Obscene Publications Act 1857

Obscene Publications Act 1857

Parliament of the United Kingdom
Citation	20 & 21 Vict. c.83
Territorial extent	England and Wales, Ireland
Dates
Royal Assent	1857
Repealed	29 August 1959
Other legislation
Repealed by	Obscene Publications Act 1959
Status: Repealed

The Obscene Publications Act 1857 (20 & 21 Vict. c.83), also known as Lord Campbell's Act or Campbell's Act,^[1] was a major piece of legislation in the United Kingdom of Great Britain and Ireland dealing with obscenity. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material. The Act superseded a 1787 Royal Proclamation by George III titled Proclamation for the Discouragement of Vice.^[2][3] The proclamation commanded the prosecution of those guilty of "excessive drinking, blasphemy, profane swearing and cursing, lewdness, profanation of the Lord's Day, and other dissolute, immoral, or disorderly practices".^[4] Prior to this Act, the "exposure for sale" of "obscene books and prints" had been made illegal by the Vagrancy Act 1824.^[5] but the publication of obscene material was a common law misdemeanour^[6] The effective prosecution of authors and publishers was difficult even in cases where the material was clearly intended as pornography.

Origins

The spur for the Act arose from a trial for the sale of pornography presided over by the Lord Chief Justice, Lord Campbell, at the same time as a debate in the House of Lords over a bill aiming to restrict the sale of poisons. Campbell was taken by the analogy between the two situations, famously referring to the London pornography trade as "a sale of poison more deadly than prussic acid, strychnine or arsenic",^[7] and proposed a bill to restrict the sale of pornography, arguing that giving statutory powers of destruction would allow for a much more effective degree of prosecution. Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill.

The bill was controversial at the time, receiving strong opposition from both Houses of Parliament, and was passed on the assurance by the Lord Chief Justice that it was "...intended to apply exclusively to works written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in any well-regulated mind."

The House of Commons amended the bill to exclude Scotland, on the grounds that Scottish common law was sufficiently stringent.

Provisions of the Act

The Act provided for the seizure and summary disposition of any material deemed to be obscene, and held for sale or distribution, following information being laid before a "court of summary jurisdiction" (a Magistrates' Court). The Act required that following evidence of a common-law offence being committed – for example, on the report of a plain-clothes policeman who had successfully purchased the material – the court could issue a warrant for the premises to be searched and the material seized. The proprietor then would be called upon to attend court and give reason why the material should not be destroyed. The Act also granted authority to issue search warrants for premises suspected of housing such materials.^[8]

Application of the Act

The Act did not define "obscene", leaving it to the courts to devise a test, based on the common law.

Regina v. Hicklin was heard in 1868 and involved one Henry Scott, who resold copies of an anti-Catholic pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, a London magistrate who was in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent.^[8] The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench.

Chief Justice Cockburn, Campbell's successor as Lord Chief Justice, reinstated the order of the lower court, holding that Scott's intention was immaterial if the publication was obscene in fact. Justice Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."^[9] This test became known as the Hicklin test and allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed.

This interpretation was clearly a major change from Campbell's opinion only ten years before – the test now being the effect on someone open to corruption who obtained a copy, not whether the material was intended to corrupt or offend.

Cockburn's declaration remained in force for several decades, and most of the high profile seizures under the Act relied on this interpretation.

Current status

The Obscene Publications Act 1959^[10] significantly reformed the law related to obscenity, coming into force on 29 August 1959. The actual reform of the law was limited, with several extensions to police powers included. The 1959 did, however, repeal the 1857 Act and became the main Act dealing with obscene publications.

The Obscene Publications Act 1964^[11] made several minor additional provisions to the 1959 Act. As of 2008 these latter two Obscene Publications Acts are still in force, albeit as amended by more recent legislation.

Notes

1. Miriam A. Drake (2003). Encyclopedia of Library and Information Science: Abs-Dec. CRC Press. p. 470. ISBN 978-0-8247-2077-3. Retrieved 30 September 2011.
2. Pollock 1977, p. 61
3. Brown 2006, p. 346
4. Hochschild 2005, p. 126
5. Originally by the Vagrancy Act 1824; subsequently extended by the Vagrancy Act 1838, the Metropolitan Police Act 1839 and the Town Police Clauses Act 1847
6. From the precedent set by R. v. Curl (1729) following the publication of Venus in the Cloister
7. Perhaps the earliest known appearance of this ever-popular analogy; compare "I would rather give a healthy boy or a healthy girl a phial of prussic acid than this novel", describing The Well of Loneliness in 1928
8. Wayne C. Bartee; Alice Fleetwood Bartee (1992). Litigating morality: American legal thought and its English roots. Greenwood Publishing Group. pp. 64–65. ISBN 978-0-275-94127-7. Retrieved 30 September 2011.
9.  Regina v. Hicklin#Decision. Wikisource. 
10. Text of the Obscene Publications Act 1959 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database
11. Text of the Obscene Publications Act 1964 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database

Bibliography

• Craig, A (1937). The Banned Books of England. London.