699

A.C.

A
[HOUSE OF LORDS]

DIRECTOR OF PUBLIC PROSECUTIONS . . RESPONDENT

AND
JORDAN APPELLANT

B [On appeal from REG. V. STANIFORTH; REG. V. JORDAN]

1976 Feb. 23, 24; Bridge and Shaw L.JJ. and Cantley J.
March 24
1976 Oct. 18, 19; Lord Wilberforce, Viscount Dilhorne,
Nov. 17 Lord Diplock, Lord Kilbrandon
and Lord Salmon
Crime—Obscene libel—Evidence—Defence of "public good"—
Expert evidence of psychotherapeutic value of pornography—
Whether admissible — Obscene Publications Act 1959 (7 & 8
Eliz. 2, c. 66), s. 4
By section 1 (1) of the Obscene Publications Act 1959:
T-» " 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."
By section 4:
" (1) A person shall not be convicted of an offence against
section 2 of this A c t . . . if it is proved that publication of
E the article in question is 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. (2) It is hereby declared that the opinion of
experts as to the literary, artistic, scientific or other merits
of an article may be admitted in any proceedings under
this Act either to establish or to negative the said ground."
p The owner of a bookshop, charged with possessing obscene
articles for publication for gain contrary to section 2 (1) of
the Obscene Publications Act 1959, as amended, raised the
defence of " public good " pursuant to section 4 (1) of the Act
of 1959 and wished to call expert evidence that the material
under consideration was psychologically beneficial to persons
with certain sexual tendencies in that it would relieve their
sexual tensions and might divert them from anti-social activities.
Q The defendant claimed that such evidence was admissible under
section 4 (2) because the psychological health of the community
was an object of general concern in the interests of which
publication of the articles was justified as being for the public
good. At the trial the evidence tendered was ruled inadmissible
and the defendant was convicted. The Court of Appeal
(Criminal Division) upheld the decision.
On appeal: —
TT Held, dismissing the appeal, that when the1 defence of
"public good" was raised under section 4 (1) it was to be
dealt with on the basis that the tendency of the material was
to deprave and corrupt, and, from the structure of the sub­
section, it appeared that the " other objects " and the nature of
700
Reg. v. Staniforth; Reg. v. Jordan (C.A.) [1977]
the " general concern " there referred to fell within the same
area as science, literature, art and learning, already mentioned, A
so that expert evidence relating to the alleged beneficial effect
of the material on the sexual behaviour and attitudes of some
persons was not admissible under section 4 (2) (post, pp. 717B,
718G—719E, 723D-G, 726D-F).
Reg. v. Colder & Boyars Ltd. [1969] l Q.B. 151, C.A. and
Reg. v. Anderson [1972] 1 Q.B. 304, C.A. approved.
Decision of the Court of Appeal (Criminal Division) post,
B
p. 702D; [1976] 2 W.L.R. 849; [1976] 2 All E.R. 714 affirmed.

The following cases are referred to in their Lordships' opinions in the

House of Lords:
Cox v. Hakes (1890) 15 App.Cas. 506, H.L.Q3.).
Director of Public Prosecutions v. A. and B.C. Chewing Gum Ltd. [1968]
1 Q.B. 159; [1967] 3 W.L.R. 493; [1967] 2 All E.R. 504, D.C. >,
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. Colder & 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 ~
u
(No. 3) [1973] Q.B. 241; [1973] 2 W.L.R. 43; [1973] 1 All E.R. 324,
C.A.
Reg. v. Gold (unreported), November 3, 1972, Central Criminal Court.
Reg. v. Hicklin (1868) L.R. 3 Q.B. 360.
Reg. v. Stamford [1972] 2 Q.B. 391; [1972] 2 W.L.R. 1055; [1972] 2 All
E.R. 427, C.A.
Reg. v. Turner (Terence) [1975] Q.B. 834; [1975] 2 W.L.R. 56; [1975] 1 .
E
All E.R. 70, C.A.
Transport Publishing Co. Pty. Ltd. v. Literature Board of Review (1956)
99C.L.R. 111.

The following additional cases were cited in argument in the House of

Lords:
Attorney-General's Reference (No. 2 of 1975) [1976] 1 W.L.R. 710; [1976] F
r
2 All E.R. 753, C.A.
Colder (John) (Publications) Ltd. v. Powell [1965] 1 Q.B. 509; [1965]
2 W.L.R. 138; [1965] 1 All E.R. 159, D.C.
Chandler V. Director of Public Prosecutions [1964] A.C. 763; [1962] 3
W.L.R. 694; [1962] 2 All E.R. 314; [1962] 3 All E.R. 142, C C A .
and H.L.(E.).
Goldsbrough v. John Fairfax & Sons Ltd. (1934) 34 S.R.N.S.W. 524.
G
Olympia Press Ltd. v. Hollis [1973] 1 W.L.R. 1520; [1974] 1 All E.R.
108, D.C.
Reg. v. Greater London Council, Ex parte Blackburn [1976] 1 W.L.R.
550; [1976] 3 All E.R. 184, C.A.
Reg. v. Holmes [1953] 1 W.L.R. 686; [1953] 2 All E.R. 324, C C A .
Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973] A.C.
435; [1972] 3 W.L.R. 143; [1972] 2 All E.R. 898, H.L.(E.).
Reg. v. Prairie Schooner News Ltd. (1970) 75 W.W.R. 585. H
Reg. v. Times Square Cinema Ltd. (1971) 3 O.R. 688.
Shaw v. Director of Public Prosecutions [1962] A.C. 220; [1961] 2 W.L.R.
897; [1961 ] 2 All E.R. 446, H.L.(E).
 701
A.C. Reg. v. Staniforth; Reg. v. Jordan (C.A.)
The following cases are referred to in the judgment of the Court of
A Appeal:
Director of Public Prosecutions v. A. and B.C. Chewing Gum Ltd.
[1968] 1 Q.B. 159; [1967] 3 W.L.R. 493; [1967] 2 All E.R. 504, D.C.
Reg. v. Anderson [1972] 1 Q.B. 304; [1971] 3 W.L.R. 939; [1971] 3 All
E.R. 1152, C.A.
Reg. v. Colder & Boyars Ltd. [1969] 1 Q.B. 151; [1968] 3 W.L.R. 974;
R [1968] 3 All E.R. 644, C.A.
Reg. v. Commissioner of Police of the Metropolis, Ex parte Blackburn
(No. 3) [1973] Q.B. 241; [1973] 2 W.L.R. 43; [1973] 1 All E.R. 324,
C.A.
Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973] A.C.
435; [1972] 3 W.L.R. 143; [1972] 2 All E.R. 898, H.L.(E.).
Reg. v. Lindsay (unreported), 1974, Birmingham Crown Court.
*" The following additional cases were cited in argument in the Court of
Appeal:
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. Gold (unreported)"November 3, 1972, Central Criminal Court.
Reg. v. Martin Seeker & Warburg Ltd. [1954] 1 W.L.R. 1138; [1954] 2
D All E.R. 683.
Reg. v. Stamford [1972] 2 Q.B. 391; [1972] 2 W.L.R. 1055; [1972] 2 All
E.R. 427, C.A.

APPEALS against conviction.

The defendant, Donald Staniforth, was the owner of a newsagent's
shop from which, in June 1973, the police seized a quantity of films,
E books and magazines which had been freely on sale to the public. On
January 27, 1975, Staniforth was charged at Northampton Crown Court
(Judge McGregor) on an indictment containing 30 counts alleging
possession of obscene articles for publication for gain, contrary to
section 2 (1) of the Obscene Publications Act 1959 as amended by
section 1 (1) of the Obscene Publications Act 1964.
P The defendant, Margaret Edith Jordan, was the proprietor of a
bookshop from which on August 14, 1974, the police impounded a
quantity of pornographic material. On May 8, 1975, Jordan was charged
at Swansea Crown Court (Judge Pitchford) on an indictment containing
37 counts alleging possession of obscene articles for publication for gain
contrary to section 2 (1) of the Obscene Publications Act 1959 as
G amended by section 1 (1) of the Obscene Publications Act 1964.
At each trial the defendant wished to raise the defence of " public
good " pursuant to section 4 (1) of the Act of 1959, and to support it
by expert evidence claimed to be admissible pursuant to section 4 (2)
of the Act. In each case, after objection by the prosecution to the
evidence tendered, the judge ruled that the evidence was inadmissible.
JJ On February 19, 1975, Staniforth was convicted on 24 counts and
fined a total sum of £792. On May 15, 1975, Jordan was convicted on
37 counts and sentenced to a total of 15 months' imprisonment suspended
for two years, fined a total sum of £700 and ordered to pay £500 costs in all.
702
Reg. v. Staniforth; Reg. v. Jordan (C.A.) [1977]
The defendants appealed against conviction. The ground of appeal
in the case of the defendant Staniforth was that the judge was wrong A
in law in ruling that the proposed evidence of expert witnesses under
section 4 of the Obscene Publications Act 1959 was inadmissible on the
ground that it would tend to negate obscenity rather than establish
public good. The defendant Jordan also appealed on the ground that
the ruling that the evidence was inadmissible was wrong in law.
The facts are stated in the judgment. B

John Mortimer Q.C. and Jonah Walker-Smith for the defendant

Staniforth.
John Gorman Q.C. and Brian Moran for the Crown (in the case of
Staniforth).
Geoffrey Robertson (who did not appear below) for the defendant
Jordan. C
R. G. Waterhouse Q.C. and Christopher Nichols for the Crown (in
the case of Jordan).
Cur. adv. vult.

