Introduction
Criminal Offences relating to the publication of obscene material have long existed. The test for obscenity was devised by Cockburn CJ in the case of Reginav Hicklin (1867-68) L.R. 3 Q.B. 360:
“…whether the tendency of the matter charged as obscen(e) 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”
The Obscene Publication Act 1959[1] creates the statutory criminal offence of the publication of obscene articles[2]. Publication is defined in section 1(3)[3], obscenity is defined in section 1(1)[4], and article is defined in section 1(2)[5]. The definition of publication was amended in February 2005 to cover the digital era.[6]
The number of prosecutions under this Act has been in decline. In 1996 there were 562 cases[7] brought, by 2003 it was down to 39[8]. There are undoubtedly a number of reasons for this. The difficulty in defining what precisely is obscene is one; and the rise of the internet is another. There has been some doubt about whether the 1959 Act even with its amendment could adequately deal with publication of material via the Internet.
Obscene Material on the Internet
In the case of R v Stephane Laurent Perrin [2002] EWCA Crim 747 the Court of Appeal considered whether the content of a web page were capable of being prosecuted under the Obscene Publication Act 1959. The facts in the case were that a police officer with the Obscene Publications Unit in the course of his duty used a computer to visit a web site. The web page that he accessed was a preview page that was available to all. If the viewer wished to see more material then it was necessary to provide a name, address and credit card details, the police officer did just that. Mr Perrin subsequently accepted that he was responsible for the material that was contained in the website. He was convicted in relation to the material contained in the preview page but not the material that required the officer to enter personal details. He appealed. One of the issues argued before the Court of Appeal was whether the relevant publication was only to the police officer who accessed the website. The jury having clearly drawn a distinction in relation to the likely audience of the preview site and pay only site.
The Court of Appeal relied upon the case of R v Barker [1962] 46 Cr App R 227 as authority for the proposition that they are different types of publication, namely to an individual, to a group, or where there is a mere offer to supply the material to a potential audience.
The Court were satisfied that the mere transmission of data amounted to publication and it did not matter whether the transmission occurred when the data was uploaded to the internet or downloaded from it. The particular type of publication in this case was “the making available of preview material to any viewer who may choose to access it (including of course vulnerable young people)”[9]. They concluded that in such a situation the prosecution was entitled to invite the jury to look beyond PC Ysart when decided if there was a tendency to deprave and corrupt.
The case of Perrin establishes that the creation of the web page is sufficient to establish publication. The test of obscenity will be determined by who is likely to access the website. Pornographic content on a web page that has the tendency to deprave and corrupt the viewer will therefore be sufficient to establish criminal liability.
The case of Perrin does not answer what would happen if it were the case that there was only one recipient. It does not address the situation where the recipient is unknown. This is the situation that arose in the prosecution of Gavin Smith.
Regina v Gavin Smith
The prosecution of Gavin Smith concerned internet relay chat (IRC) which is instant communication via the internet. Gavin Smith’s computer was seized by the police during a search of his address and on it were the complete logs of the IRC that he had been involved in. The chat logs that were discovered on the defendant’s computer recorded the entire conversation that Gavin Smith had been involved in. The conversations were one to one chats involving the defendant and only one other person. They were private conversation not in any group forum and not available for anyone else to view. The conversations whilst fantasy contained detailed descriptions of the physical and sexual abuse of children. It was clear that each participant in the conversation derived some enjoyment from the conversation itself.
This was the first case in which an attempt had been made to use the Obscene Publications Act to prosecute private one to one chat over the internet where the content was fantasy. The other participant in the chat was unidentified and unknown. The ‘article’ upon which this prosecution concentrated were the comments made by the defendant in writing which he subsequently sent over the internet to the other unknown person.
The case was initially tried at the Crown Court sitting at Maidstone. It was argued on behalf of the Gavin Smith that:
- That there was no evidence that the articles were obscene because there was no evidence that they had a tendency to deprave and corrupt.
- In order to be capable of being obscene, publication must be to more than one person and there was no evidence that this had occurred.
