R v Commissioner of Police of the Metropolis, ex parte Blackburn (No. 3)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS
Judgment Date27 Nov 1972
Neutral Citation[1972] EWCA Civ J1127-3
Judgment citation (vLex)[1972] EWCA Civ J1127-4

[1972] EWCA Civ J1127-3

In The Supreme Court of Judicature

Court of Appeal

Appeal by Albert Raymond Blackburn and Tessa Marion Blackburn from Order of the Divisional Court of the Queens Bench Division on 30th October, 1971.

Before:

The Master of the Rolls (Lord Denning),

Lord Justice Phillimore and

Lord Justice Roskill.

The Queen
and
The Commissioner of Police of the Metropolis
Respondent
Ex parte Albert Ryamond Blackburn and Tessa Marlon Blackburn
Appellants.

The Appellants, Mr. and Mrs. Blackburn, appeared in person.

Mr. DONALD FARQUHARSON, Q. C., and Mr. ANTHONY HIDDEN appeared on behalf of the Commissioner of Police of the Ketropolis.

Mr. GORDON SLYNN (instructed by the Treasury Solicitor) appeared for Her Majesty's Attorney-General.

THE MASTER OF THE ROLLS
1

Nearly five years ago Mr. Blackburn came before us saying that the Commissioner of Police was not doing his duty in regard to gambling clubs, see Reg. v. Commissioner of Police ex parte A. Blackburn (1968) 2 Q. B. 118. He comes again today: but this time it is in regard to obscene publications. He comes with his wife out of concern, he says, for their five children. He draws our attention to the shoes in Scho which sell "hard" pornography (that is, publications which are extremely obscene). There are about 60 of them. They usually have the one word "Books" over the door or window, but no name of the proprietor. He also draws our attention to the many, very many, shops in other districts, usually sweetshops and newsagents, which sell "soft" pornography (that is, publications which are moderately obscene). He says that all these publications, be they hard or soft, are plainly obscene. Yet they are openly on sale. Anyone can go into the shops and buy them without let or hindrance, if they are willing to pay the price, Mr. Blackburn has done so himself: so has a solicitor. 'They went out during the course of the case and produced them to us…Whenever apoint arose as to this shop or that, or as to this publication or that, he went and bought a copy.

2

Seeing that we have a law passed in 1959 which prohibits the publication of obscene matter, Mr. Blackburn naturally says: "Why have not the police done something about it? Why have, they not seized these publications; and destroyed them? Why have they not prosecuted the offenders?" Other people, I have no doubt, say the same. Mr. Blackburn made such a case for inquiry that Lord Justice Lawton and his colleagues called on the Commissioner of Police for an answer. The Commissioner made answer which the Divisional Court thought sufficient. Mr. Blackburn appeals to this Court. Hisappeal raises so many questions that I will deal with them separately.

3

THE SOCIAL EVIL

4

Mr. Blackburn condemned the evil in a telling phrase. Pornography, he said, is powerful propaganda for promiscuity. So it is for perversions. To those who come under its influence, it is altogether bad. We have been shown examples of it. The Court below declined to look at them. We felt it our duty to do so, distasteful as it is. They are disgusting in the extreme. Prominent are the pictures. As examples of the art of coloured photography, they would earn the highest praise. As examples of the sordid side of life, they are deplorable. There are photographs showing young men and women - who appear to have worked themselves up into a state of extreme lust - for the sake of the photographers. In their lust these young people have adopted positions natural, and positions unnatural: and have indulged in sexual relations and perversions, not only between themselves, but also between themselves and animals. The photographers have crouched close -inches close - to them and to their most private parts. They have photographed them apparently in the very act in the utmost detail. They have taken these photographs in bright colours. They have enlarged them. Then the printers hive multiplied them in their thousands and hundreds of thousands. To add to it, there is letterpress. It tells of it all, gloatingly, without shame, as if to commend the readers to do likewise, or worse. To give the appearance of truth, letters are published, genuine or invented, describing the pleasures of perversions. Degrading as these publications are to the young people who participate, the prime evil-doers are those who promote them for money. The printers, the publishers, and the retailors. The "hard" ones sell for as much as £5 or £6 apiece."Soft" ones for 40 or 50 pence. Whereas clean publications of comparable size sell for 10 or 20 pence. The reason for the high prices is of course, that the purveyors know that these publications are obscene. They know they are contrary to law. They run the risk that the police may come in to seize their whole stock and destroy it. Nay more, that they may be prosecuted to conviction, and be either fined or imprisoned. So they charge a high price to compensate them for the risk they run. Some may criticise the law and the way in which it is enforced. But, as to the evil itself, there can be no doubt. At any rate, Parliament has had no doubt about it. It has enacted laws with the express intention of stopping, it. To these I now turn.

