Courts of Appeal
| DOI | 10.1177/002201837704100105 |
| Published date | 01 January 1977 |
| Date | 01 January 1977 |
| Subject Matter | Article |
Courts
of
Appeal
Comments
on
Cases
OBSCENE LIBEL AND
THE
PUBLIC
GOOD
R. v. Stanijorth
When
the
owners
of
newsagents'
shops
were
charged
separately
with
possessing
obscene
articles for
publication
contrary
to s.2( I)
of
the
Obscene
Publications
Act, 1959, as
amended
by
s.l
(I)
of
the
Act
of
1964,
each
raised
the
defence
of
"public
good"
under
s.4( I)
of
the
Act
of
1959.
That
sub-section
provides
that
a
person
shall
not
be
convicted
if
the
publication
of
the
article is
justified
as
being
for
the
public
good
on
the
ground
that
it is in
the
interests
of
science,
literature,
art
or
learning,
or
of
other
objects
of
general
concern.
The
sub-section
further
provides
that
the
opinion
of
experts
as to
the
li
terary,
artistic,
scientific or
other
merits
of
an
article
may
be
admitted.
In
R. v. Staniforth (1976,2
WL.R.
849),
the
defendants
wished
to call
expert
evidence
that
the
material
in
question
was
psychologically beneficial to
persons
with
certain
sexual
tendencies
in
that
it
would
relieve
their
sexual
tensions
and
might
divert
them
from
anti-social
activities.
It
was
submitted
on
their
behalf
that,
since
the
psychological
health
of
the
community
is
an
object
of
general
concern,
the
publication
of
the
articles
could
be
said
to be in
the
interests
of
the
public
good
under
s.4( I)
of
the
Act
of
1959.
At
each
trial,
however,
the
evidence
was rejected by
the
trialjudge
on
the
ground
that
it
would
tend
to
negate
obscenity
rather
than
to
establish
public
good.
Each
defendant
was convicted. As
there
could
be no
doubt
but
that
the
articles in
question
were
within
the
meaning
of
what
is
commonly
called
"hard
pornography",
the
sole
question
on
appeal
was
whether
the
judge
was
right
in
ruling
that
the
proposed
expert
evidence was
inadmissible.
It
was
conceded
by
the
appellants
that
expert
evidence
is
normally
not
admissible
upon
the
question
whether
the
articles
are
obscene.
Moreover,
in
the
statement
of
the
evidence
sought
to be
tendered,
it
was
expressly
claimed
that
the
evidence
would
justify
the
publication
of
the
articles on
the
assumption
that
the
jury
would
consider
them
to be
obscene.
This
statement
was obviously
based
on
the
proposition
laid
down
by
Lord
Widgery
C.].
in R. v. Anderson (1972,1 Q.B. 304,312; 36
J.c.L.
158)
that
if
the
jury
consider
the
article
to be obscene,
experts
may
be called as to
the
"merits"
mentioned
in s.4 of
the
Act
and
it is
then
for
the
jury
to
balance
the
merits
and
demerits.
The
basis
of
the
appellants'
claim
in R. v. Staniforth (supra) was, therefore,
that
the
object
of
general
concern
was
the
psychological
health
of
the
community.
If
the
pornographic
material
could
be
shown
to be
of
some
10
psychotherapeutic
value
for
certain
categories of people
(frustrated
heterosexuals,
persons
of
deviant
sexuality, homosexuals
and
other
perverts),
this would be for
the
pu blic good, since it might
act
as a safety
valve to
save
them
from
their
sexual disorders
and
divert
them
from
anti-social
and
perhaps
criminal
conduct.
If
this were so, it would be for
the
jury
to
balance
the
fact
that
the
material
might
tend
to
deprave
and
corrupt
some
with
the
fact
that
it
might
help others.
Although
Bridge
L.].
conceded,
in the
Court
of
Appeal,
that
this
claim
"appears
at
first
blush
to
have
some
cogency",
the
court
none
the
less held
that
the
proposed
expert
evidence
had
been
rightly excluded.
Section 4( I)
of
the
Act
·of 1959, which defines the possible defences,
does
not
extend
to all forms
of
asserted
pu
blic good.
The
benefits to the
public
must
be
related
to the
matters
stated;
and,
even
if
"other
objects
of
public
concern"
are
not
to be
construed
as
eiusdemgeneris
with
science,
literature,
art
or
learning,
"these
other
objects
must
be
such
as
not
only
conduce
to
the
public
good
but
are
of
concern
to
members
of
the
public
in
general"
(p.854D).
Thus,
the
defendant's
proposition
that
whatever
is for the
public
good is ipso facto a
matter
of
general
concern
is wrong.
In
the
opinion
of
the
Court
of
Appeal
the
expert
opinion
that
obscene
material
is beneficial to the sexually repressed,
perverted
or
deviant
does
not
make
the
publication
of
that
material
a
matter
of
general
concern.
