The Obscene Publications Act 1959 (7 & 8 Eliz. 2. c. 66) is an act of the United Kingdom Parliament, which significantly reformed the law related to obscenity in England and Wales. Before the passage of the act, the law on publishing obscene materials was governed by the common-law case of R v Hicklin, which had no exceptions for artistic merit or the public good. During the 1950s, the Society of Authors formed a committee to recommend reform of the existing law, submitting a draft bill to the Home Office in February 1955. After several failed attempts to push a bill through Parliament, a committee wrote a viable bill, which was introduced to Parliament by Roy Jenkins and given royal assent on 29 July 1959, coming into force on 29 August 1959 as the Obscene Publications Act 1959. With the committee consisting of both censors and reformers, the actual reform of the law was limited, with several extensions of police powers included in the final version.
The act created a new offence, that of publishing obscene material, and abolished the common-law offence of publishing obscene materials, which was previously used.7 & 8 Eliz. 2. c. 66 s. 2(4) The act also allows Justices of the Peace to issue warrants for the police seizure of such materials. It also creates two defences, those of innocent dissemination and of the public good. The act has been used in several high-profile cases, such as the trials of Penguin Books for publishing Lady Chatterley's Lover and Oz for the Schoolkids OZ issue.
Background and passage
Before 1959: The Early History of Obscenity Regulation Obscene publications were, historically, something for the canon law; the first prosecution in a court of common law was in 1727.Wade (1959) p.179 Before the passing of the 1959 act, the publication of obscene materials in England and Wales was governed by the common law and the Obscene Publications Act 1857 (20 & 21 Vict. c. 83). The common law, as established in R v Hicklin 3 QB 360, set the test of "obscenity" as "whether the tendency of the letter published is to deprave and corrupt those whose minds are open to such immoral influence and into whose hands the publication might fall"; the 1857 Act allowed any stipendiary magistrate or any two Justices of the Peace to issue a warrant authorising the police to search for, seize, and destroy any obscene publications.Europe (1976) p.242
It was generally accepted that the existing law was heavily flawed, for several reasons. One was that the "Hicklin test", from R v Hicklin, was both unduly narrow and unyielding; it did not, for example, take into account the intentions of the defendant. Another was that the test meant that individual sections of a published work could be analysed and the entire work declared obscene, even if the rest of the work was fairly mild. Third, there was no defence based on the public good, and no opportunity to submit evidence showing the artistic merits of the work. Finally, a work could be destroyed without the author's or the publisher's being informed and given an opportunity to defend the work.Williams (1960) p.285
1959: The Enactment of the Obscene Publications Act 1959 In the 1950s, efforts started to attempt reform of the law. After the prosecution of several notable publishers, the Society of Authors formed a committee (with Norman St John-Stevas as legal advisor) to recommend reform of the existing law, submitting their proposals and a draft bill to the Home Office in February 1955. Instead of the wholesale reform that the Society hoped for, the government chose limited reform through the Children and Young Persons (Harmful Publications) Act 1955, dealing with horror comics, which kept the Hicklin test but required that the work as a whole be examined. The Society and sympathetic Members of Parliament then attempted to introduce a Private Member's Bill, but this was quashed by the ensuing general election. Another Private Member's Bill was introduced, successfully, in March 1957 and sent to a committee. Comprising censors and reformers, the committee made mixed recommendations, both conservative (further powers of search and seizure for the police) and liberal (the use of expert evidence attesting to the work's artistic merit).Williams (1960) p.286
The committee's proposals were published in March 1958, and a new bill was introduced under the Ten Minute Rule, failing to gain the requisite support. After A. P. Herbert stood for Parliament on a platform of obscenity reform, the Home Office had a change of heart and introduced a new bill through Roy Jenkins in 1959,Williams (1960) p.287 a compromise between the aims of the campaigners and the goals of the Home Office.Lord (2005) p.106 It was introduced to the House of Lords by Lord Birkett,Wade (1959) p.180 received royal assent on 29 July 1959, and came into force on 29 August 1959 as the Obscene Publications Act 1959.
Similar laws were also introduced in other countries. As early as 1942, Switzerland passed its first nationwide criminal code, which contained provisions against so-called “obscene literature.” In West Germany, a corresponding law followed in 1953 after long and controversial debates. Similar to Austria with its Pornography Act, political support came primarily from conservative circles and the Catholic Church, which saw the law as a means of combating the supposed moral decline after the Nazi era. However, the resurgent interest in obscenity regulations was not a purely German-speaking phenomenon, as France passed a law in 1949 to control youth-related publications.
