§ 4.16 p.m.
§ Order of the Day for the House to be put into Committee read.
§ Moved, That the House do now resolve itself into Committee.—(Lord Derwent.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD STRANG in the Chair.]
§ Clause 1:
§ Obscene articles intended for publication for gain
§ 7 & 8 Eliz. 2. c. 66
§ (2)For the purpose of any proceedings for an offence against the said section 2 a person shall be deemed to have an article for publication for gain if with a view to such publication he has the article in his ownership, possession or control.
§ LORD DARWEN moved to leave out subsection (2). The noble Lord said: In accordance with the custom of your Lordships' House whereby a Member with a possible financial interest in the subject on which he speaks declares that interest, I mention that I am a book publisher; that, so far as I am aware, I have published no books which could be called "pornographic"; but that my company does publish books on sex—in fact, books on sex education for young 828 people have been, and are, a feature of our list and a matter of special interest to me personally.
§ Let me say at the outset that in moving the Amendment which stands in my name, I do not seek to torpedo the Bill. The aim of the Bill is entirely acceptable, but I think that certain Amendments are necessary in order to make it fair to all parties concerned, and in this respect I will certainly support the Amendment in the name of my noble friend Lord Francis-Williams. Although I accept the aim of the Bill, I am not altogether happy with the way it has been drafted. I listened to the debate in your Lordships' House on Tuesday and found it most interesting. Had I been in another place, I would have been on my feet on more than one occasion, trying to catch the Speaker's eye. The moral case was eloquently argued, particularly by the right reverend Prelate the Lord Bishop of Newcastle. Moreover, the need to stop the importation of hundreds of thousands of obscene paperbacks is desirable, I think we all agree, not only on moral grounds but—and here I speak as a publisher—in order to clear the normal trade channels for normal trade.
May I be allowed to refer back to 1959 when I think that I may claim that I was the first Member of your Lordships' House to utter in this House the words, "Lady Chatterley's Lover". At that time, I put a question to the then Lord Chancellor, the noble and learned Earl, Lord Kilmuir, and this is what I asked him. It is most relevant [OFFICIAL REPORT, Vol. 217, col. 82]:
First, suppose I am in the street with a friend and happen to have a copy of D. H. Lawrence's Lady Chatterley's Lover unexpurgated, and I pass this copy to my friend. Am I in danger of prosecution (a) under the existing Common Law and (b) more so if this Amendment passes into law? Then again, even more disturbing is the thought that if this Amendment passes into law it would seem quite in order for a policeman to look through the curtains of a private house if he saw the flickering of a cinematograph and had any reason to suppose that pictures were being shown that might be of an obscene nature.
This is, briefly, what the then Lord Chancellor said in reply (col. 84):
Lord Darwen asked me about the position where he hands a copy of Lady Chatterley's Lover to his friend. I am not going into the question of the intrinsic position of that book but only into the comparative position, because
that is really what he wanted to know. Even under my Amendment, if he lends the book to his friend the chance of anyone being able to prove that it tended to deprave or corrupt his friend is extremely small—I am not making any reflection on the noble Lord's friends, but I am envisaging the circle to whom the noble Lord would be likely to give or lend the book.
Subsection (2) of Clause 1 seems to make the matter even worse. The trouble with the Bill, so far as I can see, is that it tries to meet the special requirements of all kinds of pornography collectively instead of separately. This, I think, is in part the reason for the introduction of the subsection which I am asking your Lordships to omit. I should like to read the subsection to your Lordships. It says:
For the purpose of any proceedings for an offence against the said section 2 a person shall be deemed to have an article for publication for gain if with a view to such publication he has the article in his ownership, possession or control.
My objection to this subsection has nothing to do with my being a publisher, and not much to do with my views on obscenity. It is simply that I feel that the subsection does not reflect the general principles of British justice.
§ The difficulty is that both obscenity and publication are hard to define in practical terms. The effect of the subsection is to define publication, or the intention to publish, by reason of possession. Thus, a single article judged to be obscene is of itself sufficient evidence for proceedings to be initiated. This I consider to be an infringement of the liberty of the person. The effect, as I understand it, is that any person having in his possession any article (it might be a book, picture, photograph or a statue) which might in the judgment of the police tend to deprave and corrupt someone—it need not be the owner, and it certainly would not be held to be the police officer—could, under the Bill as it now stands, be hauled up before the magistrate's court. His intention to publish is by this subsection(2)irrelevant, in so far as the mere possession of such an article would be for the purpose of proceedings for an offence under the section to be sufficient evidence of having an article for publication for gain.
§ I dare say I shall be told by my very near namesake who sits opposite (we are divided only by a "t", and that 830 only a small one)that there is no danger for the private individual, who has nothing to fear from the provisions of the Bill. But that is hardly a satisfactory answer. The point is that the State assumes the role of a keeper of the individual's private taste in art and in morals. This subsection is, in my view, an invasion of the privacy of the individual and, as such, so far as I can see, is utterly contrary to our idea of justice. I beg to move.
Page 1, line 12, leave out subsection (2)—(Lord Darwen.)
§ LORD SHACKLETON
I am not yet certain whether I am able to support my noble friend Lord Darwen in this Amendment, but if his contentions are soundly based, then clearly this is a serious matter. If, for instance, my noble friend Lord Morrison of Lambeth obtained, as he advised me to do, a copy of Fanny Hill from the House of Commons Library (I was unable to do so, since it is booked up for the next seven months), would my noble friend Lord Morrison of Lambeth be in trouble if he possessed it, or if he showed it to me, admittedly in the public interest—because we are going to debate this? I should hope that this would not be so. If there is a point in my noble friend Lord Darwen's argument, I hope the Government will make the situation as clear as possible.
§ LORD MOYNE
If I may interpose for a moment, I should not wish to see the Amendment adopted and the subsection deleted, because without the subsection I think a valuable weapon would be removed. But I do not like the subsection as it stands. I suggest to my noble friend that he should look at this again from the point of view of making the presumption rebuttable. Otherwise it seems to me that a young man might go to a shop and buy a book entitled Marriage Advice, or something perfectly reasonable on the cover, but inside containing something obscene. He would render himself liable to prosecution, because he had in his possession something obscene. This seems to me utterly wrong. The police might be unlikely to prosecute, but I do not like to see a law going on to the Statute Book which goes beyond the intentions of Parliament.
