CASE OF HANDYSIDE v. THE UNITED KINGDOM
No violation of Art. 10;No violation of P1-1;No violation of Art. 14;No violation of Art. 18
Historical 9. The applicant, Mr. Richard Handyside, is proprietor of the publishing firm "Stage 1" in London which he opened in 1968. He has published, among other books, The Little Red Schoolbook (hereinafter called "the Schoolbook"), the original edition of which was the subject of the present case and a revised edition of which appeared on 15 November 1971. 10. The applicant's firm had previously published Socialism and Man in Cuba, by Che Guevara, Major Speeches, by Fidel Castro, and Revolution in Guinea, by Amilcar Cabral. Since 1971 four further titles have appeared, namely Revolution in the Congo, by Eldridge Cleaver, a book of writings from the Women's Liberation Movement called Body Politic, China's Socialist Revolution, by John and Elsie Collier, and The Fine Tubes Strike, by Tony Beck. 11. The British rights of the Schoolbook, written by Søren Hansen and Jesper Jensen, two Danish authors, had been purchased by the applicant in September 1970. The book had first been published in Denmark in 1969 and subsequently, after translation and with certain adaptations, in Belgium, Finland, France, the Federal Republic of Germany, Greece, Iceland, Italy, the Netherlands, Norway, Sweden and Switzerland as well as several non-European countries. Furthermore it circulated freely in Austria and Luxembourg. 12. After having arranged for the translation of the book into English the applicant prepared an edition for the United Kingdom with the help of a group of children and teachers. He had previously consulted a variety of people about the value of the book and intended publication in the United Kingdom on 1 April 1971. As soon as printing was completed he sent out several hundred review copies of the book, together with a press release, to a selection of publications from national and local newspapers to educational and medical journals. He also placed advertisements for the book in various publications including The Bookseller, The Times Educational and Literary Supplements and Teachers World. 13. On 22 March 1971, the Daily Mirror published an account of the book's contents, and other accounts appeared in The Sunday Times and the Sunday Telegraph on 28 March. Further reports were carried by the Daily Telegraph on 29 and 30 March; they also indicated that representations would be made to the Director of Public Prosecutions demanding that action should be taken against the publication of the book. The Schoolbook was also the subject of further extensive press comment, some favourable and some not, immediately after and around the time of the seizure referred to below. 14. After receipt of a number of complaints, on 30 March 1971 the Director of Public Prosecutions asked the Metropolitan Police to undertake enquiries. As a result of these, on 31 March 1971, a successful application was made for a warrant under section 3 of the Obscene Publications Acts 1959/1964 to search the premises occupied by Stage 1 in London. The warrant was issued in the applicant's absence but in accordance with the procedure laid down by English law and a copy of the Schoolbook was before the judicial authority which issued the warrant. It was executed on the same day and 1,069 copies of the book were provisionally seized together with leaflets, posters, showcards and correspondence relating to its publication and sale. 15. Acting on the advice of his lawyers the applicant continued distributing copies of the book in the subsequent days. After the Director of Public Prosecutions had received information that further copies had been taken to Stage 1's premises after the search, further successful applications were made on 1 April 1971 (in conditions similar to those described above) to search again those premises and also the premises of the printers of the book. Later that day altogether 139 copies of the book were seized at Stage 1's premises and, at the printer's, 20 spoiled copies of the book, together with correspondence relating to it and the matrix with which the book was printed. About 18,800 copies of a total print of 20,000 copies were missed and subsequently sold, for example, to schools which had placed orders. 16. On 8 April 1971, a Magistrates' Court issued, under section 2 (1) of the Obscene Publications Act 1959, as amended by section 1 (1) of the Obscene Publications Act 1964, two summonses against the applicant for the following offences: (a) on 31 March 1971 having in his possession 1,069 obscene books entitled "The Little Red Schoolbook" for publication for gain; (b) on 1 April 1971, having in his possession 139 obscene books entitled "The Little Red Schoolbook" for publication for gain. The summonses were served on the applicant on the same day. He thereupon ceased distribution of the book and advised bookshops accordingly but, by that time, some 17,000 copies were already in circulation. 