Obscenity Prosecutions In Uk Law
The law surrounding obscenity in the UK is primarily governed by the Obscene Publications Act 1959 (OPA 1959) and the Obscene Publications Act 1964, with some overlapping areas in other legislation such as the Communications Act 2003 and the Criminal Justice and Immigration Act 2008 (for extreme pornography).
This explanation covers:
Legal definition of obscenity
Key elements of obscenity law
Detailed case law (5+ cases)
Modern applications and criticisms
🔹 1. Legal Definition of Obscenity (OPA 1959)
Section 1 of the Obscene Publications Act 1959:
A publication shall be deemed obscene if its effect taken as a whole 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.
Key features:
Focuses on “effect” on likely audience.
Requires that material has a tendency to deprave and corrupt.
Applies to written material, films, sounds, images, and other media.
Covers publication, possession with intent to distribute, and distribution.
🔹 2. Key Legal Tests and Elements
“Deprave and corrupt”: Interpreted as morally corrupting an average, non-suspecting viewer.
"Effect taken as a whole": A work must be judged in its entirety.
Public good defence (Section 4 OPA 1959): If the work is in the interests of science, literature, art, or learning, prosecution may fail.
Intention to publish or distribute is a key element.
🔹 3. Key Case Law (Detailed Analysis of 5+ Cases)
1. R v. Hicklin (1868) LR 3 QB 360
Pre-1959 case, but foundational.
Facts:
Hicklin concerned an anti-Catholic pamphlet titled "The Confessional Unmasked", which described sexual acts during confession.
Authorities seized it under the Obscene Publications Act 1857.
Legal Test Created:
A publication is obscene if it tends to deprave and corrupt those whose minds are open to such immoral influences.
The test focused on isolated passages, not the work as a whole.
Importance:
Gave birth to the “Hicklin Test”, focusing on isolated effect, later rejected by the 1959 Act.
This case shaped obscenity law for decades before being replaced.
2. R v. Penguin Books Ltd [1961] Crim LR 176
The Lady Chatterley’s Lover trial
Facts:
Penguin Books was prosecuted for publishing D.H. Lawrence’s novel "Lady Chatterley's Lover", which contained explicit sexual content and language.
The prosecution infamously asked, “Would you want your wife or servants to read this book?”
Legal Issues:
Whether the novel’s literary merit outweighed its obscene content.
First major case using the public good defence under the OPA 1959.
Outcome:
Penguin Books was acquitted.
The court accepted that the book had literary merit and did not intend to deprave and corrupt.
Significance:
Marked a cultural shift in British attitudes toward sexuality and censorship.
Highlighted the balance between free expression and moral protection.
3. R v. Anderson [1972] 1 QB 304
Facts:
Involved the publication of a novel, "The Devil Rides Out", containing graphic violence and sexual rituals.
Prosecuted under the OPA 1959.
Key Issues:
Whether violent content, not just sexual content, could be considered obscene.
Outcome:
The Court found that violence could contribute to a work being obscene if it had a tendency to deprave and corrupt.
However, conviction was quashed due to misdirection of jury on literary merit.
Importance:
Extended the scope of obscenity beyond sexual content.
Affirmed the importance of the public good defence and proper jury instructions.
4. R v. Calder and Boyars Ltd [1969] 1 QB 151
Facts:
Involved publication of "Last Exit to Brooklyn" by Hubert Selby Jr., depicting homosexuality, rape, and drug use.
Publisher was prosecuted under OPA 1959.
Legal Issue:
Whether the book had a tendency to deprave and corrupt, even if it had social and artistic value.
Decision:
The conviction was overturned on appeal.
The court held that the literary merit and social critique outweighed the obscene content.
Importance:
Strengthened the public good defence.
Highlighted how context and intent matter in obscenity trials.
5. R v. Walker [2009] (Unreported)
Internet and modern context
Facts:
Defendant posted fictional stories of child sexual abuse on a website.
Charged under the OPA 1959, even though it was purely text and not imagery.
Key Legal Issues:
Whether purely fictional, text-only depictions of extreme sexual violence constituted "obscene publications."
The audience was limited to a niche group of readers.
Outcome:
Case was dropped after expert reports stated the material was unlikely to deprave and corrupt the intended readers.
Significance:
Raised questions about freedom of expression, especially in fictional and online content.
Showed the limitations of the OPA 1959 in a digital age.
6. R v. Peacock [2012] (Unreported)
Facts:
Michael Peacock was charged under the OPA 1959 for selling DVDs depicting gay BDSM and sexual acts including urination and fisting.
Legal Issue:
Whether the content was obscene under the 1959 Act.
Outcome:
Peacock was acquitted by a jury.
The jury did not find that the material would deprave or corrupt its likely audience (consenting adults interested in such content).
Importance:
Landmark for LGBTQ+ rights and sexual expression.
Raised debate over whether private adult material should be criminalised.
🔹 4. Modern Context and Criticisms
Critics argue the OPA 1959 is outdated, especially in the age of the internet and adult freedom.
There's increasing difficulty in defining what will “deprave and corrupt” in a media-saturated, permissive society.
Some prosecutions are now brought under other laws (e.g. for extreme pornography under the Criminal Justice and Immigration Act 2008).
Freedom of expression, artistic liberty, and sexual autonomy are key themes in modern challenges to obscenity law.
✅ Summary Table of Key Cases
| Case | Year | Key Outcome | Significance |
|---|---|---|---|
| R v. Hicklin | 1868 | Created the "Hicklin test" | Early censorship standard |
| Penguin Books (Lady Chatterley) | 1961 | Acquitted | Affirmed literary merit as defence |
| R v. Anderson | 1972 | Conviction quashed | Violence can be obscene |
| Calder & Boyars | 1969 | Conviction overturned | Recognised social and artistic value |
| R v. Walker | 2009 | Case dropped | Limits of OPA with fictional online content |
| R v. Peacock | 2012 | Acquitted | LGBT and sexual rights upheld |
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