OBSCENE PUBLICATIONS BILL (Hansard, 21 July 1964)

§ LORD DERWENT

My Lords, this Bill is designed to remedy certain defects that experience of its working has revealed in the Obscene Publications Act, 1959. This Act contains what I may describe as the domestic law, under which the internal traffic in pornography is controlled, as distinct from the importation of obscene matter, which is dealt with in other legislation, to which I shall refer later. The Bill before your Lordships is not intended to make any change in the basic principles of the 1959 Act, which derive from the recommendations of a Select Committee appointed by another place in 1957. The origins of the Act of 1959 may be traced back to 1954 when there 557 were several prosecutions of publishers under the Common the Law for obscene libel. This led to a movement for the reform of the law with a view to affording greater protection to works of literary merit.

Following abortive attempts on the part of private Members in another place to get the law changed, a Select Committee of another place was appointed to consider the matter, and this Committee heard evidence from a variety of interests, including the Government Departments concerned, the police and representatives of authors and publishers. A further Select Committee was appointed in 1957 to complete the work begun by its predecessor, and this Committee received further evidence from the Public Morality Council, the British Federation of Printers and two eminent authors, Mr. T. S. Eliot and Mr. E. M. Forster. In its Report of March, 1958, the Committee made recommendations for improvement of the law. Some were intended to clarify the law, by proposing a statutory test of obscenity and the introduction of a special defence of publication for the public good as a measure of protection for works of literary, artistic or other merit. Others were designed to strengthen the powers available to the authorities for suppressing the traffic in pornography.

The Act of 1959, was a Private Member's measure. It was introduced in your Lordships' House by the late Lord Birkett—and I refer your Lordships to the OFFICIAL REPORT of June 2, 1959. In perhaps one of the most outstanding of the many brilliant speeches with which he delighted us from time to time, Lord Birkett gave effect, with some modifications, to the Select Committee's recommendations. The Bill underwent the most careful examination during its passage through Parliament, a process in which the Government played a considerable part. The Bill, representing, as it did, in its final amended form the combined efforts both of private Members and of the Government, received general approval. Some five years have elapsed since this legislation came into operation, and in this time certain technical defects have shown themselves. The present Bill is designed solely to remedy these defects; it does nothing to disturb the protection given by the 1959 Act to works of genuine literary, artistic or other merit.

558 By and large, the Government consider that the liberalising objectives of the promoters of the 1959 Act have been achieved. There has been recently one disputed case, which has attracted publicity: but I think your Lordships will agree that, taken as a whole, the effect of the Act has been permissive to works having or claiming literary merit. Indeed, I believe the opinion is held by many people that this tendency has been too pronounced; I recall in this connection the debate that we had in this House on December 14, 1960, about the case of Lady Chatterley's Lover. However that may be, the 1959 Act represented a compromise between the need, on the one hand, to prevent the circulation of obscene and corrupting material and, on the other, to reduce, so far as possible, restraints on freedom of expression; and the Government, respecting this settlement, have left it unimpaired in the present Bill.

But while, as I have said, the liberalising objective of the 1959 legislation has been achieved, the other objective, namely, the prevention of the dissemination of pornographic material for which no literary or other merit could possibly be claimed, has been achieved only in part. Defects in the law have been exposed which have seriously handicapped the police in controlling the pornographic traffic, and in the Government's view immediate amending legislation is desirable to remedy this situation. It may be helpful to noble Lords in considering the questions dealt with in the Bill, if I explain briefly the present position about the pornography trade and the ways in which the law enforcement authorities have been endeavouring to check it under the powers available to them under the present legislation.

There is no doubt that the circulation of pornographic material up and down the country has reached a scale which has produced a considerable moral and social problem, about which concern has been expressed in, many quarters. This large-scale traffic developed at about the end of 1960 when, following the lifting of certain import restrictions on printed matter (which had been imposed for balance-of-payments reasons no longer operative), large quantities of cheap paper-backed pornographic books and magazines surplus to the requirements 559 of the domestic market in the United States were made available to British importers at very low cost.

