Expert Legal Adviser MILTON FIRMAN asks: What is the legal meaning of Obscene Publications?

Oct. 20, 2011 - PRLog -- You face a legal problem.  You may have sought advice and felt let down by the system.  Talk of hourly rates and vast fees.  Appointments you have to wait for, and even travel into town.  Delay, uncertainty and worry, lots of worry.  Now Milton Firman turns all of this on its head.

He advises immediately.  He is on call 24/7.  No appointments required.  He will see you at your home.  In the evenings or at weekends.  Fixed fees or no fees at all.  He is fearless and straight talking.  He is an experienced legal adviser, an expert in this field of law and offers advice regarding the best way forward for you.

The Attorney General, in a Parliamentary Written Answer on 16 June 1997, said that "in determining whether a prosecution would be in the public interest, the principal factors include:

•the degree and type of obscenity together with the form in which it is presented;
•the type and scale of any commercial venture;
•whether publication was made to a child or the possibility that such publication would be likely to take place."

The Law

The Obscene Publications Acts (OPA) 1959 provide for:

•Prosecution (under section 2 of the 1959 Act as expanded by section 1 of the 1964 Act); and
•Forfeiture (under section 3 of the 1959 Act).

The Acts are designed:

•To penalise purveyors of obscene material by making it an offence under section 2 either to publish an obscene article or to have an obscene article for publication for gain; and
•To prevent such articles from reaching the market by way of seizure and forfeiture proceedings under section 3.

For either proceedings, the test of whether an article is obscene is the same and set out at section 1 of the OPA 1959.

A prosecution cannot be commenced more than 2 years after the commission of the offence.

In general, the issue "obscene or not" must be tried by the jury without the assistance of expert evidence.

The general rule used to be that English and Welsh courts did not accept jurisdiction over offences committed outside England and Wales. That general rule is now subject to a number of statutory exceptions, as the UK has extended its jurisdiction to become extra-territorial for specified offences, and has made special provision for the determination of where the actus reus of the offence took place. The common law also provides for an extension of jurisdiction in certain circumstances.

The starting points for jurisdictional matters are the provisions of the Sexual Offences (Conspiracy and Incitement) Act 1996 and section 72 of the Sexual Offences Act 2003 (in force from 1 May 2004). Section 72 of the Sexual Offences Act 2003 confers extra-territorial jurisdiction on the courts of England and Wales in respect of a number of offences contrary to the Sexual Offences Act 2003 and offences contrary to the Protection of Children Act 1978 and section 160 of the CJA 1988 (the Video Recording Act 1984 and 2010 is not mentioned).

There are very difficult jurisdictional issues about whether material hosted overseas is within reach of the English criminal law. It will depend on a range of factors including who posted the material on the site, where it is hosted and what the person intends the material to do. If a web site is hosted abroad and is downloaded in the UK, the case of

R v Perrin [2002]

R v Perrin is specifically concerned with 'publishing' electronic data under the Obscene Publications Act 1959 and states that the mere transmission of data constitutes publication. It is clear from the decision in R v Perrin and in the earlier case of R v Waddon (6 April 2000), that there is publication both when images are uploaded and when they are downloaded. In the case of R v Waddon the Court of Appeal held that the content of American websites could come under British jurisdiction when downloaded in the United Kingdom.

The Obscene Publication Act 1959 has been amended to deal with electronically stored data or the transmission of such data (see section 1(3)).

European Court of Human Rights

Legislation in England and Wales prohibits obscene publications, performances, and photographs. The Convention rights to freedom of expression set out in Article 10 may be used to claim that the particular legislation is incompatible with the Convention. Article 10 states that the right of freedom of expression shall include:
"freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Article 10(2) goes on to say that, "the exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of ... public safety, for the prevention of disorder or crime, for the protection of health or morals, protection of the reputation or rights of other ..."

Any restriction of freedom of expression that is imposed by national law must be capable of objective justification as being necessary in a democratic society for one of the purposes set out.

The so called "margin of appreciation" enables states to have a degree of latitude to decide law and social policy in the light of their own cultures and values (Handyside v United Kingdom (1976) 1 EHRR 737).

For more information, here is the deal.  Call Milton on 0161 485 1100 or 07909 900449 at any time or him at milton@miltonfirman.co.uk

Write to him at 24 Byrom Street, Altrincham WA14 2EN.

He will always be pleased to speak to you at any time.  In confidence.  With confidence.

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