[COURT OF APPEAL]

REGINA v. COMMISSIONER OF POLICE OF THE METROPOLIS, Ex parte BLACKBURN AND ANOTHER (No. 3)

Crime - Obscene libel - Obscene article - Pornographic publications - Police procedure - Whether performance of duty of law enforcement - Whether consent of Director of Public Prosecutions condition precedent to police prosecution - Whether case for mandamus - Obscene Publications Act 1959 (7 & 8 Eliz. 2, c. 66), ss. 1 (1), 2 (1), 3 (1) (3) - Prosecution of Offences Regulations 1946 (S.I. 1946 No. 1467 (L. 17)), reg. 6 (2) (d)

Crown Practice - Mandamus - Commissioner of Police of Metropolis - Whether order available to compel performance of duty - Enforcement of obscenity statute - Whether case for mandamus

Police - Duties - Law enforcement - Commissioner of Police of Metropolis - Obscene publications - Whether proper performance of duty of law enforcement - Whether case for mandamus - Prosecution of Offences Regulations 1946 reg. 6 (2) (d)

Law Reform - Whether necessary - Obscene publications - Test of obscenity - Defence of public good

The Obscene Publications Act 1959¹ was passed "to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography." The Act was amended by the Obscene Publications Act 1964 "to strengthen the law for preventing the publication for gain of obscene matter ..."

The applicant moved for an order of mandamus to be a directed to the Commissioner of Police of the Metropolis requiring him to secure the enforcement of the law against the illegal publishing and selling of pornographic material both by seizure of the material and by prosecuting the publishers and sellers, to reverse the decision whereby no police officers could prosecute such offenders without the prior decision of the Director of Public Prosecutions and requiring him to reverse his decision preventing the seizure of obvious pornographic material by police officers stationed outside New Scotland Yard. The Divisional Court dismissed the application.

On appeal by the applicant, during which he produced obscene material sold in many shops in Soho and other districts and contended, inter alia, that regulation 6 (2) (d) of the Prosecution of Offences Regulations 1946² was ultra vires:-

Held, dismissing the appeal, that although the evidence disclosed that obscene material was widely available for sale in shops the applicant had not established that it was a case for the

1 Obscene Publications Act 1959, s. 1: "(1) For the purposes of this Act 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."

S. 2, as amended by the Act of 1964: "(1) ... 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 - (a) on summary conviction to a fine not exceeding £100 or to imprisonment for a term not exceeding six months; (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both."

S. 3: "(1) If a justice of the peace is satisfied by information on oath that there is reasonable ground for suspecting that, in any premises ... obscene articles are, ... kept for publication for gain, the justice may issue a warrant ... empowering any constable to enter ... and search the premises, ... and to seize and remove any articles found therein ... which the constable has reason to believe to be obscene articles and to be kept for publication for gain." [The Criminal Justice Act 1967, s. 25 provides that a "justice of the peace shall not issue a warrant under section 3 (1) of the Obscene Publications Act 1959 ... except on an information laid by or on behalf of the Director of Public Prosecutions or by a constable."] ... (3) Any articles seized under subsection (1) of this section shall be brought before a justice of the peace ... and the justice before whom the articles are brought may thereupon issue a summons to the occupier of the premises ... to show cause why the articles ... should not be forfeited; ..."

2 Prosecution of Offences Regulations 1946, reg. 6: "(2) The chief officer of police shall also report, as respect offences alleged to have been committed within his police district, to the Director of Public Prosecutions - ... (d) cases of obscene or indecent libels, exhibitions or publications, in which it appears to the chief officer of police that there is a prima facie case for prosecution; ..."

court to interfere with the discretion of the police in carrying out their duties (post, pp. 254B-C, 256H - 257A, 264G).

Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118, C.A. applied.

Per curiam. The Obscene Publications Act 1959 requires amendment if the law relating to pornography is to be strengthened (post, pp. 250E-H, 254E, 257A-B, F, 264H).

Regulation 6 (2) (d) of the Prosecution of Offences Regulations 1946 is intra vires (post, pp. 253F-G, 261G).

Observations on police practice regarding "disclaimers" and reference of cases to the Director of Public Prosecutions for advice prior to prosecution (post, pp. 252D-254A, 255G-H,261E-F).

Per Lord Denning M.R. Section 3 (3) of the Act of 1959 is mandatory (post, p. 253B).

Decision of the Divisional Court affirmed.

The following eases are referred to in the judgments:

Director of Public Prosecutions v. Whyte [1972] A.C. 849; [1972] 3 W.L.R. 410; [1972] 3 All E.R. 12, H.L.(E.).

Reg. v. Anderson [1972] 1 Q.B. 304; [1971] 3 W.L.R. 939; [1971] 3 All E.R. 1152, C.A.

Reg. v. Calder & Boyars Ltd. [1969] 1 Q.B. 151; [1968] 3 W.L.R. 974; [1968] 3 All E.R. 644, C.A.

Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118; [1968] 2 W.L.R. 893; [1968] 1 All E.R. 763, C.A.

Reg. v. Gold (unreported), November 3, 1972, Central Criminal Court.

No additional eases were cited in argument.

APPEAL from the Divisional Court.

The applicants, Albert Raymond Blackburn and Tessa Marion Blackburn (married woman), appealed against the order of the Divisional Court on October 30, 1972, dismissing the applicants' motion for an order of mandamus of October 5, 1972, directed to the Commissioner of Police of the Metropolis "to enforce or secure the enforcement of the law against those who illegally publish and sell pornographic material both by seizure thereof and by prosecution of the publishers and retailers and requiring him to reverse the decision made under his authority or continued under his authority whereby no police officers can prosecute such offenders, however obvious and scandalous the offence, without obtaining the prior decision of the Director of Public Prosecutions and requiring him to reverse his policy decision preventing the seizure of obviously pornographical material by officers of his force stationed outside New Scotland Yard" (as sought in the motion of October 5, 1972).

The grounds of appeal were, inter alia: (1) that the Divisional Court admitted that very large quantities of illegal pornographic material were being disseminated and must get into the hands of children and young persons in a proportion which was very small in relation to the total but must tend to corrupt and deprave and/or shock very many young persons because the quantities of such material were so vast, but wrongly found as a fact that that was not caused by any substantial failure of the police to enforce the law ... (3) that the Divisional Court wrongly held that it had no discretion to inquire into the priorities assigned by the commissioner to various crimes even though it might be convinced that his priorities failed

to show a proper regard to the principle of law that the interests of children and young persons must always be protected ... a fortiori where their morals and/or mental health were endangered; (4) that the Divisional Court wrongly excluded the evidence that station officers ... were prevented from doing their duty ... by the "commissioner's policy" and that in deciding to take no action themselves but to refer the applicants to the Obscene Publications Squad, C.I., New Scotland Yard, for further reference to the Director of Public Prosecutions they were obeying the commissioner's orders.

The facts are stated in the judgments.

The applicant Albert Raymond Blackburn in person. The basic finding of the Divisional Court that the police were not at fault is challenged. It is perfectly plain that there is a continuing breach of duty by the commissioner. The leading case on "obscene articles" is Director of Public Prosecutions v. Whyte [1972] A.C. 849 where in effect the majority of the House of Lords held that any finding other than guilty would have been perverse: see in particular the judgments of Lord Wilberforce at pp. 860-863 and Lord Pearson at pp. 864-867 which show that the law can be enforced. The exhibits here are stronger than in that case. Shopkeepers have had advanced knowledge that the police were going to search. A serious continuing breach of security is alleged. The evidence had only to be read.

