28 June 1923]

point of view of the freedom of the Press-I do not think the general public would take any interest in the

matter.

219. Really from the point of view of the Newspaper Press, if they thought that their liberty was infringed?— They might say, "Why should we be in a worse position under this Bill than we are under the general law?"

220. It has been suggested that a Bill of this kind, to be effective, ought not to be confined only to proceedings for dissolution of marriage and for nullity of marriage and judicial separation. In your experience would you say that there are many other classes of cases of which reports might be made which would injure public morals as much as in these three classes of cases which are mentioned in sub-clause (2)?—I think so: incest, Criminal Law Amendment Act cases, offences under the Consolidation Act of 1861, offences against the person; I need not mention here others more horrible still.

221. Would you look at the Bill: you will see that sub-clause (b) of clause 1 (1), refers to reports, or as you would suggest, statements referring to excepted particulars. Then sub-clause (2) makes the whole of sub-clause (1) apply to these three classes of cases only?—Yes.

222. Do you think it would be an improvement if the three classes of cases referred to in sub-clause (2) should be made to apply to clause 1, sub-clause (1) (a) alone?—Yes.

223. And that (b) should be made a more general prohibition applying to reports of any cases?-Yes. Just to confirm the view implied in that question, you see there are not any parties in criminal cases, nor do you have grounds on which proceedings are brought. It is a charge. Particulars of any arguments in criminal cases are generally not very interesting to the public, I think.

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[Continued

to be almost impossible to construct a legal definition for the purposes of a Statute of indecent" or "obscene," other than repeating the dictionary significations of those two words. Is it necessary to try to define them? If you describe the thing published as "indecent" or obscene," must you not then leave it to the tribunal to put the true signification to the words "indecent "" or "obscene"?

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225. As I will show later on, it is just possible that the meanings of those words may lead to two very different things indeed ?-Yes. I know of a case in which the word "obscene" applied to something which gave horror. It is an old case. A half-way down naked man was exposed in a shop window suffering from horrible sores. That was a common law misdemeanour as being a disgusting, obscene exhibition.

226. It offended without necessarily injuring the morals of the public?Yes, that would not affect morals, but it disgusts.

227. If I may, at any rate for the moment, use those two definitions, may I ask you this. Do you consider that actual obscenities, in the terms in which I have defined them, which could be prosecuted under the common law at the present moment, are actually harmful to the general public, and that the publication and printing of such obscenities should be proceeded against-Yes, I think so.

228. They actually do harm to the young and harm to the public?-I think probably more by pictures than by reading, because a picture is seen at a glance and recollected, and you have not the trouble of reading.

229. Apart from being offensive and causing disgust, they are actually injurious to the morals of the public?Yes, I think so.

230. Would you consider that in what I have defined as indecent publications, that is to say, articles that are of a suggestive, sensuous or erotic character which cannot easily be proceeded against as actual obscenities, there may not be a single sentence for which one could prosecute, but yet the whole thing is sensuous and suggestive-do you not consider that such articles may do more harm to the public although they do not possibly actually offend; that they may be more injurious?-It is a little difficult to answer that without a concrete case. There are

books which are very, very suggestive, but at the same time have a humorous side to them. Take "The Decameron or "Heptameron.' " "The Decameron" was published in an unexpurgated edition cheaply, at 1s. 10d., I think. The man was prosecuted for it and the Jury acquitted him.

231. I was rather thinking of taking the example of the Bible itself which is, after all, accessible to the young and any child can open it, and you will find in the Bible, say in the Book of Numbers, actual things which can be considered obscene, and are bad in that way for children?—Then all I can can say about that is, that it is the duty of parents to direct their children what they should read. I do not know that children would sit down to read any such passages, which of course do occur in the Bible.

232. Do you think it would actually do them harm if they did, and probably many do, perhaps by accident owing to their parents' neglect. Do you think it actually does the child harm ?—That is a very difficult question to answer. I have not much experience of children. If they are very young it does not do them any harm; they simply ask their mother what this means. If they are a little older, then what they probably are talking about amongst themselves in school or in the streets is what they see in the Bible. The harm that it may do to them is that they do not have the respect for the Bible that they ought to have. But I do not think it would do harm to the moral purity side of their character.

233. Whereas, on the other hand, the reading of a thing which is not actually obscene but which has sensuous suggestion might do a child considerable harm?-I think so.