§ THE EARL OF HUNTINGDON
There is one point on this Amendment that I should like to draw to your Lordships' attention on the question of possession and intention to publish. I should be grateful if the noble Lord who is to reply could explain how it could be defined whether a publisher is going to publish or not, and what his intention is. For instance, there might be a publisher of good repute who was publishing, say, the works of some classic poet, like Lord Byron, which might have some very erotic passages that might be deemed to be obscene. It could be held that he had the intention to publish them, though he may not have that intention. This might put a publisher in an invidious position. His only safeguard is that he may prove under the Bill that he did not know what the poems were. This might be very difficult. I should be grateful if the noble Lord could explain the situation.
§ 4.30 p.m.
§ LORD DERWENT
I shall reply at some length, because I think this point requires a full explanation. I regret to say that the noble Lord, Lord Darwen, has got it wrong, and so has my noble friend behind me. This is a question of publication for gain—of publication for gain—having an article in your possession with a view to publication for gain. I have said those words three times. It does not mean having an obscene book in your pocket which you know is obscene. You have no intention of publishing it for gain, or even of selling it, and you pass it on to a friend. That is perfectly all right. The definition in subsection (2) refers to the words in subsection (1):there shall be inserted the words' or who has an obscene article for publication for gain (whether gain to himself or gain to another)'.I think that answers the main point.
The noble Lord brought up his argument with the noble and learned Lord who was then on the Woolsack. I think I had better explain the wording of this subsection. I want to say why the wording is necessary. It is necessary to include "ownership" to cover the case where a person who owns the obscene article never has physical possession of it—as, for example, where a publisher has books sent direct from the printer to the wholesaler for distribution. That is the point of that word. 832 "Possession" covers the obvious case in which the person has physical possession of an obscene article—that is quite clear—and the inclusion of "control" in the definition will enable the prosecuting authorities to bring proceedings against the principal concerned in obscene traffic without having to go into questions of legal ownership or actual physical possession. I hope that explains the wording. If we did not have this wording in, and if we simply had the wording in subsection (1),has an obscene article for publication for gainwithout definition, the whole thing would remain rather equivocal. I hope that that explains the point to the noble Lord. I do not think he quite understood that when he got up.
The question raised by the noble Earl, Lord Huntingdon, is really a question of a publisher who has in his office obscene literature which he has not even looked at, but which has been sent to him for reading.
§ LORD DERWENT
I think the noble Earl's fears are really groundless. The Bill makes no change whatever in relation to unpublished manuscripts. The new offence of having an obscene article with a view to publication for gain can arise only after the decision to publish has been taken. That is the first point about that. Moreover, in any case where an article has not yet been examined—which might well be the case if it is in the publisher's office—then Clause 1(3)(a) provides a defence because obscenity is not suspected by him. It is only after publication is decided for gain that the Bill bites. I hope that clears up the point for the noble Earl.
I hope that I have now satisfactorily explained the matter to the noble Lord, Lord Darwen. I do not think there is anything he need be frightened of. It is absolutely essential to have this wording to cover the evil that he also wants to stop, the trade in mass pornography. I do not think it will affect in any way the genuine publisher. It does not really alter the existing Act in that respect, and I therefore hope the noble Lord may decide to withdraw his Amendment.
§ LORD DARWEN
I thank the noble Lord the Minister of State for his answer. Of course, he is much better acquainted with the legal phrasing of these things than I am, and perhaps I have read more into this subsection than should have been read. I will withdraw my Amendment, but before I do so I should be indebted to the noble Lord if he could briefly give me an answer to another layman's query, if I may put it in that way. Supposing that I have in my possession some erotic drawings, regardless of the fact that I am a publisher—my job is something else; we will say a doctor—what is to prevent my being prosecuted under this Bill? It seems to me that the only way in which the Bill defines publication for gain is that I possess these things. If I possess them, then I may well publish them for gain.
§ LORD DERWENT
The answer is, of course, that there is nothing to stop anyone from being prosecuted for anything, but the prosecutor has to prove that the person accused is going to publish, or that he has published, and that he has done it for gain. On the facts given to me by the noble Lord as I heard them, he might well be prosecuted, as any of us could be, but I should not have thought there was the slightest chance of his being convicted.
§ Amendment, by leave, withdrawn.
§ 4.37 p.m.
LORD FRANCIS-WILLIAMS moved, after subsection (2), to insert:
() Where an article is seized under section 3 of the Obscene Publications Act 1959 (which provides for the seizure of obscene articles kept for publication for gain) and a summons is issued under subsection (3) of that section if the Author or maker of such articles entitled to appear under subsection (4) appears and satisfies the Court that he intends to persist in publication and bona fide intends to raise a defence that the said article is not obscene or that its publication is justified as being for the public good on the grounds that it is in the interests of science, literature, art or learning, or of other objects of general concern and wishes to have the said issues determined by a jury the Court shall adjourn the proceedings under section 3 of the said Act and shall direct a charge of having the article for publication for gain to be preferred under section 2 of the said Act against the person so appearing.
§ The noble Lord said: As your Lordships will perceive, the Amendment which stands in my name and that of my noble friends Lord Brain, Lord Shackleton, and Lord Gardiner, is a very modest Amendment. It is designed solely to give statutory powers to what we have already been told, both here and in another place, is the Government's intention. I should like to ask your Lordships to consider what this Amendment would do, and what it would not do—and both are equally important.
I would begin by referring to the assurance—and it was a very valuable and acceptable assurance—that was given by the noble Lord, Lord Derwent, in the Second Reading debate, when he said, after an interjection by my noble friend Lord Shackleton [col. 617]:
If it is obvious to the prosecutor—the Director of Public Prosecutions or the Attorney General—that a man is making a genuine case that a book is a work of great literary merit, then we say that we will see, if he says that he is going to persist in it, that he is prosecuted".
Being prosecuted, he has, of course, the right to go to a higher court and he tried before a jury. The noble Lord went on:
That does not give him the right to ask for a prosecution. In the other type of case, where it is quite obvious that this is done to try to avoid forfeiture for purely financial reasons, the prosecution would not operate in that way.