The gravity of the social evil is featured by: (1) outrage to the rule of law. There are still many complaints but it is now generally known that it is futile to complain. It is for the judges to ensure respect for the rule of law. (2) Corruption of young persons and shock to children. (3) Undermining of marriage and the family. Pornography is very powerful propaganda for promiscuity. A society which does not protect its children is decadent and contemptible. (4) Encouragement of sexual offences and (5) Ancillary crimes.

The commissioner in his letter of July 10, 1972, was manifestly wrong in law in saying that it was not for the police to decide whether a publication contravened the law but to bring it to the attention of the Director of Public Prosecutions who would decide whether or not to institute proceedings. Regulation 6 (2) (d) of the Prosecution of Offences Regulations 1946 (S.I. 1966 No. 1467) made under the Prosecution of Offences Acts 1879 (see sections 2 and 8), 1884 (see section 3) and 1908 (see section 2) is being interpreted as if it is a prerequisite that the consent of the director is obtained before proceedings are instituted. The regulation was not designed to inhibit the commissioner by preventing station officers enforcing the law: see section 2 (3) of the Prosecution of Offences Act 1908. The regulation does not say that the consent of the director is required: nor does it mean that no action except seizure could take place until the director has studied the papers. In innumerable obvious cases the police are not condemned to total inaction by having to refer them to the director. The meaning of the word "report," taking into account the words "prima facie case," in regulation 6 (2) (d) must be sought in the light of section 3 of the Act of 1884, "information with respect to indictable offences ... within the district ... and to the dealing with those offences"; for the

regulations were made under that Act. The reports are to be made for the purpose of giving information and not in order to inhibit action. The regulation ought not to be construed in a manner repugnant to common sense and the rule of law. Where there are innumerable cases of obvious illegality, such that any finding of fact other than guilty would be perverse, there must be gross negligence on someone's part if they are not prosecuted. If those submissions about the regulations were wrong, Parliament should at once be asked to repeal any such part of the regulations as was having such effect.

The construction which was sought to be put upon regulation 6 (2) (d) was such as to make it ultra vires the Acts of 1879 and 1884. The Director of Public Prosecutions is not mentioned in the Obscene Publications Acts of 1959 and 1964, and by section 25 of the Criminal Justice Act 1967 a justice shall not issue a search warrant except on an information laid by or on behalf of the director "or by a constable." Section 2 (3) of the Act of 1908 expressly provided that nothing in the Acts of 1879, 1884 or 1908 "shall preclude any person from instituting or carrying on any criminal proceedings, ..."

The appeal raises an enormously important point, especially affecting children. The facts speak for themselves. The commissioner and the police owe a duty to the public to enforce the law: Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. Ubi jus ibi remedium [see Co.Litt. 197 b]. This is a stronger case than that. The social evil is much greater. Difficulty arose in the Divisional Court in connection with Lord Denning's observations about policy decisions [1968] 2 Q.B. 118, 134-136 but the court accepted the essential matters referred to in the notice of motion. The commissioner had not done his duty and he can be compelled by mandamus to do so: see Ex parte Blackburn [1968] 2 Q.B. 118, per Lord Denning M.R. at p. 136 and per Edmund Davies L.J. at pp. 148-149. The commissioner would never wish to be or to appear to be recalcitrant when it was established that a new approach was needed to ensure respect for the rule of law.

Where, as here, it is established that there is a serious and continuing failure to enforce the law or to secure its enforcement by the commissioner and this failure to enforce the law tends to corrupt or deprave very great numbers of people a month, and many thousands of young persons are in danger of such corruption each month through such failure, then the court in the last resort would grant mandamus if no satisfactory undertakings were given (as they would be) requiring the commissioner to take reasonable steps within a reasonable time to ensure the enforcement of the law: a fortiori where it is shown that the law could very easily be enforced and that the commissioner is actually preventing officers who are willing to enforce it from enforcing it.

Donald Farquharson Q.C. and Anthony Hidden for the commissioner. The issue was crystallised by Lord Widgery C.J. in the Divisional Court: Has the commissioner been shown to have turned his back upon the enforcement of the law? The police have been fulfilling their functions. They and the Director of Public Prosecutions must have in mind the revolution that has taken place in the public outlook and the difficulty of

obtaining convictions in prosecutions for pornography: see for example the recent case at the Old Bailey, Reg. v. Gold (unreported), November 3, 1972.

By section 2 of the Prosecution of Offences Act 1879, the Director of Public Prosecutions is required to give advice and assistance to chief officers of police, clerks to justices and other persons respecting the conduct of any criminal proceedings for the time being prescribed by regulations under the Act. By section 3 of the Act of 1884 returns are to be submitted to the director. By section 2 (1) of the Act of 1908 the regulations under the Act of 1879 are to provide for the director taking action in cases which appear to him to be of importance or difficulty or require his intervention. It was under those Acts that the Prosecution of Offences Regulations 1946 (S.I. 1946 No. 1467) were made. The applicants are not governed by the regulations (see section 2 (3) of the Act of 1908) but chief officers of police are to some extent bound by the regulations.

There must be some sort or standard set for obscenity prosecutions and the person responsible for that standard is the Director of Public Prosecutions. It is wrong to have different standards of obscenity prosecutions in different parts of the country. That is why "obscene or indecent libels, exhibitions or publications" are included with the other offences which have to be referred to the director under regulation 6 of the Prosecution of offences Regulations 1946. Prima facie in the case of obscenity it must be referred to the director. It is the practice of the director to conduct such cases himself through his own branch. He may advise no prosecution; but that does not conclude the commissioner's task.

The commissioner has to dispose of his staff according to his priorities. He is 4,000 below strength. His priorities in the enforcement of the criminal law have to be determined within the limits of his resources, which he deploys to secure their maximum effectiveness. He is accountable to the Secretary of State for the Home Department. The commissioner has furnished details of the procedure of the police with regard to obscene publications and of searches, seizures, prosecutions and the penalties imposed by the courts, which in the great majority of cases are no deterrent.

The test of obscenity in the Obscene Publications Act 1959, section 1 (see Halsbury's Statutes of England, 3rd ed., vol. 8 (1969), p. 479), an "effect ... to tend to deprave and corrupt ...," has led to the "aversion argument" in defences to prosecutions (see, e.g., Reg. v. Calder & Boyars Ltd. [1969] 1 Q.B. 151, 168-169). Section 2 is the penal section wìth a maximum fine of £100 on summary conviction or six months' imprisonment. Section 4 provides the defence of "public good" under which expert evidence may be given for the defence as in Reg. v. Gold (unreported), November 3, 1972, Central Criminal Court. In the result there have been many acquittals.

Police administration is a matter for the commissioner. The evidence discloses no failure to enforce a duty imposed by law. The applicant should not be permitted to give evidence of what policemen have said to him: it would be outrageous for that to be allowed. If the commissioner had failed to carry out his duty, had in Lord Widgery C.J.'s phrase "turned his back on the enforcement of the law," then an order would be granted. No point is taken as to the applicant's status, but that point is reserved.

Lord Widgery C.J. refused to contemplate the court running the Metropolitan Police: "... it is not ... for this court to interfere in matters within the legitimate discretion of the commissioner"; and he cited Lord Denning M.R. in Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118, 136. The initiative for prosecutions for obscene publications cannot be left to the individual officer.