5

THE LAW AS TO OBSCENITY

6

The law of England has always condemned pornography and sought to suppress it. The history of it was given by Lord Birkett in the House of Lords on the second reading of the Obscene Publications Bill on 2nd June 1959 To which I would add my few words there and in "The Road to Justice", pages 81 to 85. Lord Birkett spoke for all when he said that: "While it is important that pornography should be struck at with vigour, and everybody would support such action, we ought to be extremely careful not to injure true literature". Parliament heeded his words. When the Act was passed on 29th July 1959, its object was stated in the preamble to be: to provide for the protection of literature and to strengthen the law against pornography". In 1964 Parliament fount that even that law was not strong enough. It pissed another Act, the object of which was again "to strengthen the law for preventing the publication for gain of obscene matter".

7

The principal way in which Parliament strengthened the lawagainst pornography was by giving the police extensive powers of search and seizure. The police could search the shops or stalls of retailors, the warehouses of wholesalers, the stores of printers and of publishers. They could seize all obscene material they found there, books, documents and articles of any kind which might be sold or kept for gain. Parliament was careful, however, to require safeguards against any abuse by the police of these powers. In order to search and seize, they had to obtain a warrant from a magistrate for the purpose:. and, when they seized any articles, they had to bring them before the magistrate, who could then issue. a summons against the occupier.

8

In addition to these powers of search and seizure, Parliament made a new statutory offence. Instead of the old common-law misdemeanour, it made it an offence for any person to publish or distribute or sell an obscene article or even to have it in his possession or control with a view to gain. This statutory offence was punishable on summary conviction with a fine not exceeding £100, or imprisonment not exceeding six months: or on an indictment with a fine or imprisonment up to three years.

9

Unfortunately this legislation against pornography seems to have misfired - at any rate so far as prosecutions are concerned. Experience has shown that much material - which at first sight would appear to be pornographic in the extreme - has escaped the reach of the law. Thus, in the case of the Last Exit to Brooklyn, the trial took nine days. Six expert witnesses for the prosecution. Thirty for the defence. The jury found the publishers guilty, but it was upset on appeal on the ground of misdirection - see Regina v. Calder & Boyers (1969) 1 Q. B. 152. In the case of Oz No. 28 School Kids Issue, the trial took 27 days. Most of the time was taken up by expert evidence.'. The jury found that it was obscenecontrary to the 1959 Act, but again this finding was upset on appeal on the ground of misdirection - see Regina v. Anderson (1972) 1Q. B. 304. Then, in the case of the "Dirty Old Men" the magistrates at Southampton, after two days, found that the books were not obscene because the only persons likely to read them were males of middle age and upwards. Their decision was upheld by 2 to 1 in the Divisional Court, but was reversed by 3 to 2 in the. House of Lords - see Director of Public Prosecutions v. Whyte (1972) 2 WLR 410. Finally, we were shown some books which were the subject of a trial at the Old Bailey only three or four weeks ago: Regina v. Gold. It took seven days. "Without any evidence, I should have pronounced them extremely obscene. But we are told that experts gave evidence that such material was very therapeutic for young people and would encourage them to sexual experiments without inhibition. The jury found the-accused Not Guilty.

10

11

12

WHY HAS THIS LEGISLATION MISFIRED?

13

Why has the legislation misfirod? I regret to say that it is in the wording of the Statute and in the way the Courts have applied it. In the first place, the test of obscenity is too restricted, or it has been interpreted too narrowly. It is defined as the "tendency to deprave and corrupt persons who are likely to read" it. That test can be used skilfully to obtain an acquittal by this piece of sophistry: Is the likely readers are those- who are already depraved and corrupt, this item will not them more so: but if the likely readers are just ordinary sort of folk, they will be so revolted that they will be turned, away from it. This argument is called in the cases the "aversion argument". It is so plausible that the Courts have held that, when raised by the defence, it...

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