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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> GS, R. v [2012] EWCA Crim 398 (09 February 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/398.html Cite as: [2012] WLR(D) 28, [2012] 1 WLR 3368, [2012] 2 Cr App R 14, [2012] EWCA Crim 398 |
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CRIMINAL DIVISION
Strand London, WC2A 2LL |
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B e f o
r
e :
MR JUSTICE KENNETH PARKER
MR JUSTICE LINDBLOM
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R E G I N A |
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GS![]() |
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WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr D Smith appeared on behalf of the Respondent
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Crown Copyright ©
LORD JUSTICE RICHARDS:
The Statutory Provisions
"(1) Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable—
...(b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both."
"(1) 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.
(2) 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.
(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."
"In any proceedings against a person under this section the question whether an article is obscene shall be determined without regard to any publication by another person unless it could reasonably have been expected that the publication by the other person would follow from publication by the person charged."
In addition to those provisions of the 1959 Act reference has been made in the submissions before us to section 6(c) of the Interpretation Act 1978 which provides:
"In any Act, unless the contrary intention appears, words in the singular include the plural and words in the plural include the singular."
Relevant Authorities
R v
Barker (1962) 46 Cr App
R
227, the appellant was charged with having published obscene photographs to four named persons who had corresponded with him and sent him money and received in return the allegedly obscene photographs. Ashworth J, giving the judgment of the court, stated as follows at pages 230 to 231:
"The forms of publication included in the definition in section 1(3)(a) fall into three distinct groups: in one group, comprising the words 'sells, lets on hire, gives or lends,' publication is to an individual; in the second group, comprising the words 'distributes, circulates,' publication is on a wider scale, involving more than one person; in the third group a mere offer for sale or letting on hire constitutes publication.
In a case falling within the first group the first issue for the jury (assuming the publication is admitted) is whether the effect of the article is such as to tend to deprave and corrupt the individual to whom it is published. The second issue is whether any other person or persons were likely to see the article. In this connection the issue is not whether republication has or has not taken place, but whether it could reasonably have been expected. If the answer to the second issue is 'Yes,' a third issue will arise, namely, whether the article is such as to tend to deprave and corrupt the person or persons to whom republication could reasonably have been expected.
In considering the first of these issues, a jury should obviously take into account the article itself, and, in addition they should have regard to the age and occupation of the person to whom the article is published, if such age and occupation is proved in evidence. Similarly, the age and occupation of that person are relevant factors in regard to the second issue, whether republication could reasonably be expected. But they are not the only relevant factors. If, as in the present case, there is evidence to prove that the person to whom the article was published by the accused kept it locked up, this is a relevant factor, though not by any means conclusive. It may well happen that a person who has obtained an obscene article keeps it under lock and key, but nonetheless 'could reasonably have been expected' to show it to others as opportunity arose. In regard to the third issue similar considerations to those involved in the first are applicable ..."
R v
Clayton and Halsey [1963] 1 QB 163, a case in which there had been publication by way of sale to two police officers. Convictions were quashed on the basis in effect that there was no evidence that the officers were susceptible to any degrading or corrupting influence from the articles sold to them.
v
Whyte [1972] AC 849, concerned book sellers who were charged with having obscene articles, namely books and a magazine for publication for gain. The justices found that the significant proportion of future recipients of the articles were going to be the hardcore of regular customers of the book shop whose morals were already in a state of depravity and corruption and that there was a grave doubt whether such minds could be said to be open to any immoral influences which the articles were capable of exerting. The justices accordingly dismissed the informations. The prosecutor's appeal was dismissed by the Divisional Court but a further appeal was allowed by a majority of the House of Lords. As the headnote to the report summarises it, the House of Lords found that to state as a proposition that all the men in question had been incapable of being depraved and corrupted because they were addicts was not a finding of fact but an assumption contrary to the whole basis of the 1959 Act. The Act was not merely concerned with the once for all corruption of the wholly innocent but equally protected the less innocent from further corruption and the addict from feeding or increasing his corruption. The words "deprave and corrupt" in section 1(1) referred primarily to the effect on the mind, including the emotions, of the persons who read or saw it, and that the justices having found as a fact that the articles were capable of corrupting and that the men in question had been depraved and corrupted by them, the book seller should have been convicted.