Gordon Slynn for the Attorney-General. No application for an order of mandamus has been sought against the Director of Public Prosecutions. The Prosecution of offences Regulations 1946, made under the Prosecution of offences Act 1879, 1884 and 1908, are not ultra vires and cannot be alleged to be so. The duties of the Director of Public Prosecutions are set out in section 2 of the Act of 1879: see Halsbury's Statutes, 3rd ed., vol. 8, pp. 217, 218. In law there is a real difference between cases where the "consent" of the director is required for prosecution and cases where there must be a "report" to the director.

There is a large mail order business in respect of this type of publication. The police have powers of search and seizure under section 3 of the Obscene Publications Act 1959. There is an area where it is very difficult to decide whether or not there should be a prosecution in this class of case and uniformity is desirable: see, for example, the quashing of the convictions on appeal in Reg. v. Anderson (the Oz case) [1972] 1 Q.B. 304 where the jury had not been properly directed on the "argument of aversion" of the defence (per Lord Widgery C.J. at p. 315).

The applicant in reply said, inter alia, that the Director of Public Prosecutions did not set the standard on obscenity and referred to the speech of Lord Wilberforce in Director of Public Prosecutions v. Whyte [1972] A.C. 849, 859-863. There had been a substantial non-performance of duty.

November 27. The following judgments were read:

LORD DENNING M.R. Nearly five years ago Mr. Blackburn came before us saying that the Commissioner of Police was not doing his duty in regard to gambling clubs: see Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118. He comes again today: but this time it is in regard to obscene publications. He comes with his wife out of concern, he says, for their five children. He draws our attention to the shops in Soho which sell "hard" pornography (that is, publications which are extremely obscene). There are about 60 of them. They usually have the one word "Books" over the door or window, but no name of the proprietor He also draws our attention to the many, very many, shops in other districts, usually sweetshops and newsagents, which sell "soft" pornography (that is, publications which are moderately obscene). He says that all these publications, be they hard or soft, are plainly obscene. Yet they are openly on sale. Anyone can go into the shops and buy them without let or hindrance, if they are willing to pay the price. Mr. Blackburn has done so himself: so has a solicitor. They went out during the course of

the case and produced them to us. Whenever a point arose as to this shop or that, or as to this publication or that, he went and bought a copy.

Seeing that we have a law passed in 1959 which prohibits the publication of obscene matter, Mr. Blackburn naturally says: "Why have not the police done something about it? Why have they not seized these publications and destroyed them? Why have they not prosecuted the offenders?" Other people, I have no doubt, say the same. Mr. Blackburn made such a case for inquiry that Lawton L.J. and his colleagues called on the Commissioner of Police for an answer. The commissioner made answer which the Divisional Court thought sufficient. Mr. Blackburn appeals to this court. His appeal raises so many questions that I will deal with them separately.

The social evil

Mr. Blackburn condemned the evil in a telling phrase. Pornography, he said, is powerful propaganda for promiscuity. So it is for perversions. To those who come under its influence, it is altogether bad. We have been shown examples of it. The court below declined to look at them. We felt it our duty to do so, distasteful as it is. They are disgusting in the extreme. Prominent are the pictures. As examples of the art of coloured photography, they would earn the highest praise. As examples of the sordid side of life, they are deplorable. There are photographs showing young men and women who appear to have worked themselves up into a state of extreme lust for the sake of the photographers. In their lust these young people have adopted positions natural, and positions unnatural: and have indulged in sexual relations and perversions, not only between themselves, but also between themselves and animals. The photographers have crouched close - inches close - to them and to their most private parts. They have photographed them apparently in the very act in the utmost detail. They have taken these photographs in bright colours. They have enlarged them. Then the printers have multiplied them in their thousands and hundreds of thousands. To add to it, there is letterpress. It tells of it all, gloatingly, without shame, as if to commend the readers to do likewise, or worse. To give the appearance of truth, letters are published, genuine or invented, describing the pleasures of perversions. Degrading as these publications are to the young people who participate, the prime evil-doers are those who promote them for money. The printers, the publishers, and the retailers. The "hard" ones sell for as much as £5 or £6 apiece. "Soft" ones for 40 or 50 pence. Whereas clean publications of comparable size sell for 10 or 20 pence. The reason for the high prices is, of course, that the purveyors know that these publications are obscene. They know they are contrary to law. They run the risk that the police may come in to seize their whole stock and destroy it. Nay more, that they may be prosecuted to conviction, and be either fined or imprisoned. So they charge a high price to compensate them for the risk they run. Some may criticise the law and the way in which it is enforced. But, as to the evil itself, there can be no doubt. At any rate, Parliament has had no doubt about it. It has enacted laws with the express intention of stopping it. To these I now turn.

The law as to obscenity

The law of England has always condemned pornography and sought to suppress it. The history of it was given by Lord Birkett in the House of Lords on the second reading of the Obscene Publications Bill on June 2, 1959 [ Parliamentary Debates, Lords, 1958-59, vol. 216, pp. 490 - 501]. To which I would add my few words there and in The Road to Justice, Sir Alfred Denning (1955), pp. 81-85. Lord Birkett spoke for all when he said:

"While it is important that pornography should be struck at with vigour, and everybody would support such action, we ought to be extremely careful not to injure true literature."

Parliament heeded his words. When the Obscene Publications Act 1959 was passed on July 29, 1959, its object was stated in the preamble to be. "... to provide for the protection of literature; and to strengthen the law concerning pornography." In 1964 Parliament found that even that law was not strong enough. It passed the Obscene Publications Act 1964, the object of which was again "to strengthen the law for preventing the publication for gain of obscene matter ..."

The principal way in which Parliament strengthened the law against pornography was by giving the police extensive powers of search and seizure. The police could search the shops or stalls of retailers, the warehouses of wholesalers, the stores of printers and of publishers. They could seize all obscene material they found there, books, documents and articles of any kind which might be sold or kept for gain. Parliament was careful, however, to require safeguards against any abuse by the police of these powers. In order to search and seize, they had to obtain a warrant from a magistrate for the purpose: and, when they seized any articles, they had to bring them before the magistrate, who could then issue a summons against the occupier.

In addition to these powers of search and seizure, Parliament made a new statutory offence. Instead of the old common law misdemeanour, it made it an offence for any person to publish or distribute or sell an obscene article or even to have it in his possession or control with a view to gain. This statutory offence was punishable on summary conviction with a fine not exceeding £100, or imprisonment not exceeding six months: or on indictment with a fine or imprisonment up to three years.

Unfortunately this legislation against pornography seems to have misfired - at any rate so far as prosecutions are concerned. Experience has shown that much material - which at first sight would appear to be pornographic in the extreme - has escaped the reach of the law. Thus, in the case of the Last Exit to Brooklyn, the trial took nine days. Six expert witnesses for the prosecution. Thirty for the defence. The jury found the publishers guilty, but it was upset on appeal on the ground of misdirection: see Reg. v. Calder & Boyars [1969] 1 Q.B. 151. In the case of Oz No. 28 School Kids Issue, the trial took 27 days. Most of the time was taken up by expert evidence. The jury found that it was obscene contrary to the Act of 1959, but again this finding was upset on appeal on the ground of misdirection: see Reg. v. Anderson [1972] 1 Q.B. 304. Then, in the case of the "Dirty old Men," the magistrates

at Southampton, after two days, found that the books were not obscene because the only persons likely to read them were males of middle age and upwards. Their decision was upheld by two to one in the Divisional Court, but was reversed by three to two in the House of Lords: see Director of Public Prosecutions v. Whyte [1972] A.C. 849. Finally, we were shown some books which were the subject of a trial at the Old Bailey only three or four weeks ago: Reg. v. Gold (unreported), November 3, 1972. It took seven days. Without any evidence, I should have pronounced them extremely obscene. But we are told that experts gave evidence that such material was very therapeutic for young people and would encourage them to sexual experiments without inhibition. The jury found the accused Not Guilty.