17. The summonses were answerable on 28 May 1971 at Clerkenwell Magistrates' Court but, on the application of the Director of Public Prosecutions, the case was adjourned until 29 June. On that day the applicant appeared at Lambeth Magistrates' Court to which the case had been transferred, having consented to the case being heard and determined in summary proceedings by a magistrate rather than by a judge and a jury on indictment. He claims that this choice was dictated by his financial plight and the need to avoid the delays inherent in the indictment procedure although this is questioned by the Government. Having been granted legal aid, he was represented by counsel. On 1 July 1971, after witnesses had been called for both prosecution and defence, the applicant was found guilty of both offences and fined £25 on each summons and ordered to pay £110 costs. At the same time the court made a forfeiture order for the destruction of the books by the police. 18. On 10 July 1971 notices of appeal against both convictions were received by the Metropolitan Police from the applicant's solicitors. The grounds stated were "that the magistrate's decision was wrong and against the weight of the evidence". The appeal was heard before the Inner London Quarter Sessions on 20, 21, 22, 25 and 26 October 1971. At this hearing witnesses gave evidence on behalf of the prosecution and on behalf of the applicant. Judgment was delivered on 29 October 1971: the decision at first instance was upheld and the applicant was ordered to pay another £854 costs. The material seized as described above was then destroyed. The applicant did not exercise his right of making a further appeal to the Court of Appeal since he did not dispute that the judgment of 29 October 1971 had correctly applied English law. 19. Whilst the Schoolbook was not the subject of proceedings in Northern Ireland, the Channel Islands or the Isle of Man, the same was not true of Scotland. Indeed a Glasgow bookseller was charged under a local Act. However he was acquitted on 9 February 1972 by a stipendiary magistrate who considered that the book was not indecent or obscene within the meaning of that Act. It does not appear from the file whether the case concerned the original or the revised edition. Further, a complaint was brought under Scottish law against Stage 1 in respect of the revised edition. It was dismissed on 8 December 1972 by an Edinburgh court solely on the ground that the accused could not have the necessary mens rea. In January 1973 the Procurator Fiscal announced that he would not appeal against this decision; he also did not avail himself of his right to initiate criminal proceedings against Mr. Handyside personally. The Schoolbook 20. The original English language edition of the book, priced at thirty pence a copy, had altogether 208 pages. It contained an introduction headed "All grown-ups are paper tigers", an "Introduction to the British edition", and chapters on the following subjects: Education, Learning, Teachers, Pupils and The System. The chapter on Pupils contained a twenty-six page section concerning "Sex" which included the following sub-sections: Masturbation, Orgasm, Intercourse and petting, Contraceptives, Wet dreams, Menstruation, Child-molesters or "dirty old men", Pornography, Impotence, Homosexuality, Normal and abnormal, Find out more, Venereal diseases, Abortion, Legal and illegal abortion, Remember, Methods of abortion, Addresses for help and advice on sexual matters. The Introduction stated: "This book is meant to be a reference book. The idea is not to read it straight through, but to use the list of contents to find and read about the things you're interested in or want to know more about. Even if you're at a particularly progressive school you should find a lot of ideas in the book for improving things." 21. The applicant had planned the distribution of the book through the ordinary book-selling channels although it was said at the appeal hearing to have been accepted that the work was intended for, and intended to be made available to, school-children of the age of twelve and upwards. 22. Pending the appeal hearing, the applicant consulted his legal advisers concerning a revision of the Schoolbook to avoid further prosecutions; apparently he tried to consult the Director of Public Prosecutions as well, but in vain. It was decided to eliminate or re-write the offending lines which had been attacked before the Magistrates' Court by the prosecution but to do so necessitated, in some cases, re-writing substantially more than these criticised sentences. There were other alterations made to the text by way of general improvement, for example in response to comments and suggestions from readers and the updating of changed data (addresses, etc.). 23. The revised edition was published on 15 November 1971. After consulting the Attorney General, the Director of Public Prosecutions announced on 6 December 1971 that the new edition would not be the subject of a prosecution. This publication took place after the Quarter Sessions judgment but the revision of the Schoolbook had been completed, and the printing of the new version was in train, well before. Domestic law 24. The action against the Schoolbook was based on the Obscene Publications Act 1959, as amended by the Obscene Publications Act 1964 (hereinafter called "the 1959/1964 Acts"). 