March 24, 1976. BRIDGE L.J. read the following judgment of the ~
court. On February 19, 1975, at the Northampton Crown Court the
defendant Staniforth was convicted of 24 offences of possessing obscene
articles for publication for gain contrary to section 2 (1) of the Obscene
Publications Act 1959, as amended by section 1 (1) of the Obscene
Publications Act 1964. On May 14, 1975, at the Swansea Crown Court
the defendant Jordan was convicted of 37 similar offences. Both
defendants applied in the first instance to a single judge for leave to E
appeal against their convictions. The single judge considering the
application of Staniforth took the view that the proposed ground of
appeal involved a question of law alone and that no leave to appeal was
required. The single judge considering the application of Jordan
granted leave to appeal. Lest, there be any doubt whether the ground
of appeal raised does involve a question of law alone we grant leave to p
appeal in the case of Staniforth. An application by one Grantham, who
was jointly convicted with Staniforth at the Northampton Crown Court,
for leave to appeal against his conviction has been abandoned.
The facts giving rise to the prosecution of Staniforth and Grantham
were that Staniforth was the owner, and Grantham the manager, of a
newsagent's shop at 84, Wellingborough Road, Northampton. From
that shop in June 1973 the police seized a quantity of films, books and G
magazines which had been freely on sale to the public and the possession
of which constituted the offences alleged in the indictment. Similarly
in the case of Jordan the police in August 1974 seized the books, films
and magazines, to which the counts in the indictment related, from a
bookshop in Swansea of which the defendant Jordan was the proprietor
and where the material had been available for sale. TT
There is no doubt that the publications in each case, cover a wide
range of " hard pornography," as that phrase is commonly understood.
They depict and describe in explicit and graphic detail almost every
 703
A.C. Reg. v. Staniforth; Reg. v. Jordan (C.A.)
imaginable- variety of sexual activity, normal and perverted, lawful and
" unlawful, heterosexual and homosexual, including sexual activities between
three and more participants of either sex and of both, the strangest
sexual fetishes, and the most extreme sexual brutality.
We heard the argument in the case of Jordan immediately following
that of Staniforth because'both appeals raise the same point, and it is
for that reason that it is convenient to determine both appeals in a
B single judgment. In each trial it was proposed on behalf of the res­
pective defendant to raise the defence of " public good " pursuant to
section 4 (1) of the Act of 1959 and to support that defence by expert
evidence claimed to be admissible pursuant to section 4 (2) of the Act.
Section 4 provides:
" (1) A person shall not be convicted of an offence against section
Q 2 of this Act . . . if it is proved that publication of the article
in question is 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. (2) It is hereby declared that
the opinion of experts as to the literary, artistic, scientific or other
merits of an article may be admitted in any proceedings under this
Act either to establish or to negative the said ground."
D
In each case, an objection being intimated by the prosecution, the
evidence tendered was ruled inadmissible by the circuit judge. It is on
the ground in each case that the ruling was erroneous in law that the
appeals are argued. Now, the form in which the prosecution's objection
was in each case raised, argued, and in due course ruled upon, was
somewhat unorthodox. Before any expert witness went into the witness
E box to be sworn and questioned, the defence in each case indicated
the general nature of the evidence proposed to be adduced and of the
defence which it purported to support and the arguments and rulings
were related to those general indications. No point has been taken in
this court on the regularity of that procedure and it is not necessary
to refer in detail to the terms in which the disputed evidence was
F described at the two trials. In the case of Staniforth we were furnished
on the hearing of the appeal with a comprehensive statement of the
proposed evidence of Dr. Haward, the expert witness whom the defence
sought to call at the trial. That statement is substantially fuller than
the description of the evidence given to the circuit judge on which he
based his ruling. On the hearing of each of these appeals, this statement
has been conveniently treated as typifying and epitomising evidence of
G the character impugned by the prosecution. It provides a more precise
indication than anything said in oral exchanges at the trials of the
nature of the material to which the judges' rulings should be understood
as applying and the admissibility of which we are called on to decide.
The defence desired to contend that the " object of general concern "..
in the interests of which publication of these articles was justified as
H being for the public good was the psychological health of the community.
The essential theme of Dr. Haward's expert evidence in support of this
contention can be quite shortly summarised: He would have said if
called that every variety of pornographic material before the court had
704
Reg. v. Staniforth; Reg. v. Jordan (C.A.) [1977]
some psychotherapeutic value for various categories of persons, e.g. for
persons of heterosexual taste unable to achieve satisfactory heterosexual
relationships, for persons of deviant sexuality, and for homosexuals and
other perverts, as providing, according to their several needs, appropriate
material to relieve their sexual tensions by way of sexual fantasy and
masturbation. He would have said that such release was beneficial to
such persons and would act as a safety valve to save them from
psychological disorders and to divert them from anti-social and possibly B
criminal activities directed against others.
It is well settled law that expert evidence is not normally admissible
on the primary question of whether or not an article is obscene. It is
for the jury to apply the test of obscenity laid down in section 1 (1) of
the Act of 1959 and decide whether the effect of an article:
" if taken as a whole, [is] such as to tend to deprave and corrupt C
persons who are likely, having regard to all relevant circumstances,
to read, see or hear the matter contained or embodied in it."
In exceptional cases expert evidence may be admissible to help them in
their task: see, for example, Director of Public Prosecutions v. A. and
B.C. Chewing Gum Ltd. [1968] 1 Q.B. 159. But the ordinary rule, D
which was expressly accepted as applicable in both the present appeals,
is that no such evidence can be admitted; Reg. v. Colder & Boyars Ltd.
[1969] 1 Q.B. 151 and Reg. v. Anderson [1972] 1 Q.B. 304. To emphasise,
no doubt, that the defendants' argument is not in any way in conflict
with this rule, the statement of Dr. Haward's evidence includes a passage
in which he expressly says that he is only concerned with the question of
justifying the publication on the assumption that the jury will consider E
the matter published to be obscene.
It may be that the exclusion of expert evidence of the kind under
discussion from consideration on the issue of obscenity, pursuant to the
rule established by the cases referred to, has given an impetus to the
tendency to introduce it by way of the defence of " public good " pursuant
to section 4. This tendency was noted and deplored by all three members of p
the Court of Appeal in Reg. v. Commissioner of Police of the Metropolis,
Ex parte Blackburn (No. 3) [1973] Q!B. 241. Their Lordships' observations
in that case, however, throw no light oh the question we have to decide,
since they clearly were not required to apply their minds to the question
whether upon the true construction of the Obscene Publications Act 1959
the evidence in question was admissible. A startling instance of such
evidence being effective to bring about an acquittal was Reg. v. Lindsay G
(unreported) tried at the Birmingham Crown Court in 1974. A first trial
before Wien J. resulted in a disagreement. This was followed by an
acquittal on a retrial before Ashworth J. The summing up of Ashworth J.
sufficiently indicates the extreme character of the pornographic material
on which the prosecution was based. More recently other acquittals in
similar cases where the same defence was raised have attained some JJ
notoriety. In none of these cases, so far as we have been able to
ascertain, was any objection taken to the admission of evidence of the
same nature as that with which we are presently concerned.
 705
A.C. Reg. v. Staniforth; Reg. v. Jordan (C.A.)
The argument for the defendants in support of the contention that the
evidence is admissible is, in essence, a simple one. First, it is said, the
psychological health of the community is clearly an object "of general
concern." On that premise it must follow, so runs the argument, that
though the material in question may tend to deprave and corrupt some
people, nevertheless Dr. Haward's expert opinion as to its beneficial
therapeutic effect upon others in the special psychological categories with
which he deals is admissible as evidence of the " merits " of the material
to be weighed in the balance by the jury in deciding whether the publi­
cation is justified as being for the public good on a ground within section
4 (1). Two passages from the authorities were particularly relied upon
by Mr. Mortimer. In Reg. v. Colder & Boyars Ltd. [1969] 1 Q.B. 151,
172, Salmon L.J. said:
C
" In the view of this court, the proper direction on a defence under
section 4 in a case such as the present is that the jury must consider
on the one hand the number of readers they believe would tend to
be depraved and corrupted by the book, the strength of the tendency