This Amendment has been drawn only to ensure that there shall be the right to trial by jury in cases where the Government have already said that they believe that this right should be offered. It does not seek to give that right where they have been opposed—as many others, including many of my noble friends would be opposed, and, I think, rightly opposed—to such a right being given. It gives no sustenance or support to the common purveyors of filth, but only to those whom the Government themselves agree ought to have it: the reputable authors and makers—that is, the publishers, in the normal literary sense, and not, as I take it, in the strict legal sense, the distributor or disseminator of a book charged with being obscene.
§ It may be asked why, in view of the assurance given by the noble Lord. Lord Derwent, on behalf of the Attorney 835 General in another place, we seek to make this a statutory right. I suggest to your Lordships that it is not proper that such important matters should be subject to administrative decision, but that a statutory right should be involved. Attitudes can change. Indeed, if we are to judge from the reports in the newspapers and questions that have been asked in another place, they are now changing, following the recent appointment of a new Director of Public Prosecutions, as regards the institution of proceedings in cases of homosexual acts between consenting adults. I am not arguing whether or not that is a change which your Lordships would approve. All I am saying is that it is an indication, and there have been many other indications on many occasions, that attitudes can change, that they change with the climate of opinion and with new men coming in with new ideas. They can at one time be very rigid and at other times very liberal.
§ Therefore, in an important and basic matter of this kind, greatly concerning literary values and also the rights of individuals, the author and the publisher, that intention, that willingness to ensure that where there is a legitimate case of public right and public good there should be the right to go to a higher court, before a jury, should be made a statutory right and not left to the decision of officials. If it is suggested—and it was suggested on other Amendments not the same as this; this is a much narrower Amendment than those which were put at various stages in another place—that the law is unable to give statutory force to this requirement, then I am bound, as a layman, to say that I feel in this matter that the law is an ass, a perverse and malevolent ass in this particular case—indeed, not so much an ass as a mule.
§ But is it legally impossible? Certainly the legal advice I have taken and the fact that the noble Lord, Lord Gardiner, whose legal competence would not, I think, be challenged, has felt it possible to put his name to this Amendment, indicate that there is no legal bar whatever in the way of such an Amendment. The difficulty arises, if it arises at all, because of the forfeiture procedure, because forfeiture, as your Lordships know, is not a criminal proceeding. It 836 is, as I think I attempted to describe it during the Second Reading debate, a form of sewage disposal. Administratively, it is very helpful and very handy, and I and my noble friends do not wish to seek to get in the way. It is a very helpful, useful and valuable procedure in cases where there is material of obvious pornographic intent, in which forfeiture proceedings can be taken before a magistrates' court and where no case of genuine literary merit could be, or indeed is, advanced.
§ But it is a fact that there can arise in such instances cases where the reputation and livelihood of a reputable author, a maker of books or a publisher, can be caught out, and although forfeiture is not, in legal effect, a criminal proceeding, to be found guilty in a forfeiture proceeding can be, and is, just as damaging to the reputation, to the standing and to the ability for future livelihood of men of honest repute who have believed honestly that they were seeking to publish material of great merit. Admittedly they may be wrong, but even if they are they ought to have the opportunity to argue their case before a jury before a decision is taken.
§ It is to protect them that this Amendment is designed. It is not against prosecution and punishment in any way, if they are, in fact, guilty, but against what one might almost describe as their punishment by default without a proper trial before a jury where their case can be stated before twelve of their fellow citizens guided by a Judge, and a decision reached after evidence by expert witnesses, and so on, has been called. That is all that this Amendment seeks to do. In the vast majority of cases the forfeiture proceeding is used against obvious filth of no literary or other merit. Such poronographic material is largely anonymous; to use a famous phrase, it is without pride of parent or hope of posterity. It is a product of darkness for which those who peddle it do so successfully if they can, and are prepared, if found out, to get away with it as easily as they may. I suggest that it is highly improbable that those who are subject to forfeiture proceedings of this kind if they are found out, and if they are concerned only with the peddling of pornography, will seek to have the matter transferred to another court and to undergo all the 837 risks and dangers which face them if it does, in fact, go to a higher court and they are convicted.
§ But it is important, and it is accepted in the 1959 Act in a section which this Bill does not seek to amend in any way, that where material is seized under a forfeiture act there may be an interest of others, of the author or the maker, and they are given the right to appear in that forfeiture case. All that this Amendment asks is that if they do so appear, and if they convince the court that they "intend to persist in publication"—and I use the Minister's own phrase in this regard—and intend to put forward a defence of literary merit and the public interest, then the court (not they), having listened to this argument, shall have the right to decide that the matter shall go under the other section of the Act and be subject to a criminal prosecution and, therefore, to trial before a jury. The right so to decide is the right of the court, after hearing the evidence put forward by those who, under the existing Act, are given the right to appear and who have to convince the court of those two things. And that seems to me to implement entirely what the Government has said is its intention, that when there are matters in which serious issues of this kind are concerned it would be the normal procedure of the prosecuting authorities to bring them under that section of the Act.
§ The arguments that have been put against various proposals to amend the Act along such lines in the past, but which I hope this present Amendment meets, are, first, the one which I have already referred to: that it might lead to jamming of the courts. I thought that the noble Lord, Lord Derwent, slightly gave away his case on this ground during the Second Reading debate when he said that there was no instance in any of these forfeiture cases where there had been an appeal to quarter sessions. And I should have thought that was so, because in the vast majority of these cases, as I say, those whose material is subject——
§ THE LORD CHANCELLOR (LORD DILHORNE)
If I may interrupt the noble Lord, I think my noble friend cannot have been able to get sufficient access to the records. I have a distinct recollection 838 myself of appearing in forfeiture proceedings in quarter sessions many years ago.
§ LORD FRANCIS-WILLIAMS
I am grateful to the noble and learned Lord who sits on the Woolsack; but my understanding of the statement made by the noble Lord, Lord Derwent, was that the position was as I indicated. In any event, the number of such cases in which there is an appeal to the quarter sessions is very small; and it is very small because, as I say, these are people of the darkness and the night, who are concerned only to get the forfeiture proceedings through as rapidly as possible, in the hope that they will then be able to turn to some other way of earning a dishonest penny by pandering to the pathetic vices of those who are available, they hope, to them for exploitation.
