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Obscene Publications Acts


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Under the Obscene Publications Acts 1959 and 1964 it is an offence to publish an obscene article or to have an obscene article for publication for gain. For the purposes of the Acts, obscenity is not limited to pornographic or sexually corrupting material: a book advocating drug taking or violence, for instance, may be obscene. Whether or not particular material is obscene (i.e. whether it tends to “deprave or corrupt”) is a question of fact in each case, to be decided by the jury, and expert evidence is not usually permitted. Material that merely tends to shock or disgust is not obscene. The intention or motive of the author in writing or depicting the material is irrelevant.

“Publishing” an obscene article includes distributing, circulating, giving, hiring, or lending the article, offering it for sale or hire, or transmitting it through the telephone system (i.e. over the Internet). Offering for sale or hire does not include displaying the material in a shop, which is merely an invitation to treat and not an offer. An “article” may be material that is to be looked at, rather than read, and can also include a negative of a film or any article used to reproduce material to be read or looked at.

Publishing an obscene article is an offence of strict liability. However, there is a defence of lack of knowledge if the defendant can show he had not examined the article and had no reason to suspect that publishing it would constitute an offence. Under the Obscence Publications Act 1959 there is also a special defence of public good, which applies when the defendant shows that publication of the article was justified as being in the interests of science, literature, art, or learning. This defence permits the calling of expert opinion as to the literary or artistic merits of a work, as in the famous test case R v Penguin Books Ltd (1960) 161 Crim LR 176 (Lady Chatterley case). The offence of possessing an obscene article in the expectation that it will be published for financial gain is also subject to the defences of lack of knowledge and public good.

If a magistrate suspects that obscene articles are kept in any premises for the purpose of publication for gain, he may issue a warrant authorizing the police to search for and seize the articles. If they prove to be obscene, the magistrate may order them to be forfeited.

The Acts do not apply to material published by means of television or broadcasting, but they do apply to cinema screening and theatre performances, subject to the rule that prosecutions in such cases require the consent of the Director of Public Prosecutions or the Attorney General, respectively. These offences, too, are subject to the public good defence. The Criminal Justice Act 1994 for the first time set out legislative guidelines for the censorship of films and videos and gave the Home Office powers to overrule the decisions of the British Board of Film Censors in some circumstances.

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Subjects: Law.


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