"A third point to be noticed in the statutory definition [obscenity] is that there is no requirement as to the number of persons, or as to the proportion of its readers, which the article will tend to corrupt and deprave. The word 'persons' is plural, but it may include the singular. I think in some cases the rule de minimis non curat lex would suitably be applied. In Regv
Calder
v
Boyars Ltd [1969] 1 QB 151 it appears from p 155 that:
'30 defence witnesses gave evidence to the effect that the tendency of the book was not to deprave and corrupt but the reverse; that it gave a graphic, compassionate and condemnatory description of the depths of depravity and degradation in which life was lived in Brooklyn, and that the only effect it would produce on any but a minute lunatic fringe of readers would be horror, revulsion and pity;...'
The judgment of the court, delivered by Salmon LJ, contains this sentence, at p 168:
'This court is of the opinion that the jury should have been directed to consider whether the effect of the book was to tend deprave and corrupt a significant proportion of those persons likely to read it.'
That would indeed have been a suitable direction in that case because, on a favourable view, the book could have been regarded as tragic and pathetic rather than pornographic and, if the readers of the book likely to be corrupted by it were only 'a minute lunatic fringe' rather than a significant proportion, the book could not fairly be regarded as obscene. The 'minute lunatic fringe' would be negligible. But I do not think the phrase 'significant proportion' can safely be transplanted to cases of a different character. There is the danger, for instance, of leading a book seller to believe that, so long as he sells a comparatively large number of copies of a pornographic book to persons not likely to be corrupted by it, he can with impunity sell a comparatively small number of copies to persons who are likely to be corrupted by it. In such a case, if the comparative small number of copies is not so small as to be negligible, the statutory definition should be applied according to its terms: the book's 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 it. 'Persons' means some persons. Cockburn CJ, in Regv
Hicklin L
R
3 QB 360 did not suggest any requirement as to the number of persons, or as to the proportion of its readers, which a book might tend to deprave and corrupt."
The Judge's Ruling
v
Whyte, where he said that the word "persons" is plural but it may include the singular; but what was said does not fit with the immediately following passage, where he refers to the de minimis rule and suggests that for there to be an offence there must be a more than negligible number of copies sold to persons who are likely to be corrupted, and where he says in terms that persons means "some persons". From the passage as a whole he cannot have meant that a tendency to deprave and corrupt one person is enough. Reliance was also placed on section 2(6) as being indicative that if a defendant publishes to one person, there can be no offence unless that person can reasonably be expected to publish onwards.
v
Whyte and to readers in the plural in the speech of Lord Wilberforce in the same case (in a passage we have not quoted). The judge rejected as vanishingly unlikely the possibility of someone coming across these logs accidentally or looking at the recipient's computer screen while he was engaged in Internet chat with the defendant.
The submissions before this court
Discussion and Conclusions
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 section 1(1) has no relevance at this stage of the analysis but is a point to which we will return.
v
Whyte. In those cases the charge was of publication by selling to a named person and the only question for the jury to consider was whether the article tended to deprave and corrupt the named individual to whom it had been sold. Here the charges did not specify a named recipient but the principle is the same, since the supporting evidence did not go beyond transmission of the article to the other party to the Internet relay chat. It is therefore the effect on that other party that needs to be considered.
v
Whyte was concerned with the different point whether, in a case where there are likely to be multiple readers of an article, it makes a difference that only a small proportion of them are liable to be depraved and corrupted by the article. The one element in his speech which is relevant for present purposes is his observation that the word "persons" in section 1(1) is in the plural but may include the singular. That in itself is a straightforward reflection of the effect of section 6(c) of the Interpretation Act 1978. As it seems to us, there is no contextual reason for reading the plural in section 1(1) otherwise than as including the singular, and Lord Pearson evidently did not think that there was. Nor do the other cases that we have cited support the view that "persons" was intended to apply only in the plural and not also to include the singular. Any difficulties that might arise in the application of the reasoning of Lord Pearson, in the more extended passage that we have quoted, to a case where there are likely to be multiple readers of an article are of no materiality for the straightforward situation with which we are faced here of a single recipient.
v
Whyte is against any finding that because the recipient is already depraved and corrupted the material cannot have a tendency to deprave and corrupt him.
GS", there is no further problem?