The Obscene Publications Act, 1857
Created | Updated May 26, 2005
The Obscene Publications Act was introduced in September 1857 by Lord Campbell, the Lord Chief Justice. The first arrests were made that same month, and included the pornographic publisher William Dugdale, one of the men whose actions prompted Lord Campbell to act.
Before this, the only law against sexually explicit material was King George III's 1787 Royal Proclamation 'For the Encouragement of Piety and Virtue, and for the Preventing and Punishing of Vice, Profaneness and Immorality', including the suppression of all 'loose and licentious Prints, Books, and Publications, dispersing Poison to the minds of the Young and Unwary and to Punish the Publishers and Vendors thereof'. This was policed by groups such as the Proclamation Society, which became The Society for the Suppression of Vice which was instituted in 1802 to 'check the spread of open vice and immorality, and more especially to preserve the minds of the young from contamination by exposure to the corrupting influence of impure and licentious books, prints, and other publications...'. This had little effect, because they had no power to destroy the material.
London's Holywell Street1 was known as Bookseller's Row because it was full of print and book shops. It was extremely popular in unregulated Victorian times, maybe because in 1834 there were 57 porn shops in this one street, all with a display designed to attract the attention of passers-by. Porn novels, erotic prints, etchings, catalogues for prostitutes that contained their 'specialities' were all sold here. Guide books such as Yokel's Preceptor, advising the best places to find homosexual men in London, were published by William Dugdale, blackmailer, forger, plagiarist, and the most prolific pornographer of the age.
Surrounding these shops were every kind of sexual thrill-seekers. Gay Victorian men would gather around the street, hoping to make a conquest, impressionable young women would congregate, peering through the windows. At the time it was felt that this encouraged a dangerous promiscuity, and mere weeks after an article about the street in The Daily Telegraph, Lord Campbell introduced the bill to the House of Commons, supported by The Society for the Suppression of Vice. Anything of this kind was called 'pornography', meaning 'the writings of prostitutes', the lowest kind of sexual outcast that could be imagined. This was the first time the word had been used as part of the English language.
One of the chief opponents of the Act was Lord Lyndhurst. His objection was:
... but what is the interpretation which is to be put upon the word 'obscene?' I can easily conceive that two men will come to entirely different conclusions as to its meaning.
He ridiculed the Act, attempting to persuade his peers to imagine the enforcement of the Act, but it did no good, and the Act was passed.
Lord Campbell had stressed that the Act 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.
He stated that it would eliminate the 'sale of poison more deadly than prussic acid, strychnine or arsenic', and would protect women, children, and the feeble-minded'.
The Act allows police to search premises, but not people, where such publications are on sale, and Customs Officers and Post Office officials to destroy consignments, and to prosecute offenders.
William Dugdale was taken to court, presided over by Lord Campbell, and charged. He defended himself by protesting his innocence, pleading for the sake of his children, and then threatening the court with a knife. He was found guilty and sentenced to a long term of imprisonment. He later died while in the Clerkenwell House of Correction. A woman called Mary Elliot pleaded guilty when charged under the Act at a later date, and was sentenced to a year of hard labour, even though she was 49.
The Hicklin Case
The Hicklin Case became the standard case precedent in the matter of obscenity. It centred around the seizure of a pamphlet written by a militant Protestant, entitled The Confessional Unmasked: Shewing the Depravity of the Romanish Priesthood, the Iniquity of the Confessional, and the Questions Put to Females in Confession. The pamphlet dealt mainly with the author's perceived views of the dangers of the confessional, illustrated by the type of question that Roman Catholic priests allegedly asked young ladies therein.
A Wolverhampton magistrate, Benjamin Hicklin, ordered the pamphlet seized, and the author was convicted under the Obscene Publications Act of 1857, which was thereafter commonly known as the Hicklin Act.
The importance of the case was two-fold. Firstly, the fact of the intent of the pamphlets was held to be irrelevant, effectively meaning that a work was not considered in the round, but page by page. Secondly, the prosecution was brought on the basis that the pamphlet was obscene per se, and therefore it was for the defendant to prove his innocence, not for the Crown to prove his guilt.
It essentially remains the test for obscene publications in Great Britain to this day.
Lady Chatterley's Lover
Perhaps the most celebrated case ever brought under the Obscene Publications Act was the 1960 prosecution of Penguin Books for the posthumous publication of DH Lawrence's book Lady Chatterley's Lover.
The prosecution was based on the premise that the novel put promiscuity on a pedestal, and that the majority of the book was merely 'padding' between the admittedly graphic scenes of sexual intercourse. The case became a notorious flash point for the ongoing battle between the increasingly liberal publishing industry and the conservative establishment.
The defence called several members of the clergy, one of whom remarked that the work 'was a novel and not a tract, and novels deal with life as it is'. The establishment was horrified that the clergy should defend the book, and were even more aghast when the jury acquitted Penguin of all charges.
The case was important because it highlighted the fact that an increasingly rigid establishment was out of touch with public opinion on the matter of obscenity.
In 1976, a jury acquitted the publishers of Inside Linda Lovelace, on the grounds that the novel would not corrupt or deprave those who were likely to buy the book. The Metropolitan Police thereafter dropped prosecutions against books under the Act, believing that if Inside Linda Lovelace was not obscene, then nothing was.
In 1979, a committee chaired by Bernard Williams, recommended that novels should be excluded altogether from the Act, as the cases were expensive and rarely successfully prosecuted.
The last novel banned under the Act was Lord Horror by David Britton. The novel was ordered to be seized by a Manchester magistrate, Derrick Fairclough, under section three of the Act, meaning that the book could be destroyed without jury trial. The decision was overturned by the Court of Appeal in 1992, some two years after proceedings began.
Major Amendments to the Act
1954 - Convictions would not occur if the publication could be proved to be 'in the interests of science, literature, art or learning'. Expert evidence would be allowed if it were literary, artistic, scientific or meritorious, the publication must now be examined as a whole, and publishers and authors had the right to give evidence for the defence despite not being defendants themselves.
1964 - The Act now covered wholesalers, or any person having an obscene article for publication for gain, unless it could be proved that 'he had not examined the article and had no reasonable cause to suspect that it was such that his having it could make him liable to be convicted of an offence'.
1977 - Erotic films were now covered as well as written material.
1994 - The Criminal Justice and Public Order Act 1994 carried an amendment to the Act that covered computer images. It became illegal to transmit electronically stored data which is obscene on resolution into a viewable form. This was mainly to protect children, and covered photographs, and pseudo-photographs.
Some Interesting Facts
The Act was officially defined in 1868 as applying to work having 'a tendency to deprave and corrupt those whose minds are open to such immoral influences'.
The Act was also used to forbid the distribution of information about contraception and physiology to the working classes.