Those cases took an immense amount of time, manpower and money, not only of the police, but of witnesses and juries, of lawyers and of the accused persons themselves. Yet one may ask: To what avail? They have done nothing to stop pornography.

Apart from these cases, there have been a number of prosecutions in the magistrates' courts. The Commissioner of Police supplied us with a list of the results. There were several fines of £25 and £50, and a few of £100. These are obviously no deterrent. They are a mere trifle compared to the profits. Counsel for the Commissioner of Police told us:

"Fines of £5,000 or £10,000 would be nearer the mark. That is the sort of fine which would begin to pinch. Until the punishment really hurts, it is economically worth while to bring in more of this material."

Why has the legislation misfired?

Why has the legislation misfired? I regret to say that it is in the wording of the statute and in the way the courts have applied it. In the first place, the test of obscenity is too restricted, or it has been interpreted too narrowly. It is defined as the tendency "to deprave and corrupt persons who are likely, ... to read," it [see section 1 (1) of the Act of 1959]. That test can be used skilfully to obtain an acquittal by this piece of sophistry: if the likely readers are those who are already depraved and corrupt, this item will not make them more so: but if the likely readers are just ordinary sort of folk, they will be so revolted that they will be turned away from it. This argument is called in the cases the "aversion argument." It is so plausible that the courts have held that, when raised by the defence, it must be put to the jury. If it is not put, the conviction may be quashed.

In the second place, the "defence of public good" [see section 4 (1)] has opened a door through which many a pornographer can escape. It says that publication can be justified, not only if it is in the interests of science, literature or art, but also if it is in the interests "of other objects of general concern." Under cover of this defence, experts have been allowed to come forward and say that it is good for young people to read these magazines because it removes their feelings of guilt. Such evidence is equal to saying that pornography itself is for the public good - which is quite contrary to what Parliament intended.

By way of contrast to this Act of 1959, I would draw attention to the Customs Acts and the Post Office Acts. These prohibit the importation or the sending by post of "indecent or obscene articles": see section 42 of the Customs Consolidation Act 1876 and section 11 of the Post Office Act 1953. Those statutes do not attempt a definition of what is "indecent or obscene," but the customs officers and the Post Office know pornography when they see it: and they act accordingly. Hardly ever are their decisions questioned. In 1968-69 the customs authorities seized a million-and-a-half magazines and books, and in no case was destruction contested. Juries also have no difficulty under those Acts. In Reg. v. Anderson [1972] 1 Q.B. 304 the jury found the publishers guilty of sending "obscene and indecent" articles by post. This conviction was upheld, although the conviction under the Obscene Publications Act was upset. Lord Widgery C.J. pointedly observed that in the Post Office Act the word "obscene" may have its ordinary meaning: see Reg. v. Anderson [1972] 1 Q.B. 304, 317.

The procedure of the police

We were told of the procedure of the Metropolitan Police to enforce the law under the Act of 1959. It is this: the police get to know - by their own inspection or by information from others - that pornographic material is on sale at a certain shop. They report it to the Obscene Publications Squad at New Scotland Yard. They are 14 officers who are especially assigned to investigate obscenity. One of this squad goes to the shop. If he thinks the material is obscene, he goes to a magistrate and asks for a warrant. Armed with the warrant, he searches the shop and seizes all obscene material he finds there. Having seized it, he submits it to the Director of Public Prosecutions. The director then considers whether it is obscene or not. If he thinks it is obscene, he then gives his opinion, whether the occupier should be prosecuted, or not: or whether the lesser course should be taken of submitting it to the courts for a destruction order. If he advises a prosecution, the director himself undertakes the prosecution. If he advises the lesser course, he leaves it to the police to issue a summons and get the material destroyed. In many cases the police do not take the matter to the court. They caution the occupier and invite him to sign a "disclaimer" disclaiming any interest in the material. They then destroy it. The commissioner has given figures to show the activities of the police under this procedure. He did so in a letter of July 10, 1972, and in the affidavit he put before the court. These figures are impressive. For instance, in the first nine and a half months of 1972 the Metropolitan Police made 166 searches and seized 871,468 items. Some of these were large-scale operators. At one address in Watford on September 21, 1972, the police seized 219,600 copies of Men Only at an estimated value of £100,000. At other addresses large quantities of obscene material were seized of much value. But, impressive as those figures are, they seem to have made little impact on the trade. It remains very large. Next, the figures for Soho. They are not nearly so impressive. The commissioner gave them for the first nine and a half months of 1972. In Soho the police searched 45 shops. In 10 of them, they searched two, three or four times. But in the remaining 35, they searched once only in

each shop. Out of these 35, eight shops gave a negative result, 27 resulted in a caution, four resulted in a prosecution. The remaining three await a decision, presumably by the director.

Mr. Blackburn criticised the police severely on their search procedure. He gave evidence that he went to three shops where the police searches proved "negative." He found there obscene material readily on sale. He bought them and produced them to us. He also said that the procedure by way of caution or "disclaimer" was quite ineffective: because the shops continued to sell their obscene material just the same. He asked us to infer that the police were not carrying out their duty of enforcing the law. Why were not the searches and seizures made every week, instead of once a year? That would, he suggested, bring the trade in hard pornography rapidly to a close. He also asked why the Director of Public Prosecutions should be consulted in every case? Many of these publications are obvious pornography. Why not proceed at once? Why should not the station commander himself take action? These are pertinent questions which require an answer. He submitted correspondence in which the commissioner acknowledges, quite frankly, that the practice was to consult the director, and go by his advice.

The legal position

Mr. Blackburn's principal point was a legal one. He said that there was no legal justification for the police referring all cases to the director. It causes delay. They can and should act at once without his advice. I have, therefore, looked into the law: and I find that Mr. Blackburn has a point worthy of serious consideration.

The powers of the police to search and seize are contained in section 3 of the Obscene Publications Act 1959, as amended by section 25 of the Criminal Justice Act 1967. Under it the police must first lay an information on oath before a magistrate and get a warrant to search and seize. If they find obscene articles and seize them, they must, as I read the statute, bring them before a magistrate and he can then order their destruction. But, instead of taking the articles before a magistrate, the police have adopted in many cases the practice of accepting disclaimers. I must describe this, because it goes back to a time before the Act was passed. It is described in the proceedings before the Select Committee in 1957 (Report from the Select Committee on Obscene Publications,H.C. Paper 123-1, Session 1957-1958). It was this: when the police searched premises and found articles which might be considered obscene, they submitted the articles to the Director of Public Prosecutions. In some cases the director would advise a prosecution. In other cases, he would instruct the officer to take steps to have the material destroyed. The officer would then go to the shopkeeper and ask him if he disputed the case. If he did not dispute it, the officer invited him to sign a disclaimer in this form: "I do hereby disclaim ownership to the above items seized from my bookshop." On getting that disclaimer, the officer destroyed the material. That practice was in use for many years before 1957. It had the advantage of saving time. No summons was issued. There was no hearing before a magistrate, and no examination of documents by a magistrate.

The Select Committee in 1957, however, regarded that practice as undesirable, and for this reason. It enabled the alleged obscene matter to be destroyed without reference to the courts (see their report, paragraph 30); whereas, the Select Committee thought it desirable that the material should be brought before the courts. When the Act was passed in 1959, it would appear that Parliament accepted the view of the Select Committee. It enacted that when the police, under the authority of a warrant, search premises and seize articles, they must bring the articles before a magistrate. As I read section 3 (3) it is mandatory. It says: "Any articles seized shall be brought before a justice of the peace." The magistrate may then issue a summons to the occupier to show cause why the articles should not be forfeited.

