At Southward Crown Court Michael Peacock was found Not Guilty on six charges brought under the Obscene Publications Act 1959 today. The fact that he was prosecuted at all is illiberal, and has provoked understandable consternation from legal commentators such as David Allen Green.

The charges brought were based on DVDs he sold. The offence is to sell “obscene” things. And the test of obscenity is whether the DVDs will “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.”

When Lady Chatterley’s Lover was tried in 1960 it was under the same act. The barrister prosecuting asked the jury if it “was the sort of book you would want your wife or children to read”. The jurors sniggered. That trial was won by Penguin using the defence in the act (attributable to Roy Jenkins) that it was “justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.” The book was of obvious literary merit, as testified to at trial by people such as E. M. Forster and Bernard Levin.

However, that defence is not available to films unless there are “interests of drama, opera, ballet or any other art, or of literature or learning.” That pornography can be part of this is contentious; and I don’t think this formed part of the defence. Details can be found on the blog of one of the lawyers involved. The prosecution and defence agreed that Mr Peacock owned and sold the DVDs: the issue was one of obscenity. He was being tried for depraving and corrupting people. Under CPS guidance acts of fisting, urination, and BSSM, which were on trial here, can all be considered depraving or corrupting.

The guidance on the meaning of “deprave” is “to make morally bad” and on the meaning of “corrupt” is “to render morally unsound or rotten, to destroy moral purity or chastity, to pervert or ruin”.

The defence in this case was magnificent. Against the charges about the things done to people’s testicles they argued it was like getting a piercing; against the extremity of the contents (and some of it is really extreme) they point out that people don’t start watching the most extreme things, they build up to it. Charges of whipping being obscene were countered with examples of whipping being used in films at the cinema and being part of religious practice.

They also made the point that the jury have not been depraved or corrupted by seeing the material in court, and so it is absurd to think that someone who sought out the material for purchase would be. That the words deprave and corrupt had different meanings in 1959; that it does not mean shock, but moral degradation.

And that is where this law become illiberal. It is an act that would have people jailed for differing in their sexual practice from others, on the basis that those differences are deemed to indicate lesser moral principles. It is an obvious moral solecism to suggest that voluntarily watching certain things can “turn you obscene” in the prosecution’s words. Don’t forget that homosexuality was still a criminal offence when this law was passed. To an observer this trail raises some topical legal issues.

First is the state of jury trials. It is hard to avoid the assumption that jurors today are far less willing to pronounce a moral judgement like this on someone where the possibility of prison is involved. Tony Blair, who overturned double jeopardy to help ensure a conviction in the Lawrence trial, was in favour of trial without jury in some cases. Notably this was blocked by the House of Lords.

As a point of legal principle I would be horrified if someone could be convicted of something like this without the decision of a jury. The core principle of a common law system is that it marries the law as written with the changes in prevailing social attitudes – clearly demonstrated by the Chatterley case, the fact that it is hard to secure a murder conviction in assisted suicide cases, and the overhaul of the law on marital rape in the 1990s.

Second is the compatibility of this act with Human Rights legislation. Under the Human Rights Act we have a right to Freedom of Expression; but it is a limited right, and can have restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals …

The test for this is neatly summed up in four bullet points from the CPS guidance:

  • Is there a legal basis for the restriction?
  • Does the restriction have a legitimate aim?
  • Is the restriction necessary in a democratic society?
  • Is the restriction proportionate to the legitimate aim to be achieved?

The legal basis is the Obscene Publications Act. So that’s a yes.

But the others, on a common sense basis, and to any classical liberal, should obviously be answered no. No it is not legitimate of the government to aim to prevent people being morally corrupted by something they choose to watch; no it is not necessary to protect public morals for the same reason.

It is good news that this was a not guilty verdict. Although that doesn’t affect the Freedom of Expression point it has meant that the CPS will be reviewing their guidelines for prosecution; and if there is enough public attention the act may be repealed. Sometimes laws such as this fall into disuse. I’ve mentioned assisted suicide, but the better example is abortion. There are still restrictions in the statute on abortion, but these are not adhered to – much to the chagrin of pro-life campaigners. At the time of passing the bill the Wilson government was only trying to prevent back street abortions, not to give people unfettered access to abortion. But social attitudes have changed. Abortion is now seen as a fundamental part of a woman’s freedom.

Since the Obscene Publications Act we have seen the decriminalisation of suicide and homosexuality, and the legalisation of abortion; the definition of rape was changed to include marital rape; theatre censorship was ended; and most recently blasphemy laws were repealed.

It may be that this case is part of a liberalising process in the law. Let’s hope so.