CHANCELLOR
My Lords, I am sure that the first thing your Lordships would desire me to do is once again to congratulate and thank my noble and learned friend Lord Birkett for the admirable way in which he has placed this Bill before the House. I was very glad that my noble and learned friend said something of the history of this matter and reminded your Lordships that the movement began five years ago, in 1954, and that for two or three years there was no progress in another place—because it is important to realise that this is a subject which many people find one of great difficulty and on which there is acute divergence of views.
521 My noble and learned friend said, and I entirely agree, that the action which contributed most to providing a chance for the introduction of amending legislation was the lengthy and painstaking deliberations of the Select Committee of the House of Commons. We are fortunate in having among us my noble friend Lord Brentford, who bas given us an account of the difficulties and problems which. that Select Committee shad to face. It is a fact that the Bill before the House to-day very largely follows the recommendations of that Select Committee. Having listened carefully to every speech that has been delivered this afternoon. I believe that the proposition that there should be a law of obscene publications is not an issue which has been seriously debated this afternoon or one which can be seriously questioned. Perhaps the noble Lord, Lord Chorley, came nearest to doing so, but certainly he did not adopt the view that there should be no restriction on publication. The noble Lord, Lord Shackleton, thought of it as a future desideratum but not as a present possibility.
I believe most people would agree that it is right for the community to seek to protect itself from the corruption of pornography as we have heard it described—that is, the commercialised and deliberate use of filth for filth's sake—and that it is a proper function of the law to do so. It is interesting—and I put it on record again—that my noble and learned friend Lord Birkett was the first to admit, and no one has questioned it throughout the debate, that the deliberate pornographer is a real, persisting and sinister figure in our life to-day; and that has to be faced. But in seeking to provide this protection for the weak, again, I entirely agree that we have to take care that we do not impose excessive or unreasonable restraints on creative work.
It is the case of the promoters of this Bill that experience of the existing law has shown it to be too severe in its dealings with work of a literary or artistic character. I have been told—I have never actually checked it, but, on the other hand, no one has ever contradicted the fact—that owing to threats of a proseation based on tests of Jude the Obscure Thomas Hardy decided that he would write no further novels. Stated 522 bluntly like that, it is such a terrifying proposition that I believe everyone must come with a fresh mind to the law as it exists. I am bound to say that, as in all matters that give rise to public controversy, the case for reform has perhaps sometimes been a little overstated so far as quantity is concerned. I want to put. that, as I am trying to put everything in this speech, in proper proportion.
We have heard that there were five prosecutions of publishers or authors of novels undertaken by the Director of Public Prosecutions in 1954 which resulted in two convictions and three acquittals, one of the acquittals being after two disagreements, mentioned by the noble Lord, Lord Shackleton; but, apart from these, legal proceedings in respect of books of similar character have been very few and far between. It is therefore perhaps something of an exaggeration to refer, as did one Sunday paper recently, tothe procession of responsible citizenry into the dock in the Old Bailey.That is not a picture which has any foundation, and it is important that we should try to avoid exaggeration. I do not believe anyone would accuse me of overstating the real problem. On the other hand, I think it is important that we should not give an impression of our country which is utterly false and unsupported by the figures. Nevertheless, although the case has sometimes been presented in exaggerated terms, Her Majesty's Government accept that reputable publishers and authors have a legitimate claim to some amelioration of the present law in their favour.
At the same time, Parliament has a duty to be careful that the changes introduced in the interests of literature and art do not weaken the sanction of the law against pornography. It is fair for me to say at once, as my noble and learned friend Lord Birkett has said with great charm and courtesy, that although, of course, the responsibility for the Bill depends on him and those who are behind him, Her Majesty's Government share to a considerable extent with the sponsors of the Bill responsibility for the actual content of the Bill as presented to the House; for much of the wording to be found in the Bill is, as he said, the result of Amendments proposed by the Government during the passage of the Bill through another place. This fact enables 523 me to advise your Lordships' House that, in the Government's view, the Bill (with the exception of the definition of what is meant by publish" in subsection (3) of clause 1, to which I will return) is a workable Bill; that the changes made in the interests of literature and art are valuable and adequate, and that these changes will not weaken the effectiveness of the law as an instrument against pornography.
As regards the details of the Bill, I think it is only necessary for me to refer to Clause 4, which deals with the point to which the sponsors of the Bill attach the greatest store. As we have heard continually throughout this debate, it has long been a matter of concern to publishers and authors that the existing law does not permit the giving of expert evidence by authors and literary critics in defence of a serious work in respect of which proceedings are taken, and it has been the primary objective of the Society of Authors to bring about some change which would enable such evidence to be given.