But this possibility of the court's being jammed is, I think, in any event, even if it could be said to exist, met by the narrow terms of this Amendment: because the right to appear and to put forward a case that the matter should be dealt with under Section 2 of the Act is restricted to makers and authors of the books. As I have said, it requires that they shall be able to convince the court that they intend to persist in publication, and it requires that they shall be able to convince the court that they intend bona fide to put forward the defence of literary merit. In other words, it separates the maker and the author from the distributor, from the back-street shop which makes a practice of selling pornographic filth of this kind.
Moreover, that separation is accepted by the Government, because in another place the Solicitor General, in reply to a question by my honourable and learned friend Mr. Niall MacDermot, made it clear that the assurance given by the Government meant that in such circumstances the publisher, the maker or the author would be tried alone: that is, not linked with those who had been using material, perhaps completely contrary to his wishes and desires, peddling it in back-street pornographic shops—not against that background but against the wider and more important background of the book as a book. This, I think, is very important. It is important not only as one more way of preventing the courts from being jammed, but because it might well often 839 arise—indeed, it does arise—in the case of scientific and medical books; and particularly, perhaps, books on abnormal psychology, which are important because they may make great contributions to knowledge that should be available for study by students, doctors and so on.
It has sometimes been the case that such books have been bought by these little back-street Soho shops and displayed in their windows clearly in the hope of using them as a bait for pornographic sales. And it is essential that the position of the author and the maker of books should be considered apart from that of the distributor, who may not be in any sense an authorised distributor. I think, for example, of the works on abnormal psychology of Havelock Ellis which for a long time, because they happened to be taken up and sold in shops devoted to pornography, gathered around themselves in many circles this kind of salacious reputation. This Amendment is an attempt to recognise that all the procedures which are available to stamp out the trade in filth for money's sake should be given the full power and force to be effective, but also that it is very necessary, in the interests of literature and in the interests of private individuals of reputation and integrity, that this statutory right to go for trial before a jury should be maintained.
The noble Lord, Lord Derwent, argued in the earlier debate in your Lordships' House that it was quite wrong—and of course I thoroughly accept this—to say that in forfeiture proceedings the decision was the decision of one man only. He pointed out that before coming before the magistrate the matter would have been considered by the Public Prosecutor's Office, by the police and a whole chain of people who decided whether this was a fit subject for such a case. But I ask your Lordships to consider also those who are involved in the publication of a book which may be of great literary merit. There is not one man involved in that either. There is the author, who may have taken a long, long time writing his book believing that he is producing something of great literary importance. The book then goes to the publisher. He will send it to a reader; and, where 840 necessary, to those who he believes can give him expert advice.
So it is a whole group of people who decide that the book is one that should be published, and that it has literary merit which justifies publication. They may be wrong, just as the officials in the police authorities, or in the Prosecutor's office, or the magistrate may also be either right or wrong. But this is surely exactly the kind of case, where there is a strong difference of opinion between two groups of experts, that ought to go before a jury. That is my case for this Amendment; that this is a matter which touches upon important human rights and important questions of literary value, and my Amendment will in no way weaken the Bill but will strengthen and humanise it. I beg to move.
Page 1, line 15, at end insert the said sub-section.—(Lord Francis-Williams.)
§ 5.0 p.m.
§ LORD SILKIN
I hope I can be brief on this. I should like to say, first of all, that although this Amendment is moved under powerful auspices, we are not regarding it as a Party matter, and some of us—and, speaking for myself, certainly I—would not be in a position to support it. In my view, the Amendment would completely nullify Section 3 of the Obscene Publications Act, 1959, which I regard as a valuable part of it. It enables the court, where a case is quite clear, to go through the procedure of forfeiture while giving the person who is accused every opportunity of justifying his case, of putting up the argument that this is not an obscene publication, that it is a work of literary merit, and so on. It gives him a right of appeal to quarter sessions, and even of having a case stated for the opinion of the High Court. I think that such a person is fully protected under this valuable Section 3 of the Obscene Publications Act.
I do not want to be too critical of the wording of this Amendment, but it is inherent in the Amendment that anybody can obtain the right to go to the High Court and a jury. All he has to do is to satisfy the court that he intends to go on with the publication—not a difficult or onerous condition—and that he 841 bona fide believes that it is in the interests of science, or literature, and so on. How does he satisfy a court that he bona fide believes that? He will say, "I have 35 witnesses, including a bishop, who are prepared to go in the box and to say that it is a work of literary merit," et cetera. On that, of course, any court would be bound to let the case go to a jury.
I cannot help feeling that this is an Amendment which is not in the interests of justice or of anything else. It so happens that in a notorious case the defendants were successful in going to a jury, I think by sheer weight of evidence, and by the sheer—perhaps I should not say this—weariness of the court in having all this evidence placed before it. Of course trial by jury is one phase, and it is a valuable part of British justice. But there is a danger—is there not?—of so swamping a jury with facts as to confuse them, to tire them out, to weary them, so that at the end of the day they really do not know which way they go? It doss not surprise one that in some cases they may take the line of least resistance and call it a day.
I think that in appropriate cases there should be a trial by jury, but to give persons the automatic right as this Amendment would do in practice, though not in theory—as I have said, the conditions are so easy to fulfil before a magistrate that one can go to a jury as a matter of right—is going much too far. After all, this is a Bill to prevent, and not to encourage, obscene publications. We do not want to make it too easy for obscene publications to be distributed among the public. Therefore, I think the Bill as it stands, with the 1959 Act, is right. I think it would be a great mistake to weaken Section 3 of the 1959 Act and, speaking for myself, I hope that the Government will not be prepared to accept this Amendment.
§ 5.4 p.m.
§ THE LORD CHANCELLOR
I think it may be for the convenience of the Committee if I now reply to the Amendment moved by the noble Lord, Lord Francis-Williams. As I expected, he moved it with great persuasiveness and sought to make it look as attractive as possible; dressed it up in most attractive garments, and there were no topless parts missing 842 or anything else. But when he began by saying that it was a modest Amendment, merely to give statutory form to the Government's intention, I am sorry to say that I could not agree with him at all. It does not give statutory form to the Government's intention at all. My difficulty in replying to this Amendment is that there are so many cogent arguments which can be advanced against it that it is rather difficult for me to know where to begin.
