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Obscene Publications Act 1959

Obscene Publications Act 1959

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The Obscene Publications Act 1959 (c. 66) is an Act of Parliament
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...

 of the United Kingdom Parliament that significantly reformed the law related to obscenity. Prior to the passage of the Act, the law on publishing obscene materials was governed by the common law case of R v Hicklin
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...

, which had no exceptions for artistic merit or the public good. During the 1950s, the Society of Authors
Society of Authors
The Society of Authors is a trade union for professional writers that was founded in 1884 to protect the rights of writers and fight to retain those rights .It has counted amongst its members and presidents numerous notable writers and poets including Tennyson The Society of Authors (UK) is a...

 formed a committee to recommend reform of the existing law, submitting a draft bill to the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...

 in February 1955. After several failed attempts to push a bill through Parliament, a committee finally succeeded in creating a viable bill, which was introduced to Parliament by Roy Jenkins
Roy Jenkins
Roy Harris Jenkins, Baron Jenkins of Hillhead OM, PC was a British politician.The son of a Welsh coal miner who later became a union official and Labour MP, Roy Jenkins served with distinction in World War II. Elected to Parliament as a Labour member in 1948, he served in several major posts in...

 and given the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...

 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 to police powers included in the final version.

The Act created a new offence for publishing obscene material, repealing the common law offence of obscene libel which was previously used, and also allows Justices of the Peace
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...

 to issue warrants allowing the police to seize such materials. At the same time it creates two defences; firstly, the defence of innocent dissemination, and secondly the defence of public good. The Act has been used in several high-profile cases, such as the trials of Penguin Books
Penguin Books
Penguin Books is a publisher founded in 1935 by Sir Allen Lane and V.K. Krishna Menon. Penguin revolutionised publishing in the 1930s through its high quality, inexpensive paperbacks, sold through Woolworths and other high street stores for sixpence. Penguin's success demonstrated that large...

 for publishing Lady Chatterley's Lover
Lady Chatterley's Lover
Lady Chatterley's Lover is a novel by D. H. Lawrence, first published in 1928. The first edition was printed privately in Florence, Italy with assistance from Pino Orioli; it could not be published openly in the United Kingdom until 1960...

and Oz
Oz (magazine)
Oz was first published as a satirical humour magazine between 1963 and 1969 in Sydney, Australia and, in its second and better known incarnation, became a "psychedelic hippy" magazine from 1967 to 1973 in London...

 for the Schoolkids OZ
Schoolkids OZ
Schoolkids OZ was issue 28 of the Oz magazine, famous for being the subject of a high-profile obscenity case in the United Kingdom in June 1971. The OZ trial ended on 5 August 1971.-History:...

 issue, but more recently has been rarely used despite the increasing amount of "obscene" material available to the general public.

Background and passage


Obscene publications were, historically, something for the canon law
Canon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...

; the first prosecution in a court of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

 was not until 1727. Prior to the passing of the 1959 Act, the publication of obscene materials within England and Wales was governed by the common law and the Obscene Publications Act 1857
Obscene Publications Act 1857
The Obscene Publications Act 1857 , also known as Lord Campbell's Act or Campbell's Act, was a major piece of obscenity legislation in the United Kingdom of Great Britain and Ireland...

. The common law, as established in R v Hicklin
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...

[1868] 3 QB 360
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

, 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", while the 1857 Act allowed any stipendiary magistrate or any two Justices of the Peace
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...

 to issue a warrant authorising the police to search for, seize and destroy any obscene publications. It was generally accepted that the existing law was heavily flawed, for several reasons. Firstly, the so-called "Hicklin test
Hicklin test
The Hicklin test is a legal test for obscenity established by the English case Regina v. Hicklin. At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books...

" from R v Hicklin was both unduly narrow and unyielding; it did not, for example, take into account the intentions of the defendant. Secondly, the test meant that individual sections of a published work could by analysed and the entire work declared obscene, even if the rest of the work was fairly mild. Thirdly, there was no defence based on the public good, and no opportunity to submit evidence showing the artistic merits of the work, and fourthly, works could be destroyed without the author or publisher even being informed and given an opportunity to speak.

