Obscene Publications

Described as the culmination of a “long struggle between the Home Office” and reformers, the Obscene Publications Act 1959 is a compromise between those two factions. The 1959 Act aims to purports to protect the integrity of literature, “and to strengthen the law concerning pornography. ” Darryn Walker’s prosecution in respect of publications on the internet which described the kidnap, mutilation, rape and murder of Girls Aloud members Cheryl Cole, Nadine Coyle, Sarah Harding will be examined by reference to the stated aims of the Obscene Publications Act 1959.

A prosecution under the Obscene Publications Act 1959 falls under Section 1 which provides the following definition of obscene: “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. ”

In practice the Obscene Publication is used for the prosecution of those who publish material that is: “… almost exclusively against explicit pictorial material dealing with what is generally regarded as deviant behaviour: in other words, sado-masochism, bestiality, paedophilia, bondage. ” It therefore follows that unless Walker’s comments were accompanied by pictorial representations, the chances are that the prosecutor will not succeed in proving that the published material were likely to “deprave and corrupt persons” to read the published content.

Based on the facts, Walker published descriptions of a fantasy or a make believe scenario. Obviously, the wide range of persons who would have access to the internet and display an interest in publications concerning a celebrity or group of celebrities could conceivably negate a claim that pictorial representations of those comments are necessary to invoke the Obscene publications Act 1959. Section 1 does go on to make the circumstances of the publication relevant in determining whether or not the publication will tend to deprave and corrupt.

The celebrity of the alleged victims, the atrocities with which they have allegedly been subjected to and the fact that the matter was published on a public forum certainly gives the prosecution a legitimate case for the tendency of the publication to deprave and corrupt within the meaning of Section 1 of the Obscene publications Act, 1959. However, Walker may have a legitimate defence under Article 10 of the European Convention on Human Rights. Article 10 provides the individual with the:

“Freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ” The difficulty for Walker however, is that his publication was not purporting to express an opinion. He was purporting to impart information, but the information was palpably false. It is therefore difficult to imagine how Article 10 could be raised as a legitimate defence to any charge under the Obscene Publications Act 1959. Moreover, Article 10(2) of the European Convention on Human Rights provides 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. ” This exception to freedom of expression clearly allows the operation of the Obscene Publications Act 1959 and the prosecution for violations of its prohibited publications mandate.

To this end national governments may by legislative provisions set down parameters regulating freedom of expression with reference to national values and culture. In R v Handyside v UK [1976] 1 EHRR 73 it was held by the Commission that: “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.

” According to this ruling the Commission was of the opinion that once the UK’s law and the enforcement of it was reasonable and was conducted in good faith within the latitude afforded member state, there was no violation of Article 10. In any event the Commission went on to add that: “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. “

It therefore follows that Walker will not be able to avail himself of a defence under Article 10 of the European Convention Rights. In other words he will not be able to claim that his prosecution under the Obscene Publications Act 1959 contravenes his right to free expression within the meaning of Article 10, since Article 10(2) provides member states with a latitude as to the constraints upon which they may regulate and control free expression. One of the grounds for allowing constraints on free expression is the protection of morals.

Arguably, the publication of descriptive false material containing sexual violence on a public forum that is likely to read by a wide audience and presumably a young audience comprised of fans of the celebrity group is a threat to public morality. The success of Walker’s prosecution will therefore fall to be determined by the substantive law regulating what amounts to obscene publications. In R v Hicklin [1868] 3 QB 360 the test for obscenity was set forth in the following terms: “…

whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. ” Windeyer J stated in Crowe v Graham [1967] 121 CLR 375 however, that the courts will typically substitute the tendency to deprave and corrupt part of the Hicklin test with simply inquiring whether the material in question “transgresses the bounds of decency and is properly called obscene.

” In R v Martin Secker and Warburg [1952] 2 All ER 683, it was determined that a tendency to deprave and corrupt meant simply to “shock or disgust. ” In Kruller v DPP [1973] AC 435, the court ruled that a tendency to deprave and corrupt was not tantamount to the term “to lead morally astray. ” Walker’s publication will likely qualify as an obscene publication since it falsely contains descriptions of sexual violence against real persons who are well known to the public. The exhibition of these descriptions are in a forum that the public has broad access to.

It is very likely that the publications will shock and disgust a great portion of the audience that it reaches under the R v Martin Secker and Warburg test. Unfortunately for Walker any defence under Article 10 will likely fail. The only other defence available is the defence of public good under Section 4(1) of the Obscene Publications Act 1959. Under Section 4(1), Walker would have to prove to the satisfaction of the court that the publication “is justified as being in the public good on the ground that it” promotes “science, literature, art or learning, or other objects of general concern.

” In all circumstances Walker will likely be convicted and be subject to either a fine of 100 pounds or imprisonment for six months maximum if prosecuted in the magistrates courts. If tried and convicted on indictment, Walker will face a larger fine and a larger term of imprisonment, not exceeding three years. Bibliography Crowe v Graham [1967] 121 CLR 375 European Convention on Human Rights. Kruller v DPP [1973] AC 435 Obscene Publications Act 1959. R v Handyside v UK [1976] 1 EHRR 73. R v Hicklin [1868] 3 QB R v Martin Secker and Warburg [1952] 2 All ER 683

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