DPP v Whyte
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Lord Pearson,Lord Simon of Glaisdale,Lord Cross of Chelsea,Lord Salmon |
| Judgment Date | 19 July 1972 |
| Judgment citation (vLex) | [1972] UKHL J0719-2 |
| Date | 19 July 1972 |
| Court | House of Lords |
[1972] UKHL J0719-2
House of Lords
Lord Wilberforce
Lord Pearson
Lord Simon of Glaisdale
Lord Cross of Chelsea
Lord Salmon
Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Whyte (on Appeal from a Divisional Court of the Queen's Bench Division), that the Committee had heard Counsel, as well on Tuesday the 20th, as on Thursday the 22d, days of June last, upon the Petition and Appeal of The Director of Public Prosecutions, praying, That the matter of the Order set forth in the First Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 14th of February, 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Pearl Rosemary Whyte and Patrick Thomas Whyte, the Respondents to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 14th day of February 1972, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Case be, and the same is hereby, remitted back to the Petty Sessional Division of the City of Southampton with a Direction to convict.
My Lords,
The Respondents, who are husband and wife, run a bookseller's shop in St. Mary Street, Southampton. The shop was searched by police officers in February, 1971, and a large number of books and magazines was seized. This resulted in charges being brought, through ten informations, against each Respondent under section 2(1) of the Obscene Publications Act, 1959, (as amended). This section makes it an offence to have for publication for gain an obscene article, which includes a book or magazine. An article is deemed to be obscene if its effect is, if taken as a whole, "likely to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained in it" (section 1(1)). Each information related to a separate book or magazine which was among those found in the shop and seized by the police. All the informations were dismissed by the Magistrates and, on appeal by way of Case Stated, by a majority of the Divisional Court of the Queen's Bench Division. The question certified for decision by this House, pursuant to section 2(2) of the Administration of Justice Act, 1960, is:
"Whether on the facts found and on the inferences drawn the Justices were bound to convict".
There is no doubt that the Respondents had the books for publication for gain and the only question was, and is, whether they were "obscene". The Act, as is well known, has replaced the common law definition, or conception, of obscenity by one of its own in terms I have cited above. Both the policy and the language of the Act have been plentifully criticised: the former we cannot question, and with the latter we must do our best. One thing at least is clear from this verbiage, that the Act has adopted a relative conception of obscenity. An article cannot be considered as obscene in itself: it can only be so in relation to its likely readers. One reason for this was no doubt to exempt from prosecution scientific, medical or sociological treatises not likely to fall into the hands of laymen, but the section is drafted in terms wider than was necessary to give this exemption, and this gives the Courts a difficult task. For, in every case, the Magistrates, or the jury, are called upon to ascertain who are likely readers and then to consider whether the article is likely to deprave and corrupt them.
Before I attempt further analysis of these words, in order to narrow the issue, I state some further facts. These as found by the Justices are set out in the Case Stated. There are, to my mind, two salient facts, or groups of facts. First, the Respondents' shop is a general bookseller's shop open to the public. It is in an ordinary shopping area, opposite a Technical College, and near blocks of Council flats and maisonettes. Other books than pornographic books are offered for sale, and it seems a fair inference from what the Justices have found, that the latter were placed in a distinct part of the shop, but not in a locked case or closed cupboard. Each of those seized bore a label "Adults only"—words which may operate as an attraction rather than as a deterrent. Secondly, there can be no doubt that the books were what may be called pornography of the hardest quality, or, in the ordinary sense of the word, obscene. No defence of "public good" was, or could be put forward. To make good this assertion, and to show the strength of it, I must quote from the Justices' finding. They say:
"Their contents included written descriptions or pictorial representations of sexual activity, ranging from normal sexual intercourse between male and female to such deviant sexual behaviour as intercourse per oram, intercourse per anum, acts between males, acts between females, and sexual play between or within groups of persons; there were also in the said books some instances of sadistic and violent behaviour."
One would think that if this section were to have any impact at all, it must hit such a case as this. So the process by which the Justices reached a contrary conclusion requires some careful examination.
They proceed first, quite correctly, to determine the likely readers in the light of relevant circumstances. The police had kept observation of the shop and were able to ascertain "the sex and age of persons visiting [it] as customers or prospective customers". The Justices found that the customers were principally men of middle age and upwards who came there regularly to make purchases. These comprised the large majority though there were occasionally some middle aged women and from time to time younger persons. When younger persons approached or entered the shop, efforts were made to exclude them either totally, or from the part of the shop where the pornography was placed. The female Respondent applied this policy to those who appeared to be under twenty one, the male Respondent to those who appeared to be under eighteen, so presumably he let in those between eighteen and twenty one; the findings do not cover the likelihood of access by persons in fact, though not in appearance, under the specified ages or those slightly but not much older. It is not found how successful their efforts were.
On these facts the Justices made findings as to the likely readers of the relevant books. They were, that young persons (undefined) were possible but not probable readers and that the persons "likely" or "most likely" to purchase them were males of middle age and upwards.
I must say of these findings that I regard them as unsatisfactory almost to the point of error in law. I doubt the validity of an approach which seeks the "most likely" readers and then rejects others than the "most likely" as not likely. It looks very much as if the Justices thought that their task was to identify a category of most likely readers, but this is not what the Act requires, or permits. Account ought to be taken of other persons, less likely perhaps than the main category, to read the books, if these others were also likely to do so. In the case of a general shop, open to all and sundry, and offering all types of books, common sense suggests the conclusion that likely readers are a proportion of all such persons as normally resort to such shops, and it would require strong evidence to justify a conclusion that the likelihood of reading the books was confined to one definable category. I have grave doubts whether the evidence here which, as one would expect, leaves open a number of gaps, justifies any such limitation as has been made. But we are here in the realm of fact: and allowing, as we must, for the fact that the findings are stated by laymen and not lawyers we are not entitled to reject what I think on a fair reading of the case has been found, namely, that the likely readers of the relevant books were men of middle age and upwards, many of whom were regular customers, and no others.
So the critical question to be asked is whether the effect of the articles is such to deprave and corrupt these likely readers.
My Lords, I do not think that any extended discussion of the expression "to deprave and corrupt" would be profitable, or is needed in the context of the present case. But there are considerations relevant to the manner in which the Justices have applied it. It is well known that the words (deprave and corrupt) are derived from the judgment of Cockburn C.J. in Reg. v. Hickling (1868) L.R. 3 Q.B. 360 where he said:
"I think the test of obscenity is this, 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" ( 1.c. p. 371).
The Obscene Publications Act, 1959, adopted the expression "deprave and corrupt" but gave a new turn to it. Previously, though appearing in Cockburn C.J.'s formula, the words had in fact been largely disregarded: the Courts simply considered whether the publication was obscene and the tendency to deprave and corrupt was presumed (see Crowe v. Graham (1968) 41 A.J.L.R. 402, 409, per...
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