to deprave and corrupt, and the nature of the depravity or corruption;
on the other hand, they should assess the strength of the literary,
^ sociological or ethical merit which they consider the book to possess.
They should then weigh up all these factors and decide whether on
balance the publication is proved to be justified as being for the
public good."
In Reg. v. Anderson [1972] 1 Q.B. 304, 312 Lord Widgery C.J. said:
g " I need not read the section in full but under section 4 (1) a defence
can be put forward in respect of an obscene article that its publication
is desirable in the public good, and section 4 (2) specifically provides
that the opinion of experts as to the literary, artistic, scientific or other
merit of such an article may be admitted. What is contemplated
there is that, if an article is found to be obscene, evidence of experts
as to its merits under those heads may be called and it is then for
F the jury to balance the merit and demerit of the article and conclude
whether they find it acceptable or not."
In the light of these passages, the argument advanced for the defendants
that the evidence sought to be adduced is relevant to a defence under
section 4 (1) and admissible under section 4 (2) appears at first blush to
have some cogency. Both subsections, however, require careful analysis.
G The scope of possible defences available under the section is defined by
subsection (1); the character of the expert evidence declared admissible in
support of any such defences is defined by subsection (2).
Section 4 (1) does not extend to all forms of asserted public good.
The benefit to the public must be related to "the interests of science,
literature, art or learning or other objects of general concern." This is
JJ clearly a limiting phrase qualifying the nature of the public good which
can be set up as justifying the publication of obscene material. It follows
that the concluding words " or other objects of general concern " are not
to be construed as embracing everything which can be said to confer some
706
Reg. v. Staniforth; Reg. v. Jordan (C.A.) [1977]
benefit on the public. Such an interpretation would make all that follows
the words " public good " in the subsection both superfluous and meaning­
less. Even if the " other objects " are not necessarily to be regarded as
ejusdem generis with science, literature and so on, i.e. branches of know­
ledge and aesthetics, those other objects must be such as not only conduce
to the public good but are of concern to members of the public in general.
The proposition advanced by Mr. Mortimer that whatever is for the public
good is ipso facto a matter of general concern involves a false syllogism. B
The disposal of sewage is no doubt for the public good but it is not a
matter with which the generality of the public is concerned. The theme
of Dr. Haward's intended evidence is that obscene material is beneficial
to those who are sexually repressed or perverted or deviant. It may be so,
but this does not make its publication an object of general concern.
This analysis goes a long way towards demonstrating that the defence Q
which Dr. Haward's evidence was directed to maintain was itself irrelevant
as lying outside the scope of section 4 (1). It is powerfully reinforced both
by an analysis of the language of section 4 (2) with respect to admissibility
and by considering the wider implications of the construction of section 4
urged on behalf of the defendants in the context of the Act as a whole.
The expert evidence which is made admissible by section 4 (2) is as
to " the literary, artistic, scientific or other merits of an article." The
question to be asked is " what are the merits of the article per se? " and
not " what are the possible results of its dissemination? " Thus a painting
may be lewd but its artistry of such a high order as to transcend or redeem
the objectionable character of the subject matter. So also a book may be
salacious and yet possess such style and quality as to make it of value as
literature. These intrinsic merits are matters on which the informed
opinions of experts may afford assistance to a jury who can weigh those
opinions in making their own direct judgment of the subject matter.
The point at which the argument for the defendants ultimately breaks
down is when it has to be conceded (as it was at an early stage by Mr.
Mortimer) that the expert evidence sought to be advanced commends the
merits, not of any particular publication, but of virtually all pornographic ^
material. Mr. Mortimer reserved the possibility that Dr. Haward and
others expressing a like opinion might find some pornography so extreme
or egregious as to withhold their commendation from it. But he was
unable to suggest what the distinctive quality of this exceptional material
might be, and having regard to the central theme of Dr. Haward's opinion
it is difficult to see why it should not apply to any sexual material what- G
soever. It follows that the " merits " to which the expert evidence relates
and which are relied on to justify publication under section 4, are not to
be found in any quality of the published material which transcends or
redeems its possible obscenity, but are inherent in the selfsame quality as
that which is relied upon by the prosecution to establish under section 1
that the material is obscene. The inescapable logic of the argument is that JI
pornographic material, which the jury may find to have a tendency to
deprave and corrupt some people, may nevertheless be commended to
them on the ground that pornography as such is beneficial to others, namely,
 707
A.C. Reg. v. Staniforth; Reg. v. Jordan (C.A.)
the sexually inadequate, the deviant and the perverted, and thus that it
is an object " of general concern " that pornographic publications should
be freely available. Evidence advanced in support of such an argument
as this cannot conceivably be within the intended scope of the language
used by Parliament in section 4 of the Act of 1959. To hold otherwise
would be to say that Parliament had provided by section 4 an opportunity
for every jury to decide for itself as a matter of general public policy
B whether obscene material should or should not be subject to any restraint
upon publication under the law. This cannot possibly be a proper subject
for debate in the jury room. If the argument is well founded and the
experts are right in the opinion they would express in support of it, this
can only lead to the conclusion that the Obscene Publications Act 1959 is
self-stultifying and might as well be repealed. The social arguments for
C and against maintaining a legal restraint on pornography are proper subjects
for public and parliamentary debate. But while the present legislation
remains in force, the court's duty is to apply it and not allow it to be
ingeniously subverted.
Mr. Robertson, for the defendant Jordan, contended that, even if
the expert evidence in question be ruled inadmissible under section 4 (2),
j) it should be open to counsel to argue for a defence of " public good "
under section 4 (1) by reference to the allegedly beneficial effects of
the pornographic material. This contention is clearly wrong. It was,
however, conceded for the Crown at the trial of Staniforth that counsel
cannot be prevented from inviting the jury to regard publication of the
material as beneficial. The intended scope of the concession is not
altogether clear and we have some doubt whether it was properly made.
It may perhaps be open to counsel when arguing the issue arising under
section 1 as to whether an article has a tendency to deprave and corrupt
to canvass the- supposed benefits of publication but not, of course, by
reference to any expert opinion on the subject.
In Reg. v. Knuller (Publishing, Printing and Promotions) Ltd. [1973]
A.C. 435, 462, Lord Morris of Borth-y-Gest said that Parliament, in
F
assigning to the jury the task of deciding whether an article tends to
deprave and corrupt, had doubtless:
" done so with the knowledge that there is every likelihood that the
collective view of a body of men and women on a jury will reflect
the current view of society."
G The difficulty, which becomes ever increasingly apparent, is to know
what is the current view of society. In times past there was probably
a general consensus of opinion on the subject, but almost certainly
there is none today. Not only in books and magazines on sale at every
bookstall and newsagent's shop, but on stage and screen as well, society
appears to tolerate a degree of sexual candour which has already invaded
JJ a large area considered until recently to lie within the forbidden territory
of the obscene. The jury's formidable task, with no other guidance
than section 1 of the Act of 1959 gives them (and that is precious
little), is to determine where the line should be drawn. However
708
Reg. v. Staniforth; Reg. v. Jordan (C.A.) [1977]
conscientiously juries approach this responsibility, it is doubtful, in the .
present climate of opinion, whether their verdicts can be expected to
maintain any reasonable degree of consistency. But so long as juries
bear the responsibility, they should at least be allowed to discharge it by
applying their own good sense and not be diverted from it by the
irrelevant opinions of experts.
In both cases under appeal, the disputed evidence was rightly ruled
inadmissible and the appeals against conviction are dismissed. B
The defendant Jordan also applies for leave to appeal against sentence.
She was sentenced to a total of 15 months' imprisonment, suspended
for two years, fined a total of £700, and ordered to pay £100 towards
the costs of the prosecution. She has previous convictions for similar
offences, in 1972 when she was fined £200, and in 1974 when she was
fined £75. The present sentence was a proper one and the application Q
for leave to appeal against it is refused.