25. The relevant extracts from the 1959/1964 Acts, read together, are as follows: "(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, 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. (2) In this Act 'article' means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures. ..." "(1) Subject as hereinafter provided, any person who, whether for gain or not, publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or gain to another) shall be liable - (a) on summary conviction to a fine not exceeding one hundred pounds or to imprisonment for a term not exceeding six months; (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both. ... A person shall be deemed to have an article for publication for gain if with a view to such publication he has the article in his ownership, possession or control. ... (4) A person publishing an article shall not be proceeded against for an offence at common law consisting of the publication of any matter contained or embodied in the article where it is of the essence of the offence that the matter is obscene. ..." "(1) If a justice of the peace is satisfied by information on oath that there is reasonable ground for suspecting that, in any premises ... specified in the information, obscene articles are, or are from time to time, kept for publication for gain, the justice may issue a warrant ... empowering any constable to enter (if need be by force) and search the premises ... within fourteen days from the date of the warrant, and to seize and remove any articles found therein ... which the constable has reason to believe to be obscene articles and to be kept for publication for gain. (2) A warrant under the foregoing subsection shall, if any obscene articles are seized under the warrant, also empower the seizure and removal of any documents found in the premises ... which relate to a trade or business carried on at the premises ... (3) Any articles seized ... shall be brought before a justice of the peace ... who ... may thereupon issue a summons to the occupier of the premises ... to appear ... before a magistrates' court ... to show cause why the articles or any of them should not be forfeited; and if the court is satisfied, as respects any of the articles, that at the time when they were seized they were obscene articles kept for publication for gain, the court shall order those articles to be forfeited. ... (4) In addition to the person summoned, any other person being the owner, author or maker of any of the articles brought before the court, or any other person through whose hands they had passed before being seized, shall be entitled to appear before the court ... to show cause why they should not be forfeited. (5) Where an order is made under this section for the forfeiture of any articles, any person who appeared, or was entitled to appear, to show cause against the making of the order may appeal to quarter sessions; and no such order shall take effect until the expiration of fourteen days after the day on which the order is made, or, if before the expiration thereof notice of appeal is duly given or application is made for the statement of a case for the opinion of the High Court, until the final determination or abandonment of the proceedings on the appeal or case. ... (7) For the purposes of this section the question whether an article is obscene shall be determined on the assumption that copies of it would be published in any manner likely having regard to the circumstances in which it was found, but in no other manner. ... ... Where articles are seized under section 3 ... and a person is convicted under section 2 ... of having them for publication for gain, the court on his conviction shall order the forfeiture of those articles. Provided that an order made by virtue of this subsection (including an order so made on appeal) shall not take effect until the expiration of the ordinary time within which an appeal in the matter of the proceedings in which the order was made may be instituted or, where such an appeal is duly instituted, until the appeal is finally decided or abandoned; ..." "(1) A person shall not be convicted of an offence against section 2 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 of 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." "... (3) This Act shall not extend to Scotland or to Northern Ireland." 26. At the time of the events under review, the authorities frequently adopted a non-contentious procedure ("disclaimer/caution procedure") rather than instituting, as in this case, criminal proceedings. However it could only be used when the individual admitted that the article was obscene and consented to its destruction. The procedure constituted no more than a matter of practice and was abandoned in 1973 following criticisms expressed in a judicial decision. The judgment of the Inner London Quarter Sessions 27. At the appeal hearing two principal issues were examined by the court, namely, first, whether or not the Crown had proved beyond reasonable doubt that the Schoolbook was an obscene article within the meaning of the 1959/1964 Acts; and secondly, if so, whether or not the applicant had established the defence under section 4 of the 1959/1964 Acts to the effect that he had shown, on a balance of probabilities, that publication of the book was justified as being for the public good. 28. The court first dealt with the issue of obscenity. Following a decision in another case the court noted that it had to be satisfied that the persons who it was alleged were likely to read the article would constitute a significant proportion. It also accepted the meaning of the words "deprave and corrupt" as it had been explained in that other case and about which there had been no dispute between the parties. 