During the 1950s, efforts started to attempt reform of the law. Following the prosecution of several notable publishers, the Society of Authors
Society of Authors
The Society of Authors is a trade union for professional writers that was founded in 1884 to protect the rights of writers and fight to retain those rights .It has counted amongst its members and presidents numerous notable writers and poets including Tennyson The Society of Authors (UK) is a...

 formed a committee to recommend reform of the existing law, submitting their proposals and a draft bill to the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...

 in February 1955. Instead of the wholesale reform the Society hoped for, the government instead chose limited reform through the Children and Young Persons (Harmful Publications) Act 1955
Children and Young Persons (Harmful Publications) Act 1955
The Children and Young Persons Act 1955 is an Act of Parliament of the United Kingdom Parliament that prohibited comics that were thought to be harmful to children...

 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
Private Member's Bill
A member of parliament’s legislative motion, called a private member's bill or a member's bill in some parliaments, is a proposed law introduced by a member of a legislature. In most countries with a parliamentary system, most bills are proposed by the government, not by individual members of the...

, but this was quashed by the ensuing general election
United Kingdom general election, 1955
The 1955 United Kingdom general election was held on 26 May 1955, four years after the previous general election. It resulted in a substantially increased majority of 60 for the Conservative government under new leader and prime minister Sir Anthony Eden against Labour Party, now in their 20th year...

. Another Private Member's Bill was successfully introduced in March 1957 and sent to a committee. Composed of a mix of censors and reformers, the committee's recommendations were mixed, consisting of 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) proposals.

The committee's proposals were published in March 1958, and a new bill was introduced under the Ten Minute Rule
Ten Minute Rule
The Ten Minute Rule, also known as Standing Order No. 23, is a procedure in the British Parliament for the introduction of Private Member's Bills in addition to the 20 per session normally permissible. It is one of the ways in which a bill may receive its first reading.Any MP may introduce a bill...

, failing to gain the requisite support. After A. P. Herbert
A. P. Herbert
Sir Alan Patrick Herbert, CH was an English humorist, novelist, playwright and law reform activist...

 stood for Parliament on a platform of obscenity reform, the Home Office
Home Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...

 had a change of heart and introduced a new bill through Roy Jenkins
Roy Jenkins
Roy Harris Jenkins, Baron Jenkins of Hillhead OM, PC was a British politician.The son of a Welsh coal miner who later became a union official and Labour MP, Roy Jenkins served with distinction in World War II. Elected to Parliament as a Labour member in 1948, he served in several major posts in...

 in 1959, a compromise between the aims of the campaigners and the goals of the Home Office. It was introduced to the House of Lords
House of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....

 by Lord Birkett, received the Royal Assent
Royal Assent
The granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...

 on 29 July 1959, and came into force on 29 August 1959 as the Obscene Publications Act 1959.

Act


The Act is relatively short, divided into 5 sections, the fifth covering the extent of the Act and its commencement date. Section 1 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 [1972] AC 849
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 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. "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. 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". The Criminal Justice and Public Order Act 1994
Criminal Justice and Public Order Act 1994
The Criminal Justice and Public Order Act 1994 is an Act of the Parliament of the United Kingdom. It introduced a number of changes to the existing law, most notably in the restriction and reduction of existing rights and in greater penalties for certain "anti-social" behaviours...

 amended this section to include the transmission of the article electronically.

Section 2 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
Director of Public Prosecutions (England and Wales)
The Director of Public Prosecutions of England and Wales is a senior prosecutor, appointed by the Attorney General. First created in 1879, the office was unified with that of the Treasury Solicitor less than a decade later before again becoming independent in 1908...

 is required before a prosecution can commence. 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. 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.

Powers of search and seizure are covered by Section 3, which also repealed the Obscene Publications Act 1857
Obscene Publications Act 1857
The Obscene Publications Act 1857 , also known as Lord Campbell's Act or Campbell's Act, was a major piece of obscenity legislation in the United Kingdom of Great Britain and Ireland...

. This section allows a Justice of the Peace
Justice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...

, 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. 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.

Section 4 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". Experts and their testimony are admissible for determining the value of such publications. 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
Linda Lovelace
Linda Susan Boreman , better known by her stage name Linda Lovelace, was an American pornographic actress who was famous for her performance of deep throat fellatio in the enormously successful 1972 hardcore porn film Deep Throat...

, 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.

Prosecutions under the Act



The first noted prosecution under the Obscene Publications Act was of Penguin Books
Penguin Books
Penguin Books is a publisher founded in 1935 by Sir Allen Lane and V.K. Krishna Menon. Penguin revolutionised publishing in the 1930s through its high quality, inexpensive paperbacks, sold through Woolworths and other high street stores for sixpence. Penguin's success demonstrated that large...

 in R v Penguin Books [1961] for publishing Lady Chatterley's Lover
Lady Chatterley's Lover
Lady Chatterley's Lover is a novel by D. H. Lawrence, first published in 1928. The first edition was printed privately in Florence, Italy with assistance from Pino Orioli; it could not be published openly in the United Kingdom until 1960...

