Obscene Publications Act 1857
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The Obscene Publications Act 1857 (20 & 21 Vict. c.83), also known as Lord Campbell's Act or Campbell's Act, was a piece of legislation in the
United Kingdom of Great Britain and Ireland The United Kingdom of Great Britain and Ireland was a sovereign state in the British Isles that existed between 1801 and 1922, when it included all of Ireland. It was established by the Acts of Union 1800, which merged the Kingdom of Great B ...
dealing with
obscenity An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin ''obscēnus'', ''obscaenus'', "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be use ...
. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material. The Act superseded a 1787 Royal Proclamation by
George III George III (George William Frederick; 4 June 173829 January 1820) was King of Great Britain and of Ireland from 25 October 1760 until the union of the two kingdoms on 1 January 1801, after which he was King of the United Kingdom of Great Br ...
titled ''Proclamation for the Discouragement of Vice''. The proclamation commanded the prosecution of those guilty of "excessive drinking, blasphemy, profane swearing and cursing, lewdness, profanation of the Lord's Day, and other dissolute, immoral, or disorderly practices". Prior to this Act, the "exposure for sale" of "obscene books and prints" had been made illegal by the
Vagrancy Act 1824 The Vagrancy Act 1824 (5 Geo. 4. c. 83) is an Act of Parliament of the United Kingdom that makes it an offence to sleep rough or beg in England and Wales. It is still mostly in force and enforceable. Critics, including William Wilberforce, c ...
. but the publication of obscene material was a
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
misdemeanour The effective prosecution of authors and publishers was difficult even in cases where the material was clearly intended as pornography.


Origins

The spur for the Act arose from a trial for the sale of pornography presided over by the
Lord Chief Justice Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
, Lord Campbell, at the same time as a debate in the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
over a bill aiming to restrict the sale of poisons. Campbell was taken by the analogy between the two situations, famously referring to the London pornography trade as "a sale of poison more deadly than
prussic acid Hydrogen cyanide, sometimes called prussic acid, is a chemical compound with the formula HCN and structure . It is a colorless, extremely poisonous, and flammable liquid that boils slightly above room temperature, at . HCN is produced on an in ...
,
strychnine Strychnine (, , US chiefly ) is a highly toxic, colorless, bitter, crystalline alkaloid used as a pesticide, particularly for killing small vertebrates such as birds and rodents. Strychnine, when inhaled, swallowed, or absorbed through the eye ...
or
arsenic Arsenic is a chemical element with the symbol As and atomic number 33. Arsenic occurs in many minerals, usually in combination with sulfur and metals, but also as a pure elemental crystal. Arsenic is a metalloid. It has various allotropes, but ...
", and proposed a bill to restrict the sale of pornography, arguing that giving statutory powers of destruction would allow for a much more effective degree of prosecution. Lord Campbell, the Chief Justice of Queen's Bench, introduced the bill. The bill was controversial at the time, receiving strong opposition from both
Houses of Parliament The Palace of Westminster serves as the meeting place for both the House of Commons and the House of Lords, the two houses of the Parliament of the United Kingdom. Informally known as the Houses of Parliament, the Palace lies on the north bank ...
, and was passed on the assurance by the Lord Chief Justice that it was "...intended to apply exclusively to works written for the single purpose of corrupting the morals of youth and of a nature calculated to shock the common feelings of decency in any well-regulated mind." The House of Commons amended the bill to exclude Scotland, on the grounds that
Scottish common law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
was sufficiently stringent.


Provisions of the Act

The Act provided for the seizure and summary disposition of any material deemed to be obscene, and held for sale or distribution, following information being laid before a "court of summary jurisdiction" (a
magistrates' court A magistrates' court is a lower court where, in several jurisdictions, all criminal proceedings start. Also some civil matters may be dealt with here, such as family proceedings. Courts * Magistrates' court (England and Wales) * Magistrate's Cour ...
). The Act required that following evidence of a common-law offence being committed – for example, on the report of a plain-clothes policeman who had successfully purchased the material – the court could issue a warrant for the premises to be searched and the material seized. The proprietor then would be called upon to attend court and give reason why the material should not be destroyed. The Act also granted authority to issue search warrants for premises suspected of housing such materials.


Application of the Act

The Act did not define "obscene", leaving it to the courts to devise a test, based on the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
. '' 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 The courts of quarter sessions or quarter sessions were local courts traditionally held at four set times each year in the Kingdom of England from 1388 (extending also to Wales following the Laws in Wales Act 1535). They were also established in ...
. Benjamin Hicklin, a London magistrate who was in charge of such orders as
Recorder Recorder or The Recorder may refer to: Newspapers * ''Indianapolis Recorder'', a weekly newspaper * ''The Recorder'' (Massachusetts newspaper), a daily newspaper published in Greenfield, Massachusetts, US * ''The Recorder'' (Port Pirie), a news ...
, 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 Since 1857, a series of obscenity laws known as the Obscene Publications Acts have governed what can be published in England and Wales. The classic definition of criminal obscenity is if it "tends to deprave and corrupt," stated in 1868 by Lord ...
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 The Hicklin test is a legal test for obscenity established by the English case ''Regina v Hicklin'' (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of ...
'' 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.


Current status

The
Obscene Publications Act 1959 The Obscene Publications Act 1959 (c. 66) is an Act of Parliament of the United Kingdom Parliament that significantly reformed the law related to obscenity in England and Wales. Prior to the passage of the Act, the law on publishing obscene mater ...
significantly reformed the law related to obscenity, coming into force on 29 August 1959. The actual reform of the law was limited, with several extensions to police powers included. The 1959 did, however, repeal the 1857 Act and became the main Act dealing with obscene publications. The
Obscene Publications Act 1964 The Obscene Publications Act (OPA) 1964 is a short piece of English legislation providing minor additional provisions in addition to the Obscene Publications Act 1959, which is the primary statute in this area. The OPA 1964 was specifically desi ...
made several minor additional provisions to the 1959 Act. As of 2008 these latter two
Obscene Publications Acts Since 1857, a series of obscenity laws known as the Obscene Publications Acts have governed what can be published in England and Wales. The classic definition of criminal obscenity is if it "tends to deprave and corrupt," stated in 1868 by Lord ...
are still in force, albeit as amended by more recent legislation.


Notes


Bibliography

* {{UK legislation Obscenity law Book censorship in the United Kingdom United Kingdom Acts of Parliament 1857 United Kingdom pornography law