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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
    1. Boyce v Paddington Borough Council [1903] 1 Ch 109
    2. Gregory and Another v London Borough of Camden [1966] 2 All ER 196
    3. R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129
    4. R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
    5. Supreme Court Act 1981
    6. Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
    7. R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551
    8. R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754
    9. R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd [1994] 4 All ER 329 (No 2)
    10. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184

LORD DENNING MR: Mr Raymond Blackburn comes before us once again. This time he draws to our attention the pornographic films which are being shown openly in cinemas in London and elsewhere....

3 The tests to be applied

The next question is, what tests are the county council to apply when they exercise censorship powers? Are they to apply the tests laid down in the Obscene Publications Act 1959? Or the tests laid down by the common law?

(i) The Obscene Publications Act 1959

In 1959 Parliament passed the Obscene Publications Act 1959. I remember it well. I attended the debates, and took part. Its object was to strengthen the law against pornography. It contained a test of obscenity which was to be applied to publications. An article was to be deemed obscene if its effect, taken as a whole, was 'such as to tend to deprave and corrupt persons' likely to read it. Unfortunately that legislation misfired..... One reason was because of the inadequacy of the definition of obscenity. It did not stop gross indecency. An article might be so indecent as to shock the readers; but yet it might not tend to deprave and corrupt them. Another reason was because of the defence of public good. The courts used to allow so-called experts to come forward and say that pornography is good for those who take pleasure in it...

(ii) The common law test

It has been established for centuries that it is an offence at common law to show in public an indecent exhibition...This common law offence was clearly recognised by the House of Lords in Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions ([1972] 2 All ER 898 at 905, [1973] AC 435 at 458). Lord Reid said in this context that indecency 'includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting', and Lord Simon of Glaisdale ([1972] 2 All ER at 935, [1973] AC at 493) said that 'the authorities establish a common law offence of conduct which outrages public decency'. This common law offence has proved to be a far better stop on pornography than the 1959 Act. For this simple reason: pornography shocks and disgusts decent people, but it does not tend to deprave or corrupt them.....[W]hen jurors are asked to apply the test: does this tend to deprave or corrupt? they have been known to allow the most indecent articles to get into circulation. I notice that the Law Commission recommends that the common law offence (where the test is gross indecency) should be abolished and that instead the statutory offence (where the test is to tend to deprave or corrupt) should be made to apply to films. I hope that Parliament will look closely into this recommendation before it is adopted and made law. Some may think that the common law offence is capable of being far more effective in stopping pornography - and is much easier for juries to understand and apply - than the statutory offence.

(iii) Cinematograph films

Parliament expressly said that the provisions of the 1959 Act were not to apply to cinematograph films shown in public.... Why did Parliament do this? I propose to look at Hansard to find out. I know that we are not supposed to do this.... I have looked at Hansard to refresh my memory. In the Lords the Lord Chancellor referred to the four forms of publication which were excepted from the bill. First, the live performance of stage plays; secondly, the cinema; thirdly, television; and fourthly, broadcasting. He said that the promoters of the bill ( it was a private members' bill ( desired to leave those four out of the bill and to allow the common law to apply to them. The government were content that this should be so.....

No doubt those reasons seemed sufficient in 1959. But they are no longer valid today. During the last two or three years pornographic films have been imported from Sweden, I believe, in large numbers and no doubt at much expense. They have been exhibited in cinemas in London to the shame of its decent citizens. The exisiting censorship has proved totally ineffective to stop it. This was brought vividly into the open by R v Jacey (London) Ltd. A film called 'More about the Language of Love' was refused a certificate by the British Board of Film Censors, but the exhibitors appealed to the GLC. The GLC granted consent to its being shown. It was shown at a public cinema. The redoubtable Mr Blackburn brought it to the notice of Sir Robert Mark, the Commissioner of Police. A prosecution was brought on the ground that it offended against common law. The owners and manager of the cinema were charged with showing a film which was grossly indecent. The jury found them guilty. The judge fined the two companies 500 a piece and the manager 50.

Why did the GLC grant their consent to the showing of that film which was found by the jury to be grossly indecent and which was, therefore, unlawful? The answer is because they have been applying the wrong test. They have applied the test of 'tendency to deprave or corrupt' under the 1959 Act, instead of the test of 'indecency' under the common law.....

4 The validity of the GLC rules...

By making these rules and so applying them, it follows that a film which is unlawful (as being grossly indecent) may, nevertheless, be shown in London cinemas with the sanction of the GLC, as happened in R v Jacey (London) Ltd. In other words, the GLC have made rules which permit films to be shown, even though their exhibition is contrary to law. This is, to my mind, a misuse of the licensing power which they have assumed. It is wrong for a licensing authority to give their consent to that which is unlawful.

5 Locus standi

It was suggested that Mr Blackburn has no sufficient interest to bring these proceedings against the GLC. It is a point which was taken against him by the Commissioner of Police and against the late Mr McWhirter of courageous memory by the Independent Broadcasting Authority. On this point, I would ask: who then can bring proceedings when a public authority is guilty of a misuse of power? Mr Blackburn is a citizen of London. His wife is a ratepayer. He has children who may be harmed by the exhibition of pornographic films. If he has no sufficient interest, no other citizen has. I think he comes within the principle which I stated in Attorney General (on the relation of McWhirter) v Independent Broadcasting Authority ([1973] 1 All ER at 696, [1973] QB at 646), which I would recast today so as to read: "I regard it as a matter of high constitutional principle that, if there is good ground for supposing that a government department or a public authority is transgressing the law, or is about to transgress it, in a way which offends or injures thousands of Her Majesty's subjects, then any one of those offended or injured can draw it to the attention of the courts of law and seek to have the law enforced, and the courts in their discretion can grant whatever remedy is appropriate".

The applications by Mr Blackburn and Mr McWhirter did much good. They show how desirable such a principle is. One remedy which is always open, by leave of the court, is to apply for a prerogative writ, such as certiorari, mandamus or prohibition. These provide a discretionary remedy and the discretion of the court extends to permitting an application to be made by any member of the public: see R v Thames Magistrates' Court, ex parte Greenbaum and especially what was said by Parker LJ: and R v Hereford Corpn, ex parte Harrower; though it will refuse it to a mere busybody who is interfering in things which do not concern him: see R v Paddington Valuation Officer, ex parte Peachey Property Corpn Ltd ([1965] 2 All ER 836 at 841). Another remedy open likewise is by asking for a declaration: see Dyson v Attorney General, Prescott v Birmingham Corpn and Thorson v Attorney General of Canada, where Laskin CJ and his colleagues notably expanded the scope of the remedy. Also by injunction as in Bradbury v Enfield London Borough Council.....