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1. With what offence were the defendants convicted? Was this a statutory
offence or a common law offence?
2. What consequence(s) flowed from this categorisation?
3. List the grounds of appeal.
4. Taking each ground of appeal in turn, summarise the arguments put forward
by counsel for the Crown as well as counsel for the defendants.
5. What reasons were given by Lord Lane CJ for either accepting or rejecting
these submissions?
6. Lord Lane referred to the "ordinary canons of construction" (at para a, p.444).
What does this mean? And which particular canon of construction was he
referring to?
7. What constitutes the 'public'? Would it make a difference if no member of the
public actually complained of being 'outraged'? 12. Do the police and the press constitute the 'public'?
8. A number of tabloid newspapers carried photographs of the exhibit on their
front pages in which the 'earrings' could be clearly seen. Should the
newspapers have been charged with the offence?
9 . When an exhibition was staged of the work of Whistler, an artist, at the National Gallery in the 19th century, the art critic, John Ruskin, wrote an article describing Whistler's work as ''throwing a pot of paint in the face of the public". Today, Whistler is regarded as a major artist and his work is to be found in all major art collections. Perhaps the same view might be taken of
Gibson's view in 100 year's time? In this context, consider Article 10 of the European Convention on Human Rights, below. Could it be argued that this decision is a breach of Article 10? Does this decision amount to artistic censorship?
European Convention on Human Rights 1950, Article 10
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
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1.With what offence were the defendants convicted? Was this a statutory
offence or a common law offence?
The defendants exhibited at an exhibition in a commercial art gallery, a model's head to which were attached earrings made out of freeze-dried human fetuses. The exhibit was entitled 'Human Earrings'. The gallery was open to, and was visited by, members of the public. The defendants were charged with, and convicted of, outraging public decency contrary to common law. The very existence of the general common law offence of conspiracy to outrage public decency was only confirmed by a bare majority of the House of Lords
2. What consequence(s) flowed from this categorization?
The direct consequence was that this case could now be tried under the common law offence of outraging public decency. Conspiracy to corrupt public morals or outrage public decency. These are wide offences with no real definition.
3. List the grounds of appeal.
They appealed on the grounds (i) that the essence of the offence was obscenity and therefore the Crown was precluded from charging the offence at common law by s 2(4) [a] of the Obscene Publications Act 1959, which provided that a person could not be proceeded against for an offence at common law consisting of the publication of an article where the essence of the offence was that the article was obscene, (ii) that the Crown was required, and had failed, to prove mens rea by showing that the defendants had intended to outrage public decency or had been aware that there was a risk of doing so but had nevertheless decided to take that risk and (iii) that the jury had not been directed to consider the element of publicity required to constitute the offence, ie whether the attention of the public had been drawn to the offensive item.
4. Taking each ground of appeal in turn, summarize the arguments put forward
by counsel for the Crown as well as counsel for the defendants
Defendant's Counsel in Gibson argued that of the two possible meanings of obscene - the wider and the narrower - the wider one should be the one used in s.2(4). It was accepted by all, including Crown counsel, that if this interpretation were right the prosecution would have been 'plainly barred'. The argument was dismissed by the Court of Appeal, Lord Lane finding himself 'unable to find any justification for such a radical departure from the ordinary canons of construction'.
It is submitted that now there does exist just such a justification (indeed injunction) in the form of s.3 HRA.
The counsel for the crown had asserted that it was punishable to exhibit anything in public, which outrages public, irrespective of whether it corrupts and depraves those who see or hear it.
The defense was that under section 2(4) of the Obscene Publications Act 1959, a person publishing and article cannot be prosecuted under the common law. In addition the defense asserted that there was not conspiracy as such to outrage public decency.
The second argument of the defense was that there were two descriptions of obscenity, one was the intention to corrupt the public morals and the other was to involve the outrage on public decency. It was construed by the defense that the relevant argument was that relating to corrupt the public morals. In this context the defense argued that the exhibition of the earrings did not corrupt the public morals and so cannot be construed to be obscene.
The third argument put forward was that the publication be justified on grounds that it is for the public good. This was under Section 4 of the 1959 The Obscene Publications Act.
5. What reasons were given by Lord Lane CJ for either accepting or rejecting
these submissions?
Lord Lane asserted that the depiction did does outrage public decency. In addition, according to the 1959 Act the depiction was obscene and that the common law applied to these matters.
One ground of appeal argued by counsel Geoffrey Robertson QC was that the Crown was required to prove mens rea by showing that the defendants had intended to outrage public decency or at least had been aware that there was a risk of doing so. ...
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