R v Greater London Council, ex parte Blackburn
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON,LORD JUSTICE BRIDGE |
| Judgment Date | 14 April 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0414-2 |
| Docket Number | No.175/75 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 April 1976 |
[1976] EWCA Civ J0414-2
The Master of the Rolls (Lord Denning)
Lord Justice Stephenson and
Lord Justice Bridge
In The Supreme Court of Judicature
Court of Appeal
(On appeal from the Divisional Courts)
THE APPLICANTS/APPELLANTS appeared in person.
MR. J. DAVIES. Q C. and Mr. G. LANGLEY (instructed by Mr. A. G. Gardner, Solicitor to the Greater London Council) appeared on behalf of the Respondents.
Mr. Raymond Blackburn comes before us once again. This time he draws to our attention the pornographic films which are being shown openly in cinemas in London, and elsewhere. They are grossly indecent. They are an offence against the common law of England. Yet the Greater London Council, the licensing authority, are doing nothing to stop them. On the contrary, he says, they are virtually permitting them. The rules of the Greater London Council are framed in such limited terms that films get through which are grossly indecent. He gives a striking instance. Last year they gave their consent to a film called "More about the Language of Love". Afterwards the exhibitors were prosecuted on the ground that it was an outrage to public decency. The jury convicted the exhibitors. They had no doubt about it, retiring only for twenty minutes. The Judge said to them: "Thank you in the name of the public". The case raises important questions on the censorship of films.
1. The Powers of the Greater London Council.
There are only two statutes which give the Council control over cinemas. The first is the Cinematograph Act 1909. It was passed in the early days and was concerned with safety in cinemas, not with censorship. The title states that it is "an Act to make better provision for securing safety". It gave the County Councils the power to grant licences - no doubt with a view to safety - but this power was expressed in such wide terms that it was afterwards interpreted so as to give a power of censorship. It says in Section 2(1):
"A County Council may grant licences to such persons as they think fit to use the premises… on such terms and conditions and under such restrictions as… the Council may by the respective licences determine."
Although the Act was concerned with safety, nevertheless the Courts two years later held that a County Council could impose conditions which related to other matters, so long as they were not unreasonable. So in 1911 the Courts held that a condition saying that the premises should not be opened on Sundays was valid - see the Bioscope Case (1911) 1 King's Bench, p. 445. Soon afterwards the County Councils began to insert a condition that no film shown should be of a licentious or indecent character. Such a condition was accepted as valid,but it did not permit any censorship before hand. Next the County Council tried to inset a power of censorship by delegating it to three justices. This was held to be invalid - see Rex. v. Burnley Justices (1916) 32 T. L. R. p. 698. Once again they tried. They sought to hand over all power of censorship to the British Board of Film Censors: but this was held invalid because the County Councils were not allowed to delegate their powers, see Ellis. v. Dubowski (1921) 3 King's Bench, p. 625. But in 1924 there was a break-through. The Courts gave a decision which allowed censorship by the British Board of Film Censors provided that that body did not have the final say, but was subject to review by the County Council itself - see Mills v. The London County Council (1925) 1 King's Bench, p. 213. That decision has held the field since - that time and must, I think, be accepted as good law. It was recognised as such by Parliament itself in 1952 when it made it compulsory for conditions to be imposed for the protection of children - see Section 3 of the Cinematograph Act 1952. Under that Section the County Council are under a duty to impose conditions so as to ensure that, if a film is designated as unsuitable for children, then children are not to be admitted to see it. Such designation is to be done 'by the licensing authority or such other body as may be specified in the licence'. In speaking of 'such other body' Parliament no doubt had in mind the British Board of Film Censors. To that extent, therefore, the Board has Parliamentary approval.
2. THE BRITISH BOARD OF FILM CENSORS
The British Board of Film Censors is not a legal entity. It has no existence known to the law. It is but a name given to the activities of a few persons, but it goes back for sixty years. There is a President, at present Lord Harlech, who is responsible for broad policy. There is a Secretary, Mr. James Ferman, who makes executive decisions. There are four film examiners, who work full-time. These work in pairs, viewing films on three days each week. They put films into four categories, according to their suitability for various age groups: U, A, A. A., and X. U for everyone. X for those over 18. They sometimes require cuts before giving a certificate. The examiners are recruitedfrom outside the film industry. They are paid salaries. The money is provided by the manufacturers of films through the Incorporated Association of Kinematograph Manufacturers.
