R v Stamford
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE ASHWORTH |
| Judgment Date | 29 February 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0229-5 |
| Docket Number | No. 1851/C/71 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 February 1972 |
[1972] EWCA Crim J0229-5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Karminski
Mr. Justice Ashworth
and
Mr. Justice Hinchcliffe
No. 1851/C/71
MR. MULCAHY appeared as Counsel for the Appellant.
MR. H. L. LEONARD, Q.C. and MR. R. J. A. BATT appeared as Counsel for the Crown.
This appeal comes before this Court as the result of a certificate granted by the Recorder of Brighton, before whom the present Appellant appeared on the 30th March, 1971 when he was convicted of five offences of sending an indecent article by post contrary to Section 11 of the Post Office Act 1953. The form of the certificate is quite short and is as follows: "I certify that this is a fit case for appeal on the ground that the Court should consider whether I was correct in refusing leave to the Defence to call evidence of other persons as to the effect upon them of the publications concerned".
It will be observed from that certificate that this Court is concerned and concerned only, with the question whether in a charge under the Post Office Act 1953, on the issue whether the article or letter is indecent or not, evidence may be called, as Counsel put it, to assist the Jury in their determination of the question whether the article is indecent. What happened before the learned Recorder was that in the course of the defence an application was made for the purpose of calling a witness or witnesses, who it appears wished to say to the Jury what the effect of the brochures in question had been upon them when they saw them. The learned Recorder quite rightly, in the view of this Court, intervened and said he would not allow such evidence to be called, and accordingly it was not called. In due course the present Appellant was convicted and a certificate was granted, it is fair to say on the Recorder's own invitation.
What is urged on behalf of the Appellant in this case is that the question of indecency or not is a matter on which the Jury may be assisted by evidence from persons of standing or repute who can say what the effect of the article was on them, or who may say, according to Mr. Mulcahy, that they have published similar articles without criminal prosecutions taking place and so on.
In the judgment of this Court the proper starting place is that to which Mr. Leonard directed the Court's attention, namely the section itself. It is worth reading. Section 11 provides that: "(1) A person shall not send or attempt to send or procure to be sent a postal packet which - (a) save as the Postmaster General may either generally or dangerous, noxious or deleterious substance, any filth, any sharp instrument not properly protected, any noxious living creature, or any creature, article or thing whatsoever which is likely to injure either other postal packets in course of conveyance or an officer of the Post Office; or (b) encloses any indecent or obscene print, painting, photograph, lithograph, engraving, cinematograph film, book, card or written communication, or any indecent or obscene article whether similar to the above or not; or (c) has on the packet, or on the cover thereof, any words, marks or designs which are grossly offensive or of an indecent or obscene character".
If one stopped at sub-section (1) it is, in the view of this Court, quite evident that the object intended to be achieved by this provision is the protection of the members of the Post Office Service against indecent, dangerous or deleterious articles which may be sent by mail. But the matter goes a step further, as Mr. Leonard pointed out. The recipient, and the effect of the article upon him, is nowhere mentioned in the section; moreover an offence may be committed not only by an attempt to commit it, which is expressly made an offence, but it may be committed if the article in question has been detained by the Post Office in the course of transit without ever reaching the intended recipient at all.
So one starts from the premise that the Post Office Act 1953, by this provision, was intended to preclude the use of the Post Office services for the dispatch of dangerous or indecent matter. It is quite true that in that Act there is no express definition of indecency or obscenity. That is not by any means surprising; one has only to reflect on the list of what is prohibited in that section to realise that the words used are all the words of common import. Anyone called upon to consider the question whether a particular article offends against one or other of the provisions has before him not necessarily an easy, but a simply expressed task of deciding whether the article falls within one of the words in question.
By contrast Parliament did think it right to include in the Obscene Publications Act 1959 a definition of the word "obscene", introducing factors which in the view of this Court are not present at all in the Act of 1953. Moreover the Act of 1959 provided by Section 4 a special defence which would not be expected in the Post Office Act, nor indeed is there present defence which is commonly referred to as the defence of public good. I need not read Section 4, but what I should read is sub-section (2) of that section, which is in the following terms: "It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted in any proceedings under this Act either to establish or to negative the said ground" - the said ground being the ground of public good.
Two points should be mentioned at once on that, first that expert evidence is not admitted on the main issue before the Jury which is whether the article comes within the prohibition of the Act at all; that statement will be made good in a moment by reference to a decision to that very effect. But the second point is that the expert evidence is limited to the special defence which is provided by sub-section (4). It is in terms said: "Either to establish or negative the said ground" namely the ground of public good, not to establish or negative the contention that the article is obscene.
Accordingly, one starts, in the view of this Court, from the contrast between the two Acts and the mischief against which they were respectively directed. That there is a contrast between the two Acts can be seen by a study of some of the reported cases. The question now arising before this Court is to what extent evidence may be given upon the basic issue whether an article is indecent or obscene or not. Except in one very special instance, the cases in the view of this Court establish, or will have established by the time this decision is given, that no such evidence is admissible at all.
One reason why the present appeal comes before the Court is because of the decision in Stanley's case reported in 49 Criminal Appeal Reports at page 175. In that case the charge was brought under the same section of the Post Office Act 1953,...
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