Notwithstanding that enactment, it appears that the police of the metropolis still continue the practice of accepting disclaimers. When the police search premises and seize articles, they do not submit them in the first instance to the courts. They submit them to the Director of Public Prosecutions. Then, after consultation with him and on his authority - I use the commissioner's own words - they do one of these things: (i) they may return the articles to the occupier; or (ii) they may caution him and accept a disclaimer to the property; or (iii) they may summons the occupier before the court and seek a forfeiture order under section 3. That appears from the commissioner's affidavit, paragraphs 4 and 5.

I can see the practical advantages of the procedure adopted by the police. There is a great deal to be said for it. The attitude of the courts is so unpredictable, and the time and trouble so excessive, that the practice of accepting "disclaimers" is far more convenient and effective. It is similar to the practice of the customs authorities who can seize obscene or indecent articles, and destroy them, without reference to the courts, unless the owners contest the issue. But the customs authorities have wider powers than the police. There is no provision in the Customs Acts similar to section 3 (3) of the Act of 1959.

The Commissioner of Police, in justification of his practice, relies on the regulations relating to the prosecution of offences [the Prosecution of Offences Regulations 1964 (S.I. 1946, No. 1467 (L. 17))]. These were made in 1946 long before the Act of 1959. Regulation 6 (2) (d) says that the chief officer of police shall report to the Director of Public Prosecutions "cases of obscene or indecent libels, exhibitions or publications, in which it appears to the chief officer of police that there is a prima facie case for prosecution." I can see the reason for this regulation. It is because it is often difficult to know whether a book or magazine comes within the test of obscenity. It is also desirable to apply a uniform standard throughout the country. So, whenever there is a prima facie case for prosecution, it should be reported to the director. So far so good. But I do not think the regulation is a complete answer to Mr. Blackburn's point. Accepting that cases should be reported to the director, nevertheless, the police are not bound to hold their hand pending his advice. On the contrary, the Act of 1959, as I read it, requires the articles to be brought before the magistrate for him to decide whether the occupier should be summoned, or not. Under the present practice, this is not done. In many cases, the articles are never brought before the magistrate. They are put before the director, and he

advises whether the occupier should be summoned, or not. This may be a very convenient and sensible procedure: but I cannot forbear from asking the question: Is it in accordance with the statute? And I would add: Is it as effective as a summons issued by the court? A pornographic trader might take little notice of a caution, but much of a summons for destruction especially if it was coupled with a summons for an offence.

Conclusion

In Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118, 136, 138, 148-149, we made it clear that, in the carrying out of their duty of enforcing the law, the police have a discretion with which the courts will not interfere. There might, however, be extreme cases in which he was not carrying out his duty. And then we would. I do not think this is a case for our interference. In the past the commissioner has done what he could under the existing system and with the available manpower. The new commissioner is doing more. He is increasing the number of the Obscene Publications Squad to 18 and he is reforming it and its administration. No more can reasonably be expected.

The plain fact is, however, that the efforts of the police have hitherto been largely ineffective. Mr. Blackburn amply demonstrated it by going out from this court and buying these pornographic magazines - hard and soft - at shops all over the place. I do not accede to the suggestion that the police turn a blind eye to pornography or that shops get a "tip-off" before the police arrive. The cause of the ineffectiveness lies with the system and the framework in which the police have to operate. The Obscene Publications Act 1959 does not provide a sound foundation. It fails to provide a satisfactory test of obscenity: and it allows a defence of public good which has got out of hand. There is also considerable uncertainty as to the powers and duties of the police when they seize articles.

If the people of this country want pornography to be stamped out, the legislature must amend the Obscene Publications Act 1959 so as to make it strike unmistakeably at pornography: and it must define the powers and duties of the police so as to enable them to take effective measures for the purpose. The police may well say to Parliament: "Give us the tools and we will finish the job." But, without efficient tools, they cannot be expected to stamp it out. Mr. Blackburn has served a useful purpose in drawing the matter to our attention: but I do not think it is a case for mandamus. I would, therefore, dismiss the appeal.

PHILLIMORE L.J. Mr. Blackburn is concerned about the sale of pornographic booklets in the metropolis. He asserts that the commissioner is not trying to enforce the Obscene Publications Act 1959 and (after refusal by the Divisional Court) appeals to this court for an order of mandamus to require the commissioner so to do.

His statement of the facts which I am prepared to accept as accurate is as follows. There is a division between hard and soft pornographic material of this sort normally referred to as "hard or soft porn."

"Hard porn" is sold at a number of shops in Soho - each shop bears

the title "Books" and there is never the name of a proprietor - the man who runs the shop is merely a front for one of a small number of men who control several such businesses. Altogether there are about 60 such shops in Soho. (Counsel for the commissioner says that his client's figure is 45.) These shops are open until 11 o'clock in the evening on most days and all day on Sunday. The principal merchandise is, of course, "hard porn," namely, booklets consisting of close-up photographs of acts of sexual intercourse normally involving several people interlocked or, if homosexual, two or more of the sex in question, whilst some depict various perversions including acts of sexual intercourse between human beings and animals.

These booklets sell at prices from £3 upwards but mostly for £5 each, and if returned the purchaser may hope to be repaid half his initial stake for each of these valuable articles. Counsel for the commissioner and for the Attorney-General rightly conceded that all booklets of the sort described were undoubtedly obscene and their sale illegal.

"Soft porn" on the other hand, is sold at sweetshops and other shops, where magazines can be bought, at innumerable places in London - there is one close to the offices of Lord Longford in Piccadilly and others as far away as Hammersmith and Chiswick. These booklets show photographs of men and women in the nude but the photographs are not otherwise objectionable. The letterpress, however, is disgraceful and an obvious encouragement to every form of sexual perversion. There are, for example, accounts in revolting detail of a mother seducing her son after she has had intercourse with another woman, tales of homosexuality between males, or females, for example. The booklets often contain forms for completion and posting in order to obtain "hard porn."

"Soft porn" booklets retail for 25 pence or a little more and of course are readily available for purchase by young people. In my judgment they are in the long run likely to do more damage than the "hard porn," albeit not in the same class of obscenity. However, the starting point in reform, if it is desired to stop this filthy traffic from which enormous sums are undoubtedly being made, must be the "hard porn."

What has been done?

Police orders have set up an Obscene Publications Squad in Scotland Yard. If in any division it is thought that "porn," and in particular "hard porn," is being peddled in any shop, that division is required to inform the squad. An officer from the squad will then investigate and if he sees confirmation of the report when visiting the premises he will obtain a warrant authorising him to enter, search the premises and seize any material he thinks obscene.

It appears that thereafter he will either invite a disclaimer, by which the occupier states that he has no interest in the material, and if the disclaimer is signed the police proceed with the destruction of the material. As already described by Lord Denning M.R. this is an undesirable and possibly illegal procedure and enables the shopkeeper to avoid any further proceeding. If he refuses the disclaimer (euphemistically described as a "caution") a report will go to the Director of Public Prosecutions pursuant to regulation 6 (2) (d) of the Prosecution of Offences Regulations 1946 with a view to his advice on whether the case merits prosecution.