234. And even one might take the case of the Song of Solomon. To a neurotic and feeble-minded person that might actually suggest things which are not good for him?-Yes, suppose that might be so. I should hope, sir, that you have in mind a very exceptional human being.

235. Exactly; I was thinking of the feeble-minded really, which is what we are really trying to protect at the present moment. Seeing the difficulty of actual prosecution for harmful articles or even pictures, it is very difficult to say what is obscene and what is not ?-It is very difficult indeed, and I have seen this year I

[Continued.

should think many hundreds of photographs and drawings and pictures, and it really is a difficult thing to look at each case upon its merits or demerits and say which side of the line it comes, and what the jury would be likely to think eventually about it, with some ingenious advocate for the defence quoting all sorts of pictures in the Louvre and the National Gallery as being far worse.

236. There would be constant litigation ?-Yes.

237. And dangerous litigation?-If it does not succeed it is worse than nothing, because if it does not succeed, that thing which is the subject of it has got the imprimatur of the jury. That is the mischief of it.

238. In that case would you not think it perhaps easier if the Bill confined itself, as it does now, simply to prosecution, not for what is considered anything indecent or obscene, but for anything which is outside the stipulations of the Bill in clause 1? That would be a clear cut and definite thing. There would be no question of constant litigation?-I think under the Bill as it stands, that if any prosecution came to me I should have to try and bring the matter complained of within the standard of Reg. v. Hicklin. I am afraid I should; that is Lord Chief Justice Cockburn's case. I should have to ask myself: Is the reasonably anticipated tendency of such a thing to deprave and corrupt?

239. That is under sub-clause (b)?— Yes.

240. And that, as it stands, would be the cause of constant litigation and great difficulty in deciding whether it was actually any indecent matter?Yes. People hold such different views, and if anybody may institute proceedings without any protection at all except the view of the particular magistrate you go to for process, I am afraid you might get I do not use the word offensively-people who are cranks, complaining about all sorts of perfectly proper articles in newspapers, and there would be a good deal of embarrassment to a newspaper and expense and hardship in having to meet proceedings. Therefore, one rather wants to get a sort of standard that shall exclude, if I may say so, reasonable indecent things that do not do any harm, and include those grossly indecent things which do harm.

241. Then it would make it easier still for you in the capacity of Public Prosecutor, would it not, if subclause (b) was deleted altogether and the Bill make it lawful only to publish reports of these cases as defined here: "(i) the names of the parties; (ii) the grounds on which the proceedings are brought; (iii) particulars of any argument on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the finding of the jury (if any) and the judgment of the court"; and the possible extension, say, of the Judge's summing-up-You are limiting the Bill then to the three forms of legal procedure specified in clause 2.

242. Yes? Yes, I think if you limit the Bill to those, then you put a duty on any publisher only to have regard to those four points and nothing else.

243. It would be clear cut and nothing else would be allowed to be published?—Yes. Then you may, of course, trust the Judge who had been giving the decision of the Court, which is one of the things permitted to be published, you would give him the credit of couching his decision in language which did not include a number of details undesirable to be published.

244. That depends entirely on the question of whether the actual use by a Judge of words which might be called obscene, only couched in the Judge's terms, are actually injurious to the public, whether he might mention a delicate matter which is not usually talked of and which some papers might print as he said it, though most papers would leave it out. But if they do print it, the question is whether that is actually injurious to the public, as opposed to writing a thing up in a play and making the villain a hero ?-I think that is the real mischief which has led to this Bill. It is almost honouring, at any rate putting on a pedestal for a time, two or three people who have been making fools of themselves in their conjugal life," almost raising them to a dignified position, and making them heroes to be snap-shotted, and their dresses described, and their hats described as they come into and go out of Court. that kind of thing is what is SO objectionable.

All

245. And none of that could be prosecuted for ?-No, unless it came up to the standard at common law.

Mr. Jowitt.

[Continued.

246. I want your help on the construction of the Bill. What do you understand (1) (a) (iv) to be? Assume a divorce case. It would be a verdict for the Petitioner or the Respondent? -Or the particular answers to the questions which the Judge put.

247. In a judgment of the Court, the Judge would say, Decree accordingly," would he not?-Yes. I had rather in my mind (iii).

