Obscenity After The Dropped 'Girls Aloud' Prosecution

Obscenity is a crime under English law.

More exactly, it is a criminal offence to publish - or to possess with the intention of commercial gain - an "obscene article".

Importantly, this is all the intention required for a conviction to be secured: that one intends to publish or intends to make a commercial gain. Any intention to be actually obscene is legally irrelevant.

So what is an "obscene article"?

Under the Obscene Publications Act 1959:

"an article shall be deemed to be obscene if its effect...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".
(Emphasis added.)

This is a question of fact for the Court to try, not a question of motive.

As the added emphasised text demonstrates, it is for the Court to determine whether an article is "such as to tend to deprave and corrupt persons". It is the fulfilment of this test which is the key battleground of almost all obscenity trials.

And so I thought it was on this point that the prosecution for obscenity against Darryn Walker, who put his vile fantasies online about the band Girls Aloud, was dropped this week.

I had blogged in October 2008 on this case being brought, adopting a general "free speech" position.

Since then, I had wondered about the implications of the case.

(Indeed, in a couple of days of inspiration, I wrote out the draft of a play about a hapless public intellectual facing a similar obscenity prosecution.)

From the newspaper reports, the key feature - the real yuck factor - seemed to be that the subjects of the nasty fantasies were real people. Had the fantasies been, say, about fictional characters, or had it been a straight non-fiction account of a disgusting incident, it appeared to me that the case would not have been brought.

But I was still surprised that the case had been brought at all.

This was because it was conventional wisdom that the Obscene Publications Act 1959 was no longer used for publications of the written word.

The general view among lawyers was that the failure of the 1975 Inside Linda Lovelace trial meant that it was pointless to try and bring prosecutions where there was any - even spurious - argument of literary merit. (The Act has a "public good" defence.)

When I heard that the case was dropped I assumed that the prosecutors had revisited their decision to prosecute, and that they had sensibly realised that the publication of such vile works was an unfortunate implication of a society with free expression.

But then I read the press release of the Crown Prosecution Service (hat tip to the estimable Padraig Reidy of Index on Censorship):

"The Crown Prosecution Service has today offered no evidence at Newcastle Crown Court against Darryn Walker, accused of one offence under the Obscene Publications Act, 1959.

"The court was told by David Perry, QC, for the Crown, that there was no longer a realistic prospect of conviction. This followed the defence serving new evidence on the prosecution on 12 June 2009, just over two weeks before the trial was due to start.

"The case was reviewed again and in the light of the evidence, it was decided it could no longer go ahead. We notified the defence and the court of our decision as soon as we were able.

"The court was told the prosecution had received a number of expert reports, one of which cast doubt over the accessibility of the article to people searching the internet and that it could only be found by those determined to find it.

"The prosecution was unable to provide sufficient evidence to contradict this and so took the decision there was no longer a realistic prospect of conviction."

So the technical basis for the decision to drop the prosecution was not whether the material tended to deprave or corrupt.

Looking again at the relevant wording in the Act, but now with different emphasis added:

"an article shall be deemed to be obscene if its effect...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".

It appears that the legal requirement which was not met was that there was no likelihood that the obscene material would be readily available to a class of people who could be depraved and corrupted.

However, the material was (I understand) available on an internet archive and was found without difficulty by an British tabloid newspaper journalist.

If my understandings here are correct, then the Crown Prosecution Service seem to be suggesting that publication on the internet is not necessarily publication to the world.

John Ozimek and Julian Petley in The Guardian yesterday suggested that there had been deep internal disputes about this case in the Crown Prosecution Service. The decision to prosecute was taken locally, but it seems the national leadership took a far more liberal and sensible view.

In view of this, it appears to me that the Crown Prosecution Service's stated reason for dropping the case may well reflect some internal compromise, leaving open the question of whether the material met the key test of obscenity in the first place.

I have often stated that litigation is an inefficient means of addressing certain wider issues. These wider issues can be about science or, as here, about normative standards in a free society.

The law of obscenity is currently misconceived: the Court's view of the effect on the readers or viewers should be irrelevant. And the decisions to prosecute should not be so easy.

Even where the law of obscenity still performs a useful function - prohibiting various "philia" materials for example - the law should be recast as addressing the creation or possession of such materials, and not on the supposed effects of the materials on an audience.

And the approval of the Director of Public Prosecutions should now be required for any prosecution in respect of content, as it certainly should not be left to local prosecutors.

This has been a most unfortunate case, from beginning to end; but perhaps it can now lead to long required reform of English obscenity law.