Counsel for the commissioner produced a list of the searches made in Soho during the period of 10 months from January 1 to October 31, 1972. Although on occasions several premises were searched on the same day, searches were only conducted on 26 days during the whole period of 10 months with the most meagre results. It is to be observed that on April 13, no less than nine shops were searched. In one case a prosecution was initiated but later adjourned sine die. In another the result is recorded as negative and in seven obscene literature was found and was later destroyed, a caution being recorded in each case. In none of those seven was any subsequent search made.

It is also to be observed that in the case of two shops searched in October with negative results, Mr. Blackburn was able to buy "hard porn" in the course of the hearing by this court.

It is perhaps not surprising that counsel for the commissioner and for the Attorney-General should concede that the action taken against the shops in Soho has been relatively ineffective.

Now Mr. Blackburn may not understand the legal problems but his instinct tells him that something is radically wrong. He asserts, and there is a lot to be said for his view, that the police are notreally trying to enforce the law. During the hearing he and his friends have gone out again and again to premises where the police found nothing and have bought "hard porn." He points out that nobody can suggest or ever has suggested in the case of the "hard porn" that the defence of the "public good" afforded by section 4 of the Obscene Publications Act 1959 could be invoked with any real hope of success. I do not understand counsel for the commissioner or the Attorney-General to demur over this.

What is the commissioner's defence? I confess that originally I was inclined to think that (as was said in the Divisional Court) Mr. Blackburn had not got within measurable distance of establishing his case; but having seen the material in question, which that court declined to do, and having seen the exhibits collected during the hearing, I do not think the problem entirely easy.

Perhaps the key is to be found in paragraph 9 of the commissioner's affidavit where he says on oath:

"... The comparative absence of public complaint and the penalties imposed by the courts suggest that pornography causes less unease than most other breaches of the law. There is now produced and shown to me marked 'R.M.4' a schedule of the results of the 44 most recent prosecutions under the Obscene Publications Act 1959."

No doubt "R.M.4" shows great leniency by the courts, but the document does not disclose whether any of the fines varying between £20 and £100 concerned "hard porn." I assume that the few sentences of imprisonment did. As I understand it, the commissioner is saying public opinion is not interested, the penalties imposed by the courts are trivial and he has enormous other demands on his force and his time.

Ought an order of mandamus to go? I have hesitated, but there is force in the points the commissioner makes and he has already increased the squad from 14 to 18 and he has not long been in the saddle. I have come to the conclusion that it would be premature and unfair to say that the

commissioner had - to adopt the words of Lord Widgery C.J. - turned his back on his duties.

Nevertheless I have no doubt that it is high time that a major effort was made to deal with the "hard porn" and to start to deal with the "soft porn." The responsibility does not rest solely with the police - it is in no small degree shared by Parliament which must give greater powers to the courts and by the press and public who must support the police in eradicating this filthy literature, most of which is coming here from overseas and from which a few rogues are making fortunes.

What are the real problems?

The commissioner may be right when he says that at present pornography causes less public unease than most other breaches of the law. In my judgment, it is high time that its gravity was appreciated by the public. It cannot fail, especially in the light of the great volume of such material which is being put in circulation, to affect the morals and the moral outlook of many people, and, in particular, of the young and impressionable. It tends, of course, to encourage promiscuity and to weaken marriage.

The police have undoubtedly been greatly hampered in performing their duties by the provisions of the Act of 1959. In the first place the penalties, namely, £100 or six months on summary conviction, and on indictment a fine or a maximum sentence of three years' imprisonment, are entirely inadequate, particularly in the case of summary proceedings, in that hitherto a sentence of six months or less has had to be suspended. Moreover, if they secure a conviction on indictment for conspiracy, which, of course, is the only count which can hit the men behind the scenes who are really making the money, there is no power to order destruction of the material. The actual sentences passed in the shape of trivial fines, as shown by "R.M.4," no doubt explain why recourse has been had to the procedure by disclaimer, which is obviously undesirable if only because it does not rank as a conviction.

In several cases where the director has proceeded by indictment acquittals have been secured, often because the law is by no means clear or readily understandable by a jury. Ordinary people do not normally use the word "obscene", and the test under the Act, namely, whether the material tends to deprave and corrupt, in the absence of proof that it has actually depraved or corrupted an individual is just the sort of test that a jury shrinks from applying. The short fact is that obscene means no more than indecent, a word which everybody understands and which any jury could readily apply, using the collective common sense of its members. Moreover, the defence of public good under section 4 has been the source of much confusion and difficulty. It defines the article in question as being "for the public good" on the grounds that it is "in the interests of science, literature, art or learning, or of other objects of general concern." It is the final phrase which has really done the damage. Recently a jury acquitted, although the articles before it consisted at any rate partially of "hard porn," having heard the evidence of a number of psychiatrists to the effect that the revolting material displayed might have therapeutic value in the case of some members of the public who were either unduly shy or unduly ignorant of sexual matters. I should have thought that it was high time that the

phrase "or of other objects of general concern" was eliminated from section 4.

I suggest that consideration should be given, whenever it is decided to strengthen the law, to any action which may hurt the real criminals as opposed to the front man. One method worth consideration is whether the landlord, whether freeholder or lessee, should not be under a similar liability to that which applies to the owner of premises which are, to his knowledge, being used as a brothel. I doubt whether there are many landlords in Soho who do not know the use to which their premises are put.

It seems obvious, from the evidence before us, that the police searches have been far less effective than the activities of Mr. Blackburn. It is not for a member of this court to tell the commissioner how to go about his duties, but I wonder how long it is before the identity of every member of the squad is well known in Soho. I suspect that if one of the squad is seen in that area, particularly coming out of one of these shops, any "hard porn" on the premises is likely to be removed with some rapidity in order to anticipate the probable search.

In my judgment the evidence put before us amply justifies the view of Lawton L.J. that the whole subject merits inquiry, and indeed Mr. Blackburn has done a public service in bringing the whole situation into the open.

Since I ventured to comment during the hearing on the absence of any affidavit from the Director of Public Prosecutions, it is only right that I should add that I fully understand why no such affidavit was thought to be necessary and that there is nothing in any of the material before us to justify any criticism of the way he has carried out his duties.

I agree in the result proposed by Lord Denning M.R., namely, that this appeal fails.

ROSKILL L.J. The legal foundation for this application for an order of mandamus against the Commissioner of Police for the Metropolis is the decision in Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 Q.B. 118, a case in which the present applicant sought an order of mandamus against the previous commissioner whose successor the present respondent is, in relation to the enforcement of the gaming laws of this country. This court held that the respondent owed a duty to the public to enforce the law which he could be compelled to perform and that while he had a discretion not to prosecute in particular cases, his discretion was not an absolute discretion, for as Salmon L.J. said, at p. 138: "In the extremely unlikely event, however, of the police failing or refusing to carry out their duty, the court would not be powerless to intervene." In their judgments in the present case the Divisional Court approached the questions which are now raised in the light of that decision and reached the conclusion that, whilst accepting the law as there stated, the applicant had failed to make out a case for an order requiring the present respondent in the terms of the present motion

"to enforce or secure the enforcement of the law against those who illegally publish and sell pornographic material both by seizure thereof and by prosecution of the publishers and retailers: and requiring him to reverse the decision made under his authority or continued under

his authority whereby no police officers can prosecute such offenders, however obvious and scandalous the offence, without obtaining the prior decision of the Director of Public Prosecutions; and requiring him to reverse his policy decision preventing the seizure of obviously pornographic material by officers of his force stationed outside New Scotland Yard."

The Divisional Court refused to make any order upon the motion. The applicant now renews that motion in this court.

