Obscene Publications Act 1857 - Application of The Act

Application of The Act

The Act did not define "obscene", leaving it to the courts to devise a test, based on the common law.

Regina v. Hicklin was heard in 1868 and 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, a London magistrate who was 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, Campbell's successor as Lord Chief Justice, 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." This test became known as the Hicklin test and 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.

This interpretation was clearly a major change from Campbell's opinion only ten years before — the test now being the effect on someone open to corruption who obtained a copy, not whether the material was intended to corrupt or offend.

Cockburn's declaration remained in force for several decades, and most of the high profile seizures under the Act relied on this interpretation.