§ 64 Insert the following new clause:
§ ".—(1) In the proviso to section 1(3) of the Obscene Publications Act 1959 (which excludes from the scope of that Act anything done in the course of a cinematograph exhibition taking place 482 otherwise than in a private house to which the public are not admitted and anything done in the course of television or sound broadcasting) the words from 'a cinematograph exhibition' to in the course of ' shall be omitted.
(2) In section 2 of that Act (prohibition of publication of obscene matter) at the end of subsection (3) there shall be inserted the following subsection:—
(3A) Proceedings for an offence under this section shall not be instituted except by or with the consent of the Director of Public Prosecutions in any case where the relevant publication or the only other publication which followed or could reasonably have been expected to follow from the relevant publication took place or (as the case may be) was to take place in the course of a cinematograph exhibition; and in this subsection "the relevant publication" means—
(3) In section 2 of that Act after subsection (4) there shall be inserted the following subsection: —
(4A) Without prejudice to subsection (4) above, a person shall not be proceeded against for an offence at common law—
(4) At the end of section 2 of that Act there shall be added the following subsection—
(7) In this section "cinematograph exhibition" means an exhibition of moving pictures produced on a screen by means which include the projection of light.'
(5) In section 3 of that Act (which among other things makes provision for the forfeiture of obscene articles kept for publication for gain) at the beginning of subsection (3) there shall be inserted the words "Subject to subsection (3A) of this
section" and at the end of that subsection there shall be inserted the following sub-section:—
(3A) Without prejudice to the duty of a court to make an order for the forfeiture of an article where section 1(4) of the Obscene Publications Act 1964 applies (orders made on conviction), in a case where by virtue of subsection (3A) of section 2 of this Act proceedings under the said section 2 for having an article for publication for gain could not be instituted except by or with the consent of the Director of Public Prosecutions, no order for the forfeiture of the article shall be made under this section unless the warrant under which the article was seized was issued on an information laid by or on behalf of the Director of Public Prosecutions.'
(6) In section 4 of that Act (defence of public good) at the beginning of subsection (1) there shall be inserted the words ' Subject to subsection (1A) of this section' and at the end of that subsection there shall be inserted the following subsection:—
(1A) Subsection (1) of this section shall not apply where the article in question is a moving picture film or soundtrack, but—
(7) At the end of section 4 of that Act there shall be added the following subsection: —
(3) In this section "moving picture soundtrack" means any sound record designed for playing with a moving picture film, whether incorporated with the film or not.'
§ Lord HARRIS of GREENWICH
My Lords, I beg to move that this House doth agree with the Commons in their Amendment No. 64, and with the leave of the House I should like to speak at the same time to Amendments Nos. 64A and 167. The new clause results from a widespread feeling which has become evident during the proceedings on the Bill, particularly as embodied in Amendments moved by Opposition spokesmen in the Committee in another place, that the law on films was currently so unsatisfactory as to require an interim solution pending the conclusions of the committee which my right honourable friend the Home Secretary has appointed, 484 under the chairmanship of Professor Bernard Williams, to undertake a fundamental review of the laws in the general field of obscenity. The Government responded to this pressure by introducing a new clause which deals with films along the lines recommended by the Law Commission in its report on the law of conspiracy, but which leaves the wider changes proposed by the Commission to be looked at in the context of the review by the new committee. It remains the Government's view, as I explained in your Lordships' House during earlier stages of the Bill, that it is desirable not to seek changes in the basis of the present law while it is being examined by a departmental committee, but in the limited respect set out in this new clause we have agreed that, as a kind of holding operation, concern about the state of the present law might for now be met by placing films on the same legal footing as books and plays.
The new clause follows broadly the Law Commission's proposed form for making films subject to the Obscene Publications Acts, but instead of abolishing the common law offences entirely it provides in subsection (3), in a provision similar to that in the Theatres Act 1968, that proceedings at common law shall not lie against a cinematograph exhibition. The common law offences will, pending the review of the Departmental Committee, be preserved for other forms of activity not at present covered by the Statutes, but films will be subject only to proceedings for the statutory offences of obscenity. This will mean that cinema clubs, as well as cinemas, will be brought within the obscenity laws.
The new clause contains two particular modifications of the Obscene Publications Acts in applying them to film exhibitions, both of them recommended by the Law Commission. In subsections (2) and (5) there are provisions designed to forestall frivolous or vexatious proceedings against films by requiring the consent of the Diretor of Public Prosecutions to prosecutions. There is a small departure in subsection (2) from the clause drafted by the Law Commission, in that the Commission had wished to give the protection of the Director's consent only to licensed cinemas and film societies, leaving private prosecutors free to institute proceedings against cinema clubs.
485 The test adopted by the Law Commission in attempting to distinguish film societies—of whether or not a body was an "exempted organisation" under the provisions of the Cinematograph Act 1952—was found not to work in practice. The Government concluded that it would be better to adopt the simple course of requiring the Director's consent generally, but, as a result of concern about the effect the clause as drafted might unwittingly have in relation to the trade in obscene home movies, Amendment No. 64A has been tabled to limit the application of subsections (2) and (5). This will require the Director's consent in relation to 35 mm. and 16 mm. films—which will effectively protect cinemas and film societies in the way proposed by the Law Commission—but will not provide such a requirement in respect of 8 mm. films, which are those more likely to be distributed as pornography. In consequence of this limitation, the Director of Public Prosecutions will not need to give his consent in cases involving the wholesalers or retailers of obscene 8 mm. films, nor need the police be inhibited, when executing a warrant issued other than on the Director's application, from seizing such films as they might find along with other pornographic material. It will however continue to be a requirement of the Prosecution of Offences Regulations that the police should consult the Director of Public Prosecutions about all proceedings in obscene publications cases. I beg to move.
§ Moved, That this House cloth agree with the Commons in the said Amendment. —(Lord Harris of Greenwich.)
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, Amendment No. 64A is proposed as an Amendment to Commons Amendment No. 64.