I am grateful to the noble Lord, Lord Silkin, for the support and encouragement he has already given. I should like to remind your Lordships that this Bill has a quite limited effect. Its intention is to block the loopholes which decisions in the courts have shown to exist in the 1959 Act. I think there is absolute agreement that those loopholes must be blocked effectively. The 1959 Act was a Private Members' Act and, if I may express a personal view, I do not think it was an Act which would get the first prize as a model of legislation. But these defects which have appeared as the result of decisions in the courts are defects which the Bill seeks to remedy.
There is also the defect, in some eyes, that a work such as Fanny Hill was condemned without the verdict of a jury; but there are equally those who regard it as a defect that a work like Lady Chatterley's Lover should escape condemnation. The time may come when the Act will require to be reviewed, but the recent decisions of the courts and the influx of obscene trash from overseas into this country make it essential to pass this Bill to block the particular loopholes which experience has shown now exist.
I would not think it right now to reopen the issues decided in 1959 on a wider field. A compromise was reached then, and until there is a complete review of the whole question it ought not to be disturbed. For practical reasons, it is really not possible to provide for trial by jury in all forfeiture proceedings. I will not elaborate upon that; I am sure your Lordships will agree that that really is not practicable, because it would mean that the whole machinery of justice could be clogged. I think it is true that those who put forward this proposal and support it now recognise that, because although it was pressed for 843 in another place it has not been pressed for here.
In saying what I propose to say, I do not wish it to be thought that the Government think that trial by jury is not appropriate for determining questions of obscenity; but, in my view, trial by jury is inappropriate in forfeiture proceedings. I must confess, too, that I am a little intrigued as to the enthusiasm with which some people seek to secure trial by jury. I cannot agree with what the noble Lord, Lord Francis-Williams, said in the grounds that he advanced for that. Important questions of fact affecting the liberty, and indeed the reputation, of many individuals are tried and properly determined in the magistrates' courts, without any appearance before a jury. And there is, of course, the appeal from the magistrates' court. Obscenity is a question of fact. As I have said, very important questions of fact are decided by magistrates.
Oddly enough, years ago I must confess to having had a not inconsiderable practice in what I might call the forfeiture field. There was one particular publication, whose name I will not mention because, for all I know, it may be published now, which was a source of considerable income to me. Whenever there were forfeiture proceedings up and down the country usually this publication, which those who published it claimed to be entirely reputable, was among the articles seized, with the satisfactory result that I received a brief, which took me to many parts of the country. One of the difficulties then was that in the forfeiture proceedings the person in possession of the documents had to show cause why they should not be forfeited. The actual publishers for whom I was appearing had no locus standi and no right of audience, and it was difficult to get one. One managed to do so by also appearing for the shop assistant or something of the sort. The point is now that in these proceedings the publisher has a right of intervening, and that is a very important change.
Then also in these forfeiture proceedings before magistrates, as indeed before a jury, expert evidence can be called and its weight assessed. And your Lordships 844 will bear in mind that expert witnesses are those who are allowed to give evidence of their opinion because of their special training or experience on the subject in question. The example that springs to one's mind is the calling of doctors on medical questions. I must confess that I have always been rather puzzled as to the characteristics of those who come forward to give evidence as experts when any question of obscenity arises. I should like to make it clear that I believe the Bishop of Woolwich, who has been referred to earlier in this debate, was allowed to give evidence as an expert on ethics, a topic which I do not think the courts have previously regarded as approprate for evidence by experts. However that may be, there is this desire for the determination of the question of obscenity before a jury. It was argued in favour of this proposal if I may quote the words of the noble Lord, Lord Francis-Williams, that where there was a strong difference of expert opinion then the case was a stronger case to go before a jury. I beg leave to doubt that. The noble Lord, Lord Morrison of Lambeth, rather suggested in the Second Reading debate that one of the reasons for this enthusiasm for trial by jury was that it might prove easier to avoid conviction in such a trial. If that were the case, the argument for this Amendment is rather special pleading. I am not expressing a view on that, but if that were the case then the argument for this innovation seems to be a rather thin one.
§ LORD FRANCIS-WILLIAMS
May I interrupt the noble and learned Lord simply to say that that is not the case which has been put forward? It is not because my noble friends and I believe that when a case comes before a jury it is necessarily likely to be more easily dismissed than if it comes before a magistrate: it is because we believe that when issues of this kind are raised they ought to go before a jury for decision.
§ THE LORD CHANCELLOR
Is that right, when one bears in mind the number of serious issues of questions of fact, involving people's reputations and perhaps their liberty, which are determined by magistrates? I do not want your Lordships to think from what I have been saying that I am against trial by 845 jury—I am not. But I am making these general observations before dealing with this particular Amendment.
This Amendment creates a striking and, I think, unprecedented innovation. The noble Lord, Lord Francis-Williams, referred to Amendments of a similar character which were put forward in another place, and he sought to suggest that this Amendment was preferable to those Amendments. I rather doubt whether it is, in fact, but it is not for me to comment on the efforts to produce a good Amendment of this kind. I want to deal with the point of principle as well as the content of the Amendment. I think it will be convenient if I deal first with the form of the Amendment, because it does not really achieve what Lord Francis-Williams, if I understood him correctly, wants it to achieve. By drawing attention to the form of the Amendment, it will help me to be shorter in dealing with the objections of principle.
The object of the Amendment is to enable the author or publisher of a work in respect of which forfeiture proceedings have been instituted to require that a prosecution should be instituted against him with trial before a jury. The Amendment does not bring that object about. Your Lordships will see that it does not apply to a publisher in the ordinary sense of the word. It talks about the "author". The author, we know, is the writer. It talks about the "maker". The maker is an apt word for someone who makes a figure or statuette or something of that kind; but in fact the Amendment does not refer to the publisher. Secondly, one sees that it requires the author or maker—and I use the words of the Amendment—to satisfy the court that he, the author or maker, intends to persist in publication and bona fide intends to raise a defence——
§ LORD FRANCIS-WILLIAMS
May I interrupt the noble and learned Lord when he takes up the question of the word "maker"? The term "maker" which he apparently regards as imprecise is, in fact, exactly the word used in Section 3(4) of the 1959 Act, which says:In addition to the person summoned, any other person being the owner, author or maker of any of the articles … shall be entitled to appear …
§ THE LORD CHANCELLOR
I was rather struck when I saw the words which the noble Lord has left out. The words of subsection (4) areowner, author or maker of any of the articles brought before the courtand then come the words which the noble Lord left outor any other person through whose hands they had passed before being seized …Those words are apt to cover a publisher. They are not going to do so in this Amendment. That is a minor point; but the author or maker simply could not, except in the most exceptional circumstances, ever satisfy the court that he intended to persist in publication.