Appeals against conviction dismissed.

Application by the defendant, Jordan, for
leave to appeal against sentence refused.
The defendant, Staniforth, ordered to contri-
bute sum not exceeding £250 towards his own
costs under legal aid and to pay prosecution
costs to maximum of £250.
Prosecution costs not covered by court order
out of central funds.
The court certified, under section 33 (2) of the
Criminal Appeal Act 1968, that a point of E
law of general public importance was in-
volved in the decision to dismiss the appeals
against conviction, namely, " Whether upon
the true construction of section 4 of the
Obscene Publications Act 1959 expert evi-
dence is admissible in support of the defence p
under that section, to the effect that porno-
graphic material is psychologically beneficial
to persons with certain sexual tendencies in
that it relieves their sexual tensions and may
divert them from anti-social activities."
Leave to appeal refused.
G
Solicitors: Registrar of Criminal Appeals; R. C. Beadon, Northampton;
Offenbach & Co.; R. H. C. Rowlands, Cardiff.

April 29, 1976. The Appeal Committee of the House of Lords (Lord
Diplock, Lord Salmon and Lord Fraser of Tullybelton) allowed a petition
by the defendants for leave to appeal. JJ

[Reported by Miss EIRA CARYL-THOMAS, Barrister-at-Law]

 709
A.C. Reg. v. Jordan (H.L.(E.))
. Only the appeal of the defendant Jordan was argued before the Appeal
Committee.
John Mortimer Q.C. and Geoffrey Robertson {Michael Grieve with
them) for the appellant. The description of the material in the third
paragraph of the judgment of Bridge L.J. is accepted. The defence avail­
able includes the medical and scientific evidence which was excluded at
the trial. The mental health and stability of a small group of people
B may be " of general concern " to a large group within the meaning of
section 4 (1) of the Obscene Publications Act 1959. One must consider,
not the intrinsic quality of the article, but its publication. The evidence
is directed to the question whether its publication is for the public good.
The section is equally available to the prosecution and to the defence.
When the jury is regarding a sale to the public it must consider both
Q sides. Under section 1 of the Act they must consider whether the article
tends to make morally bad those who read, see or hear it. They must
distinguish the concept of moral danger in section 1 and medication, which
may outweigh the dangers, under section 4. They are two different con­
cepts and the jury must weigh one against the other. At the end of the
trial the jury must put, on the one hand, the tendency to deprave and
corrupt and the nature of the depravity and corruption and, on the other
D hand, the evidence as to therapeutic effect and public good.
It is submitted: (1) The evidence called under section 4 as to the
latter has nothing to do with section 1 and does not flow into it. The
distinction is between the tendency to make morally bad (section 1) and
the possibility of therapy by immunising people who might be a danger
to the community (section 4). Such therapy might induce conformity in
£ some people, reducing callousness and widening their knowledge of their
complexes.
(2) The Act should not be made self-stultifying. The evidence is avail­
able both to the defence and the prosecution. In many cases where such
evidence has been called there have been convictions. It is not a blanket
defence because there is a separate count in respect of each article.
(3) The defence would not apply to all obscene material. It would not
apply to an advertisement for drug taking: John Colder (Publications)
Ltd. v. Powell [1965] 1 Q.B. 509. Nor would it apply to instructions on
how to plant bombs. It is confined to sexual material.
(4) In the construction of the Act the ejusdem generis rule does not
apply. There is not here a genus which includes science, literature, art
and learning, the acquiring of knowledge in the different fields.
G (5) Among the " objects of general concern " the whole field of sexual
therapy and the reasons for sexual crime should be included. The evidence
in question goes further than the case of a small number of deviant
people. " Objects of general concern " do not cover all matters of public
good. But the psychological health even of a few people is potentially
a matter of general concern and it should be left to the jury to find
JJ whether or not it is. A tendency to deprave and corrupt, on the one hand,
may co-exist with a potential for therapy, on the other, e.g., the abuse and
the use of a dangerous drug.
(6) In the light of the way the Act is framed it must be wrong to look
710
Reg. v. Jordan (HX.(E.)) [1977]
only at the intrinsic merits of the article and not at its effects. "Oliver
Twist" has intrinsic literary merits but it also awakened the public cons- A
cience. No book exists in a vacuum and one must have regard to the
effect it may have. See also section 1 of the Obscene Publications Act
1964 and Archbold Criminal Pleading Evidence & Practice, 39th ed.
(1976), para. 3843, p. 1607.
Reliance is placed on Director of Public Prosecutions v. A. and B.C.
Chewing Gum Ltd. [1968] 1 Q.B. 159. Reg. v. Calder & Boyars Ltd. fi
[1969] 1 Q.B. 151, 170, 171, indicates that the jury must consider, on the
one hand, the tendency to deprave and corrupt and, on the other, the
public good and that they must have the evidence to reach their conclusion.
Reg. v. Anderson [1972] 1 Q.B. 304, 312-313 indicates that the jury must
consider first the evidence under section 1 of the Act of 1959 and then the
evidence under section 4,
Director of Public Prosecutions v. Whyte [1972] A.C. 849, 859 (Lord c
Wilberforce), 864 (Lord Pearson), 867 (Lord Simon of Glaisdale) 870-871
(Lord Cross of Chelsea) 875-876 (Lord Salmon) indicates that in such
a case as this one must determine whom and to what extent the article
is going to corrupt before one can decide the further point under section
4. ' There is a distinction between the ideas of moral corruption and
medical therapy, just as there is a distinction between the ideas of moral j)
corruption and aesthetic pleasure. Section 1 is concerned with the mind
and the tendency to deprave and corrupt. Then comes section 4 under
which one must consider whether there is something in the article which
would prevent the depraved person from passing to overt acts. Reg. v.
Commissioner of Police of the Metropolis, Ex parte Blackburn (No. 3)
[1973] Q.B. 241, 249-250, 257-258, 264, illustrates the uncertainty of
the elements constituting the offence. Olympia Press Ltd. v. Hollis [1973] E
1 W.L.R. 1520, 1524, is authority for saying that evidence presented under
section 4 does not flow over and obscure the intention of section 1.
The authorities on the question how far expert evidence is admissible
under the principle in the A. and B.C. case [1968] 1 Q.B. 159, 164 are
Reg. v. Holmes [1953] 1 W.L.R. 686, 688; Transport Publishing Co. Pty.
Ltd. V. Literature Board of Review (1956) 99 C.L.R. I l l , 130; Reg. V. F
Prairie Schooner News Ltd. (1970) 75 W.W.R. 585, 586 and Reg. v. Times
Square Cinema Ltd. (1971) 3 O.R. 688, 698.
By section 6 of the Libel Act 1843 "public benefit" was allowed as a
defence: see Archbold, para. 3672, p. 1516. Under that section the
matters said to be for the public benefit must be set out and proved. This
was followed up by section 4 of the Newspaper Libel and Registration
Act 1.881: see Archbold, para. 3624, p. 1517. The form of a plea of G
public benefit is set out in para. 3646, p. 1527. See also Goldsbrough v.
John Fairfax & Sons Ltd. (1934) 34 S^R.N.S.W. 524, 536. ■ The public
benefit must be proved by evidence.
In Chandler v. Director of Public Prosecutions [1964] A.C. 763 it was
held that the Crown was the sole judge of what is prejudicial to the dis­
position of the forces of the Crown and it can lead evidence to that effect, j j
From Shaw v. Director of Public Prosecutions [1962] A.C. 220 it
appears that in obscenity intention is irrelevant; it is the tendency of the
article which matters.
 711
A.C. Reg. v. Jordan (H.L.(E.) )
From Cross, Evidence, 4th ed. (1974), p. 388, it appears that in criminal
cases the rule that an expert witness cannot be. asked the question which
the court has to decide is being eroded.
Robertson following. The scheme of the Act of 1959 is to enable a
jury to weigh the pros and cons,, not of the article in itself but in all the
circumstances of its publication and if,'in those circumstances, the article
is beneficial there can be no conviction. The case revolves round the
B publication. Here the publication was at a bookshop and there is evidence
of its location and of the age and class and occupation of the purchasers
of the obscene material.
" Publication " in the Act of 1959 has an extended meaning. The most
recent case on the subject is Attorney-General's Reference (No. 2 of 1975)
[1976] 2 All E.R. 753, 757, 759, 761 (Kenneth Jones J. at first instance)
c and [1976] 1 W.L.R. 710, 716 (James L.J. in the Court of Appeal). The
effect of the interpretation there adopted is to read " publication" in
section 4 of the Act in the same sense as " publication" in section 1.
Thus "publication" in section 4 refers, not to publication to the world
at large but to the limited form of publication established by the evidence
called under section 1.
Notable works of art could be communicated in circumstances which
® might not be for the public good. An irresponsible schoolmaster might
read them to adolescents or an individual might use them to corrupt a
young girl. Such a " publication " could not be said to be for the public
good, even though it introduced great works of art. The scheme of the
Act is not to declare material obscene per se, but to enable a jury to look
at the circumstances of publication and then to ask: Do the circumstances
E of publication outweigh the corruption which might incidentally occur?
The scheme of the Act is that people who use erotic material to harm
others should be punished, whether they do it deliberately or not. One
must interpret " publication " in section 4 in the same way as in other
places in the Act.
Here there is evidence of the character of the customers in the shop
and the steps taken to exclude some customers. The question is: Had
the publication to that group of people merit or demerit? The evidence
offered should enable the jury to balance the pros and cons. If the deci­
sion of the Court of Appeal is correct, it could never be put in the scales
for the jury. But either the prosecution or the defence should be able to
offer factual evidence of the kind of persons who frequent the shop
followed by expert evidence as to the likelihood of beneficial or detri-
G mental effects on them.
What Lord Diplock said in Reg. v. Knuller (publishing, Printing and
Promotions) Ltd. [1973] A.C. 435, 480, regarding section 4 of the Act, is
relevant to the present case because if in fact the prosecution in that case
was a breach of the Attorney-General's assurances there referred to and
section 4 could have been raised as a defence it could only have been
JJ raised in relation to evidence of the sort tendered in the present case.
The jury should be able to consider whether the benefits attested by
defence experts outweigh the danger of corruption. Misgivings about the
validity of such testimony go to weight, not admissibility.
712
Reg. v. Jordan (H.L.(E.)) [1977]
With regard to the " objects of general concern " referred to in section
A
4 (1), the distinction is made between objects of concern to the public
at large and objects of concern to some individual. To expose the im­
morality of a person in public life may be an object of public concern, but
the exposure of a person in private life would not be. To protect women
from rape would be an object of public concern, though comparatively
few women are raped. Some objects of public good may not be of
general concern. B
R. G. Waterhouse Q.C. and Brian Moran for the respondent. Only the
appeal of Mrs. Jordan is being heard.
Mortimer Q.C. I received a communication from an official of the
House of Lords asking whether I would give any help required in con­
nection with Staniforth's case. In relation to his case I appear as amicus
curiae. «
Waterhouse Q.C. Judge Pitchford's summary of the case is correct.
He said that the intention of section 4 is not to protect pornography but to
protect an article as a whole for its intrinsic merits in spite of the obscenity
of its parts. Parliament never intended to permit obscenity to stand by
itself in a protected state. It is protected only if it is coupled with merit
and the merit redeems the obscenity. In section 4 (2) the words "or
other merits," are governed by what precedes them, i.e. " literally, artistic, D
scientific." The " other merits " must be concerned with recognised civilised
objects, be they literary, artistic, scientific or learned, or historical, or socio­
logical. The words could not be interpreted so as to protect obscenity for
its own sake or pornography for its own sake.
In summary in section 4 (1) the " objects of general concern " should
be read as indicating aesthetic and intellectual concern and in section 4 (2) g
" merits " means " intrinsic merits."
It was not in the contemplation of Parliament that pornography should