29. Following further previous case-law, the court had decided that expert evidence should be admitted on the question of whether the Schoolbook was obscene. Such evidence, though not normally admissible for this purpose but only in connection with the defence under section 4 of the 1959/1964 Acts, could be heard in the present case which was concerned with the effect of the article upon children. The court had therefore heard seven witnesses on behalf of the prosecution and nine on behalf of the applicant, being experts in various fields, in particular those of psychiatry and teaching; the views they had expressed were very different. After they had been heard, the applicant had argued that, when one had the sincere opinion of many highly-qualified experts against the prosecution's case, it was impossible to say that the tendency to deprave and corrupt had been established with certainty. The court was unable to accept this submission: in its judgment of 29 October 1971 it pointed out that there was an almost infinite variation in the relevant background of the children who would be in one way or another affected by the book, so that it was difficult to speak of "true facts" in this case. The views of the applicant's witnesses had been those approaching the extreme of one wing of the more broadly varied outlook on the education and upbringing of children, whereas the evidence given on behalf of the prosecution tended to cover the views of those who, although clearly tending in the opposite direction, were less radical. Particularly, when looking at the evidence on behalf of the applicant, the court had been driven to the conclusion that most of the witnesses were so uncritical of the book looked at as a whole, and so unrestrained in their praise of it, as to make them at times less convincing than otherwise they might have been. In summary the court considered that a good deal of the witnesses had been so single-minded in an extreme point of view as to forfeit in a large measure the power to judge with that degree of responsibility which makes the evidence of any great value on a matter of this sort. 30. Concerning the Schoolbook itself, the court first stressed that it was intended for children passing through a highly critical stage of their development. At such a time a very high degree of responsibility ought to be exercised by the courts. In the present case, they had before them, as something said to be a perfectly responsible adult opinion, a work of an extreme kind, unrelieved by any indication that there were any alternative views; this was something which detracted from the opportunity for children to form a balanced view on some of the very strong advice given therein. 31. The court then briefly examined the background. For example, looking at the book as a whole, marriage was very largely ignored. Mixing a very one-sided opinion with fact and purporting to be a book of reference, it would tend to undermine, for a very considerable proportion of children, many of the influences, such as those of parents, the Churches and youth organisations, which might otherwise provide the restraint and sense of responsibility for oneself which found inadequate expression in the book. The court reached the conclusion that, on the whole, and quite clearly through the mind of the child, the Schoolbook was inimical to good teacher/child relationships; in particular, there were numerous passages that it found to be subversive, not only to the authority but to the influence of the trust between children and teachers. 32. Passing to the tendency to deprave and corrupt, the court considered the atmosphere of the book looked at as a whole, noting that the sense of some responsibility for the community as well as to oneself, if not wholly absent, was completely subordinated to the development of the expression of itself by the child. As indications of what it considered to result in a tendency to deprave and corrupt, the court quoted or referred to the following: "Maybe you smoke pot or go to bed with your boyfriend or girlfriend - and don't tell your parents or teachers, either because you don't dare to or just because you want to keep it secret. Don't feel ashamed or guilty about doing things you really want to do and think are right just because your parents or teachers might disapprove. A lot of these things will be more important to you later in life than the things that are 'approved of'." The objectionable point was that there was no reference there to the illegality of smoking pot which was only to be found many pages further on in an entirely different part of the book. Similarly there was no specific mention at all in the book of the illegality of sexual intercourse by a boy who has attained the age of fourteen and a girl who has not yet attained sixteen. It had to be remembered that the Schoolbook was indicated as a work of reference and that one looked