The first argument was essentially that the participants in the IRC were of a similar mind none of whom expressed any shock or revulsion, therefore they cannot be said to be depraved or corrupted. The defendant was no more guilty of a criminal offence that the recipient of his remarks. There is a superficial attractiveness to this analogy. In it simplest form the argument is that if a person is already so interested in this material that he seeks it out and then participates in chat of this nature, how can he possibly be depraved and corrupted by it. That state of mind, namely depravity, had already been reached. This is an argument that has been advanced in courts in Obscene Publication Act cases from the outset.
It was raised and firmly rejected by the House of Lords in the case of DPP v Whyte [1972] A.C. 849. In his judgment Lord Wilberforce said
“The Act is not merely concerned with the once for all corruption of the wholly innocent; it equally protects the less innocent from further corruption, the addict from feeding or increasing his addiction”
In other words it is wrong to approach depravity as if it is a once and for all state of mind that once reached is attained for all time. In the Gavin Smith case it was clear that both participants were feedings off each other. They obtained enjoyment from the conversation. They were clearly affected by it. The statutory test for obscenity as defined by Lord Wilberforce covers this kind of situation.
It was the second argument that found favour with the trial judge. He formed the view that the defendant’s behaviour was equivalent to two people having a private conversation in a room and as such was not criminal. His view was that in this particular case the publication needed to be more than one person and because it was not he ruled that there was no case to answer.
Court of Appeal decision; R v GS [2012] 2 Cr. App. R. 14
The prosecution appealed against the decision of the trial judge. The Court of Appeal were asked to consider whether in order to be obscene an article needs to be published to more than one person. It was argued on behalf of Gavin Smith that internet relay chat falls far beyond what the Obscene Publications Act 1959 ever had in mind. Parliament had not expressly included internet relay chat within the Obscene Publications Act by amendment despite being asked to consider it, and that this was an attempt by the Crown to shoehorn the facts into an offence which was designed to cover magazines and books. The simple fact that the comments that the defendant made and then transmitted were received by only one other person meant that the statutory definition of ‘persons’ in section 1(1) was not met. It was no different to a conversation between two people in a public place like a public house or a café.
The Court of Appeal rejected that argument. It decided that it was not necessary that publication be to more than one person.
Lord Justice Richards in his ruling said the following at paragraph 21:
“It seems to us that he (the trial judge) confused the separate questions of publication and obscenity and he reached an erroneous conclusion that publication to an individual could not give rise to an offence under s.2(1) of the 1959 Act. In our judgment, to publish an article to an individual is plainly to publish it within the meaning of the 1959 Act. That is clear from the list in s.1(3) of the forms that the publication may take. There is nothing in that subsection to support the view that publication has to be to more than one person before it can constitute publication for the purposes of the Act. On the contrary, as the court held in Barker , one of the three groups into which the forms of publication in s.1(3) fall is publication to an individual. One sees that same thread of reasoning run through Clayton and Halsey and the observation we have quoted from Lord Salmon’s speech in Director of Public Prosecutions v Whyte . They are not the only instances in the case law but we do not need to cast the net wider. The reference to “persons” (in the plural) in the definition of obscenity in s.1(1) has no relevance at this stage of the analysis but is a point to which we will return."
And at paragraph 26
“Thus, it cannot be said that because there is only one recipient and only one likely reader of an article, the article is incapable of meeting the test of obscenity for the purposes of the Act. It would be extraordinary if it were otherwise. There could be no sensible reason for the legislature having excluded otherwise obscene material from the scope of the legislation, merely because it was likely to be read by, and therefore liable to deprave and corrupt, only one person, a person who might, for example, be a young child”.
The statutory definition of publication in section 1(3) outlines the different types of publication that will be sufficient. The terms ‘sells’, ‘lets on hire’, ‘gives’, and ‘lends’ whilst not conclusive, are highly indicative of an intention that publication to an individual is included within it. Indeed the observation of Lord Justice Richards that it would be contrary to all good sense if the definition of publication did not include a publication to a single recipient, especially where that recipient could be a child, has clear merit.
