Obscene Publications Act 1857
Encyclopedia
The Obscene Publications Act 1857 (20 & 21 Vict. c.83), also known as Lord Campbell's Act or Campbell's Act, was a major piece of obscenity
legislation in the United Kingdom of Great Britain and Ireland
. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material.
misdemeanour and effectively prosecuting authors and publishers was difficult even in cases where the material was clearly intended as pornography.
The origins of the Act itself were in a trial for the sale of pornography presided over by the Lord Chief Justice, Lord Campbell
, at the same time as a debate in the House of Lords 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, strychnine or arsenic", and proposed a bill to restrict the sale of pornography; giving statutory powers of destruction would allow for a much more effective degree of prosecution.
The bill was controversial at the time, receiving strong opposition from both Houses of Parliament, 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
was sufficiently stringent.
Critically, the Act did not define "obscene", leaving it to the courts to devise a test, based on the common law
.
, Campbell's successor as Lord Chief Justice, held in an appeal that the test of obscenity was "...whether the tendency of the matter charged as obscenity is 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 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.
In both 1959 and 1964, acts were passed in England and Wales
with the same title as the 1857 act. As of 2008 these latter two Obscene Publications Acts are still in force, albeit as amended by more recent legislation.
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
legislation in the United Kingdom of Great Britain and Ireland
United Kingdom of Great Britain and Ireland
The United Kingdom of Great Britain and Ireland was the formal name of the United Kingdom during the period when what is now the Republic of Ireland formed a part of it....
. For the first time, it made the sale of obscene material a statutory offence, giving the courts power to seize and destroy offending material.
Origins
Prior to this Act, whilst the "exposure for sale" of "obscene books and prints" had been made illegal in law, the publication of obscene material was treated as a common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
misdemeanour and effectively prosecuting authors and publishers was difficult even in cases where the material was clearly intended as pornography.
The origins of the Act itself were in a trial for the sale of pornography presided over by the Lord Chief Justice, Lord Campbell
John Campbell, 1st Baron Campbell
John Campbell, 1st Baron Campbell PC, KC was a British Liberal politician, lawyer, and man of letters.-Background and education:...
, at the same time as a debate in the House of Lords 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, strychnine or arsenic", and proposed a bill to restrict the sale of pornography; giving statutory powers of destruction would allow for a much more effective degree of prosecution.
The bill was controversial at the time, receiving strong opposition from both Houses of Parliament, 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
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
was sufficiently stringent.
Provisions of the Act
The Act provided for the seizure and destruction 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). 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.Critically, the Act did not define "obscene", leaving it to the courts to devise a test, based on the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
.
Later developments
Whilst the Act itself did not change, the scope of the work affected by it did. In 1868 Sir Alexander CockburnSir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
, Campbell's successor as Lord Chief Justice, held in an appeal that the test of obscenity was "...whether the tendency of the matter charged as obscenity is 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 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.
In both 1959 and 1964, acts were passed in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
with the same title as the 1857 act. As of 2008 these latter two Obscene Publications Acts are still in force, albeit as amended by more recent legislation.