Obscene Publications
Code for Crown Prosecutors - considerations
The Code does not contain anything specifically on Obscene Publications.
The Attorney General, in a Parliamentary Written Answer on 16 June 1997, said that
"in determining whether a prosecution would be in the public interest, the principal factors include:
the degree and type of obscenity together with the form in which it is presented;
the type and scale of any commercial venture;
whether publication was made to a child or the possibility that such publication would be likely to take place."
The law
The Obscene Publications Acts 1959 Archbold: 31-63 and 1964 Archbold: 37-76 provide for:
- Prosecution (under section 2 of the 1959 Act as expanded by section 1 of the 1964 Act); and
- Forfeiture (under section 3 of the 1959 Act).
- Section 3(A), where the article in question is a moving picture film of a width of not less than sixteen millimetres requires the DPP's consent Archbold: 31-74.
Definition of obscene Archbold: 31-63
Definition of publishes Archbold: 31-72
The Acts are designed
- To penalise purveyors of pornography by making it an offence under section 2 either to publish an obscene article or to have an obscene article for publication for gain; and
- To prevent such articles from reaching the market by way of seizure and forfeiture proceedings under section 3.
For either proceedings, the test of whether an article is obscene is the same. Section 1 of the 1959 Act provides that:
"an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items 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."
A prosecution cannot be commenced more than 2 years after the commission of the offence.
In general, the issue "obscene or not" must be tried by the jury without the assistance of expert evidence Archbold: 31-68.
ECHR
Legislation in England and Wales prohibits obscene publications, performances, and photographs. The Convention rights to freedom of expression set out in Article 10 may be used to claim that the particular legislation is incompatible with the Convention. Article 10 states that the right of freedom of expression shall include "freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Article 10(2) goes on to say that, "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of...public safety, for the prevention of disorder or crime, for the protection of health or morals, protection of the reputation or rights of others...." Any restriction of freedom of expression that is imposed by national law must be capable of objective justification as being necessary in a democratic society for one of the purposes set out.
The so called "margin of appreciation" enables states to have a degree of latitude to decide law and social policy in the light of their own cultures and values. For example, (R.v. Handyside v United Kingdom (1976) 1 EHRR 737):
"Sharing the view of the Government and the unanimous opinion of the Commission, the court finds that the Obscenity Acts 1959 and 1964 have an aim that is legitimate under Article 10(2), namely, the protection of morals in a democratic society" (para 46).
The majority of the Commission agreed that the European Court had only to ensure that the United Kingdom courts acted reasonably, in good faith and within the limits of the margin of appreciation left to Contracting States by Article 10(2):
"there was no uniform conception of morals. State authorities were better placed than the international judge to assess the necessity for a restriction designed to protect morals" (para.2)
In the expression "necessary in a democratic society" (Article 10(2), the word "necessary" was not synonymous with "indispensable", but implied the existence of a pressing social need (para.2).
Possible defences
The defence of "Public good" is created by section 4 of the Obscene Publications Act 1959. Archbold: 31-88 Section 2(5) of the Act creates a defence for a person who proves that he or she has not examined the article and had no reasonable cause to suspect that it was obscene Archbold: 31-74.
For provisions as to search, seizure and forfeiture Archbold: 31-84.
Children and Young Persons (Harmful Publications) Act 1955 (Stone's Justices' Manual, 8-22446).
Offences under this Act are summary only. The consent of the Attorney General is required.
Video Recordings Act 1984 (Stone's Justices' Manual, 8-30390)
Criminal Justice and Public Order Act 1994, Section 84 and Schedule 9.
ECHR Article 10. The Obscene Publications Acts have an aim that is legitimate under Article 10(2), namely, the protection of morals in a democratic society (Handyside v United Kingdom (1976) 1EHRR 737).
Charging practice
Specimen indictment (Indictment Precedent Manual).
The particulars should clearly identify the obscene article e.g. "an Internet website entitled "Welcome" (exhibit reference KDW/6)."
It is impossible to define all types of activity which are suitable for prosecution; however, the following categories are those most commonly used:
- sexual acts with children
- sexual assaults upon children
- portrayal of incest
- buggery with an animal
- rape
- drug taking
- flagellation
- torture with instruments
- bondage (especially where gags are used)
- dismemberment or graphic mutilation
- cannibalism
- activities involving perversion or degradation (such as drinking urine or smearing excreta on a person's body)
The principal factors influencing whether a prosecution under section 2 is required are:
- the degree and type of obscenity together with the form in which it is presented: for example the impact of the printed word will be less than the same activity shown in film or photograph;
- the type and scale of any commercial venture should be taken into account;
- whether publication was made to a child or vulnerable adult, or the possibility that such would be likely to take place;
- where publication took place, especially if material can be readily seen by the general public, for example in a newsagents or market;
- the defendant's antecedents, especially where there has been a previous conviction, or caution, for a similar matter;
- The degree of participation of the proposed defendant(s). This becomes relevant where the defendant can employ the statutory defence that he had no knowledge of the contents of the material under section 2(5) of the 1959 Act.
Where proceedings under section 2 are instituted, the number of articles to be placed before the Court should be manageable. The use of too many articles, or charges, could be counter-productive and have a negative effect upon the jury.
