McGowan v Langmuir
| Jurisdiction | Scotland |
| Judgment Date | 19 December 1930 |
| Docket Number | No. 3. |
| Date | 19 December 1930 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Blackburn. Lord Sands.
Statutory Offences—Keeping for sale indecent or obscene prints—"Indecent or obscene"—Nude photographs kept for sale in shop—Finding that similar pictures might fittingly be exhibited in a public gallery—Glasgow Corporation Order Confirmation Act, 1914 (4 and 5 Geo. V. cap. clxxviii.), sec. 21.
The Glasgow Corporation Order Confirmation Act, 1914, by sec. 21, penalises the keeping for sale of indecent or obscene prints, photographs, or other representations.
In a prosecution of a shopkeeper for a contravention of the section, it was proved that the accused had kept for sale a large number of photographs of nude women, which were exhibited in the windows of his shop. The magistrate, who convicted the accused, stated that he considered that, while a picture similar to those which were the subjects of the complaint might fittingly be exhibited in a public gallery, yet the indiscriminate exposure, sale, and circulation of such prints were calculated to prejudice good morals.
Held (dub. the Lord Justice-General) that the magistrate, in considering whether the photographs were indecent or obscene, was entitled to take into account the circumstances in which they were kept for sale; and that, assuming that similar pictures might fittingly be exhibited in a public gallery, yet the circumstances in which the photographs were kept for sale by the accused entitled the magistrate to hold that a contravention of the section had been committed.
Charles Lachulan M'Gowan was charged in the Police Court at Glasgow on a complaint at the instance of James Finlay Langmuir, Procurator-Fiscal of the said Court.
The complaint set forth:—"You are charged at the instance of the complainer that under a magistrate's warrant, dated 6th May 1930, applying to premises consisting of a shop or part of a building at 159 London Road, Glasgow, of which you are the occupier, you were on 6th May 1930 found in said shop or part of a building and taken into custody, and that between 1st April 1930 and 6th May 1930, both dates inclusive, you did keep for sale in said shop or part of a building at 159 London Road aforesaid, indecent or obscene prints or representations—1922 of said indecent or obscene prints or representations having on 6th May 1930 been found in said shop or part of a building at 159 London Road aforesaid by Detective-Inspector Albert M'Keown, of the City of Glasgow Police Force, the officer executing said warrant: Contrary to the Glasgow Corporation Order Confirmation Act, 1914, section 21.1 Whereby you are liable to a penalty. …"
The magistrate found the accused guilty, and, at his request, stated a case for appeal to the High Court of Justiciary.
The case set forth that the following facts were found or admitted:—"In consequence of complaints made to the police regarding the exhibition of postcards, books, and miniature prints or representations of nude women, and rubber goods, in the window of the appellant's shop at 159 London Road, Glasgow, a Detective-Inspector of the Glasgow Police called at the shop on 3rd May 1930, and purchased for 3s. 6d. the book “La Beauté”, and prints or representations (A, B, and C of process). Thereafter on 6th May 1930, in terms of the Glasgow Corporation Order Confirmation Act, 1914, section 21, I granted, on the application of the respondent, a warrant (K of process) to enter and search the premises. Acting under the authority of that warrant, the said officer on that date, accompanied by four other officers of the Central Division of the Glasgow Police, again visited the appellant's shop. They found displayed in the window of the shop prints or representations (F and I of process), and also the book (G of process), which was open. The officers entered the shop, informed the appellant, who was then in charge, of the existence of the search warrant, and that they intended to put it into force. From the window of the shop they seized the said prints or representations. In the shop itself they found, and took possession of, a large number of additional prints or representations (J of process).2 A considerable number of those were exhibited on a display cabinet close to and facing the door of the shop. Thereafter the officer in charge informed the appellant that he would be charged with keeping in his shop, for sale or gain, said prints or representations, which were considered indecent or obscene, took him into custody, and conveyed
him to the Central Police Office, Glasgow, where he was formally cautioned and charged. He made no reply to the charge, and was afterwards liberated on bail of £10. The exhibition of said prints or representations in the window of appellant's shop attracted a very large number of persons to the window, especially young people of both sexes. All the prints or representations were kept and exposed by the appellant for the purpose of sale or gain. Members of the public who had seen the prints or representations displayed in the window of the appellant's shop considered them highly indecent, detrimental to the morals of society, and especially to those of the young people who were thereby attracted to the window of the shop."
The case further stated:—"At the conclusion of the evidence I heard the respondent and the law agent for the appellant. The respondent submitted that the prints or representations were indecent or obscene; that the appellant had kept them for sale or gain; and that therefore he had acted in contravention of the Glasgow Corporation Order Confirmation Act, 1914, section 21. The law agent for the appellant contended that the prints or representations were neither indecent nor obscene, but were works of art and were photos of the human frame to which no exception could be taken; that pictures of women in the nude were exhibited in the Glasgow and other Art Galleries throughout the world, and that copies of such pictures could be...
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