Such restrictions on in general peoples’ and specifically the artists’freedom of expression is justified by the “harm” principle as developed by John Stuart Mills whereby expressive material may only be restricted/interferred with if it can be shown that it causes harm to others. However, there are divergent views on what constitutes harm. Some attribute the narrower definition, limiting it to physical or psychological harm that is scientifically evaluable. Others, instead of concentrating upon material harm are prepared to include moral and ideological harm within the definition, which is less easy to establish upon objective criteria since it is not always scientifically verifiable. Hart, similar to Mills also favoured reliance upon personal harm and whereas these views are more individualistic, Devlin, on the other hand believed that society needs a common moral core to retain its stability and therefore attacks on basic moral standards threaten and cause harm to society as a whole even if no individual suffered immediat and identifiable harm. This essentially requires the law to enforce a wider range of moral demands. However, it is undesirable to indiscriminately criminalize all immoral conduct or expression, as the resulting interference with the freedom of expression would be extensive especially due to the uncertain scope of morality within a diverse society.
It must be clarified, that the protection of morals is not purely a philosophically or politically advanced notion, as under Art 10 (2) of the ECHR, it is laid down as one of the justifications for interferences with freedom of expression . This also recognises that the steps necessary for the protection of morals will depend upon the morality to which the country is commited and this the European Court of Human Rights will allow a margin of appreciation to states in deciding what moral standards they should enforce and by what means.
One of the means adopted in Britain to enforce such morality is the Obscene Publications Act 1959, which makes it an offence to publish an obscene article. Under Section 1 (1) an article shall be deemed obscene if its effect or th effect of one of the items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely in all the circumstances to hear or see the matter.
This offence is a welcome liberalisation of the previsous offence of obcene libel whereby in order for an article to be consideres obscenely libellous it was sufficient that some part 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” as established by R v Hickin (1868). Therefore not only was it possible to obtain a conviction by taking an isolated passage in a book out of its context and prove that it tended to deprave and corrupt, it was sufficient to prove that it would deprave and corrupt the most sexually naïve person who may chance upon it. This the law was fairly wide and the tests laid down were easy to satisfy resulting in a great restriction upon the freedom of expression. However, Salmon LJ commented in R v Calder & Boyers (1968) “the Act od 59 was an Act to amend the law relating to the publication of obscene material” and it has certainly had a liberalising effect in many respects.
Under the current law, the likely public who may be depraved and corrupted is far more restrictad as it is “any persons who are likely in all the circumstances” to see/read the allegedly obscene material. This initially received clarification in Calder and Boyers (1968) where it was held that “clearly this cannot mean all persons, nor can it mean only one person for there are individuals who may be corrupted by almost anything. The court is of the opinion that the jury should be directed to consider whether the effect of the book was to deprave and corrupt signiffficant proportion of the persons likely to read it.”
The issue was also addressed in R v Whyte (1972) where the question for the Magistrates was whether pornographic material, sold by the defendant, was likely to corrupt and deprave the “likely readers”, who were it was decided middle aged men since these were the frequent customers. A significant proportion of these likely readers were the hardcore of these regular customers whose morals were already in a state of depravity and corruption. Therefore it was doubted that such minds “could be open to any immoral influence which the books were capable of exerting” so that the books would not have a tendency to deprave and corrupt. Although this defence was initially accepted the House of Lords reversing the QBD’s decision allowed the prosecutors appeal on the basis that “ the Act is not merely concerned with the once for all corruption of the wholly innocent, it equally protects the less innocent from further corruption, the addict from feeding or increasing this addiction.” It was also held that in determining the question of who are the likely readers of an obscene article, it is not approproate to cinsider what is the largest catefory of “most likely” readers and then to exclude persons fallong within other categories for consideration as some of the material may still fall into their hands and this they may als constitue the likely readership. Therefore the jury may be directied that the readership may include any persons not unlikely to see it. This is a narrow more intrusive test, which limits the scope of the offence to some extent, thus limiting the restrictions upon various forms of expression.