From the mass of affidavits that the applicant has placed before this court there emerge - ignoring as I do the not insubstantial amount of irrelevant and indeed inadmissible material which they contain - two points of substance, one of law and one of fact or possibly of mixed fact and law.

The question of law is this. It is argued that the respondent has adopted an erroneous view of the law in that, being required to report cases of alleged infringement of the law relating to obscene publications to the Director of Public Prosecutions, he has regarded himself as bound to take no or no effective action whether by way of prosecution of the alleged offenders or otherwise unless and until the director either authorises such action or takes such action himself.

The second question, be it one of fact or of mixed fact and law, is that when this court looks at the actual publications of the public availability of which, whether within or without the Soho area of London, the applicant complains, and whether they are what the applicant called "hard porn" or "sweet shop stuff," their obscenity is so obvious and their continued availability so blatant and also so undisputed that the steps which the respondent claims he has taken and does still take in pursuance of his chosen policy in administering and enforcing this branch of the law to suppress the wide availability of these publications are not only, almost by admission, manifestly ineffective but amount to a total failure properly to enforce the law. The applicant goes on to argue that a state of affairs has thus been reached in which this court, in duty bound to enforce the rule of law, should and must interfere to require the respondent to change his existing policy and effectively to enforce the law by which he in common with all others is bound.

The Divisional Court declined to look at the many publications of which the applicant complained, Lord Widgery C.J. saying that the court had seen enough of them in other cases. I respectfully sympathise with this view, for the Criminal Division of this court has indeed seen more than enough of these and other publications like them on many occasions. But this court, at the applicant's urgent request, has looked at the many publications which he says he has bought openly. It has also looked, at the behest of counsel for the respondent, at a group of other publications the subject, we were told, of recent proceedings at the Central Criminal Court which resulted in an acquittal. I say no more about any of the publications produced by the applicant than that at the lowest they are all prima facie obscene, and I can readily understand and appreciate the applicant's view that they are so highly obscene that no court and no jury could hold otherwise, save at the peril of being said to be perverse. But the employment

of pejorative adjectives does not assist to determine the essential issues before this court.

I shall deal first with the question of law. The applicant's complaint arises in two ways. First it is said that the respondent in the second paragraph of his letter to the applicant dated July 10, 1972, stated erroneously the duty of the Metropolitan Police in relation to prosecutions for offences of the kind now in question. The respondent wrote:

"It is not for the police to decide whether a publication is in contravention of the law. It is their task to bring publications which they think might be unlawful to the notice of the Director of Public Prosecutions, who in every case will decide whether to institute proceedings or not."

In his judgment in the Divisional Court, Lord Widgery C.J. said:

"I am not in the least bit surprised if that sentence, perhaps hastily dictated in a letter, has given rise to that impression, but I am entirely confident, having read Mr. Mark's affidavit, that it does not represent any deviation from duty on his behalf."

I confess that for myself I doubt, with all respect to Lord Widgery C.J., whether this sentence can be regarded as a mere error in hurried dictation, for the passage complained of appears in a long letter occupying three closely typed foolscap sheets of paper, which bear all the marks of careful legal preparation before submission to the respondent for his signature. But, however that may be, the sentence is to say the least elliptical to the point of being, no doubt quite inadvertently, inaccurate. Subsequently and in connection with these proceedings the respondent swore a long affidavit dated October 26, 1972 - this is the affidavit to which Lord Widgery C.J. referred in the passage I have just quoted. Paragraph 11 of this affidavit, which was sworn some three weeks after the applicant's notice of motion, sets out, so far as now relevant, the interrelationship between the Metropolitan Police and the Director of Public Prosecutions, and to my mind implicitly if not explicitly corrects any misunderstanding which may have arisen from the passage in the second paragraph of the letter of July 10. But there are passages in paragraph 14 of this affidavit - and this is the second matter of which the applicant complains in this connection - which suggest that as a matter of law the police must not begin a prosecution unless and until a report has been made to the Director of Public Prosecutions and his advice obtained. If this be what this part of this paragraph was intended to convey, I can only say that I disagree for reasons which I shall shortly explain. Indeed I understood Mr. Farquharson for the respondent and Mr. Gordon Slynn for the Attorney-General expressly to accept that as a matter of law the police are not bound to refrain from prosecuting until after the receipt of the director's advice whether or not to prosecute and whether or not he intends to take over the prosecution himself. That it may be prudent for the police, having, as in duty bound, reported to the director not to prosecute unless and until they have the director's advice is another matter. One can readily understand the respondent's apprehension of what might be said if the police had prosecuted without awaiting the director's advice and the director then offered no

evidence in a prosecution previously launched by the police. See paragraph 16 of the respondent's affidavit. I am solely concerned at this juncture with the strict position in point of law.

In order to appreciate the question of law involved, it is necessary to look at the Prosecution of Offences Regulations 1946 (S.I. 1946 No. 1467 (L. 17)) which were made by the then Attorney-General with the concurrence of the then Lord Chancellor and Secretary of State pursuant to the Prosecution of Offences Acts 1879-1908. I do not find it necessary to trace the history of the legislation which led to the authority possessed by the Attorney-General to make regulations such as these. It will be found fully set out in the judgment of Lord Widgery C.J. in the present case.

The duties of the director under these regulations are plain. In certain classes of case he is under a duty himself to prosecute. In other classes of case he may prosecute if the case appears to him to justify his intervention, even though such a case is not within the class where he has a positive duty himself to prosecute. He is also required to give advice in cases falling within regulation 2. In addition to the duties, whether they be mandatory or optional, imposed upon the director under regulations 1, 2 and 3, other and different duties are imposed on chief officers of police this would of course include the respondent - to report both offences and cases falling within regulation 6. For my part I think there is a certain overlap between regulation 6 (1) and 6 (2), for example, between regulation 6 (1) (b) and parts of regulation 6 (2) (a); but that is immaterial for present purposes. What is important for present purposes is that a chief officer of police is required by regulation 6 (2) (d) to report to the director "cases of obscene or indecent libels, exhibitions or publications, in which it appears to the chief officer of police that there is a prima facie case for prosecution."

It is in pursuance of this provision that the respondent (as he has sworn) requires his officers to report such cases within the metropolis to the director. We were told that chief officers of police of forces outside the metropolis follow the same course. But neither the Obscene Publications Act 1959 nor any other relevant statute makes the consent or advice of the director a condition precedent to prosecution by the police, if the police thought fit so to prosecute without awaiting the result of such a report. The applicant sought to argue that the regulations and in particular regulation 6 (2) (d) were ultra vires because in effect it imposed such a condition precedent upon prosecution. In my judgment it clearly does not do so and the regulation equally clearly is not ultra vires. But it is only fair to the applicant to say that the passages in the correspondence and in the affidavit to which I have referred may have led him to think otherwise. It follows that the question of law upon which the applicant sought to rest this part of his argument does not assist his case.

I now turn to the other branch of his argument. It is not I think necessary to consider the provisions of the Obscene Publications Act 1959 in detail. Section 2 creates the offence and prescribes the penalties. Section 3 accords rights of search and seizure. Section 4 creates the defence of public good as an answer to a charge under section 2. The

gravamen of the applicant's complaints against the respondent rested perhaps more upon alleged failure sufficiently to exercise the power of search and seizure under section 3 than upon alleged failure to prosecute. The respondent has replied to these complaints with details of recent searches and seizures as well as of recent prosecutions and penalties imposed by the courts. The applicant has forcefully answered this reply of the respondent by pointing first to the comparatively small number of seizures and searches, to their comparative rarity and to their virtual ineffectiveness as demonstrated by the fact that he could and has bought obscene publications from premises already visited by the police. The applicant claims that he, without power of search and seizure, could bring this traffic to an end, He has launched and threatens further to launch private prosecutions to this end. How much more he claims could the police, possessed of this power of search and seizure, achieve even better results were they to use the power which Parliament has given them under section 3.

