The publication of an obscene libel was an offence under the common law of England. Prior to the abolition by section 1 of the Criminal Law Act 1967 of the distinction between felony and misdemeanour, it was regarded as a misdemeanour. It has been abolished in England and Wales and Northern Ireland.
England and Wales
It was an offence under the common law of England and Wales to publish an obscene libel. This was an indictable-only offence. However, section 2(4) of the Obscene Publications Act 1959 provided that a person publishing an article should not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in that article where it was of the essence of the offence that the matter is "obscene". For this purpose the word "obscene" was defined by section 1(1) of that Act.
Lord Reid said:
|“||The obvious purpose of s 2(4) is to make available, where the essence of the offence is tending to deprave and corrupt, the defences which are set out in the Act.||”|
Accordingly, the effect of section 2(4) is that it was not possible for a person to be prosecuted for this offence, unless the definition of "obscene" at common law was wider than the statutory definition of "obscene". This was probably not the case, because the statutory definition is a paraphrase of the definition given by Lord Cockburn, J., in R v Hicklin (1868) L.R. 3 Q.B. 360 at 371.
- Halsbury's Laws of England, 4th Edition, 2006 reissue, vol. 11(2), para. 753 (also note 6 to para. 748)
- Archbold Criminal Pleading, Evidence and Practice (2004), para. 31-60
- R v Curl (1727) 2 Str 288, (1727) 93 ER 849; R v Wilkes (1770) 4 Burr 2527 at 2574, (1770) 98 ER 327; R v Hicklin (1868) LR 3 QB 360
- Coroners and Justice Act 2009, section 73(c)
- William Hawkins, Treatise on Pleas of the Crown, chapter 28, section 9, 1824 edition at p.545 (from Google Books)
- R v Read, Fort 98, 92 ER 777; this decision was overruled by R v. Curl.
- Knuller (Publishing, Printing and Promotions) Ltd. v. DPP  A.C. 435 at 456, 56 Cr.App.R. 633 at 637