R v Anderson
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 05 November 1971 |
| Judgment citation (vLex) | [1971] EWCA Crim J1105-1 |
| Docket Number | Nos. 3576/B/71, 3575/B/71 3577/B/71 & 3785/B/71 |
| Court | Court of Appeal (Criminal Division) |
| Date | 05 November 1971 |
[1971] EWCA Crim J1105-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
The Lord Chief Justice of England (Lord Widgery)
Mr. Justice James
and
Mr. Justice Bridge
Nos. 3576/B/71, 3575/B/71 3577/B/71 & 3785/B/71
MR. JOHN MORTIMER Q.C., and MR. WALKER-SMITH appeared on behalf of the Appellants.
MR. BRIAN LEARY appeared on behalf of the Crown.
These three individual Appellants (as they now are) and the Appellant company Oz Publications Ink Limited, were convicted at the Central Criminal Court at the end of July of this year after a lengthy trial occupying no less than 27 working days. The indictment contained five counts. In the first the four Appellants were charged with conspiracy to corrupt public morals, the particulars being that "on divers days between the 1st day of January and the 8th day of June 1970" - and I only quote the relevant words - "they conspired together with Vivien Laurence Berger and with certain other young persons to produce a magazine containing divers obscene, lewd, indecent and sexually perverted articles, cartoons, drawings and illustrations with intent thereby to debauch and corrupt the morals of children and young persons within the Realm". Upon that count all four Appellants were acquitted. It is quite obvious from the verdicts of the Jury on the other counts that they were acquitted because the Jury were not satisfied that there was the charged intent to corrupt public morals. Of the remaining counts, Count 2 was laid under Section 2 of the Obscene Publications Act, 1959, and charged the four Appellants that "on a day between the 1st day of May and the 8th day of June 1970…. they published an obscene article namely a magazine entitled 'OZ No. 28 School Kids Issue'." And indeed it is the publication known as Oz No. 28 School Kids Issue which is the central theme of the proceedings with which we are now concerned. On that count they were all convicted. Neville was sentenced to 15 months' imprisonment, Anderson to 12, Dennis to nine and the company was fined £300. Then on Count 3 it was charged under the Post Office Act of 1953, that all four of them on a day there specified "sent a postal packet which enclosed a number of indecent or obscene articles namely magazines entitled 'OZ No. 28 School Kids Issue'." That count has been referred to as the Post Office Act count. Count 4, again against all four, alleged that they had certain obscene articles in their possession for publication for gain, and the articles were copies of the same magazine to which I have referred. On that count all were convicted. The same prison sentences were imposed, to be concurrent, and again the company was fined £300. The fifth count was similar to the fourth. It again was laid under Section 2 of the Obscene Publications Act, and it again alleged that they had certain obscene articles in their possession for publication for gain, the articles again being Oz No. 28.
They appeal today by leave of the Court, against conviction and sentence.
This is a case which has aroused enormous interest amongst the public and no doubt the decision of the Court today will also excite a certain amount of interest and comment. It is therefore perhaps worthwhile briefly to remind oneself of the functions of Judge, Jury and of this Court, in cases of this kind. At the Central Criminal Court the only issue, up to the moment of conviction, was whether that Jury as then constituted would find this publication obscene within the meaning of the various statutes. Whatever the decision of the Jury in the Court below, it could have no binding effect on other Juries on other occasions in relation to other publications, and the conception, somewhat widely held, that this case was a great milestone in that respect, is a false understanding. It was not a case which would in itself create an authority for the future at all. The function of this Court is also worth explaining. It is not here to consider whether the Jury was right or wrong, nor to consider whether the publication was obscene or not obscene - that is a decision for the Jury and the Jury only. The function of this Court is to review the proceedings below with the assistance of Counsel to see if the proceedings were properly conducted, and if not to see whether any irregularities which arose in the course of the proceedings were sufficient to render the finding of the Jury unsafe or unsatisfactory.
I stress that because it is important for people to realise that we in this Court are not here to clear Oz or to condemn Oz. Our own opinion in regard to the character of the subject matter is totally unimportant. We are here simply to review what happened below and see whether there were such irregularities as to justify the convictions being quashed. If we come to the conclusion that there were such irregularities, then we quash the convictions and since there is no machinery in English law for re-trial in such circumstances, the matter rests in that somewhat inconclusive state.
Now to turn to Oz itself, it is, as its title proclaims, the 28th edition in the series. It is a magazine of some 48 pages. It is printed in bright and attractive colours, and it contains what one might fairly describe as a very considerable assortment of items. No one can pass a judgment on Oz without reading it; nobody can successfully do what I am now going to attempt to do, namely to give some idea to those who have not read it, of what it contains, because it is important, as I say, in view of the public interest in this case, that people should have some idea of what the magazine really contains.
There are in it a number of perfectly serious articles. Its origin is not without interest. The editors apparently on this occasion decided to recruit the assistance of a number of children of school age to assist them in compiling the magazine. It may be that originally the idea was that the children should do it all, but it is evident from the evidence that they did not do it all and that some contributions at any rate to the magazine came from the editors themselves, the three Appellants. The idea, so we are told, and the evidence of doing it this way, was to enable children of school age to express their view and to see the sort of magazine which they would make, and so it came out, and so it is called the School Kids edition. There was a suggestion below that it was intended for consumption only by school kids but that, as far as we can see, was not made out, and the intention no doubt was that it would enjoy its normal circulation of some 30, 000 or 40,000 copies.
As I have said, it includes a great many serious and wholly innocuous articles. It deals with school affairs, the system of education in this country, the system of corporal punishment in schools and a whole host of topics of that sort. It has a number of articles concerned with the taking of drugs, and it is perfectly fair to say, as has been said, that in form at any rate many of these articles are discouraging of the taking of drugs and indicate the danger of the taking of drugs. On the other hand, and according to the point of view which you adopt, some of the articles are said to have the reverse effect and to encourage the taking of drugs. That kind of distinction was the distinction which the Jury in the Court below had to direct their minds to, and it is not for us to comment on it further.
In addition to these articles, there are a great many illustrations, some of them charming and humerous, which would not cause the slightest flutter in any well conducted Victorian household. Others, however, are quite different. There is a good deal of material which one gathers is culled from what are called American comics and there are many illustrations which have a very pronounced and overt sexual theme. I do not want to be unfair to the publication by stressing unduly those items in it which attracted the principal attention in this case, but again one cannot give a fair appreciation of what the magazine looks like without looking at some of the less attractive features. On page 28 there is an advertisement for what seems to be a magazine, a magazine called Suck. It is an advertisement occupying some 30 or 40 lines of print. It is a salaciously written account of the joys from the female aspect of an act of oral sexual intercourse. It deals with the matter in great detail. It emphasises the pleasures which the writer says are to be found in this activity, and there is in it no suggestion anywhere which would imply that this was a wrong thing to do or in any way induce people not to do it. The importance of that last observation is that there could be nothing here as far as we could see upon which an argument, that this was aversive as tending to induce people not to conduct the activity described, could be founded. There are a great many pictures of people in, or apparently in, the act of sexual intercourse. Some of them are extremely artistic; some of them are crude to a degree. There is a comic strip in the middle of the magazine, again no doubt from American sources, which shows a number of children dressed in school clothes indulging in a number of sexual activities including at the end a very crude drawing of a girl in the act of oral sexual intercourse. Shocking, undoubtedly; whether it was obscene of course was, as I have endeavoured to explain, a matter for the Jury.
Then we have the back cover itself, and the back cover shows some five nude women. It is extremely attractively drawn, and at first inspection, as one of the witnesses said, it appears to be a simple...
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