These likely readers must be “depraved and corrupted” for the article to be considered obscene and thus a more difficult question is in relation to this is what constitutes being depraved or corrupted. This is the aspect of the offence base upon the aforementioned “harm” principle so that restriction of obscene materials can be justified on the frounds that it causes harm to those who come into contact with it. However, what constitutes harm in this context is also unclear as the case law has not been explicit on the matter. Some clarification wa attempted in R v Anderson (1972) in which the defendants, who were publishers of a magazine aimed at school children, were charged under the 1959 Act for publishing articles of a violent or sexual nature without any suggestions that such activities were wrong. The defendants, havin bought in a highly qualified psychologist, attempted to show that the articles in question were not obscene, as they didi not tend to deprave and corrupt. The judge directed the jury thet they should convict if they were satisfied that the articles were objectively “filthy, lewd, loathsome or lewd.” On appeal it was held the judge had misdirected the jury since articles that were “filthy, lewd, loathsome or lewd” were not necessarily obscene within the meanings of the Act. Lord Widgery commented that obscenity means more than mere disgust or repulsion and involves an element of moral harm, which is not scientifically evaluable so that the use of expert ecidence on the issue, as was the case here, was erroneaous since the matter “must be triebd by jury without assistance or expert evidence”.
Therefore in accordance with this, an article can be said to deprave and corript a person if it resultrs in as suspension or complete destruction of their moral standards. It was further advanced in Whyte (1972) that deprave and corrupt referred to the effect of an obscene article on the mind, including emotions,and it was not necessary this was manifested in any physical or overt behaviour, therefore in this sense the harm may be seen as more individualistic.
However, it has been established that obscene material may not always morally harm its likely readers and thus will not tend to deprave and corrupt, where it produces in them an aversion to the behaviour described, often referred to as the “aversion theory”. This argument was advanced in Calder and Boyers (1969) where it was the novel “Last exit to Brooklyn” that was alleged to be obscene on the grounds that it purported to give graphic descriptions pf the depravity and degradation in Brooklyn. At trial the defendants, although claiming that the novel was in the interests of literature, conceded that the tendency of the booll was to shock the reader into a rejection of the evilsdescribed. The trial judge failed to put this defence to the jury and consequently the defendants were convicted. On appeal this was criticised and the “aversion argument” was endorsed. It was held that the effect of the book was “intentionally disgusting, shocking and outrageous; it made the reader share in the horror it described and thereby so disgusted and outraged him that he would do what he could to eradicate those evils” Therefore “instead of tending to encourage anyone to homosexuality, drug taking or brutal violence, it would have precisely the reverse effect so that the book was not obscene.
This indicates that extremely offensive material may benefit from the aversion argument and thus this will not allow all forms of expressions to be interferred with, enhancing rather than restricting freedom of expression.
Ultimately, however, there is still potential for the legislation to restrict freedom of expression, but this potential interference is mitigated significantly through the legal defence of public good which was established in 1959 under Sec 4 (1) of the Obscene Publications Act. This states that “ a person shall not be convicted of an offence….. and 4 (
Therefore, this provision offers justification for the publication of articles and works of art that are obscene and this allows more scope for expression. There has consequently been alfall in prosecutions to the prosecution initiated against the novel “Last exit to Brooklyn”, now books such as American Psycho which depicts explicit exual violence, are being published without risk of legal action. It has been recognised that sociological or ethical merit may justify publishing such an obscene bool, due to the potential benefit to soiety as a whole in having such matter canvassed.
However, the courts have not allowed too expansive a use for the defence and have attempted to restrict its use by interpreting the scope of section 4 narrowly, adopting a literal interpretation of the mattes falling wothin the words of the section. For instance in a-g reference (Nr 3 of 1977) it was held that sex education for children could not be classified als learninf as this signifies scholarship rather than being correlative teaching. Similarly in DPP v Jordan (1977) failed to permit the defence on the grounds argued by the defendant that porno magazines were of psychotherapeutic value, enabling people to relieve their sexual tensions. The court held that the therapeutic value of obscene articles for members of the public was not in the interst of other objects of general concern since theprovision was not wide enough to cover this.
Ultimately, whether there is a defence under this provision is a question for the jury, which requires them to perfomr a balancing exercise, considering whether the good flowung from the expressive merits of a publication, outhweigh the public harm that flows from the risk of people being depraved and corrupted by the article.
Besides the statutory offences prescribed by the Obscene Publications Act, one has to take note of the 1978 Protection of Children Act, another statutory instrument that may entail a restriction of the artist’s freedom of expression. An exhibition at London’s Saatchi galery, featuring among other photographers the work of Tierney Gearon. In 15 snapshot photographs Gearon documented her personal family life. Two photographs depicted her two children, aged six and four, naked or partly naked while playing.
The Police obscenity squad raid the Saatchi gallery and a big scandal was made out of this in the British Newspapers.
But it has to be admitted, that the raid was the first on an art gallery snce the obscene publications squad seized pictures by John Lennon and others in the late 60s.