. 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. Penguin Books relied on Section 4's "public good" defence, with academics and literary critics such as E. M. Forster
E. M. Forster
Edward Morgan Forster OM, CH was an English novelist, short story writer, essayist and librettist. He is known best for his ironic and well-plotted novels examining class difference and hypocrisy in early 20th-century British society...

 and Helen Gardner testifying at the trial that the book was one of literary merit. The trial at the Old Bailey
Old Bailey
The Central Criminal Court in England and Wales, commonly known as the Old Bailey from the street in which it stands, is a court building in central London, one of a number of buildings housing the Crown Court...

 eventually ended with a not guilty verdict, allowing the book to be openly published and sold in England for the first time since it was published in 1928. This trial and its verdict is seen as heralding "a new wave of sexual 'morality' for which the 1960s is now famous". Graham Lord
Graham Lord
Graham Lord is a British biographer and novelist. His biographies include those of Jeffrey Bernard, James Herriot, Dick Francis, Arthur Lowe, David Niven, John Mortimer and Joan Collins...

 wrote that the case "was the first trumpet call of the permissive society
Permissive society
The permissive society is a society where social norms are becoming increasingly liberal. This usually accompanies a change in what is considered deviant. While typically preserving the rule "do not harm others", a permissive society would have few other moral codes...

, the moment many believe that British morality, manners and family life began seriously to deteriorate".

in 1971 the editors of Oz
Oz (magazine)
Oz was first published as a satirical humour magazine between 1963 and 1969 in Sydney, Australia and, in its second and better known incarnation, became a "psychedelic hippy" magazine from 1967 to 1973 in London...

in 1971 were tried for publishing obscene materials, specifically the Schoolkids OZ
Schoolkids OZ
Schoolkids OZ was issue 28 of the Oz magazine, famous for being the subject of a high-profile obscenity case in the United Kingdom in June 1971. The OZ trial ended on 5 August 1971.-History:...

 issue. Oz was an underground magazine with a circulation of 40,000 which aimed to challenge the "older generation's outdated beliefs and standards of behaviour and morality". For its 28th issue, 20 teenagers were invited to contribute and edit it. The published version was 48 pages long, with the front consisting of a sheet from the French erotic book Desseins Erotiques, which depicted four naked women licking each other and performing sex acts. Inside were articles about homosexuality, lesbianism, sadism and a cartoon strip which showed Rupert Bear
Rupert Bear
Rupert Bear is a children's comic strip character, who features in a series of books based around his adventures. The character was created by the English artist Mary Tourtel and first appeared in the Daily Express on 8 November 1920. Rupert's initial purpose was to win sales from the rival...

 "ravaging" a "gipsy granny". John Mortimer
John Mortimer
Sir John Clifford Mortimer, CBE, QC was a British barrister, dramatist, screenwriter and author.-Early life:...

 acted for the defence, and after the longest obscenity trial in English legal history the defendants were convicted. After a three-day hearing in the Court of Appeal of England and Wales
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...

, this conviction was overturned; the Court of Appeal recognised 14 errors of law and a large number of errors of fact in the trial judge's summing up to the jury.

Impact and assessment


The Act was found deficient in a variety of ways. Firstly, the test meant that "sting" operations where the police purchased "obscene" materials were not considered sufficient evidence of publication, since the police were not considered easy to "corrupt" due to their regular exposure to the materials. Secondly, the offer of such materials for sale was not held to be publication, since it was merely an invitation to treat. Thirdly, the courts held in Straker v DPP [1963] 1 QB 926
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...

 that negatives for photographs could not be forfeited if it was not intended to publish them, regardless of their obscene nature. As a result, the Act was amended by the Obscene Publications Act 1964, which created the offence of "possessing obscene articles for publication or sale" and also extended "obscene materials" to cover photograph negatives. Another criticism levelled at both Acts was that they failed to define "obscene" properly, relying on the old, common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

definition and giving no help to the judge or jury as to how to apply it properly. The Act has been under-enforced; in 1996 there were 562 cases brought, in which 324 individuals were convicted, which is noted as a small number despite the increasing prevalence of pornographic and "obscene" material. Even with this small number of trials, only a third of convictions resulted in prison sentences, and only a small number of cases went to jury trials.