There are two distinct procedures available to the authorities in combating a situation of this kind. The first is to use the powers given to the Customs authorities at the ports by Section 42 of the Customs Consolidation Act, 1876, which prohibits the importation of, among other things, obscene articles. These powers are supplemented by a procedure laid down in the Customs and Excise Act, 1952, which provides for the seizure and condemnation of prohibited articles of all kinds. The work of intercepting imported pornography is carried out by Customs officers although, as noble Lords will recognise, their primary task is concerned with assessment and protection of the revenue. For this reason they cannot, and do not, devote themselves specially and exclusively to the watch for obscene matter, but rely on intercepting it if it comes to their notice in the course of their general examination of incoming material.

It may help to illustrate the scale of this disreputable traffic if I quote some Figures. Since the beginning of 1961, over a million copies of repulsive novels and magazines appearing under a thousand different titles have been seized as obscene at the ports. But it has been physically impossible to prevent all such material getting through, and a considerable quantity has reached the retail market.

However, the domestic legislation, if I may so describe it, contained in the 1959 Act, which this Bill now seeks to strengthen, provides other procedures which can be employed against pornographic material that has survived the Customs scrutiny. Under these procedures, over 360,000 books have been forfeited by magistrates' courts, and penalties, including sentences of imprisonment, have been imposed on offenders. These figures are evidence of the vigorous action that has been taken by the enforcement authorities. The magnitude of their task will perhaps be even more apparent when your Lordships remember that no book or magazine can be forfeited on suspicion. It has to be read by somebody; and where, as is not uncommon, hundreds of different titles are involved, that is an enormous 560 and time-consuming task. This work has been going on for a considerable time, with the success I have described, and it will continue; but so long as the gaps in the law which I shall now examine are left open, the task will be harder than it need be.

The statutory test of obscenity, set out in the 1959 Act, is as follows: …an article 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 to tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it". Under this test, the court is required, in determining the corrupting tendency of a work, to have regard to the circumstances of the publication or intended publication. It is not an absolute test, and its application may have the result that a book may lawfully be published to adults but be adjudged obscene in the hands of young persons; or, while fit for medical practitioners, it may be obscene to the layman.

That is the basic principle on which the law of obscenity rests, and it is important to remember it in considering the defects in the present law and the proposals contained in the Bill for remedying them. The principal defect flows from the decision of the Court of Criminal Appeal in the case of Regina v. Clayton that there is no offence of publishing an obscene article under Section 2 of the 1959 Act where the act of publication charged is to a person who, because of his experience and maturity, is not susceptible to the article's corrupting qualities. The person concerned in that particular case was a police officer. Following this decision, the police can no longer base their prosecutions on test purchases of obscene material made by police officers, and it is frequently impossible to get evidence of publications in other ways.

In Mella v. Monahan, my Lords, the Divisional Court held that the exposure of priced articles in a shop was not an offer for sale, and so not a publication of the articles within the meaning of the relevant section of the 1959 Act; and, consequently, a display of obscene matter was no offence under the Act. Finally, in Straker v. Director of Public Prosecutions, the Divisional Court held that photographic negatives could not be forfeited under the procedure provided under 561 Section 3 of the 1959 Act, since the negatives were not themselves intended to be published for gain.

The effect of the first two cases is that a criminal prosecution cannot be brought in the absence of evidence of actual publication of an article to a person who can be shown to have been liable to be corrupted by it. While it may not be difficult to obtain evidence of sales, evidence of sales to persons liable to corruption may be impossible. The persons who may be expected to complain to the police about a book they have purchased are not likely to be themselves susceptible to any corrupting qualities it may have. In particular, it is difficult to collect evidence showing the commission of an offence by an importer or wholesaler, who may, of course, deal in pornographic matter on a very large scale. The result is that the substantial penalties provided by Parliament as a means of checking the activities of traffickers in pornography cannot be inflicted.