Thus,
even
if
the
expert
evidence
tendered
in
the
instant
case
had
established
the
beneficial effect of
the
obscene articles on
certain
members
of
the
community,
and
even
ifit
were
thought
that
this
might
conduce
to
the
pu blic good,
the
evidence was
none
the
less
inadmissible
in
that
it
did
not
follow
that
the
publication
of
such
material
was of
concern
to
members
of
the
public
in general.
Section 4(2)
of
the
Act
defines the
character
of
the
evidence which
can
be
adduced
in
support
of
adefence
made
available
by s.4( 1).
That
evidence
must
relate
to
the
literary
or
other
merits
of
the
article
per
se.
It
is
not
concerned
with
the
possible results of its
dissemination.
InR.
v.
Staniforth
(supra)
the
proposed
expert
evidence
sought
to establish the
merits,
not
of
the
particular
articles,
but
of
virtually
all
pornographic
matter.
In
the
opinion
of
the
court,
expert
evidence
of
the
psychotherapeutic
value
of
an
article on
certain
members
of
the
public
does
not
relate
to
the
merit
of
that
article
and
therefore
the
normal
rule,
that
expert
evidence is
not
admissible
upon
the
primary
question
of
whether
an
article is
obscene,
must
be applied.
Since
the
exclusion
of
expert
evidence
upon
the
primary
issue of
obscenity, in R. v.
Calder
and
Boyers
(1969, 1Q.B. 151)
and
R. v.
Anderson
(supra),
there
have
been
attempts
to
introduce
this evidence by the
back
door,
as
being
related
to
the
defence
of
the
public
good.
This
practice
was
denounced
by the
Court
of
Appeal
in R. v.
Metropolitan
Police
Commissioner,
expo
Blackburn
(No.3) (1973,Q.B. 241; 37
j.C.L.
268),
but
it
has
persisted,
and
acquittals
have
been
obtained
on
the
strength
of
such
evidence.
That
loophole
has
now been
stopped
up by
the
decision inR.
v. Staniforth
(supra).
The
Court
of
Appeal
certified a
question
of
general
11
public
importance,
namely
whether
expert
evidence is admissible to
the
effect
that
the
pornographic
material
is beneficial to persons with
certain
sexual tendencies in
that
it relieves their tensions
and
may
divert
them from anti-social activities.
The
House
of Lords has
granted
leave to
appeal.
If
the
House
reverses
the
Court
of
Appeal's
decision
and
accepts the
interpretation
of
s.4
contended
for by the
appellants,
a
jury
will be
at
liberty to decide
purely
subjectively
whether
obscene
matter
shall be subject to
any
restraint
upon
publication
or shall be
freely available to all on the
ground
that
it is an object of general
concern
that
its benefits shall be conferred on
the
sexually
inadequate,
the
deviant
and
the perverted.
FILMS
AS OBSCENE PUBLICATIONS
Attorney-General's
Reference
(No.2
of
1975)
For
the purposes
of
the
Obscene
Publications Act, 1959, an article
is obscene
if
it tends to
deprave
or
corrupt
"persons
who
are
like-
ly
...
to read, see or
hear
the
matter
contained
or embodied in
it."
A
person is said to
publish
an article
either
(a) when he distributes,
circulates, sells, lets on hire, gives or lends it; or (b) in the case
of
an
article to be looked
at,
he shows, plays or projects it.
In
this
latter
case,
however,
the
rule does
not
apply
to
"anything
done
in the course
ofa
cinematograph
exhibition."
InAttorney-General's
Reference
(No.
20f
1975)
(1976,
1W.L.R.
710)
a
company
for
gain
hired
to a licensee a film which
was alleged to be obscene.
The
company
contemplated
that
the licensee
(who was
not
a
person
who would himselfbe likely to be
depraved
or
corrupted)
would
show
the film - as in fact he
did
- to
cinema
audi-
ences. At the
behest
ofa
private
prosecutor,
the
company
was
charged
on
indictment
with
having
an obscene article for
publication
for gain
and
with
publishing
an obscene article.
The
magistrate
having
com-
mitted
the
company
for trial the
company
moved to
quash
the
indict-
ment,
but
Lord
Widgery
C.].
expressed the opinion
that
the
magistrate
was
bound
to
have
committed
for trial. At
the
trial before
Kenneth
JonesJ.,
however,
that
learned
judge
took a different view.
He
ruled
that
the
question
whether
an article is obscene
depends
on
whether
there
has
been
a
publication
to persons likely to read, see or
hear
the
matter
contained
in the article. Since
cinema
audiences were
not
persons to
whom
the film was
published
by the
company,
there was
insufficient evidence on which aconviction could be
obtained.
At
the
request
of the
private
prosecutor,
the
Attorney-General
referred the
matter
to
the
Court
of
Appeal,
although
he was of opinion
that
the trial
judge's
opinion was correct.
Counsel
who
appeared
as amici
curiae
submitted
that
the
definition
of
obscenity in
s.l
of the
Act
of 1959 should be given its
ordinary
meaning, so
that
an article is obsceneifi t tends to
deprave
any
12
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