Provisions The act is relatively short, divided into 5 sections, the fifth covering the extent of the act and its commencement date.
Section 1: Test of obscenity It covers the test to determine if something is obscene; an article is taken to be obscene if the entire article "is, if taken as a whole, such as to tend 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 test is based on "persons"; DPP v Whyte AC 849 established that it was not sufficient for an individual to be depraved or corrupted, it must be that a significant number of people likely to read it would become corrupt.Barnett (1997) p.435 "Article" is defined within Section 1 as anything containing material that is read or looked at, any sound recordings and any film or other picture record.Dabydeen (2004) p.97 A publisher, as used in the act, is also defined in Section 1; "publisher" is taken to mean anyone who "distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire", or "in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it".Glazebrook (2007) p.238 The Criminal Justice and Public Order Act 1994 amended this section to include the transmission of the article electronically.
Section 2: Prohibition of publication of obscene matter Covers the actual prohibition of publishing "obscene material". Section 2(1) creates a new offence, "publishing an obscene article", which replaces the common law misdemeanour of "obscene libel" which was previously the crime. Somebody can be found guilty of this regardless of if it was done for profit or not. Where the article is a film, the consent of the Director of Public Prosecutions is required before a prosecution can commence.Glazebrook (2007) p.239 Section 2(4) states that, where an article is obscene, no other common law charges should be brought, and it should instead be dealt with through the 1959 act, intended to limit prosecutions to those crimes found in this Act.Wade (1959) p.181 Section 2(5) creates a defence of "innocent dissemination"; if the publisher can prove that they did not anticipate any obscenity problems, and did not examine the article in question for such issues, they cannot be convicted.Williams (1960) p.288
Section 3: Powers of search and seizure Covers Powers of search and seizure, which also repealed the Obscene Publications Act 1857. This section allows a Justice of the Peace, if satisfied that there are reasonable grounds to believe obscene publications are kept on certain premises for profit, to issue a warrant for that location.Stone (1989) p.77 This warrant allows a police officer to enter the premises, search them and remove any suspect publications; if such publications are found, the officer can also take records relating to the businesses trade. The articles must then be brought before a magistrate and either forfeited by the owners or returned. The owner, author or publisher of the articles, or the person from whom they were seized, may appear before the magistrate to argue why they should not be forfeited.Stone (1989) p.78
Section 4: Defence of public good Creates the defence of public good, which applies both to prosecutions for publication of obscene materials and to the forfeiture proceedings described in Section 3. This allows for a valid defence if the defendant can show that the publication of the materials was justifiable as for the "public good", which is defined as "in the interests of science, literature, art or learning, or of other objects of general concern".Williams (1960) p.289 Experts and their testimony are admissible for determining the value of such publications.Wade (1959) p.182 This section was initially treated very strictly by trial judges, but this attitude was reversed after the 1976 trial of the book Inside Linda Lovelace, where the jury found the publishers not guilty despite the judge saying that "if this isn't obscene, members of the jury, you may think that nothing is obscene". Three years later the Williams Committee recommended that restrictions on written pornography be lifted, and these restrictions have been largely abandoned.Barnett (1997) p.436
Notable prosecutions under the act
Lady Chatterley's Lover trial
The first noted prosecution under the Obscene Publications Act was of Penguin Books in R v Penguin Books Ltd. for publishing Lady Chatterley's Lover.Beale (1997) p.88 The book, which contained the use of the words "fuck" and "cunt" multiple times, along with sexual scenes, was banned completely in England and Wales until the conclusion of the trial; by the mid-1980s, it was on the school syllabus.Rozenburg (1987) p.56 Penguin Books relied on Section 4's "public good" defence, with academics and literary critics such as E. M. Forster and Helen Gardner testifying at the trial that the book was one of literary merit. The trial at the Old Bailey eventually ended with a not guilty verdict, allowing the book to be openly published and sold in England and Wales for the first time since it was published in 1928.Rozenburg (1987) p.57 This trial and its verdict is seen as heralding "a new wave of sexual 'morality' for which the 1960s is now famous".Torremans (2000) p.150 Graham Lord wrote that the case "was the first trumpet call of the permissive society, the moment many believe that British morality, manners and family life began seriously to deteriorate".Lord (2005) p.107
Stass Paraskos trial