B. Concerning public outrage (Common Law Offences)
1.) Conspiracy to corrupt public morals
In Shaw v DPP the House of Lords (Lord Reid dissenting) held that a conspiracy to corrupt public morals is an offence. D published the Ladies’ Directory which advertised the names and addresses of prostitutes with, in some cases, photographs and, in others, particulars of sexual perversions which they were willing to practise. He was convicted of (1) conspiring to corrupt public morals, (2) living on the earnings of prostitutes and (3) publishing an obscene article, Contrary to the Obscene Publications Act 1959, S. 2 (1). His conviction on all counts was upheld by the Court of Criminal Appeal and the House dismissed his further appeal in respect of counts (1) and (2). Lord Tucker, with whose speech the majority agreed, was of the opinion that there was an offence of conspiring to commit a public mischief and that the corruption of public morals was a public mischief; but he did not reject the view of the Court of Criminal Appeal that to corrupt public morals is a substantive offence. Lord Simon in DPP v Withers concluded that there were three possible raciones decidendi.
- There is a substantive offence of corrupting public morals, so an agreement to do so is a conspiracy
- The corruption of public morals is a separate head of conspiracy.
- There is an offence of conspiracy to effect a public mischief and the corruption of public morals is a public mischief.
Lord Simon held that ot was open to the House to reject ration (iii) and, indeed, the decision does so. Since Lord Tucker did not decide that there is a substantive offence pf corrupting public morals, it seems clear that the ratio must be taken to be (ii). It is therefore uncertain whether an agreement to corrupt public moral is a statutory conspiracy; but judges of first instance may consider themselves bound by the decision of the Court of Criminal Appeal to hold that it is. Shaw was followed by Knuller where, Lord Diplock dissenting, the House held that an agreement to publish advertisements to facilitate the commission of homosexual acts between adult males in private was a conspiracy to corrupt public morals, although such conduct is no longer a crime. Lord Reid maintained his view that Shaw was wrongly decided but held that should nevertheless be followed in the interests of certainty in the law. Given the existence of the offence, he thought there was sufficient evidence of its commission here.
“… there is a materialdifference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense… I read (the Sexual Offences Act 1967) as saying that, even though it may be corrupting, if people choose to corrupt themselves in this way that is their affair and the law will not interfere. But no licence is given to others to encourage the practice.”
In Shaw, Lord Simonds used language which suggested that the House was asserting the right to expand the scope of criminal law.
“In the sphere of criminal law I entertain no doubt that there remains in the courtd of law a residual power to enforce the supreme and fundamental purpose of the law, to conserve not only the safety and order but also the moral welfare of the State, and that it is their duty to guard against attacks which may be the more insidious because they are novel and unprepared for.”
In Knuller however, the House was emphatic that there is no residual prower to create new offences. That is a task for Parliament.
“What the Courts can and should do is to recongnize the applicability of established offences to new circumstances to which they are relevant.”
Moreover, a finding that conduct is liable to corrupt public morals is one not lightly to be reached. It is not enough that is is liable to “lead morally astray”. Lord Simon of Glaisdale went so far as to say that
“The words ‘corrupt public morals’ suggest conduct which a jury might find to be destructive of the very fabric of society.”
2.) Conspiracy to outrage public decency
A majority of the House in Knuller (Lords Reich and Diplock dissenting) held that there is a common law offence of outraging public decency and, consequently, it is an offence to conspire to outrage public dencency. The particular offences previously recognised –keeping a disorderly house, mounting an indecent exhibition and indecent exposure – were partucular applications of general rule. It is not an anser to show that outragiously indecent matter is nonly on the inside pages of a book or magazine which is sold in public.
But
“ ‘outrage’ like ‘corrupt’ is a very strong word. ‘Outraging public decency’ goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people… The offeence is concerned with recognised minimum standards of decency, which are likely to vary from time to time… Notwithstanding that ‘public’ in the offence is used in a locative sense, public decency must be viewed as a whole; and…the jury should be invited, where appropriate, to remember that they live in a plural sociaty, with a tradition of tolerance towards minorities, and that this atmosphere of tolerance is itself part of public decency.
Lords Simon and Kildbrandon (Lord Morris dissenting) thought that the jury had not been adequately directed in accordance with these principles and, accordingly the convicion must be quashed.
Major Problem: No defence
Def of indecency
Now wider
III. Evaluation of the status quo
Mill, On Liberty, cited in Richard Stone, Textbook on Civil Liberties, p. 194
Hart criticizing Devlin in ‘Social Solidarity and the Enforcment of Morality’ in Essays in Jurisprudence and Philosophy, 1983, cited by Helen Fenwick, Civil Liberties, 2nd ed.
Lord Devlin, The Enforcment of Morals, 1965, cited in Helen Fenwick, Civil Liberties, 2nd ed.