be for the public good. Section 1 (1) throws light on the meaning of
" publication " in section 4 (1). In the case of a " girlie " magazine the
court is entitled to look at evidence of the general circulation and the
matter contained in it. The prosecution does not have to prove sales but
F
must establish that the magazine is being published for general circulation.
In the present case evidence of the age and character of the clientele was
given, but that does not affect the meaning of obscenity. The jury is
entitled to consider general circulation. If a book is being offered for sale
generally, the test in assessing obscenity takes account of that. A book or
article must be taken as a whole, as also its effect.
Section 3.(1) deals with powers of seizure of obscene articles. The G
reference to " general concern " in section 4 (1) is the correlative of " public
good." Science and literature are matters of general concern. Parliament
did not wish matters that were not of general concern to be justified as
being for the public good. It is possible that there are matters of religious
investigation which are confined to so small a section of society that they
would not be of general concern so as to render publication something for JJ
the public good.
In interpreting section 4 (1) the ejusdem generis rule should be applied:
see Craies on Statute Law, 7th ed. (1971), pp. 178-179 and Maxwell on
 713
A.C. Reg. v. Jordan (H.L.(E.))
Interpretation of Statutes, 12th ed. (1969), pp. 297-298, 305. What is
essential is that there should be a category.
In intellectual and artistic matters there is an objective code of merit.
There are established values on which experts can express opinions. They
are matters of the mind and of sensibility. That category is far removed
from mental health and medical treatment.
The publication must be " in the interests of science, literature, art or
B learning." It is justified as being for the public good on those grounds.
Here it is not suggested that the defendant distributed this matter for its
therapeutic effect. Indeed, it would be difficult for a bookshop mainly
circulating hard pornography to assert that the publication was in the
interest of its therapeutic effect when the object was commercial gain.
The words " in the interest of" do not necessarily mean " to the advantage
Q of." Here the appellant only contends that collaterally some people may
benefit in health by the publication. But the psychological welfare of
people who read books does not fall within section 4. Section 1 is
designed to deal with the subjective effect of obscenity, section 4 deals
with objective values. The long title to the Act, including the words " to
provide for the protection of literature," is prayed in aid. That is the
object of section 4. The appellant's argument evades those words. If
D Parliament had intended the therapeutic quality of a publication to be
taken into consideration, it would have so indicated.
Even if the ejusdem generis rule did not apply the words " objects of
general concern " would have a limited meaning: see Craies on Statute
Law, 7th ed., p. 177. The statute should not be interpreted so as to enable
a defence to be put forward that an article with a tendency to deprave is
E for the public good. Whatever the limit may be, that must be outside it.
Otherwise the consequences would be most alarming. Admission of this
kind of evidence would negative the purpose of the Act: see Director of
Public Prosecutions v. Whyte [1972] A.C. 849, 863, 867; Reg. v. Com-
missioner of Police of the Metropolis, Ex parte Blackburn (No. 3) [1973]
Q.B. 241, 248, 249, 250, and Reg. v. Greater London Council, Ex parte
Blackburn [1976] 1 W.L.R. 550, 555.
The matter should be judged by civilised objective standards and not
by the standards of therapy for the perverted: see Reg. v. Colder & Boyars
Ltd. [1969] 1 Q.B. 151, 172, where there is reference to "literary, socio­
logical or ethical merit." This is unobjectionable because all three are
matters of literature or science. Sociology means " The science or study
of the origin, history, and constitution of human society " (Shorter Oxford
G English. Dictionary, 3rd ed. (1944), vol. II, p. 1936). The meaning should
not be widened to take in, say, the social effects of pornography. Similarly,
the word " ethics " should be regarded in its scientific sense, the science
of morals.
The intrinsic merits of the article must be considered in the sense of
those belonging naturally do it. This excludes merits which are mere side
JJ effects, though merits do include the effects of an article as well as its
internal quality. The "merits" referred to in section 4 (2), are the in­
herent excellence of the work. The test is its inherent quality as art or
literature. Much of art and literature cannot wholly be divorced from its
714
Reg. v. Jordan (H.L.(E.)) [1977]
effect on the viewer or the reader. But one is here essentially concerned
with the intrinsic merits of the work and it should be left to the jury to A
decide on those internal qualities.
The appellant has widened the scope of the argument to deal with social
effects. On this the respondent relies on Reg. v. Stamford [1972] 2 Q.B.
391, 397, a case under the Post Office Act 1953. Generally under that Act
and under the Obscene Publications Act 1959 no expert evidence is ad­
missible for the Crown. If the expert evidence tendered for the appellant B
here were held to be admissible an imbalance would be created.
The contention that some people may derive benefit from obscene publi­
cations is not one which can be raised under section 1 of the Act. Under
that section the jury is required to consider whether a significant number
of people will be depraved. It is irrelevant to call evidence that some weak
people may benefit. This is a matter for the jury and not for an expert
witness. ^
The structure of section 4 is not essentially different from that of section
6 (3) of the Sexual Offences Act 1956: see Archbold Criminal Pleading
Evidence & Practice, 39th ed., para. 2907, p. 1249. It is convenient and
appropriate, therefore, for the jury to be told to consider the issue of
obscenity first and that they should only go on to consider a defence under
section 4 (1) if they are satisfied that the article is obscene. D
As to the admissibility of expert evidence generally, see Reg. v. Terence
Turner [1975] Q.B. 834, 841. A psychiatrist is in no better position than
anyone else to give evidence about obscenity or moral corruption. That
case indicates that in matters which concern ordinary human behaviour
experts are not to be called to tell the court how ordinary people behave.
The same applies to obscene publications.
The Canadian cases cited have no parallel in the present legislation. **
There must be some limit to the scope of expert evidence. The evidence
of the expert tendered in this case was largely hearsay and the conclusions
expressed were highly contentious. The Act ought not to be stultified by
allowing this sort of evidence.
Many similar cases depend on the decision of the House.
Mortimer Q.C. in reply. Though the long title to the Act refers to p
" the protection of literature," not all its provisions can be so described.
It also says that an object of the Act is " t o strengthen the law concerning
pornography." But the only strengthening is in section 3, relating to powers
of search and seizure. There was a power of search and seizure in the
Obscene Publications Act 1857. See the notes to section 3 of the Act of
;1959 in Halsbury's Statutes of England, 3rd ed. (1969), vol. 8, pp. 483-484.
As to the application of the ejusdem generis rule to section 4 (1), " art " "
and " learning " are quite different expressions. Aesthetic experience is
quite different from the long process of acquiring knowledge inherent in
science and learning. Much art produced by African savages has influenced
modern painting; many of the paintings are obscene. Picasso or Sir
Kenneth Clarke would testify that some of these were important objects to
which the character of " art " would apply. JJ
Certain portions of manuals of sexual intercourse dealing with tech­
niques in marriage could only be justified by their beneficial effects on the
parties and not by their intrinsic beauty of expression. Thus they might
 715
A.C. Reg. v. Jordan (H.L.(E.))
fall within the scope of section 1, but in the appellant's view of section 4
prosecution would be ruled out because, though the expression is not
meritorious in literary terms, the main advantage is in the effect on the
people who read them. The intention of the writer or the shopkeeper can­
not be material. Medical textbooks cannot be limited to those of intrinsic
literary quality; one can look at the effect on persons who study them and
on the life of the community. Their intrinsic value can only be judged by
B their effects. The intrinsic literary value of a work may be high and
yet its effect may be low and vice versa. The effect of Greek tragedy was
to purge the audience with pity and terror. If a sexually explicit work
purges its readers by dealing with sexual matters in which they are
frustrated there may well be a catharsis. The expert can give evidence on
a work of art in its social and historical context, which relates to its literary
merit. The weight of such evidence may be attacked but it is admissible.
^ Since the Act was passed new objects of general concern may have emerged.
"Pornography " is not a word with a legal meaning. If one were to
read it in a limited sense so as to exclude it from the scope of section 4,
one would be in an ill-defined area.
As to Turner's case [1975] Q.B. 834, 841, an expert can give scientific
information about the inner life of people suffering from deviant forms of
D sexuality which are likely to be outside the knowledge of a judge and jury,
The jury's task is not made easier by denying to them material which can
be made available as to the rare and not. so rare conditions of human
sexuality.
LORD WILBERFORCE intimated that their Lordships would report to the
House that the appeal should be dismissed and that they would deliver-
E their reasons then.
November 17. LORD WILBERFORCE. My Lords, the appellant, Mrs.
M. E. Jordan, has been convicted at the Crown Court, Swansea, of 37
offences under the Obscene Publications Acts 1959-64. She was the
proprietor of a bookshop where books, magazines and films, the subject.
of the charges, were available for sale. The shop was a normal news-
p agent's and bookshop, though we were told that there was a notice:
saying that it was for adults only. Observation on the customers showed1
that they appeared to be ordinary members of the public. There was.
nothing about the prices of the articles which would place them in a.
category of specialised publications. The 37 charges related to 12 books,.
15 magazines and 10 films, each indisputably of the character of hard
pornography. It was not suggested that any of them possessed any
G literary, scientific, or artistic merit.
The relevant sections of the legislation are sections 1 (1) and 4 of the
Obscene Publications Act 1959 and section 1 of the Obscene Publications
Act 1964 which brought within the earlier Act cases (such as the present)
of having the relevant article in possession with a view to publication for
gain. No question arises under this latter section.
u The sections in the Act of 1959 are as follows:
" 1 (1) For the purposes of this Act an article shall be deemed to
be obscene if its effect or (where the article comprises two or more
distinct items) the effect of any one of its items is, if taken as a whole,
716
Lord Wilberforce Reg. v. Jordan (H.L.(E.)) [1977]
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."
"4 (1) A person shall not be convicted of an offence against
section two of this Act, and an order for forfeiture shall not be made
under the foregoing section, if it is proved that publication of the
article in question is justified as being for the public good on the
ground that it is in the interests of science, literature, art or learning, B
or of other objects of general concern. (2) It is hereby declared that
the opinion of experts as to the literary, artistic, scientific or other
merits of an article may be admitted in any proceedings under this
Act either to establish or to negative the said ground."
On these sections, conviction on each count would appear automatic
but at the trial an application was made for the defence to call expert c
evidence in accordance with section 4 (2) above, in order to support a
defence based on the "public good." The nature of the evidence pro­
posed to be called was outlined to the court by counsel.
In the Court of Appeal, the appeal of Mrs. Jordan came on together
with an appeal in another case (Reg. v. Staniforth) which involved very
similar facts. There was put before the court a full statement of the
evidence which would have been given in Staniforth's case by an eminent D
psychologist. This was treated for the purpose of both appeals as typifying
and epitomising the evidence which the defence sought to raise. It was
summarised by the Court of Appeal, in the following passage, at pp. 703H
—704B:
" He would have said if called that every variety of pornographic
material before the court had some psychotherapeutic value for E
various categories of persons, e.g. for persons of heterosexual taste
