Prosecuting those who publish obscene articles (an offence under section 2 of the Obscene Publications Act 1959), is a reminder that free-speech and expression is subject to lawful limitations.
The maximum sentence of five years’ imprisonment will frequently be warranted for activities which have disturbing and harmful knock-on effects.
Legislation
According to section 1 of the 1959 Act, one must decide whether the effect of the object in question is:
“…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.”
An important line taken in the case law is that an article must go beyond simply being rude or disgusting; the impact upon those who deal with it is central to the question.
Defining the terms
In Calder & Boyars Ltd (1968) 52 Cr App R 706, the court considered that the term ‘obscenity’ could encompass a wide range of misconduct.
It has also been noted that while not everybody must be offended or influenced by the material, far from it actually, the effect must be more than minuscule: DPP v Whyte [1972] AC 849.
Regarding what ‘article’ can encompass, it is virtually anything capable of displaying some kind of information and/or broadcasting audio and video content. That description includes things which are not primarily made for these purposes.
The term ‘publish’ has been interpreted remarkably widely; a single sale made by a developer of obscene photographs or creator of paedophilic writing to one customer can constitute publication: Taylor [1995] 1 Cr App R 131; GS [2012] EWCA Crim 398.
Moreover, the court decided in Sheppard [2010] EWCA Crim 65 that it was “fundamentally misconceived” to argue that ‘publication’ requires a ‘publishee’. It emphasised that this is a separate body of rules from libel law, so applying the same approach is wrong.
Experts
While expert evidence is generally inadmissible in terms of what constitutes something obscene, it may be employed where the jury would otherwise not understand the effects of the obscenity upon a particular group: DPP v A & BC Chewing Gum Ltd [1968] 1 QB 159.
How we can help
If you have further questions about this offence or require advice and/or representation in relation to allegations of this kind, please contact our team of specialist criminal defence lawyers on 0207 8373456