Perhaps your Lordships will bear with me if I say just a word about that problem. The reason why hitherto the courts have been unwilling to admit expert evidence in prosecutions for obscene libel or in destruction order proceedings under the Act of 1857 is that, under the existing law, the only question to be decided is whether the matter charged has a tendency to deprave and corrupt, to which expert evidence about literary or artistic merit—I ask your Lordships to note the word "merit" has not been thought relevant. It is partly to meet this situation that the Bill provides, in Clause 4, a new special defence, the defence of the public good, under which it is open to a person charged with publishing an obscene work, or opposing destruction of such a work, to prove first that the publication of the article in question is justified as being for the public good and, secondly, that it is in the interests of science, literature, art or learning or of other objects of general concern.
It was originally the view of Her Majesty's Government that this was as far as the law need or ought to go. We thought that it would be for a defendant seeking to establish the defence of the public good to lay before The court in 524 support of that argument evidence of fact: for example, that the book concerned was included in a syllabus of study in a particular branch of learning, or evidence of opinion from an expert which would give detailed reasons for his opinion that the publication of the work was in the interests of literature. It was arguable that the admissibility of the evidence could be left to the court. The sponsors of the Bill, however, were not satisfied that this would go far enough; and it was to meet their misgivings that subsection (2) has been added to Clause 4, which declares…that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted…I ask your Lordships to note why it may be admitted: in orderto establish or to negative the said ground";and the ground is that it is in the interests of science or literature or learning.
My noble and learned friend Lord Denning has expressed doubt on this point, and I always attach the greatest importance to any doubts that he has. I am not going to make this even more of a "lawyer's holiday" than it has been (I believe that two laymen have had the temerity to intervene in this debate so far) but I would refer my noble and learned friend to this fact. He may be interested to see that in the 1950 edition of Stephen's Digest of the Criminal Law it is submitted that such a defence would apply even under the existing law. I am not going into the reason, because I am sure my noble and learned friend will follow it up, but he rather put the dilemma that this deals with something that is admittedly obscene and that then it is necessary to show that it is in the public good, on the ground that it is in the interests of literature. As I understood my noble and learned friend's speech, he felt that that was rather a dilemma—how could something that is obscene be in the public good?
No doubt many of your Lordships could give much better examples, but may I give one that has been in my mind since I have been considering this matter? In the literature of my own country, Scotland—and I am sure that the noble Lord, Lord Mathers, will agree with me in this —one of the most important fields of Scottish poetry is Scottish satiric verse; and Scottish satiric verse is chiefly to be 525 found in the period (I think the noble Lord would agree) from James I of Scotland to Burns, roughly from 1400 to 1796. I think it is great poetry. I think it is one of the most unique contributions to the history of my country. But I should not for a moment say that anyone trying to give a picture of Scottish satiric verse from 1400 to 1796 would not be compelled to include passages that are obscene; indeed, it would be utterly impossible to produce that picture without doing so. I should be quite prepared to give evidence if I had any expertise, but I should certainly be prepared to express the view—and do—that it is in the interests of literature that the satiric poetry of Scotland should not be allowed to disappear. It should be reproduced and handed on, because it is, I think, as I have said, one of the great products of the literature of my country. I give that as an example. I am sure that noble Lords can find much better ones, but it happens to be one near my own heart.
My Lords, that is the sort of thing that I have in mind. I agree that a provision of this kind, dealing with the admissibility of expert evidence, is a novel one which finds no precedent in our Statute Law; but I think that the law relating to obscene publications is of a sufficiently different character from the rest of the criminal law to justify a departure.
Now may I say a word on the other point to which my noble and learned friend Lord Denning referred, on which Lord Shackleton issued some warning words, and on which Lord Birkett said that he was prepared sympathetically (I do not want to put it too high) to consider the difficulties that the Government find on this point; and that is as to the definition of "publish" in subsection (3) of Clause 1. In our view, there are two respects in which this definition does not go far enough. First, it does not cover the case in which a person gives or lends obscene matter to somebody who is liable to be corrupted by it. Again—one has got to face it—this is a not unfamiliar gambit of the pornographer or the sexual aberrationist with children and adolescents. It is one of the facts of existence, for which we have a responsibility. It is one of the ways in which these horrible people approach the young; not to sell them, but to give them, or lend them, 526 sexually exciting pictures. Now I do not think that that is a responsibility which we can abrogate. Certainly I cannot, after three years as Home Secretary.