In many cases the only course open to the police under the Act is to bring proceedings for forfeiture, in which it is necessary to show only that the articles are being kept for publication for gain in circumstances from which it appears likely that they would be published to persons liable to be corrupted by them. The commercial traffickers in pornography, safe in the knowledge that the sanctions of the criminal law are unlikely to reach them, have been willing to stand the loss of their stock. Moreover, as the straker case has shown, the present forfeiture provisions are somewhat limited in scope. It is an easy enough matter to produce further obscene prints from a negative to replace prints forfeited by the courts. To be completely effective the courts should have power to forfeit negatives as well as prints. I am sorry to be so long, my Lords—and I shall he a little longer yet—but we have not previously discussed this matter in your Lordships' House at all.

Clause 1 of the Bill will remedy the weaknesses in the law disclosed in the cases of Clayton and Mella v. Monahan by creating a new offence of having an obscene article for publication for gain. This offence will carry the same penalties as the existing offence under Section 2 of the 1959 Act, of publishing an obscene article. It will be subject to the same 562 defences as the existing offence, including the defence, under Section 4 of the 1959 Act, that publication of the article is justified as being for the public good on the ground that it is in the interests of, among other things, literature. This new provision will remove the difficulty resulting from the decision in Mella v. Monahan. It will also overcome the difficulty which arises out of the Clayton case, sometimes called "the case of the incorruptible policeman."

Subsection (3)(b) of Clause 1 provides that for the purpose of the new offence the question whether an article is obscene is to be determined by reference to any publication which, in the circumstances, it may reasonably be inferred the accused had in contemplation and to any further publication that could reasonably be expected to follow from it. Any sale, to a police officer or to any other person, will be evidence that the article is being kept for sale to the general public; and it will not be necessary to prove, as it is at present, that the purchaser himself is susceptible to corruption. The clause also, in subsection (4), requires a court convicting of the new offence to forfeit the articles concerned, thus obviating the need to obtain a separate forfeiture order from a magistrate under the powers available under the present Act.

Clause 2 of the Bill widens the control over pornography by dealing with photographic negatives and other articles—for example, moulds and the "skins" from which copies of a duplicated document are taken—designed for the reproduction or manufacture of obscene articles for gainful publication. The effect of the clause is that negatives, moulds, and other articles intended to be used for this purpose will be liable to seizure, and it will also be an offence to keep them with that object. This provision will remedy the defect in the law which came to light in the Straker case. There is also a provision for the determination of the obscenity of the article by reference to the circumstances in which the articles to be manufactured from them are likely to have been published. My right honourable friend, who has received many complaints from all parts of the country, shares the anxiety expressed about this traffic and is determined to see that the law is adequate to protect people, and especially the young, from the possibility of corruption from this undesirable 563 material. In the Government's view, this Bill contains all the additional powers that we need to enable the enforcement authorities to carry out that object.

My Lords, I have two more pages of notes, and if I may I will finish them. There was some discussion during the course of consideration of the Bill in another place of the possibility of ensuring that the verdict of a jury should be obtained on any book for which literary or other important qualities are claimed. A number of proposals were put forward which were not acceptable. It would be wrong and contrary to all legal principle to require the prosecuting authorities to launch a prosecution with its attendant right of trial by jury rather than to proceed by way of forfeiture proceedings. The prosecuting authorities must retain their discretion to use whatever procedure is more suitable to the circumstances of the case. If noble Lords wish, I can take this up in more detail in my answer. Any doubts that may remain in the minds of those who are concerned for literature about the intention of the authorities will, I hope, be dispelled by the statement made by my right honourable and learned friend the Solicitor General in another place about the practice that will be followed by the Director of Public Prosecutions in enforcing the law. I thought it right to mention all these matters.