The extent of their work is shown by what they did last year - 1975. They saw 417 feature films. They passed 400 and refused 17. But of those 17, they passed 5 after cuts had been made. They passed 73 documentary films.
Although the Board is not a body known to the law, it is, I think, a 'body' within Section 3(1) of the 1952 Act. I do not think the County Councils can delegate the whole of their responsibilities to the Board - see Section 5 of the 1909 Act (repealed in 1972) and Ellis v. Dubowski (1921) 3 King's Bench at p. 625: but they can treat the Board as an advisory body whose views they can accept or reject: provided that the final decision - aye or nay - rests with the County Council. If the exhibitor - or any member of the public - brings the film up before the County Council, they ought themselves to review the decision of the British Board of Film Censors and exercise their own judgment on it. That is, I think, the right way to interpret Mills v. The London County Council (1925) 1 King's Bench, p. 213. When the Board issued a certificate permitting the exhibition of a film - and the County Council takes no objection to it - that is equivalent to a permission by the County Council itself. When the Board refuses a certificate, the exhibitor can appeal to the County Council. The County Council can then give their consent to the exhibition, and from its decision there is no appeal.
The upshot of it all is this. The County Council is in law the body which has the power to censor films for exhibition in cinemas: but in practice it is the British Board of Film Censors which carries out the censorship, subject to review by the County Council.
3. THE TESTS TO BE APPLIED
The next question is, What tests are the County Council to apply when they exercise censorship powers? Are they to apply the tests laid down in the Obscene Publications Act, 1959? Or the tests laid down by the common law?
(1) The Obscene Publications Act. 1959
In 1959 Parliament passed the Obscene Publications Act, 1959.
I remember it well. I attended the debates, and took part. Its object was to strengthen the law against pornography. It contained a test of obscenity which was to be applied to publications. An article was to be deemed obscene if its effect, if taken as a whole, was "such as to tend to deprave and corrupt persons" likely to read it. Unfortunately that legislation misfired. I explained the reasons in Re Blackburn (No.3) 1973 1 Queen's Bench, p. 241. One reason was because of the inadequacy of the definition of obscenity. It did not stop gross indecency. An article might be so indecent as to shock the readers: but yet it might not tend to deprave and corrupt them. Another reason was because of the defence of public good. The Courts used to allow so-called experts to come forward and say that pornography is good for those who take pleasure in it. Fortunately this Court, only a week or two ago, held that the evidence on those lines was inadmissible. (See Reg. v. Staniforth in The Times 25th March, 1976.) But still the fact remains that the test itself is inadequate.
(ii) The Common Law Test
It has been established for centuries that it is an offence at common law to show in public an indecent exhibition. There was a case 100 years ago in which two showmen kept on Epsom Downs a booth in which a grossly indecent exhibition took place. The Court for Crown Cases Reserved held that "those facts are abundant to prove a common law offence - see The Queen v. Saunders (1875) 1 Queen's Bench, p. 15.
This common law offence was clearly recognised by the House of Lords in Knuller's Case (1973) A. C. 435. Lord Reid said (at p. 458) in this context that indecency "includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting": and Lord Simon of Glaisdale said (at p. 653) that "the authorities establish a common law offence of conduct which outrages public decency".
This common law offence has proved to be a far better stop upon pornographythan the 1959 Act. For this simple reason: Pornography shocks and disgusts decent people, but it does not tend to deprave or corrupt them. They revolt from it and turn away from it. If asked, they will be quite ready to say that it is grossly indecent, but far less ready to say that it tends to deprave or corrupt.
The proof of the pudding is in the eating. The customs authorities and post office apply the simple test: "Is this indecent?" They have no difficulty in condemning millions of magazines on that account, without...
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