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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> GS, R. v  EWCA Crim 398 (09 February 2012)
Cite as:  1 WLR 3368,  2 Cr App R 14,  EWCA Crim 398,  WLR(D) 28
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Strand London, WC2A 2LL
B e f o r e :
MR JUSTICE KENNETH PARKER
MR JUSTICE LINDBLOM
| R E G I N A
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
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."
"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 ..."
"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 Reg v Calder v Boyars Ltd  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 Reg v 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
The submissions before this court
Discussion and Conclusions