unable to achieve satisfactory heterosexual relationships, for persons
of deviant sexuality, and for homosexuals and other perverts, as
providing, according to their several needs, appropriate material to
relieve their sexual tensions by way of sexual fantasy and masturba­
tion. He would have said that such release was beneficial to such
persons and would act as a safety valve to save them from psycho- *
logical disorders and to divert them from anti-social and possibly
criminal activities directed against others."
Although only an appeal in Jordan's case is before the House, I am
satisfied, after comparing this passage with the transcript of what took
place at the trial of Mrs. Jordan, that it fairly represents the nature of
the evidence sought to be called. G
At the trial, the learned judge ruled against the admissibility of this
evidence. The appellant was accordingly convicted on all the charges.
The Court of Appeal upheld this ruling and dismissed her appeal. They
certified the following point of law of general public importance as in­
volved in their decision, namely, ante, p. 708F:
" Whether upon the true construction of section 4 of the Obscene JJ
Publications Act 1959 expert evidence is admissible in support of the
defence under that section, to the effect that pornographic material
is psychologically beneficial to persons with certain sexual tendencies
 717
A.C. Reg. v. Jordan (H.L.(E.)) Lord Wilberforce
in that it relieves their sexual tensions and may divert them from
anti-social activities."
The question evidently refers, in a compressed form, to that which has
been fully expressed above, and I shall deal with it on this basis.
My Lords, the answer to this question depends upon a correct under­
standing of the scheme of the Act of 1959 and of the relation between
the two principal sections—the definition of " obscene " in section 1 (1),
B and the defence of " public good " in section 4. It is necessary to perceive
that they operate in different dimensions.
The definition of obscene, as is well known, and by some regretted, is
taken from Reg. v. Hicklin (1868) L.R. 3 Q.B. 360, and had been used
and interpreted in many cases before 1959. The public good reference is
taken with adaptation, from the submission, i.e. suggestion, made by
c Stephen not long afterwards. The object of the Act of 1959 as stated
in the long title was "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 words " the protection
of literature " evidently look forward to the new defence of public good
which section 4 provided. In fact section 4, as finally enacted, extends
beyond literature—it includes, specifically, science, art or learning—and
D adds, for good measure, " other objects of general concern." [Stephen's
word was " interest."] It is under these words that the appellant seeks
to introduce "therapeutic" evidence, and the essential question is how
far these words should be taken to extend. The first step in interpretation
must be to define the scope of section 1.
An article (a technical word which includes books and films) is obscene
if its effect is such as to tend to deprave and corrupt persons likely to
^ read, see, or hear the matter contained or embodied in it. The main
point to be noticed about this section is, as I pointed out in Director of
Public Prosecutions v. Whyte [1972] A.C. 849, 860 that it is directed at
relative obscenity—relative, that is, to likely readers. (I use " readers "
to include other types of recipients.) In each case it has to be decided
who these readers are and so evidence is usually given as to the type of
F shop or place where the material is, and as to the type of customer who
goes there: cf. again, Director of Public Prosecutions v. Whyte. When
the class of likely reader has been ascertained, it is for the jury to say
whether the tendency of the material is such as to deprave or corrupt
them, and for this purpose, in general, no evidence, psychological, socio­
logical or medical may be admitted: see Reg. v. Anderson [1972] 1 Q.B.
304; Director of Public Prosecutions v. Whyte. The jury consider the
G material for themselves and reach their conclusion as to its effect. They
cannot be told by psychologists or anyone else what the effect of the
material on normal minds may be.
The reason for this has sometimes been said to lie in the supposed
common law rule excluding direct evidence as to the ultimate issue to
be decided but I think that it (or this may be true of the rule itself) rests
H on a less technical basis, namely upon the principle that since the decision
has been given to the jury as representing the ordinary man, it follows
that, at any rate as to matters affecting the ordinary man, the jury, as
such, must make it.
718
Lord Wilberforce Reg. v. Jordan (H.L.(E.)) [1977]
The point has been well put in the Court of Appeal:
" An expert's opinion is admissible to furnish the court with scientific
information which is likely to be outside the experience and know­
ledge of a judge or jury. If on the proven facts a judge or jury can
form their own conclusions without help, then the opinion of an
expert is unnecessary. In such a case if it is given dressed up in
scientific jargon it may make judgment more difficult. The fact that
an expert witness has impressive scientific qualifications does not by B
that fact alone make his opinion on matters of human nature and
behaviour within the limits of normality any more helpful than that
of the jurors themselves; but there is a danger that they may think
it does." Reg. v. Turner (Terence) [1975] Q.B. 834, 841, per Lawton
L.J.
And in the High Court of Australia: ^
" . . . on the question of the tendency of the literature to deprave or
corrupt . . . important distinctions must be observed. For the ques­
tion necessarily has two aspects or falls into two parts. One is the
content and nature of the literature and the other concerns the
characteristics of the persons themselves. With reference to the second
of these it may be said at once that ordinary human nature, that of D
people at large, is not a subject of proof by evidence, whether
supposedly expert or not." Transport Publishing Co. Pty. Ltd. V.
Literature Board of Review (1956) 99 C.L.R. I l l , 118-19 per Dixon
C.J., Kitto and Taylor JJ.
To this general rule there may be an exception in a case where the
likely readers are a special class, such that a jury cannot be expected to
understand the likely impact of the material upon its members without
assistance. In such a case evidence from persons qualified by study or
experience of that class may be admissible. In Director of Public Prosecu-
tions v. A. and B.C. Chewing Gum Ltd. [1968] 1 Q.B. 159 expert evidence
was admitted as regards the likely impact of the material on children.
We are not required in this case to validate, or otherwise, this exception p
or to define its scope, because the evidence was not directed to showing
that the class of likely readers consisted of, or as to a significant number
included, sexual abnormals or deviants. The case was one of normal
readers, and was to be judged by the jury in relation to them, and, since
normal readers were in question here, psychological evidence of "thera­
peutic effect" was inadmissible at the stage when section 1 was being
applied. No doubt for this reason the attempt was made to introduce it ^
under section 4, to which I now pass.
Whatever the exact meaning of the expressions used in section 4 may
be, one thing is apparent. The section is dealing with a different range,
or dimension, of considerations from that with which section 1 is con­
cerned. It is not raising over again the issue of " deprave or corrupt"
versus " innocuousness " or " benefit" in relation to likely readers which j j
is the essence of the earlier section. It assumes that, apart from what
section 4 itself may do, that issue would be resolved in favour of " deprave
and corrupt" and having assumed that, it allows a contention to be made
 719
A.C. Reg. v. Jordan (H.L.(E.)) Lord Wilberforce
and evidence to be given that publication of the material is, on specified
grounds, for the public good.
Each of its subsections provides guidance as to the conception of
public good which is in mind. Subsection (1) provides a list which one may
suspect (from the long title) started with " literature " and was expanded
to include science, art and learning and still further to include " other
objects of general concern." The latter phrase is no doubt a mobile
B phrase; it may, and should, change in content as society changes. But—I
follow in this the admirable judgment of the Court of Appeal—even if
this is not strictly a case for applying a rule of ejusdem generis (the genus
being one of intellectual or aesthetic values), the structure of the section
makes it clear that the other objects, or, which is the same argument, the
nature of the general concern, fall within the same area, and cannot fall
in the totally different area of effect on sexual behaviour and attitudes,
^ which is covered in section 1. In other words it introduces a new type
of equation—possibly between incommensurables—between immediate and
direct effect on people's conduct or character (section 1) and inherent
impersonal values of a less transient character assumed, optimistically
perhaps, to be of general concern (section 4). This is confirmed by sub­
section (2) which allows evidence to be given as to the literary, artistic,
D scientific or other merits of the article—the word "other," again, to be
interpreted as referring to merits in the same field or dimension. The
judgment to be reached under section 4 (1), and the evidence to be given
under section 4 (2), must be in order to show that publication should be
permitted in spite of obscenity—not to negative obscenity. Section 4 has
been diverted from its proper purpose, and indeed abused, when it has
been used to enable evidence to be given that pornographic material may
-E be for the public good as being therapeutic to some of the public. I
respectfully agree with the observations to this effect of Lord Denning
M.R. and of Phillimore and Roskill L.JJ. in Reg. v. Commissioner of
Police of the Metropolis, Ex parte Blackburn (No. 3) [1973] Q.B. 241 and
I consider that such cases as Reg. v. Gold (unreported), November 3,
1972, Central Criminal Court (see [1973] Q.B. 241, 250) took a wrong turn-
p ing. Indeed, I have the impression that if those cases are right the more
" obscene " an article, the more likely it would be that the appellant's
defence would apply to it. To produce such a result would in my opinion
involve a total alteration in the Act.
I would say finally that I approve the course which is commonly taken
(see Reg. V. Colder & Boyars Ltd. [1969] 1 Q.B. 151, 172) of directing a
jury first to consider the tendency of the material under section 1 and
*■* then to proceed to consider the merits under section 4 and finally to
weigh one against the other. I think that such a direction makes the Act
workable even if the Act does not satisfy some opinions.
In my opinion the evidence was rightly rejected, the certified question
must be answered " No " and the appeal must be dismissed.
H VISCOUNT DILHORNE. My Lords, section 2 (1) of the Obscene Publi­
cations Act 1959 made it an offence to publish an obscene article. The
meaning to be given to " obscene " is stated in section 1 (1). For the
purposes of the Act an article is to be deemed to be obscene
720
Viscount Dilhome Reg. v. Jordan (H.L.(E.)) [1977]
"if its effect or (where the article comprises two or more distinct
A
items) the effect of any one of its items is, if taken as a whole, such
as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it."
This definition embodies an obiter observation of Cockburn C.J. in
Reg. v. Hicklin (1868) L.R. 3 Q.B. 360. He said, at p. 371:
i>
" I think the test of obscenity is this, whether the tendency of the
matter charged as obscenity is to deprave and corrupt those whose
minds are open to such immoral influences, and into whose hands
a publication of this sort may fall."
I say that this was obiter for the question whether what was published
was obscene was not in issue in the Court of Queen's Bench. None of Q
the other members of the court (Blackburn, Mellor and Lush JJ.) found
it necessary to express any opinion on the meaning of obscenity and they
did not comment on Cockburn GJ.'s definition.
The Post Office Act 1953 by section 11 makes it an offence to send a
postal packet through the post which encloses any indecent or obscene
matter. In this section it has been held by the Court of Appeal in Reg.
D
v. Anderson [1972] 1 Q.B. 304 that " obscene "
" has its ordinary or as it is sometimes called dictionary meaning. It
includes things which are shocking and lewd and indecent and so on "
(per Lord Widgery C.J. at pp. 311-312).
Matter may be lewd and shocking without tending to deprave or
corrupt those likely to read, see or hear it and so a person may, as the p
law now stands, be convicted of sending obscene matter through the post
when he would not be convicted under the Obscene Publications Act 1959.
It is perhaps to be regretted that this obiter observation of Cockburn
C.J. should have been embodied in a statute nearly a hundred years later.
It illustrates a tendency to seek to define in a statute a perfectly ordinary
