R v Staniforth ; DPP v Jordan

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Wilberforce,Viscount Dilhorne,Lord Diplock,Lord Kilbrandon,Lord Salmon
Judgment Date17 Nov 1976
Judgment citation (vLex)[1976] UKHL J1117-2

[1976] UKHL J1117-2

House of Lords

Lord Wilberforce

Viscount Dilhorne

Lord Diplock

Lord Kilbrandon

Lord Salmon

Director of Public Prosecutions
(R)
and
Staniforth
(A)
(on Appeal from the Court of Appeal (Criminal Division))
Director of Public Prosecutions
(R)
and
Jordan
(A)
(on Appeal from the Court of Appeal (Criminal Division))
[Consolidated Appeals]

Upon Report from the Appellate Committee, to whom was referred the Cause Director of Public Prosecutions against Staniforth (on Appeal from the Court of Appeal (Criminal Division)), Director of Public Prosecutions against Jordan (on Appeal from the Court of Appeal (Criminal Division)) (Consolidated Appeals), That the Committee had heard Counsel, as well on Monday the 18th as on Tuesday the 19th, days of October last, upon the Petition and Appeal of Margaret Edith Jordan of 55, Finsbury Close, Brynmill, Swansea, (the Petition and Appeal of Donald Staniforth of 467, Wellingborough Road, Northampton, not being proceeded with) praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal (Criminal Division) of the 24th of March 1976, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of the Director of Public Prosecutions, the Respondent to the said Appeal, and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division), of the 24th day of March 1976, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Costs incurred by the prosecution in respect of proceedings relating to Donald Staniforth and Margaret Edith Jordan between the 24th day of March 1976 and the 5th day of May 1976 be paid out of Central Funds pursuant to section 10 of the Costs in Criminal Cases Act 1973, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Wilberforce

My Lords,

1

The appellant, Mrs. M. E. Jordan, has been convicted at the Crown Court, Swansea, of 37 offences under the Obscene Publications Acts 1959-64. She was the proprietor of a bookshop where books, magazines and films, the subject of the charges, were available for sale. The shop was a normal newsagent's and book shop, though we were told that there was a notice saying that it was for adults only. Observation on the customers showed that they appeared to be ordinary members of the public. There was nothing about the prices of the articles which would place them in a category of specialised publications. The 37 charges related to twelve books, fifteen magazines and ten films, each indisputably of the character of hard pornography. It was not suggested that any of them possessed any literary, scientific, or artistic merit.

2

The relevant sections of the legislation are sections 1(1) and (4) of the Obscene Publications Act 1959 and section 1 and 4 of the Obscene Publications Act 1964 which brought within the earlier Act cases (such as the present) of having the relevant article in possession with a view to publication for gain. No question arises under this latter section.

3

The 1959 sections are as follows:—

"1(1). For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

4(1). A person shall not be convicted of an offence against section two of this Act, and an order for forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.

(2). 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."

4

On these sections, conviction on each count would appear automatic but the trial application was made for the defence to call expert evidence in accordance with section 4(2) above, in order to support a defence based on the "public good". The nature of the evidence proposed to be called was outlined to the Court by counsel.

5

In the Court of Appeal, the appeal of Mrs. Jordan came on together with an appeal in another case ( R. v Staniforth) which involved very similar facts. There was put before the Court a full statement of the evidence which would have been given in Staniforth's case by an eminent psychologist. This was treated for the purpose of both appeals as typifying and epitomising the evidence which the defence sought to raise. It was summarised by the Court of Appeal in the following passage:—

"He would have said if called that every variety of pornographic material before the Court had some psychotherapeutic value for various categories of persons, e.g. for persons of heterosexual taste unable to achieve satisfactory heterosexual relationships, for persons of deviant sexuality, and for homosexuals and other perverts, as providing, according to their several needs, appropriate material to relieve their sexual tensions by way of sexual fantasy and masturbation. He would have said that such release was beneficial to such persons and would act as a safety valve to save them from psychological disorders and to divert them from anti-social and possibly criminal activities directed against others."

6

Although only an appeal in Jordan's case is before the House, I am satisfied, after comparing this passage with the transcript of what took place at the trial of Mrs. Jordan, that it fairly represents the nature of the evidence sought to be called.

7

At the trial, the learned judge ruled against the admissibility of this evidence. The appellant was accordingly convicted on all the charges. The Court of Appeal upheld this ruling and dismissed her appeal. They certified the following point of law of general public importance as involved in their decision, namely:—

"Whether upon the true construction of section 4 of the Obscene Publications Act 1959 expert evidence is admissible, in support of the defence under that section to the effect that pornographic material is psychologically beneficial to persons with certain sexual tendencies in that it relieves their sexual tensions and may divert them from anti-social activities."

8

The question evidently refers, in a compressed form, to that which has been fully expressed above, and I shall deal with it on this basis.

9

My Lords, the answer to this question depends upon a correct understanding of the scheme of the 1959 Act and of the relation between the two principal sections—the definition of "obscene" in section 1(1), and the defence of "public good" in section 4. It is necessary to perceive that they operate in different dimensions.

10

The definition of obscene, as is well known, and by some regretted, is taken from R. v Hicklin and Another (1868) L.R. 3 Q.B. 360, and had been used and interpreted in many cases before 1959. The public good reference is taken with adaptation, from the submission, i.e. suggestion, made by Stephen not long afterwards. The object of the Act of 1959 as stated in the long title was "to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography". The words "the protection of literature" evidently look forward to the new defence of public good which section 4 provided. In fact section 4, as finally enacted, extends beyond literature—it includes, specifically, science, art or learning—and adds, for good measure, "other objects of general concern". (Stephen's word was "interest."] It is under these words that the Appellant seeks to introduce "therapeutic" evidence, and the essential question is how far these words should be taken to extend. The first step in interpretation must be to define the scope of section 1.

11

An article (a technical word which includes books and films) is obscene if its effect is such as to tend to deprave and corrupt persons likely to read, see, or hear the matter contained or embodied in it. The main point to be noticed about this section is, as I pointed out in D.P.P. v Whyte and Another [1972] A.C. 849 at p. 860 that it is directed at relative obscenity—relative, that is, to likely readers. (I use "readers" to include other types of recipients.) In each case it has to be decided who these readers are and so evidence is usually given as to the type of shop or place where the material is, and as to the type of customer who goes there (cf. again, D.P.P. v. Whyte and Another u.s.). When the class of likely reader has been ascertained, it is for the jury to say whether the tendency of the material is such as to deprave or corrupt them, and for this purpose, in general, no evidence, psychological, sociological or medical may be admitted. (See R. v Anderson [1972] 1 Q.B. 304: D.P.P. v Whyte and Another u.s.). The jury consider the material for themselves and reach their conclusion as to its effect. They cannot be told by psychologists or anyone else what the effect...

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20 cases
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1 books & journal articles
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    • United Kingdom
    • The Modern Law Review Nbr. 63-2, March 2000
    • 1 March 2000
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