Hicklin Test - History

History

The modern English law of obscenity began with the Obscene Publications Act 1857, also known as Lord Campbell’s Act. Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill, which provided for the seizure and summary disposition of obscene and pornographic materials. The Act also granted authority to issue search warrants for premises suspected of housing such materials.

Regina v. Hicklin involved one Henry Scott, who resold copies of an anti-Catholic pamphlet entitled "The Confessional Unmasked: shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession." When the pamphlets were ordered destroyed as obscene, Scott appealed the order to the court of Quarter Sessions. Benjamin Hicklin, the official in charge of such orders as Recorder, revoked the order of destruction. Hicklin held that Scott's purpose had not been to corrupt public morals but to expose problems within the Catholic Church; hence, Scott's intention was innocent. The authorities appealed Hicklin's reversal, bringing the case to the consideration of the Court of Queen's Bench.

Chief Justice Cockburn reinstated the order of the lower court, holding that Scott's intention was immaterial if the publication was obscene in fact. Justice Cockburn reasoned that the Obscene Publications Act allowed banning of a publication if it had a "tendency ... to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." Hicklin therefore allowed portions of a suspect work to be judged independently of context. If any portion of a work was deemed obscene, the entire work could be outlawed.