I ask your Lordships to bear in mind that the question whether anyone wants to persist in publication does not arise in forfeiture proceedings. The only question that arises in forfeiture proceedings is whether the person brought before the court can show cause why the articles or any of them should not be forfeited; and if the court is satisfied, in respect of any of the articles, that they were obscene articles kept for publication for gain, they should be ordered to be forfeited. There is no question before the court in forfeiture proceedings of further publication.
If this provision were inserted in the Bill it would mean that everybody brought before the court in forfeiture proceedings could say, to take the case of the 500 negatives, "I am the author or maker and intend to persist in the publication of these negatives." Then they would have the right, if the Amendment were accepted, to go to trial and, presumably, if there were 500 negatives there would have to be 500 counts on the indictment, because each negative would presumably be different. Although it might be said when the case got to trial that the court would have to proceed on one count and not on 500, when the guilt or innocence in relation to that particular one had been established there would still be 499 which would presumably have to go back and be dealt with simply on the forfeiture proceedings. So although I appreciate what the noble Lord, Lord Francis-Williams, said, that it was not his desire to interfere at all with the forfeiture process which he commended, in fact the effect of this Amendment would really be to wreck that procedure.
847 Then may I point out this? If it were carried, the Amendment would require the prosecution to charge a man with having an article for publication for gain, even if the prosecution could produce no evidence that he had the article at all, or, if they could prove that he had the article, no evidence that he had it for publication. Even if they got over that fence and had evidence that he had it for publication, that he had it for publication for gain, and without consideration of the question whether there would be any evidence available on those issues to support a charge under Section 2 of the Act, the acceptance of this Amendment would require the prosecution to institute a charge under that section. As I have pointed out, and I think this is an objection of substance, the present Amendment requires the institution of proceedings by the prosecution even if they have no evidence of the ingredients of the offence to be charged against the accused.
This Amendment would make a very striking innovation in our criminal procedure, for it is fundamental to the administration of the criminal law that prosecutors enjoy a discretion whether or not to prosecute in any particular case. There is not a single instance that I can find in our law where prosecution is mandatory on the direction of a court, on prima facie evidence of an offence being available. Although by the Amendment—the noble Lord was perfectly frank about it—it is merely sought to take discretion away from the Director of Public Prosecutions and to make it mandatory to prosecute, in effect the Amendment confers the discretion on the accused himself as to what charge will be preferred against him. That is, I think, a complete reversal of the fundamental principles of the criminal law, and I must advise your Lordships to reject it.
I want, if I may, to make one other point clear. The object of proceedings under the Obscene Publications Act is not, as is sometimes thought, to determine as an objective question whether or not a particular article is per se obscene. That is not the question the court has to decide, and the procedures available under the Act are not apt for determining that question. It may be 848 true that an acquittal usually produces the result that no further proceedings are taken by the police in respect of other copies of the article, but the converse is not true. A conviction of publication to a minor will not necessarily lead to a prosecution for publication to an adult. The procedures available must be used for the purposes for which they were made available, and on that basis the procedure under Section 2 is punitive and the procedure under Section 3 is preventive.
It would be just as wrong to put prosecuting authorities in the position of having to use the punitive procedure, where in their view the conduct of the person concerned did not call for punitive measures, as it would be to require them to take proceedings for forfeiture in a case where, in their view, the public interest required them to prosecute. The effect of this Amendment appears to be that if, for instance, a medical work is seized in Soho or in a children's bookshop, the publisher of the book is to have the right to come forward and demand that he should be prosecuted for having other copies of the book available for sale to medical practitioners, and that the forfeiture proceedings should stand adjourned until he has been so prosecuted. I think that really is too much. This illustration serves to show that forfeiture proceedings cannot be tied to litigation concerning the publication or proposed publication of other copies of the work, or even of the same copies in other circumstances for a different class of persons.
I could pursue this matter at some length, but I hope that I have summarised at least the main arguments on this point. After again giving this consideration—because in substance what has been proposed by the noble Lord, Lord Francis-Williams, was proposed in another place and discussed there—I want to make it clear that I am in no way departing from what was said by my right honourable and learned friend the Solicitor General in another place, as to the practice which is followed in considering what steps to take with regard to the institution of a prosecution.
May I just make it quite clear that, before the matter gets before the courts (this Amendment, of course, deals with 849 what should happen when the matter is before the courts), the prosecution have to consider what steps they will take. Then, as my noble friend Lord Derwent said, if it appears in those early inquiries before a charge is preferred, that it is the intention of the publisher to persist in publication—I am not seeking to quote the words that he used; they are on record—then the noble Lord has the assurance that the proceedings will be brought under Section 2. I do not wish to add to, or in any way to depart from, and I hope I have not varied from, anything that my noble and learned friend said. But I should have thought that was, or should be, a satisfactory assurance for those for whom the noble Lord has spoken so eloquently this afternoon. I cannot advise your Lordships to accept this Amendment. I could elaborate the objections to it at greater length, but I feel that noble Lords will not require me to do so. I should like to conclude by saying that we have carefully considered the position but cannot see any room for an Amendment to meet the point made by the noble Lord, Lord Francis-Williams, which could be effected without doing substantial injury to the application of the Bill.
§ LORD DARWEN
Before the noble and learned Lord sits down, I should be most grateful if he would explain to us the precise mechanics under which it is possible for a publisher to go to trial by jury. If, for example, a forfeiture of a number of obscene books is made from a bookseller, where does the publisher go from that point?
§ THE LORD CHANCELLOR
If forfeiture proceedings have started the publisher is given by the 1959 Act a right, which did not exist before, of intervening in those proceedings. As I stressed before, the person in whose possession the articles are found must show cause why they should not be forfeited. If the court comes to the conclusion that they are obscene, then it will order them to be forfeited. That is the preventive, as distinct from the punitive, process. The 1959 Act made what I thought was the very considerable improvement, certainly in the light of my experience many years ago, of giving the publisher the right of inter- 850 vening. He has the right of intervening; he can call evidence, if he wishes, and the case which has come before the magistrates' court can go to the higher court if they so desire. If the charge is preferred under Section 2—that is, the punitive provision—then there is a right to trial.