word of the English language. If that had not been done and the Act of
1959 had simply contained the word " obscene " it would have been open F
to this House and to the Court of Appeal to review and reconsider
Cockburn GJ.'s definition. As it is, it is not possible to eliminate the
difference in the interpretation of " obscene " in the Act of 1959 and the
Post Office Act 1953 by giving by judicial decision that word in the Act
of 1959 its ordinary natural meaning. That this anomaly should remain
appears undesirable but it must be left to Parliament to remove it. -,
Publication, too, is given a special meaning in the Act of 1959. It is
provided by section 1 (3) that for the purposes of the Act a person
publishes an article who
" (a) distributes, circulates, sells, lets on hire, gives, or lends it, or
who offers it for sale or for letting on hire; or (b) in the case of an
article containing or embodying matter to be looked at or a record,
shows, plays or projects it:" H
That is subject to a proviso which I need not cite. When considering
who is likely to read, see or hear the matter, regard may be had to its
 721
A.C. Reg. v. Jordan (H.L.(E.)) Viscount Dilborne
publication by another if it could reasonably be expected that the publi-
cation by the other person would follow from the publication by the
person charged (section 2 (6)).
Section 2 (1) of the Act of 1959 was amended by the Obscene Publi­
cations Act 1964 so as to make it an offence for a person to have an
obscene article for publication for gain.
These two appeals were consolidated as they both raised the same
B question. Mr. Staniforth has not pursued his appeal and so we are only
concerned with the appeal by Mrs. Jordan. She was charged on an in­
dictment containing 37 counts and convicted on all of them. Each count
alleged the possession of an obscene article for publication for gain. The
articles, each the subject of a separate count, consisted of magazines, films
and books.
£ Mr. Mortimer Q.C., who appeared for Mrs. Jordan, accepted that the
articles she was charged with possessing for publication for gain covered
in the words of Bridge L.J. ante,, pp. 702H—703A.
" a wide range of ' hard pornography,' as that phrase is commonly
understood. They depict and describe in explicit and graphic detail
almost every imaginable variety of sexual activity, normal and per­
verted, lawful and unlawful, heterosexual and homosexual, including
** sexual activities between three and more participants of either sex
and of both, the strangest sexual fetishes, and the most extreme
sexual brutality."
These articles Mrs. Jordan had in her bookshop in Swansea for sale
and any conclusion that she did not possess obscene articles for publi-
cation for gain would have been perverse.
At this stage it will be convenient to deal with Mr. Mortimer's invi­
tation to consider whether evidence on the issue whether or not an article
tended to deprave or corrupt was admissible. He recognised that this
question did not arise in this appeal and so anything said on it will be
obiter.
In Director of Public Prosecutions v. A. and B.C. Chewing Gum Ltd.
F [1968] 1 Q.B. 159 where the defendants were charged with an offence
under section 2 (1) of the Act of 1959, the prosecution tendered evidence of
experts in child psychiatry as to the likely effect on children of five years
and upwards of " battle cards " sold with bubble gum, to establish that
the cards tended to deprave and corrupt. The Court of Appeal held that
the evidence was admissible.
In Reg. V. Calder & Boyars Ltd. [1969] 1 Q.B. 151 Salmon L.J.,
delivering the judgment of the court, said, at p. 170:
"No doubt in very special circumstances (which do not exist here)
expert opinion on the issue of obscenity may be admissible . . . In
the present case, however, the jury were rightly told by the judge
to consider the issue of obscenity by itself and decide upon the
tendency of the book without reference to the evidence of the expert
H witnesses."
In Reg. v. Anderson [1972] 1 Q.B. 304 evidence had been admitted at
the trial of expert witnesses called by the defence to show that the book,
722
Viscount Dilhorne Reg. v. Jordan (HX.(E.)) [1977]
the subject of the prosecution, did not tend to deprave and corrupt. Lord
A
Widgery C.J. delivering the judgment of the court said,..at p. 313, that the
Chewing Gum case [1968] 1 Q.B. 159
"should be regarded as highly exceptional and confined to its own
circumstances . . . In the ordinary run of the mill cases in the future
the issue ' obscene or no' must be tried by the jury without the
assistance of expert evidence on that issue, . . ."
B
In Reg. v. Stamford [1972] 2 Q.B. 391 the Court of Appeal had to
consider whether on a prosecution under section 11 of the Post Office Act,
evidence on behalf of the defence that certain articles were not offensive
was admissible. The court held that it was not, Ashworth J., after review­
ing the cases to which I have referred, saying that the issue whether a
particular article was obscene or not was entirely a matter for the jury
to be decided without assistance of witnesses who had views on the C
matter or who could speak of its effect on them.
I see no reason to doubt the correctness of what was said in these
cases as to such evidence being generally inadmissible. The question
whether an article tends to deprave or corrupt is entirely one for the jury
and ordinarily to be decided without any expert evidence. My only
doubt is whether the Chewing Gum case [1968] 1 Q.B. 159 was correctly p
decided. If an article is not manifestly obscene as tending to deprave and
corrupt, it seems to me somewhat odd that a person should be liable to
conviction for publishing obscene matter if the evidence of experts in
psychiatry is required to establish its obscenity. However it is not neces­
sary to reach a decision on that in this appeal and I agree with those
who have said that the decision in the Chewing Gum case should not be
extended. E
[His Lordship read section 4 (1) of the Obscene Publications Act 1959
and continued:] At the trials of Mrs. Jordan and Mr. Staniforth the
defence sought to adduce evidence directed to establishing that each of
the articles each accused had for publication for gain was an article the
publication of which was justified " as being for the public good " on the
ground that it was in the interests of an object of general concern. To p
this end at the trial of Mr. Staniforth the defence proposed to call a Dr.
Haward, a fellow of the British Psychology Society and a governor of the
International Academy of Forensic Psychology.
At both trials this evidence was ruled to be inadmissible. Both
accused appealed to the Court of Appeal, the main ground of appeal
being that that ruling was wrong and at the hearing of the appeals a
note of the evidence Dr. Haward would have given at the trial of Mr. G
Staniforth was produced. Mr. Mortimer accepted that similar evidence
would have been given at the trial of Mrs. Jordan.
Dr. Haward would, it appears, have testified that he had examined
each of the articles the subject of the charges and to use the words of
Bridge L.J. ante, pp. 703H—704B:
"He would have said if called that every variety of pornographic JJ
material before the court had some psychotherapeutic value for
various categories of persons, e.g. persons of heterosexual taste unable
to achieve satisfactory heterosexual relationships, for persons of
 723
A.C. Reg. v. Jordan (H.L.(E.)) Viscount Dilhorne
deviant sexuality, and for homosexuals and other perverts, as pro-
viding, according to their several needs, appropriate material to relieve
their sexual tensions by way of sexual fantasy and masturbation. He
would have said that such release was beneficial to such persons and
would act as a safety valve to save them from psychological dis­
orders and to divert them from anti-social and possibly criminal
activities directed against others."
Dr. Haward would, it appears, have sworn that the articles in question
had scientific merit in that they were " medically therapeutic" in their
effect and had merit in advancing the psychological health and stability of
certain members of the community, an object of general concern.
In view of the wide range of hard pornographic material to which his
evidence related, it is difficult to visualise any obscene publication to which
C his evidence would not apply, in which case if evidence such as he pro­
posed to give was accepted and the jury came to the conclusion that for
the reasons he gave, publication of the material was justified as being for
the public good in the interests of an object of general concern, there
could be no conviction no matter how obscene the material might be.
I cannot think that Parliament ever intended section 4 (1) to have such
JJ a wide ambit. Under that section publication can only be justified as
being for the public good on particular grounds. It must be in the
interests of " science, literature, art of learning or of other objects of
general concern."
I cannot accept that the publication of this pornographic matter could
be justified in the interests of science, and the main question debated was
whether it could be said to have been in the interests of another object of
E general concern.
Light is thrown on the ambit of these words by the context in which
they appear. The draftsman treated science, literature, art and learning
as objects of general concern. In my opinion an object of general concern
other than those mentioned, to come within the section must have a
degree of similarity to those mentioned. I am not going to attempt to
p define the ambit of those words. They may indeed have been inserted
ex abundanti cautela in case there were other objects of general concern
similar to those mentioned which had not been specified. It suffices to
say that in my view those words are not wide enough to cover the thera­
peutic benefit which it is said would be derived by persons in the categories
referred to by the publication of a wide range of hard pornography.
Section 4 (2) of the Act declares that the opinion of experts as to the
G literary, artistic, scientific or other merits of an article may be admitted
in evidence but those opinions are only admissible in so far as they
establish or negative the defence of public good created by section 4 (1).
As in my opinion, the evidence of Dr. Haward if admitted and accepted
would not have established that defence, it was in my view rightly held
to be inadmissible.
JJ In a number of cases it has been said that before a jury considers a
defence put forward under section 4 (1), it must reach the conclusion that
the articles in question are obscene and that unless the defence under
that section succeeds, there must be a conviction. While in many cases,
724
Viscount Dilhorne Reg. v. Jordan (H.L.(E.)) [1977]
perhaps the majority, it may be desirable to suggest to the jury that it
should proceed in this way, I see nothing in the Act which requires it to
do so. Section 4 (1) begins with the words " A person shall not be con­
victed." It creates a statutory bar to conviction. Before a decision is
reached on a plea in bar of conviction of autrefois acquit the law does
not require it to be proved that the accused did the acts which constitute
the offence charged and in my view the law does not require it to be
proved that the accused published an obscene article before a decision is fi
reached on whether the statutory bar established by section 4 (1) is made
out. If a defendant thought fit to take the line "Don't bother whether
an offence under section 2 (1) has been committed. Even if it has, I
cannot be convicted for section 4 (1) applies," he is fully entitled to do
so, though that will not of course relieve the judge of the duty to direct
the jury as to proof of the offence charged under section 2 (1); nor in
my view could a jury be said to err if it considered the plea in bar of ^
conviction under section 4 (1) before considering whether guilt of an
offence under section 2 (1) had been proved, though as I have said it
may often be convenient to determine the latter question first.
There are in fact two separate and distinct issues to be considered
by a jury when there is a prosecution for an offence under section 2 (1)
and the defence under section 4 (1) is raised. In determining whether an D
offence under section 2 (1) as amended has been committed, the jury has
not to consider whether the publication was for the public good. They
have to be satisfied that it tended to deprave and corrupt persons likely
to read, see or hear it but in deciding whether the defence under section
4 (1) is made out, and in deciding whether the publication was for the
public good on one of the grounds to which section 4 (1) applies, they
have, as I see it, been required by Parliament to weigh up the conse­
quences of the publication both good and bad.
For the reasons I have stated in my opinion the question certified
should be answered in the negative and I would dismiss this appeal.
LORD DIPLOCK. My Lords, for the reasons given by my noble and
learned friend, Lord Wilberforce, I would dismiss the appeal and answer F
the certified question in the negative. I also agree with my noble and
learned friend, Lord Salmon, as to the appropriate way of directing juries
in this type of case.