It is true that where such a person makes a habit of doing this he might be said to be distributing or circulating the obscene matter, and so to be caught by the Bill: but, short of this, it would be necessary, if he was out of the Bi11, to commence a prosecution at Common Law. Then you would have one count of your prosecution under the Bill and another count at Common Law, where you would be applying a different standard of obscenity. It seems to me that there is no way out that way, and that the proper course is to amend the Bill to make it clear that it extends to all cases in which someone shows obscene matter to a person whom it may tend to corrupt. I know that in another place some anxiety was expressed as to whether this might not render liable to prosecution somebody who had lent a book to a friend; but I cannot believe there is any real ground for anxiety on this score. In a case of that kind it is inconceivable that any proceedings would be launched, primarily because there would be no complaint and, further, because, if there were, the new test of obscenity provided by Clause I would result in an acquittal on the ground that the lending of the book was not likely to corrupt anyone.
There is one further respect in which Clause 1 (3) does not, in our view, go far enough. We think it should cover such things as private film shows of grossly obscene films. That is one of the points which my noble friend Lord Brentford had in mind. Again your Lordships must face the fact that shows in houses or rooms of clubs of grossly obscene films are one of the evils of life which exist. There always have been places that try to attract people to shows of that kind, and I think that they ought to be struck at. There is no need to cover ordinary cinema performances. for the existing arrangements work perfectly well in relation to cinemas, just as they do in relation to television and sound broadcasting: and I did tell my noble and learned friend Lord Birkett that I was perfectly prepared that they should he safeguarded by a proviso, and I think that in fact he has the proviso which I suggest would do it.
527 My Lords, my noble and learned friend said that he wanted to consider further the effect of the proposed Amendment to Clause 1 (3) on the subject of stage plays. I may tell your Lordships that the new paragraph (3) which we propose to add to Clause 1 deals only with the showing, placing or projecting of an article containing or embodying matter to be looked at, or a record; it is clear that it cannot extend to the performance of any play. Finally, of course, plays are dealt with by the Lord Chamberlain: but, otherwise, if one had a live performance that was obscene, it would have to be dealt with by the Common Law and not under this Bill. There is no intention, and my Amendment, as I construe it, would not have this result, of affecting such plays at all.
As I have said, we are all anxious to catch the real pornographer—the person who is either peddling filth or is personally using filth for his own unpleasant excitement. Nobody has ever said that on principles of liberty that person should be left out. What we have found as the difficulty is drawing the line which will catch that person but which will not catch the works published in the interests of literature, and the like, which I have mentioned. I believe that this Bill is a reasonable measure which does both these things. It gives some assurance to reputable publishers and others that the law will not unreasonably and unduly interfere with creative artists, while at the same time it preserves adequate safeguards against the exploitation of the young and the weak for corrupt purposes. I should have liked to thank everyone—and in fact I think I have referred to practically everyone who has taken part in this debate. I have enjoyed all the speeches; and I am very glad to say that the view of Her Majesty's Government is that the House can reasonably and properly give the Bill a Second Reading.
§ 4.59 p.m.
§ LORD BIRKETT
My Lords, I will not detain the House at this stage more than a very few moments, particularly in view of the observations which have just been made by my noble and learned friend upon the Woolsack. I repeat how grateful I am, on behalf of the promoters of this Bill, for the approval 528 which he has been pleased to give to the Bill on behalf of the Government. All that I should like to do, in just a few words, is to thank the noble Lords who have taken part in the debate this afternoon.
It was begun by my noble and learned friend Lord Pethick-Lawrence. I am bound to say that I have always had for him, if he will allow me to say so, a peculiar affection and regard. I have watched him come into the Inner Temple Hall for very many years, and when I have looked at him I have thought of the very notable part he has played in the past in events now far removed, but which were notable events in the history of freedom. I have always thought of him as the voice of freedom, and it was good to hear him this afternoon say in respect of this Bill that one of the elements was that he did not wish to see the freedom of the writer restricted. I was very grateful to him for that.
I do not propose to deal with the various arguments which have been raised. I am bound to say I had a wild feeling of regret that it is not possible to appear as counsel and speak to the jury about the meaning of Clause 4 in the first case brought before the courts. I think that the judges who will instruct juries on that matter will find that subsections (1) and (2) of Clause 4 are really a great protection to the author. I was extremely grateful for the speech of the noble Viscount, Lord Brentford, because he gave the experience of the Select Committee, which was very valuable. I must just venture to disagree with this. I agree with the noble Viscount that the strengthening of the law with regard to pornography is of first importance, but I believe that the provisions which protect the author and literature are of equally great importance. For my own part, I believe that a jury will have to see to both these matters.
