Obscene Publications Act 1959 - Background and Passage

Background and Passage

Obscene publications were, historically, something for the canon law; the first prosecution in a court of common law was not until 1727. Prior to the passing of the 1959 Act, the publication of obscene materials within England and Wales was governed by the common law and the Obscene Publications Act 1857. The common law, as established in R v Hicklin 3 QB 360, set the test of "obscenity" as "whether the tendency of the letter published is to deprave and corrupt those whose minds are open to such immoral influence and into whose hands the publication might fall", while the 1857 Act allowed any stipendiary magistrate or any two Justices of the Peace to issue a warrant authorising the police to search for, seize and destroy any obscene publications. It was generally accepted that the existing law was heavily flawed, for several reasons. Firstly, the so-called "Hicklin test" from R v Hicklin was both unduly narrow and unyielding; it did not, for example, take into account the intentions of the defendant. Secondly, the test meant that individual sections of a published work could by analysed and the entire work declared obscene, even if the rest of the work was fairly mild. Thirdly, there was no defence based on the public good, and no opportunity to submit evidence showing the artistic merits of the work, and fourthly, works could be destroyed without the author or publisher even being informed and given an opportunity to speak.

During the 1950s, efforts started to attempt reform of the law. Following the prosecution of several notable publishers, the Society of Authors formed a committee to recommend reform of the existing law, submitting their proposals and a draft bill to the Home Office in February 1955. Instead of the wholesale reform the Society hoped for, the government instead chose limited reform through the Children and Young Persons (Harmful Publications) Act 1955 dealing with horror comics, which kept the Hicklin test but required that the work as a whole be examined. The Society and sympathetic Members of Parliament then attempted to introduce a Private Member's Bill, but this was quashed by the ensuing general election. Another Private Member's Bill was successfully introduced in March 1957 and sent to a committee. Composed of a mix of censors and reformers, the committee's recommendations were mixed, consisting of both conservative (further powers of search and seizure for the police) and liberal (the use of expert evidence attesting to the work's artistic merit) proposals.

The committee's proposals were published in March 1958, and a new bill was introduced under the Ten Minute Rule, failing to gain the requisite support. After A. P. Herbert stood for Parliament on a platform of obscenity reform, the Home Office had a change of heart and introduced a new bill through Roy Jenkins in 1959, a compromise between the aims of the campaigners and the goals of the Home Office. It was introduced to the House of Lords by Lord Birkett, received the Royal Assent on 29 July 1959, and came into force on 29 August 1959 as the Obscene Publications Act 1959.