LORD KILBRANDON. My Lords, in the appeal which is effectively

before the House, that of Mrs. Jordan, the question certified by the Court _,
of Appeal (Criminal Division) is ante, p. 708F.
"Whether upon the true construction of section 4 of the Obscene
Publications Act 1959 expert evidence is admissible in support of the
defence . . . that pornographic material is psychologically beneficial
to persons with certain sexual tendencies . . . and may divert them
from anti-social activities."
H
This involves an examination of the interaction of sections 1 (1) and 4 of
the Act of 1959, which I need not set out again.
In my opinion it is necessary to bear in mind that these sections may
 725
A.C. Reg. v. Jordan (H.L.(E.)) Lord Kilbrandon
have to be interpreted in the light of two different classes of case. In the
first, there has been publication or intended publication of an " article,"
probably a book, with reference to which serious controversy has arisen
or may arise as to the effect it might have on its readers and also as to
its merits looked at as a piece of literature. This consideration at once
explains why Parliament thought it necessary that, if it be concluded that
the effects may be so deleterious as to " tend to deprave and corrupt" its
B readers, persons skilled in the assessment of literary merits should be
available to advise the tribunal as to those merits. The second class is
the one into which the activities of the appellant fall, namely the furtive
keeping for sale to the general public of indecent rubbish in a back shop
by a person notorious in that trade. Of course the same statutory pro­
visions are applicable, and must be uniformly interpreted, in both classes
of case. But in terms of section 4 the opinions of experts are relevant
^ only as to " the literary, artistic, scientific or other merits " of the articles
in question. The " merits " of the appellant's wares, as proposed to be
recommended by the expert, were their merits as pornography. Such an
expert is in a dilemma; if the articles corrupt all readers, but corruption
is good for a minority of people suffering from certain sexual disorders
and perversions, then the articles have no merit except their powers of
JJ corruption, which is why they offend against section 1. So the expert's
exculpatory evidence will go only to strengthening the case against the
articles as obscene, since their merits are to be taken as directly pro­
portionate to their obscenity.
This curious position is a consequence of the way in which the legis­
lative edifice has been constructed. It would have been possible to have
defined obscenity in such a way as to exclude articles of genuine scientific,
E literary, artistic or learned merit. But instead the archaic common law
test to be found in Reg. v. Hicklin, L.R. 3 Q.B. 360, 371 was retained,
and at the same time the proposition was propounded that it may be
for the public good for the public to be depraved and corrupted, so only
that process be effected by the publication of works which are in the
interests of science, literature, art, learning, or other objects of general
p concern. The intention of Parliament clearly was to discourage attempts
to apply censorship to works of art in the interests of public morality.
And the merits of those works were made relevant considerations in
deciding whether this policy in any given case was to take effect, since
section 4 (2) provides for expert evidence to be admissible either for or
against the freedom to publish. It is now established that such evidence is
not admissible in trying the question under section 1: see Reg. V. Calder
G & Boyars Ltd. [1969] 1 Q.B. 151. The admission of expert evidence in the
exceptional case of Director of Public Prosecutions V. A. and B.C. Chewing
Gum Ltd. [1968] 1 Q.B. 159 seems to have been justified on the ground
that without it a non-expert could not have come to a conclusion as to
whether an article might have an effect on a child which it would not
have had on an adult. But since one of the purposes of the Act of 1959,
JJ as disclosed in the long title, was the " protection of literature," as I
understand it, against suppression in the supposed interests of decency, it
was necessary that informed testimony be available to the tribunal of fact
as to whether or not the " article " merited such a seemingly exceptional
726
Lord Kilbrandon Reg. v. Jordan (H.L.(E.)) [1977]
privilege. It was probably never envisaged by Parliament that this
privilege should ever be invoked in favour of the class of " article " which A
the appellant purveyed.
The insuperable difficulty in the way of the appellant is that the witness
tendered on her behalf was expected, to use the language of Bridge L.J.
pp. 703H—704A, to say " that every variety of pornographic material before
the court had some psychotherapeutic value for various categories of
persons." Such evidence is said to be comprehended in the ground laid B
down in section 4 (1) under the heading of "other objects of general
concern." I do not think it is necessary to consider whether a genus can
be identified into which all the interests listed in the subsection may be
said to fall. I myself would adopt the well-known rule laid down by
Lord Herschell in Cox v. Hakes (1890) 15 App.Cas. 506, 529:
" It cannot, I think, be denied that, for the purpose of construing any Q
enactment, it is right to look not only at the provision immediately
under construction, but at any others found in connection with it,
which may throw light upon it, and afford an indication that general
words employed in it were not intended to be applied without some
limitation."
There is here, in my opinion, a clear indication that the words "other £)
objects of general concern " are to be applied subject to a limitation im­
posed partly by the words which precede them and partly by the whole
scheme and object of the provisions as I have tried to set them out. That
limitation must in my view exclude the topics proposed to be given in
evidence as outside the intention which Parliament has expressed. I
entirely agree with what has fallen from my noble and learned friend,
Lord Wilberforce, on this topic, and with the relevant passage in the E
judgment of the Court of Appeal.
I would accordingly dismiss this appeal.
LORD SALMON. My Lords, I entirely agree with the reasons stated by
my noble and learned friend Lord Wilberforce, and for those reasons I,
too, would dismiss the appeal and answer " No " to the certified question, p
I must, however, make some observations about the view expressed by
my noble and learned friend, Viscount Dilhorne, at the end of his speech
about the order in which a jury should be directed to consider defences
under section 2 (1) and section 4 (1) of the Obscene Publications Act 1959
—a view with which I have the misfortune to disagree. The relevant
sections of the Act have been fully set out in your Lordships' speeches.
Section 1 defines obscenity, the word " article " and what is meant by the G
publication of such an article. Section 2(1) makes it an offence to publish
an obscene article " subject as hereinafter provided." Those words clearly
apply to section 4 (1), which enacts that a person shall not be convicted
of an offence under section 2 (1) if what is described as the defence of
public good is made out.
Certainly ever since the decision in Reg. v. Colder & Boyars Ltd. [1969] JJ
1 Q.B. 151, judges have rightly, in my view, directed juries to consider
first whether they are satisfied beyond reasonable doubt that the article
complained of was published by the accused and is obscene within the
 727
A.C. Reg. v. Jordan (H.L.(E.)) Lord Salmon
meaning of section 1 (1). If they are not so satisfied, that is an end of
"■ the matter and they must return a verdict of " Not Guilty." If, however,
they are satisfied that the article was published by the accused and is
obscene they should then go on and consider whether, on a balance of
probabilities, the defence of public good under section 4 (1) (if relied on
by the accused) has been made out. This practice seems to me to be
extremely sensible. It would, in my respectful view, be ridiculous for
B the jury, on retiring, to begin by wading, perhaps for hours, through
all the expert evidence relating to the public good which could not be in
the slightest degree relevant if, in the end, the jury came to the conclusion
that the article was not obscene or had not been published by the defend­
ant. In such cases, moreover, the jury might be confused and find it
difficult to keep out of their minds the expert evidence when they eventu­
ally come to consider the issue of obscene or not obscene—an issue to
C which the expert evidence would be wholly irrelevant.
I cannot accept the suggestion of my noble and learned friend, Viscount
Dilhorne, that there is, in reality, any similarity between a defence under
section 4 (1) and a special plea in bar of autrefois acquit—which is a plea
in bar to the indictment not to a conviction. If the plea succeeds the
indictment is quashed and the accused is discharged. There is no trial
J) and accordingly no verdict by a jury. Naturally enough the law does not
require it to be proved that the accused committed the offence charged .
in the indictment before it can be quashed on a plea of autrefois acquit
I do not say that the law compels a judge to direct a jury to consider
the defence under section 2 (1) before the defence under section 4 (1), but
that it is the present well established practice of judges to do so. For
the reasons I have already stated it would, in my opinion, be most un-
E fortunate and confusing were that practice to be altered. When the accused
is arraigned he can only plead " Guilty " or " Not Guilty." He cannot
set up any special plea in bar under section 4 (1). If he relies on section
4 (1) in his defence, he may, as my noble and learned friend, Viscount
Dilhorne, points out, take the line, "Don't bother whether an offence
under section 2 (1) has been made out. Even if it has, I cannot be con-
p victed for section 4 (1) applies." Should this line be taken by the accused,
it would not amount to a formal admission by the accused that he had
published an obscene article. Accordingly, it would not relieve the prose­
cution from establishing an offence under section 2 (1). Certainly, the
accused has no right to dictate to the court the order in which the issues
which arise for decision should be considered by the jury.

G Appeal dismissed.
Solicitors: Offenbach & Co.; Director of Public Prosecutions.

F. C.