up the part which one wanted rather than read it as a whole book. "Porn is a harmless pleasure if it isn't taken seriously and believed to be real life. Anybody who mistakes it for reality will be greatly disappointed. But it's quite possible that you may get some good ideas from it and you may find something which looks interesting and that you haven't tried before." Unfortunately, the sane and sensible first paragraph quoted above was immediately followed by a passage suggesting to children that in pornography they might find some good ideas which they might adopt. This was to raise the real likelihood that a substantial number of children would feel it incumbent upon them to look for and practise such things. Moreover, just on the previous page there was the following passage: "But there are other kinds - for example pictures of intercourse with animals or pictures of people hurting each other in various ways. Pornographic stories describe the same sort of thing." The court considered that, although it was improbable that young people would be likely to commit sexual offences with animals as a result of this, the possibility that they should practise some other forms of cruelty to one another, for sexual satisfaction, was a real likelihood in the case of a significant number of children if this got into the hands of children at a disturbed, unsettled and sexually excited stage of their lives. Such acts might very well be criminal offences just like smoking pot and sexual intercourse between a boy of at least fourteen and a girl not yet sixteen. The expression "to deprave and corrupt" must include the admission of or the encouragement to commit criminal offences of that kind. 33. The court concluded "in the light of the whole of the book that this book or this article on sex or this section or chapter on pupils, whichever one chooses as an article, looked at as a whole does tend to deprave and corrupt a significant number, significant proportion, of the children likely to read it". Such children would, it was satisfied, include a very substantial number aged under sixteen. 34. The court finally dealt with the issue of the defence under section 4 of the 1959/1964 Acts. It stated that no doubt there were many features about the book which, taken by themselves, were good. The unfortunate thing was that so frequently the good was intermixed with things that were bad and detracted from it. For example, much of the information about contraceptives (pp. 98-102) was very relevant and desirable which should be laid before very many children who might not otherwise readily have access to it. But it was damaged by the suggestion, backed by the recommendation to take direct action if the school authorities would not give way that every school should have at least one contraceptive vending machine (p. 101). Similarly, the treatment of the subject of homosexuality (pp. 105-107) was a factual, very compassionate, understanding and valuable statement. But again, no matter how good one assessed the value of this section, it was hopelessly damning by its setting and context, and the fact that it, only, contained any suggestion of a stable relationship in relation to sex and that marriage received no such treatment at all. Moreover, there was a very real danger that this passage would create in the minds of children a conclusion that that kind of relationship was something permanent. Again, there were passages with regard to venereal diseases (pp. 110-111), contraception (pp. 98-102) and abortion (pp. 111-116), containing dispassionately and sensibly, and on the whole completely accurately, a great deal of advice which ought not to be denied to young children. However, on the balance of probabilities, these matters could not outweigh what the court was convinced had a tendency to deprave and corrupt. The court asked itself whether, granted the degree of indecency which it found, the good likely to result from the Schoolbook was such that it ought, nevertheless, to be published in the public interest; it regretfully came to the conclusion that the burden on the appellant to show that "publication of the article in question is justified as being for the public good" had not been discharged. Further details concerning the revised edition 35. The passages from the original edition of the Schoolbook whose "extreme" tone or "subversive" aspects had been emphasised by the judgment of 29 October 1971 (paragraphs 30 and 31 above) are repeated either with no, or with no important, changes in the revised edition which was prepared before that date but published on 15 November 1971 (paragraphs 22-23 above). Of the passages cited by Quarter Sessions as striking examples of the tendency to deprave and corrupt (paragraph 32 above), one was not altered (p. 77, "Be yourself"). On the other hand, the others were fairly extensively softened (pp. 97-98, "Intercourse and petting", and pp. 103-105, "Pornography") and on page 95 of the work there is now a mention of the illegality of sexual intercourse with a girl under sixteen. Furthermore, the revised edition no longer has any reference to the installation in schools of contraceptive vending machines and points out, on page 106, that homosexual tendencies are often temporary.