McBain v Crichton
| Jurisdiction | Scotland |
| Judgment Date | 03 February 1961 |
| Date | 03 February 1961 |
| Docket Number | No. 6. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Guthrie.
Crime—Procedure—Private prosecution—Obscene publication—Bill by member of public for criminal letters—Refusal of Lord Advocate to concur—Nature of wrong—Circumstances in which bill refused.
A private citizen presented a bill wherein he sought the grant of criminal letters to enable him to prosecute a bookseller for exposing for sale, and for selling, a book which the complainer alleged to be obscene and to be designed to corrupt the morals of the public and, in particular, the morals of young people. The complainer claimed that he had suffered a personal and particular wrong as a result of the sale of the book, both because he had been shocked and outraged by reading it, and also because of his special concern with the morals and welfare of young people, and his connexion with organisations having similar interests. The Lord Advocate having refused to concur in the proposed prosecution, the complainer sought either to be permitted to prosecute without his concurrence or that the Lord Advocate should be desired, or required, to give his concurrence to the prosecution.
Held (1) that it was not the function of the Court to review the Lord Advocate's exercise of his discretion in refusing to concur in a private prosecution, nor to examine the reasons which had affected that exercise, and (2) that the only wrong alleged by the complainer was of a general and public nature, and that he had failed to show that peculiar and special personal interest in the alleged wrong which was necessary to sustain a private prosecution.
Alexander Gilchrist M'Bain, chartered accountant, Glasgow, presented to the High Court of Justiciary a bill wherein he applied for criminal letters to bring a private prosecution against Ronald George Brown Crichton, a bookseller in Glasgow, for exposing for sale and for selling a book called Lady Chatterley's Lover, by the author D. H. Lawrence, which was alleged by the complainer to be obscene. The Lord Advocate had previously considered the matter, and had come to the conclusion that there was not any justification for a prosecution in connexion with its sale. He had decided, accordingly, not to prosecute at his own instance and he declined to concur in the private prosecution which Mr M'Bain wished to institute.
The bill set forth:—"That albeit by the laws of this and every other well-governed realm, the publication, vending, circulation or exposure for sale of any lewd, impure, gross or obscene book or printed work devised, contrived and intended to vitiate and corrupt the morals of the lieges, particularly of the youth or young persons of both sexes, and to raise and create in their minds inordinate and lustful desires, is a crime of heinous nature and severely punishable; yet true it is and of verity that the said Ronald George Brown Crichton is guilty of the said crime, as actor or art and part; in so far as the said Ronald George Brown Crichton wickedly and feloniously exposed for sale and by the hand of his servant on tenth January 1961, at his said place of business at “The Scottish Centre,” 158 Hope Street, Glasgow, wickedly and feloniously sold to the complainer a book, namely,Lady Chatterley's Lover, by David Herbert Lawrence, published by Penguin Books Limited, Middlesex, which was lewd, impure, gross and obscene and contained passages of a lewd, impure, gross and obscene nature, devised, contrived and intended to vitiate and corrupt the morals of the lieges, particularly of the youth or young persons of both sexes, and to raise and create in their minds inordinate and lustful desires; and the said passages, being improper and unfit to be set forth at length or read in any Court of Justice, copies of the said book are now lodged in the hands...
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