2. (a) Advise the prosecution as to whether the display of these posters amounts the “publication of obscene articles”.
Under Section 2(1) of The Obscene Publications Act 1959 it is an indictable offence to publish an obscene article whether for gain or not. In order to determine whether or not the Student Union is guilty of such an offence under this act, it is necessary to look into the further definitions of the key words provided within the Act. Firstly, in regard to the word publish, the Act states that a person publishes an article if he/she ‘distributes, circulates, sells, lets on hire, gives, lends or offers it for sale or letting for hire’. By displaying a number of posters outside the library, the Students Union has indeed published material, whether obscene or not.
The term article, is defined by the Act as extending to anything ‘containing or embodying matter to be read or looked at’. The posters produced by the Union were intended to be ‘read or looked at’, so indeed constitute an ‘article’.
Having established that the posters have been ‘published’ and constitute an ‘article’, it is necessary to decide whether they amount to being obscene. An article is obscene, if taken as a whole, it would tend to deprave and corrupt those likely to see, hear or read it. The phrase ‘deprave and corrupt’ was not defined by the Act. In the eyes of the law, whether an article is obscene or not is a question of fact which should be left for the jury to decide. It is vital that you, as the prosecution, do not base your case on particular parts or extracts on the depictions of sexual activity. Such material should not be considered, therefore, out of the context in which it is used.
(b) If it was decided to prosecute the students union, outline the defences that would be available.
One defence to the charge of the publication of obscene articles, is aversion. If the likely affect of a particular article is to be so revolting as to turn its audience against the type of activity depicted, then it cannot be said to have any tendency to deprave and corrupt. This defence has been used successfully in a number of cases, including R v Calder and Boyars Ltd [1969] 1 QB 151 and in R v Anderson [197] 1 QB 354. Whether or not this would be an appropriate defence to use by the Students Union is dependant on the actual images used within the posters. For instance, if the images were sexually explicit in nature that show no relevance to the dangers of unprotected sex, but merely a couple performing sexual acts, then this would not be appropriate defence to use, as the aim of the campaign is not to discourage sex or indeed encourage, but to portray the dangers of unprotected sex.
Innocent publication is another defence that can be used to fight the charge of the publication of obscene articles. By virtue of s2(5) of The Obscene Publications Act 1959 it is a defence for a person charged with publishing or possessing an obscene article to prove that he/she had not examined the article and had no reason to suspect that it might not be
By Virtue of s 4 of The Obscene Publications Act 1959 a person should not be convicted of publishing or possessing an obscene article if it is proved that the publication of the article in question is in the public good ‘in the interests of science, literature, art or learning, or of other objects of general concern’. It was held in DPP v Jordan [1976] 3 ALL ER 775 that where reliance is made on the defence the function of the court is to determine, first, whether the article is obscene and second, and only if so, whether its publication is for the public good. It has been held that the potentially open-ended phrase ‘other objects of public concern’ should be interpreted ejusdem generic or as relating to the type of subject matter indicated by the words ‘science, literature, art or learning. Thus, this defence has been used unsuccessfully in many cases involving sexually explicit material, including DPP v Jordan. Although, this case referred to the self gratification one could receive from pornographic material, in which they were unable to gain from any relationship.
It may be possible for the Students Union to argue that effect of the posters is clearly to promote awareness of aids and encourage safer sex, so is indeed in the interest of the public good. Although, for the reasons explained within the use of aversion for a defence, whether this images operate within the context for which they are intended may be a matter for debate.
3. Outline the offences that may have been committed in the given scenario
By virtue of s 4 of the 1986 Act it is an offence to use threatening, abusive or insulting words or behaviour towards another person or to display any threatening, abusive or insulting writing, sign or other visual representation. The words, behaviour or display must be intended or likely to provoke or cause fear of immediate violence, in other words violence which is not instantaneous but which may occur in a short period of time.
It is somewhat a matter of opinion whether the words “anything that could be used to tear down the No 10 gates, cause as much disruption as possible and wreck the government” surmounts to the offence as stated above. Although no direct threatening language is used within the campaign literature, it could be argued such language could provoke violence.
The Civil Servant, described in the scenario, may also be guilty of breaching the Official Secrets Act 1989, particularly the subsections relating to defence and security or intelligence . The Official Secrets Act 1989 s 1(1)(b) states “… a person notified that he is subject to the provisions of this subsection, is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force”.