It is no part of the duty of this court to presume to tell the respondent how to conduct the affairs of the Metropolitan Police, nor how to deploy his all too limited resources at a time of ever-increasing crime, especially of crimes of violence in London. The respondent has related in detail in his affidavit how the relevant work is done and the degree of centralisation which has been operated within the Metropolitan Police district through the mechanism of the Obscene Publications Squad and the office of the director. It is important in this connection to observe two things, first that searches and seizures by the Obscene Publications Squad can be and are effected without the prior advice or consent of the director, and secondly, that individual divisional officers do not take and are by order precluded from taking action lest otherwise there be divergencies in practice and prosecution. The applicant rejoins that were this not so and were divisional officers permitted to search and seize on their own initiative and were there less centralisation than exists at present, the results would be far more effective. He claims this view to be supported by senior officers on division. This may be so. The respondent is envisaging changes being made - see paragraphs 11 and 13 of his affidavit - which when brought into effect, one may be permitted to hope, go some way towards achieving the better results desired by the applicant than the existing arrangements have so far achieved.

If it be permissible to recall some past criticisms of the police in matters of prosecutions in connection with alleged obscene publications, one can sympathise with the wish of the respondent to secure centralisation in order to achieve a uniform standard by which to determine whether or not prosecutions should be launched in any particular case. The applicant took strong exception to this in his reply and said that uniformity of standard was a matter for the courts and not for the respondent or the director. I think with respect he misunderstood the argument of both Mr. Farquharson and Mr. Gordon Slynn in this respect. Though in any given case the question whether a particular publication offends or does not offend must depend in the last resort upon the standard set by the court in the case of summary proceedings or by the jury in the case of

a trial on indictment, there can be no objection to a prosecuting authority seeking to achieve so far as possible a uniform practice or standard by which to judge whether or not a particular prosecution should be launched. So to do is not to refuse to enforce the law but to judge as a matter of the exercise of a proper executive discretion whether or not a particular prosecution should be launched, an exercise of judgment oft fraught with great difficulty and only to be taken after very many different and often conflicting factors have been considered.

I confess that like my Lords I feel unhappy about the obvious and indeed admitted ineffectiveness of the measures that are taken, especially in the field of search and seizure. But I am not satisfied that this ineffectiveness can be wholly laid at the door of the respondent and his officers. It is notoriously difficult to prosecute the real offenders - too often if premises are raided it will be a "front man" against whom alone proceedings can be taken. Whether the imposition of penalties upon the owners of premises who knowingly permit their premises to be used for the sale of these publications, or whether the proposed new procedure of criminal bankruptcy could be widened to embrace offenders in this field perhaps merits consideration. But defects in the law cannot fairly be laid at the respondent's door.

The Obscene Publications Act 1959 has presented a host of difficulties to the courts as well as to the prosecuting authorities. The applicant referred us many times to the recent decision of the House of Lords in Director of Public Prosecutions v. Whyte [1972] A.C. 849. I do not find anything in the speeches in that case, whether of the majority or of the minority of their Lordships, which assists the applicant on this motion. But I would respectfully repeat and echo two passages in the speech of Lord Wilberforce in regard to the problems created by the Act. Lord Wilberforce said, at pp. 859-860:

"Both the policy and the language of the Act have been plentifully criticised; the former we cannot question, and with the latter we must do our best. One thing at least is clear from this verbiage: that the Act has adopted a relative conception of obscenity. An article cannot be considered as obscene in itself: it can only be so in relation to its likely readers. One reason for this was no doubt to exempt from prosecution scientific, medical or sociological treatises not likely to fall into the hands of laymen, but the section is drafted in terms wider than was necessary to give this exemption, and this gives the courts a difficult task. ..."

His Lordship said, at pp. 861-862:

"But the Act of 1959 changed all this. Instead of a presumed consequence of obscenity, a tendency to deprave and corrupt became the test of obscenity and became what had to be proved. One consequence appears to be that the section does not hit 'articles' which merely shock however many people. It can only have been the pressure of Parliamentary compromise which can have produced a test so difficult for the courts. ... I have serious doubts whether the Act will continue to be workable in this way, or whether it will

produce tolerable results. The present is, or in any rational system ought to be, a simple case, yet the illogical and unscientific character of the Act has forced the justices into untenable positions."

Where Lord Wilberforce has expressed serious doubts as to the workability of the Act in its present form, it seems harsh indeed to blame the respondent for the alleged ineffectiveness of the measures of his force. The blame might not unfairly be thought at least equally, and perhaps to a greater extent, to rest upon what Lord Wilberforce called "pressure of Parliamentary compromise" revealed by the Act of 1959.

Nor I fear can the courts escape their share of the blame. The respondent has listed in an exhibit to his affidavit some of the penalties recently imposed by the courts. Without knowing the facts of each case it would be wrong to criticise those penalties even in general terms. But having regard to the profits which on the applicant's own uncontradicted evidence must have been made in this trade, it is difficult to regard some at least of these penalties as other than almost derisory. It is only right to point out that the maximum penalty on summary conviction is a mere £100 fine or six months' imprisonment. The former maximum penalty seems, whether by oversight or design, to have escaped the general increase in maximum fines enacted in Schedule 3 to the Criminal Justice Act 1967. The latter penalty of imprisonment must since that same Act, at least in the majority of cases, be suspended, though happily that position will not subsist much longer in the light of the provisions of the Criminal Justice Act 1972. Further, a possible defence of "public good" under section 4 has always to be envisaged whether on summary trial or on trial on indictment, though it is perhaps more likely to be raised on a trial on indictment. I have already mentioned the recent acquittal at the Central Criminal Court in a case the exhibits in which were shown to us. We were told that the section 4 defence was there raised. It is I hope permissible to say that the most casual glance at those exhibits makes one wonder how anyone could say that they were not obscene. But however that may be, this is a field in which differences of opinion are notorious and no prosecuting authority can afford to ignore the possibility of acquittals which may seem surprising to some and which, when they occur, neither encourage respect for the law as laid down by Parliament in 1959 nor facilitate the unenviable task of those responsible for its enforcement. Further repeated acquittals in this class of cases by reason of a defence based on section 4 suggest that that section is now being used for purposes entirely different from that which its framers intended.

Though, like the Divisional Court, I think this motion must be refused on the ground that the applicant has failed to bring his case within the principles of law upon which he must rely in order to succeed, this appeal will have served a useful purpose if it highlights:

(1) the difficulties of enforcement of the Act of 1959;

(2) the difficulties of obtaining a generally acceptable test of obscenity and of applying the test prescribed by the Act of 1959;

(3) the inadequacy of the penalties for which that Act provides at least on summary conviction;

(4) the problems to which section 4 gives rise;

(5) the need for consideration whether more frequent and more effective searches and seizures pursuant to section 3 not only by the Obscene Publications Squad but officers on division who must be exceedingly familiar with the extent of the problem in their own divisions may not achieve better results than in the past.

I agree that the motion should be refused.

Solicitors: Solicitor, Metropolitan Police; Treasury Solicitor.

A. H. B.

December 18, 1972. The Appeal Committee of the House of Lords (Lord Morris of Borth-y-Gest, Lord Wilberforce and Lord Diplock) allowed a petition for leave to appeal.