The reference to “persons” in the definition of section 1(1) includes the singular[10] and is in any event not relevant to whether there has been a publication or not, but to the test of obscenity. This reference to person(s) is a simple reflection that the nature of the test of obscenity will vary depend on who the recipient(s) is or are. This is what the Court of Appeal meant when they spoke of confusion between the tests for publication and obscenity. The question of obscenity is to be judged with regard to those who are likely to encounter the article, its readers or viewers. If it is just one person then the question a jury are required to answer is whether the ‘article’ has the tendency to deprave and corrupt that one person.
Discussion
There can be no doubt that the Obscene Publication Act 1959 was not drafted with the Internet in mind. It is also quite clear that the amendment to the statutory definition of publication to include the electronic transmission of data, did not envisage the importance that the internet would come to have in all aspects of modern life. The decision of the Court of Appeal in R v GS can be considered in both a legal context and a wider social one. In a legal context it is difficult to criticise this decision. The statutory test plainly envisages publications to an individual alone. There have been a number of cases in the past where an obscene article has been supplied to a single person.[11] Gavin Smith when he sent his comments to the other person, transmitted data which is stored electronically. He published those comments. The difference between sending these comments over the internet via IRC and a conversation in a café is that the definition of ‘article’ in section 1(2) does not extend to the unrecorded spoken word. That leaves the question of obscenity. The issue of whether an article is obscene or not, has always been a matter for the jury[12]. It is a question of fact. The Court of Appeal approved the reasoning of Lord Wilberforce in DPP v Whyte that even though the recipient was of a similar mind to the defendant and was effectively an addict seeking to fulfill his addiction this does not mean there is not a tendency to deprave and corrupt. This point is well made because the nature of the conversations in this case demonstrate exactly how each person’s thought process and comments are affected by the others person’s comments. It is precisely because the obscene article is this case is a record of a conversation that the actual effect on each individual can be determined.
The other analysis of this decision is the wider social context. What are its implication for free speech and the internet? Is it the first indication of attempts to control an individual’s thoughts? Is it an invasion of privacy? Will prosecutions for conversations on the internet now become commonplace?
There will be many who focus on the fact that these conversations were private and fantasy to highlight how this decision indicates an erosion upon an individual’s freedom of expression. The passage of time will demonstrate the effect this decision has on free speech on the internet. It must be remembered that this was a fact specific prosecution. The subject matter of the conversations was not the legal and consensual sexual activity of adults rather it was the sexual and physical abuse of children. The very nature of the conversation demands the protection of the law, the subject matter of the conversation need it. There was no evidence in this case that the conversations were ever made available to others, but whenever material is transmitted over the internet that possibility exists. That on its own demands the protection of the law.
Gary Pons
Chambers of Simon Draycott QC
5 St Andrews Hill
Gary Pons was the prosecuting barrister in the case of Regina v Gavin Smith, both in the Crown Court and in the Court of Appeal.
[1] The full title of the Act is “An Act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography”.
[2] Section 2(1) Obscene Publication Act 1959
[3] For the purposes of this Act a person publishes an article who—
(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or
(b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it [, or, where the matter is data stored electronically, transmits that data]
[4] For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, 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.
[5] In this Act “article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures.
[6] Schedule 9, paragraph 3 of the Criminal Justice and Public Order Act 1994: “where the matter is data stored electronically, transmits that data”
[7] Edwards, Susan (1998). “On the contemporary application of the Obscene Publications Act 1959″. Criminal Law Review (Sweet & Maxwell)
[8] Para 15, Page 13 of the Home Office Consultation: On the possession of extreme pornographic material August 2005
[9] Para. 22 of the Judgment in Perrin
[10] See s.6(c) of the Interpretation Act 1978
[11] R v Barker [1962] 46 Cr App R 227; R. v Alan Taylor [1995] 1 Cr. App. R. 131; R. v Clayton & Halsey [1962] 3 W.L.R. 815
[12] See Judgment of Lord Salmon in DPP v Whyte