The undertaking which was given as to the practice which is followed relates, of course, to the decision as to whether to institute, in the magistrates' court, proceedings for forfeiture, or whether to institute proceedings under Section 2. It appears at the stage before the proceedings are instituted; and that is one reason why (if I may end on the note on which I began) the Amendment moved by the noble Lord, Lord Francis-Williams, does not, in fact, embody in a statutory form the undertaking given by my right honourable and learned friend.
§ 5.32 p.m.
§ LORD SHACKLETON
If I may intervene only very briefly, I think the Committee must be very grateful to the noble and learned Lord the Lord Chancellor for a very powerful and clear exposition. If he will not regard it as patronising, I must say that I think his explanations in the last few months have gone on getting more and more convincing. I only hope that he will not have the opportunity much longer. I am sure my noble friend Lord Francis-Williams—I do not know about other noble Lords involved—must be convinced by the arguments of the noble and learned Lord the Lord Chancellor; and it is no reflection on the noble Lord, Lord Derwent, who did his best on an earlier occasion, that he had to call in these heavier guns to support him on this matter.
I take it—this is to clarify one or two points in my mind—that proceedings for forfeiture were previously taken under the 1857 Obscene Publications Act, and it may presumably be at this point that the dfficulty in discovering whether appeals had taken place arose. It may be the Home Office were looking only at proceedings under the 1959 Act.
§ THE LORD CHANCELLOR
I think the answer to that is that I doubt very much whether any records of such appeals are kept. I certainly cannot 851 remember having seen the statistics myself. When the noble Lord, Lord Francis-Williams, said there had never been any appeals, and quoted my noble friend, I had a recollection of myself undertaking one, and so I intervened to make that correction.
§ LORD SHACKLETON
I am much obliged. As I understand it—and this seems the important point—the 1959 Act made it possible for a publisher to be a party. I must say I was interested, because I had shared, with my noble friend Lord Francis-Williams, the view that the publisher was covered by the word "maker", whereas, if I understand the noble and learned Lord aright, it is in fact not the publisher who is covered by this but the person into whose hands the articles have passed. Am I understanding that correctly?
§ THE LORD CHANCELLOR
I think "maker" as it stands would ordinarily be construed as the person who has constructed the particular object, whatever kind of object it may be. It is contrasted here with "author"; but subsection (4) is deliberately drawn as wide as it is to cover anyone through whose hands the article has passed before being seized, and so as to make it quite clear that those who are concerned in the production of the article, in its distribution and in its publication, will have the right of intervention. It is deliberately drawn very widely.
§ LORD SHACKLETON
This shows quite clearly in what a difficult field this is for the Private Peer or Private Member to operate. We all remember the 1959 Act, and the difficulties then. As the noble Lord has said, this Bill is a compromise. Our real concern was that, since the Government had taken the opportunity to amend certain loopholes which had arisen, and which we accept the need to plug, this was another one which needed attention. But I see that it does not arise specifically out of the 1959 Act. In a sense, it arises out of the 1857 Act plus the extra discretion that is given in the 1959 Act.
852 I hope there is no difference between us on the principle; and, since I think some noble Lords have a view that this is either licentiousness or malice on the part of noble Lords who, like myself, support this Amendment, I want to say only that we have a serious issue at heart. It is not a desire to find an easy way to enable pornographers to escape. There is an unsatisfactory state of affairs here, as shown by the case of Fanny Hill. It may well be that it would have been better if, in that case, there had been a prosecution and the prosecution had in fact been successful, as I think, following opinions I have heard, it is likely such a prosecution might have been. This is the case that we have made, but I fully accept that we really cannot do much more to tamper with the Bill, and I expect my noble friend will accept that.
§ 5.38 p.m.
§ LORD MORRISON OF LAMBETH
I do not wish to say much. I am more interested in the ethics and the morals of this matter than the law, though of course the law is undoubtedly connected with those things. But I am sure we are very much obliged to the noble and learned Lord the Lord Chancellor for his exceedingly able and clear exposition of the legal points, which to me, as a layman, seem unanswerable. I think the Committee is also indebted to my noble friend Lord Silkin for the very clear indication which he gave as to what he thought of it, speaking with legal knowledge as he does. I would only say, on the point my noble friend Lord Shackleton has raised about Fanny Hill, that I would not put it past a jury to pass Fanny Hill, remembering all the witnesses that could have been called. There were 35 witnesses in the Lady Chatterley case, including one Bishop—and they need not have stopped at one Bishop; they could have got one or two more.
§ LORD MORRISON OF LAMBETH
Bishops are sometimes a very curious lot of people. Mind you, they are not the only curious lot of people: there are other religious people who are curious as well. But I am glad that Fanny Hill did not go before a jury, because I 853 think it might have been passed. Whatever might be said about Lady Chatterley's Lover—and I think there is a case to be made that it is pornographic—Fanny Hill certainly is pornographic. I have read it, as I told the House before, as part of my Parliamentary duty. If that had gone before a jury, with a string of the right witnesses, including a Bishop or two, it might perhaps have passed through without challenge. But I think that, as the noble and learned Lord the Lord Chancellor and the Solicitor General in another place have said, the Bill as it stands would give it a chance to go for trial by a jury. Although I do not want to deny trial by jury, I nevertheless think that the case of Lady Chatterley's Lover was an experience to make one think and pause a little.
However, we have had a good discussion, and it has been good-tempered. My noble friend Lord Francis-Williams made an eloquent speech, and I do not propose to compete with him or to repeat what I said on Second Reading. I think it has been a useful discussion, and the facts, legal and otherwise, have, I hope, become clear. While I am prepared to vote if necessary, I nevertheless hope that, in the light of the discussion, my noble friend Lord Francis-Williams, as suggested by Lord Shackleton, will think that in all the circumstances of the case it is not necessary to press the Amendment to a Division.
§ 5.40 p.m.
