Act
The Act is relatively short, divided into 5 sections, the fifth covering the extent of the Act and its commencement date. Section 1 covers the test to determine if something is obscene; an article is taken to be obscene if the entire article "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". The test is based on "persons"; DPP v Whyte AC 849 established that it was not sufficient for an individual to be depraved or corrupted, it must be that a significant number of people likely to read it would become corrupt. "article" is defined within Section 1 as anything containing material that is read or looked at, any sound recordings and any film or other picture record. A publisher, as used in the Act, is also defined in Section 1; "publisher" is taken to mean anyone who "distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire", or "in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it". The Criminal Justice and Public Order Act 1994 amended this section to include the transmission of the article electronically.
Section 2 covers the actual prohibition of publishing "obscene material". Section 2(1) creates a new offence, "publishing an obscene article", which replaces the common law misdemeanour of "obscene libel" which was previously the crime. Somebody can be found guilty of this regardless of if it was done for profit or not. Where the article is a film, the consent of the Director of Public Prosecutions is required before a prosecution can commence. Section 2(4) states that, where an article is obscene, no other common law charges should be brought, and it should instead be dealt with through the 1959 Act, intended to limit prosecutions to those crimes found in this Act. Section 2(5) creates a defence of "innocent dissemination"; if the publisher can prove that they did not anticipate any obscenity problems, and did not examine the article in question for such issues, they cannot be convicted.
Powers of search and seizure are covered by Section 3, which also repealed the Obscene Publications Act 1857. This section allows a Justice of the Peace, if satisfied that there are reasonable grounds to believe obscene publications are kept on certain premises for profit, to issue a warrant for that location. This warrant allows a police officer to enter the premises, search them and remove any suspect publications; if such publications are found, the officer can also take records relating to the businesses trade. The articles must then be brought before a magistrate and either forfeited by the owners or returned. The owner, author or publisher of the articles, or the person from whom they were seized, may appear before the magistrate to argue why they should not be forfeited.
Section 4 creates the defence of public good, which applies both to prosecutions for publication of obscene materials and to the forfeiture proceedings described in Section 3. This allows for a valid defence if the defendant can show that the publication of the materials was justifiable as for the "public good", which is defined as "in the interests of science, literature, art or learning, or of other objects of general concern". Experts and their testimony are admissible for determining the value of such publications. This section was initially treated very strictly by trial judges, but this attitude was reversed after the 1976 trial of the book Inside Linda Lovelace, where the jury found the publishers not guilty despite the judge saying that "if this isn't obscene, members of the jury, you may think that nothing is obscene". Three years later the Williams Committee recommended that restrictions on written pornography be lifted, and these restrictions have been largely abandoned.
Read more about this topic: Obscene Publications Act 1959
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