My noble and learned friend Lord Denning was speaking about removing the essence of Clause 4 into the context of the definition of the Bill, but we have to remember that the people who will finally decide on an indictment are those described by Professor Dicey as "twelve shopkeepers." As he said, freedom of speech in this country is merely the right to say that which twelve shopkeepers think it expedient should be said. I think 529 that under this Bill, with expert evidence on which it will be possible for a judge to instruct a jury, there is a valuable defence for the author. If I may be allowed to say so, I think that the illustration which the noble and learned Viscount gave from Scottish satiric poetry was extremely apt. Our own poetry, running back for many centuries, especially that of poets like Charles Cotton, Rochester and Herrick, might all have been included in the ban unless there is a certain width and toleration in viewing it.
In the case of a book that contains passages to which certain people take objection, under Clause 4 there must be considered the public good. The noble and learned Viscount quoted Mr. Justice Stephen. For many years that passage from Stephen has been quoted in the books. There is the case, which was tried at the Old Bailey in 1932 before the Recorder of London, in which an eccentric old man, who went about the streets of London in purple robes pretending to be a Polish king, handed a manuscript poem to a printer. The printer most faithlessly took it to the police and this wretched man was taken to the Old Bailey and was given what I regard as a savage sentence of six months' imprisonment. The Recorder of that time told the jury that it was the law of England that a defence of public good could be considered by them. Sir Chartres Biron in the case of The Well of Loneliness recorded it, and in the great case of Hicklin the judgment of Mr. Justice Blackburn. which followed that of Chief Justice Cockburn, emphasised the defence of public good. He took the example of the poems of Dryden and said clearly that Dryden's poems were such that it would not be proper that they should ever form the subject of a prosecution. Therefore, this defence of public good, which exists in most European countries and in the Dominions and Commonwealth as a matter of statutory law, would be of great service.
In the case of a man who publishes a book in which there are passages to which objection is taken, an expert witness in the literary or artistic field will be able to testify and say that it was essential to the author's purpose that these things should be written; that he could not depict the flow of life and the complexity of human behaviour without them, and 530 so on. I think that that is a very valuable thing to do. I may just say also, with regard to the speech of the noble Viscount, Lord Brentford, that when those two distinguished men gave evidence before the Select Committee—I do not know why they should not be named: Mr. Eliot and the author of A Passage to India, Mr. E. M. Forster—and were questioned, I think that they were merely being modest and saying, as anybody else might say in cross-examination, that they were not sure they were the persons to answer questions of that kind; but I think that if they went into a witness box as expert witnesses they would show a very different attitude. However, there it is. I am perfectly content to feel that they might comfort-. ably go before a jury.
I should like to mention the speech of the noble Lord, Lord Shackleton, because I am grateful to him for stressing that this Bill is a compromise one. Apart from the Common Law and the Statutes I have mentioned, there are ten Statutes on the Book dealing with obscenity—the Vagrancy Act, the Customs Act, the Post Office Act, the Indecent Advertisements Act and quite a number of Private Acts and private by-laws. Some of your Lord ships may have thought that this Bill ought to have been consolidated and codified the law on obscenity. Just to illustrate what a compromise Bill this is, I may say that when it was first introduced in another place in 1955 it was a codifying Bill containing all these things, but they were withdrawn on the advice that the procedure of a Private Member's Bill was not appropriate for a codifying or consolidating measure.
There is another point which the noble Lord, Lord Shackleton, made and which I should like to emphasise. I did not quite care to say it myself in opening though I should like to say it now. He made the valuable statement that, if possible, the Bill should not be interfered with too much. It is a compromise, and the experience of life is that when, having reconciled diverse views, you start to loosen a compromise in one direction, it begins to be loosened in another direction also. Finally, with regard to the point of attempting a definition of publication to which the noble and learned Viscount the Lord Chancellor referred, I quite see the validity and strength of the 531 arguments he employed, but I would repeat what I said some little time ago: that I do not anticipate for one moment that any difficulty will arise upon that head. I hope that this Bill, with the Amendment with regard to publication, may proceed on its way as an agreed measure. I am extremely grateful to all noble Lords who have taken part in the debate and to all your Lordships for your patience and consideration.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.