§ LORD CITRINE
Before this matter is brought to an issue, may I make one or two observations? I have had the good fortune, for an extended period, to be in New Zealand, away from this House and its deliberations; and as the proceedings of our Parliament are not very extensively reported (within my observation) in New Zealand or Australia, I am in complete ignorance of what has preceded the discussion this afternoon. Therefore I speak from that wealth of ignorance which enables people to say things they would otherwise be deterred from saying. I think that most of us to-day know that pornography has a quite different meaning from what it had many years ago. Nowadays it seems to me almost standard practice for authors to interlard their writings with a sort 854 of pornography. I thought it rather startling in the case of Lady Chatterley's Lover that certain people were brought forward—some of them young women, presumably of virtuous repute—apparently to give evidence on the use of what many people would call scurrility.
I was myself in a divided state of mind about the Amendment. I would have supported it but for what has been said by the noble and learned Lord, the Lord Chancellor, who seems to have made it appear completely unworkable. But I do not like the Bill for all that, We are here in the realm of opinion, and those people who could digest readily Rabelais or Ovid as classics might be very strongly offended by some of the references in Lady Chatterley's Lover. What are we going to do about this opinion? We are going to put the determination as to whether a book or an article is obscene, in the first instance in the hands of a local magistrate—a local magistrate who has reasonable grounds for suspecting that something obscene is on sale. He, in turn, issues a search warrant, and authorises the police, or any police constable, to go and make a search. If anything is found which, in the opinion of that constable, is obscene, the constable can proceed to seize what he assumes is an obscene article.
We are coming down by stages. We started off with a magistrate; now we are coming to a constable. Apparently the constable is not limited in any way by the nature of the warrant that has been issued, as the warrant seems to me to mean, as it were, any article that may be within the premises referred to, even though the magistrate issuing the warrant had no knowledge of the existence of that article. If the constable has reason to think the articles are obscene he has the power to seize them. I do not know what is going to happen to the morals of the British constabulary, if you consider the things that go on. If the purpose of the Bill is to prevent corruption of the mind by obscene publications, the poor police will be making representations that there is added danger in their occupation and, consequently, applying for an increase in their salaries.
There is another inconsistency, it seems to me. According to what the noble and learned Lord the Lord Chancellor has said, seizure in the particular shop 855 or premises and a determination of forfeiture of the article would apply only to those premises. So the position could arise of books or articles seized in a particular premises and articles of an identical nature being sold elsewhere. I hope I am not wrong about that. I understand that that was what was said. We are getting into a proper knot about this. In other words, seizure takes place in a particular shop—I use the term "shop" because "premises" is wider and that is what is used in the Bill; but I mean the same thing. These articles are seized, but they can be on sale for a week or more because the order does not take effect for fourteen days. Consequently, there might be an extended sale of those allegedly obscene articles in the interim period. I do not know what happens to the obscene articles that are seized. Do they remain in the possession of the court indefinitely? Supposing an appeal is made to quarter sessions, what happens to the articles that have been seized? Would they remain seized although no decision on forfeiture had been made? I am puzzled.
I do not know how this Bill is going to work. I can see all sorts of inconsistencies, with obscene articles being forfeited in particular parts of the country yet being on sale in other parts; and perhaps completely different conceptions of what is obscenity being raised by magistrates in different parts of the country. I wish I could support the Amendment of my noble friend Lord Francis-Williams. The idea is a good one. But in this realm of opinion it ought not to be put in the hands of individuals to determine whether or not an article is obscene. The nearest thing we can come to justice in this country is trial by jury. In the Magna Charta it is pretty well laid down that that was the opinion when it was drawn up. I hope it will always continue, because no matter how learned a person may be in this realm, it eventually comes down to a matter of opinion. What is obscene in England under these provisions might be regarded as a quite commonplace and legitimate article of sale in many other lands. I am sorry I cannot support the Amendment because of the inconsistencies shown in it; but I should have liked to see the right of appeal to a jury established.
§ 5.48 p.m.
§ LORD BURDEN
Those of us associated with this Amendment were worried about the procedure in regard to forfeiture, and it was because of our anxiety that injustice should not be done so far as forfeiture is concerned that the Amendment was put down. May we go back and examine the background to the 1959 Act? It arose out of a series of legal decisions in various courts which caused consternation and dismay among both publishers and authors. One of the most unhappy incidents, I think, before the 1959 Act, was when a police officer at Swindon seized copies of The Decameron, priced at three guineas, in 1954, and the magistrates at Swindon declared the book to be obscene. Probably my good friend Lord Morrison of Lambeth, if he ever dipped into those pages, might agree with the magistrates of Swindon. But in 1954 there was an appeal to quarter sessions when the opinion of the Swindon magistrates was reversed.
What we were afraid of was that appeal in regard to forfeiture cases would be lost under this Bill. For instance, had The Decameronbeen forfeited and destroyed, it would have made us the laughing stock of the whole civilised world. We should not want something like that to happen again. A police officer might go into a bookshop and his eye might light upon The Golden Ass by Apuleius. He might pick it up and turn to one of the chapters which he would probably regard as obscene. I wonder whether that would be seized and destroyed, on a decision of the magistrates, and hold us up to derision throughout the world. On the assurance that, in these forfeitures, the right of appeal still remains, I am sure that my noble friend Lord Francis-Williams, having done a useful service to both publishers and authors in having this point brought out clearly, will be willing to withdraw his Amendment.
§ LORD FRANCIS-WILLIAMS
I should like to thank the noble and learned Lord the Lord Chancellor for his lucid and clear exposition of the effects which he saw might arise from my proposed Amendment. Though I recognise the force of what he said, I hope he will forgive me if, even now, as a layman, I really do not believe that it should be completely beyond legal wit to get over 857 some of these legal difficulties and embody the intention of the Amendment in a clause which would be workable. The noble and learned Lord tells me that my Amendment would not be workable and manifestly I must bow to his superior knowledge in this matter. But I am grateful to him for the reiteration of the assurance, which had earlier been given by the noble Lord, Lord Derwent, and in another place, that where instances of the kind I was concerned with, of serious publications by serious authors and publishers, who believe that they are doing something of literary merit, are the subject of prosecution, they will be dealt with under Section 2. Therefore, with your Lordships' permission, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Remaining clauses agreed to.
§ House resumed: Bill reported without amendment.
§ Then, Standing Order No. 41 having been dispensed with (pursuant to the Resolution of July 20), Report received. Bill read 3a; and passed.