The Crown Prosecution normally advises on no more than six articles as being sufficient to highlight the different types of activities portrayed or described, unless there are particular factors in a case, such as multiple defendants, seizure of material from more than one location etc.
In cases where a large amount of material suitable for prosecution under section 2 has been seized, the use of specimen charges should be considered.
Use of conspiracy charge
The Law Officers have given assurances to Parliament that conspiracy charges will not be used to circumvent the defence of public good under section 4 of the 1959 Act.
Where a conspiracy charge is laid the defence should be informed that the view of the CPS is that the charge does not preclude a defence under section 4 and that should the Court take a different view the Crown will immediately abandon the conspiracy charge and not seek to obtain a conviction on it.
It is therefore important to have prepared the case on the basis that such a situation may arise so that the matter can proceed by way of substantive offences which reflect the criminality involved.
Categories of material: Imported pornographic material
Most publishers are outside the jurisdiction and cannot be prosecuted. However where the material falls within that which is usually prosecuted proceedings should be taken against those responsible for its distribution and retailing.
Categories of material: Domestic pornographic material
Where the material has clearly been produced in this country, attempts should be made to prosecute those responsible for its production and distribution before any action is taken against retailers.
Pending the result of those proceedings, it may be more appropriate to proceed by way of forfeiture against the retailers.
Categories of material: Horror videos/video nasties
These cases are few in number and are usually dealt with under the Video Recordings Act 1984.
When a video of this type is considered it should be remembered that it is not just what is depicted but how it is treated that is important.
Material depicting the violent mutilation, torture, death and cannibalism of those involved has been found to have a tendency to deprave and corrupt.
Such scenes that are explicit and/or lingering can indicate to the viewer approval or encouragement of the behaviour involved thereby normalising the depraving or corrupting behaviours.
Early contact with MPS is advised where this type of material is being considered.
You should examine each violent episode in relation to the work as a whole, and in particular consider the following:
- who is the perpetrator and what is their reaction?
- who is the victim and what is their reaction?
- how is the violence inflicted and in what circumstances?
- how explicit, prolonged and realistic are the scenes?
- is the violence justifiable in the context of the film?
Any doubt about the obscenity of a horror video should only be resolved by way of prosecution, preferably involving the distributors, and not by way of forfeiture.
Indecent photographs of children
For charging Practice in relation to offences of taking indecent photographs of children refer to Child Abuse, elsewhere in this guidance.
Procedure - pre-trial
Forfeiture proceedings
These will almost always be handled at Area level.
Most obscene publications relate to magazines, books, films of less than 16mm and video-cassettes of no literary or artistic merit and the bulk of these are usually dealt with by way of forfeiture proceedings under section 3 of the 1959 Act. Archbold: 31-84
It is important to realise that such proceedings can only take place when the material in question has been seized pursuant to the execution of a warrant issued by the magistrates' court under section 3.
The conduct of such proceedings becomes the responsibility of the CPS under section 3(2)(d) Prosecution of Offences Act 1985. Archbold: 1-253
In some cases involving the seizure of large quantities of material, the Police will seek advice as to which articles should be placed before the Court with a view to obtaining a summons under section 3.
Such advice can properly be given with a view to placing a representative sample of the various activities contained within the material before the Court.
Articles not considered to be obscene can be returned to the person concerned under the proviso to section 3(3) of the 1959 Act. Archbold: 31-84
Although forfeiture proceedings will normally be handled locally, where such proceedings relate to a film of 16mm or more the information in support of the warrant must have been laid or on behalf of the Director of Public Prosecutions.
Where a summons under section 3 has been issued and it is likely that the person concerned will be prosecuted under section 2, the forfeiture proceedings should be adjourned sine die pending the outcome of the prosecution.
If there has been an acquittal, the magistrates should be informed, especially where the sole defence run was that the article in question was not obscene.
The Law Officers have undertaken that where a publisher intervenes in forfeiture proceedings and indicates an intention to continue publishing, whatever the result of the forfeiture proceedings may be, then in the absence of special circumstances and there being sufficient evidence the Director will usually proceed against the publisher by way of prosecution rather than pursue the forfeiture proceedings. The undertaking does not apply to "pulp" magazines. These are magazines where there cannot be any claim of literary, artistic, scientific or any other merit. These are magazines considered by virtue of their nature and character not worthy of consideration by a judge and jury. Therefore if they are obscene they can be consigned to the incinerator (i.e. "pulped") with a minimum of expense by the Justices.
Disclosure of material
Requests by other agencies, including defence solicitors, to be provided with copies of obscene material should not be acceded to. To do so would be a technical breach of section 2 Obscene Publications Act 1959. The originals should be available to be viewed at a convenient location in the presence of the police and/or CPS.
Useful references
Archbold: 31-63
Archbold: 37-76
Archbold: 31-63
Archbold: 31-72
Archbold: 31-74
Archbold: 31-68
R. v. Handyside v United Kingdom (1976) 1 EHRR 737
Archbold: 31-88
Archbold: 31-74
Archbold: 31-84
Stone's Justices' Manual, 8-22446
Stone's Justices' Manual, 8-30390
Child Abuse, elsewhere in this guidance
Archbold: 31-84
Archbold: 1-253
Archbold: 31-84