The premise of obscenity law in Great Britain has been to suppress material that the courts decide may have a particularly harmful effect on the minds of members of the population who read, see or hear it. While perhaps suited to prevalent attitudes in the Victorian society in which it was conceived, such paternalistic sentiments have no place in a modern pluralistic democracy. That is not to say, however, that obscenity law or some equivalent can have no relevance whatever in today's society.
In outlining a complete overhaul of the current system, this essay will argue that any curtailment of the right of free speech, one of the foundational rights of liberal democracy, can only be based on solid, objective ground. Individual moral sensibilities, while often deeply held, are so varied as to make consensual censorship on moral grounds impossible and undesirable. Primarily, the law must seek to maximise choice, both to choose to access potentially offensive material and to choose to avoid it.
The salient features of obscenity law in Great Britain will be considered in the first part of the essay and its relevance in the current social climate will then be discussed. Finally, reform recommendations will be made, aimed at a system more amenable to the principles of rule of law. Current Obscenity Law in Great Britain The Position in Scotland The Scots law of obscenity has its roots in the nineteenth century and cases since then have relied upon a mixture of legislation and common law principles dating from that period.
The Civic Government (Scotland) Act 19821 repealed the preceding noteworthy Scots legislation on the subject, the Burgh Police (Scotland) Acts 1892 to 1911, as well as various other local statutory provisions to the extent that they dealt with obscenity2 and so became the key legislation on the subject3. Obscenity is not defined in the 1982 Act so the common law definition maintains importance. The subsisting branch of obscenity law, which is not reliant upon legislation repealed by the 1982 Act, stems from the common law offence of shameless indecency, resurrected in Watt v Annan4, to deal with Watt having shown an obscene film.
The test required that "said film was liable to create depraved, inordinate and lustful desires in those watching said film and to corrupt the morals of the lieges. " This circumvented the prosecutionary hurdle in this case which was that the film, which was explicit and undoubtedly potentially offensive, was shown only to adults, all members of the same social club, behind the locked doors of a hotel lounge. Thus it could not be said to have been indiscriminately offered, as would have been required for a prosecution under the 1892 Act.
The additional requirement of shamelessness added to the seriousness of the offence, but one may question the actual harm done by a group of consenting adults watching a film behind closed doors. Scots law has generally used the terms 'indecent or obscene' tautologically, even though they have different connotations in normal parlance. There has been some dissent to the effect that they have different meanings, or at least different grades of meaning, for example Lord Sands' analysis in McGowan v.
Langmuir5, but the general approach of Scots law, through cases like Galletly v. Laird6, all the way back to the Burgh Police (Scotland) Act 18927, does not support this. The English approach, however, sees a distinction between the two terms and this seems to be the necessary approach under the Indecent Displays (Control) Act 1981 and other important pieces of legislation8, applicable to Scotland as well as England. So, there must be at least some scope for the view of Lord Sands that they represent different shades of meaning, to allow a normal reading of this legislation.
Defences of public good and innocent dissemination can be drawn from Scots obscenity law, although they are far less clearly stated than in English law. Section 51 (4) of the 1982 Act provides that "due diligence to avoid committing the offence" is a defence and this would seem roughly analogous to innocent dissemination under the 1959 Act, section 2(5). Lord Justice-General Cooper alluded to this point in Galletly v. Laird, noting that the offence would "usually" be committed "deliberately and for gain"9.
Although decided on the basis of the 1892 Act, Galletly v. Laird is one of the few detailed judicial analyses of Scots obscenity law and some points worthy of note are made. The public good defence, central to obscenity laws in other jurisdictions, is even less explicit in Scotland, but again is acknowledged by Lord Justice-General Cooper in Galletly v. Laird when he states that "reputable dealers who justifiably stock literary, scientific, artistic or philosophical works" are not the concern of the law.
This is later qualified in that the works would be for scholarly study, which is only one of the grounds available in the English defence. It has been left to the common law to develop these defences into something passable under the principle of the rule of law. However, the ineffectual nature of current legal provision on obscenity has meant that there has been scant opportunity for this, which leaves the law in an uneasy position of arrested development, both theoretically and in terms of application.
This points strongly towards reform. The position in England and Wales Analysis of obscenity law in England and Wales has a much clearer point of departure in the Obscene Publications Act 195910, as amended by the Obscene Publications Act 196411, although there is still some scope for the subsisting common law offences of corrupting public morals and outraging public decency, where they are seen as better facilitating prosecution.
The 1959 Act was enacted to deal with the perceived problem that the previous law had been used to remove material of genuine merit from the mainstream and thus seeks to separate material with some literary or other merit from gratuitous pornography. In view of this, material is to be considered in context and as a whole, and experts in the field may testify as to the importance or merit of the work in question. 12 The offence under the 1959 Act is to publish the article, and this was extended by the 1964 Act to having an obscene article for publication for gain.
'Article' includes published books, pictures, films and television programmes and has also been held to include information stored on computer hard disk13. The distinction between what is obscene and what is indecent plays an important part in the English system of moral censorship, with the threshold of obscenity being comparable to that in Scotland: that which has a tendency to deprave and corrupt. Indecency constitutes a lesser offence catching material which, because of its sexual nature, may be inappropriate for some circumstances or contexts but would not satisfy the higher test of obscenity.
Obscene material is always illegal, whereas indecent material can legally be disseminated, subject to restrictions. Obscenity is defined in section one of the 1959 Act as applying to material, the effect of which is "if taken as a whole, such as to tend to deprave and corrupt persons who are likely, in all the circumstances, to read, see or hear the matter contained or embodied in it. " The 1959 Act provides two routes to deal with such material: as well as prosecution under section two, forfeiture proceedings may be brought under section three.
The forfeiture proceedings are conducted in front of local magistrates with no jury and, if the magistrate so orders, the material can be confiscated and destroyed. Recourse to this measure is infrequent and inconsistent and, in reality, cannot be said to provide an effective deterrent to distributors of illegal material. Under the English approach to obscenity, material must be shown to corrupt and deprave but there is no accompanying requirement that the material need shock or disgust.
This has allowed the offence to be extended to include treatment of drug-taking in which it is glorified or irresponsibly portrayed 14 as well as incitement of violence to children15. It has not yet been settled whether obscenity in Scots law is restricted to sexual material, the position in many other jurisdictions16, or takes the broader approach. Defences of innocent dissemination and public good are clearly provided in the 1959 Act. Section 2 (5) excludes those who did not know 'and had no reasonable cause to suspect' that the material which they were disseminating was obscene.
The other defence made explicit by the 1959 Act in section 4 (1) was that of the public good of the work overriding its otherwise obscene properties, with reference to it being justified "in the interests of science, literature, art or learning, or of other objects of general concern", although these grounds can vary from medium to medium. Section 4 (2) states that the opinions of experts in the relevant field are admissible "to establish or to negative the said ground. "