248. As I read clause 1, sub-clause 1 (a) (iv), the Judgement of the Court is the the decree?-The decision, not means by which the Judge arrived at it.

249. Now let us look at (iii) “ particulars of any argument on any point of law." It is hardly conceivable, is it, in practice that during the course of a discussion on a point of law any question of indecency could arise ?-I should think not.

250. I cannot imagine a case off-hand, can you? No. The question of sufficiency or insufficiency of evidence is a question of law. It might be in that

way.

251. Now (ii)" The grounds on which the proceedings are brought." Would that be simply on the ground of adultery-Yes.

252. If that is so, subject to the qualification about the argument on (iii) it seems to me that the excepted particulars in (1) (a) cannot include anything of an indecent nature. It would be like this-" Jones v. Jones & Smith. Action brought on the ground of adultery." If there is any point of law it would be on what the finding of the Jury was. "That Mrs. Jones was guilty of adultery," and the Judge says: "Judgment accordingly "?—Yes.

253. It is difficult to conceive that there can be in that any indecent matter or other details injurious to the public morals?-I think so, and I venture to think that (i) to (iv) gives the public quite sufficient information. I do not know what else is intended.

254. As the Bill is now drawn, in your view, what function does Clause 1 (1) (b) perform? Is it not conceivably included in subclause 2?--I do not know the Pleadings in the Divorce Court, but might you not in case of nullity get some very physiological details?

255. How could you in the excepted particulars-You could publish the grounds on which the proceedings are

brought and you may publish an argument, which involves extra caution that in those excepted particulars you shall not have any indecent matterr.

256. It is common knowledge to all of us that in construing a statute you must try to construe it as a whole and give a meaning to every word of it ? Yes.

257. Do you not agree with me that as this Bill is now drawn the fact that (b) is present would probably, in the hands of an ingenious Counsel, be used as an argument to show that the word "grounds" in (1) (a) (ii), particulars of the argument in (iii) and judgment in (iv) must be given a very wide meaning. Unless they are given a wide meaning it is very difficult to get any point in (b) at all as the Bill is now drawn?-But the permitted points are so carefully drawn that nothing indecent could find its way into them. But then, if I may say so, are not you a little limiting (b)? First of all you shall not publish any particulars except so and so. Now (b) you are not to include in any report of such excepted particulars.

258. Assuming this Bill is going to be limited to dissolution of marriage, nullity of marriage, and judicial separation, and as I rather gather it has your general sympathy, do you see any reason why, on that assumption, (b) should not come out?-I would feel inclined to retain it. It is very difficult to visualise every possible case that might arise. I think it is well to have that there.

259. It becomes at once full of point if we had what Sir Arthur SteelMaitland suggested, if we make 1 (1) (b) apply not only to the particular suggested proceedings, but generally to all proceedings under the various consolidation Acts, and so on, which you have mentioned ?—Yes.

260. Then 1 (1) (b) at once is given an obvious point?-Yes.

261. Whereas, if it is confined to these three, although theoretically it. may have some point, the point is somewhat obscure ?-Yes, it would give it a more obvious point, but I think it would be a guidance to those who have to report cases of that particular character limited to proceedings in the Divorce Court.

262. They might find something in the argument on a point of law?They might say: "We must be careful to reduce our report to those four

[Continued.

bare particulars and we must not let into those particulars anything indecent or undesirable to print."

263. You would agree with me that anything indecent is exceedingly unlikely to be included?—I agree if you limit the Bill to the three proceedings.

264. I think you have also expressed your view to Lord Apsley that, in regard to these particular divorce proceedings, it is very desirable to have some definition, that you may publish this, that and the other, and beyond that you shall not go?-It is much better to say you shall not publish certain things than it is to make it an offence to publish something which is indecent or undesirable, because there is the difficulty of determining what is, and you get conflicting views. Court of Summary Jurisdiction A might take one view, another Court might take another upon what is substantially the same sort of case.

Mr. Hardie.

265. One thing that has been in my mind since Sir Henry Duke, the last witness, gave evidence, is this: Не seemed to favour that something should be done to prevent the publication of such matters as are under discussion. He felt that it would be a mistake not to have something published. He thought that a certain amount of publication acted as a deterrent. He said that generally these people concerned came there with sense of shame. Is that your experience? The Divorce Court is the only Court in which I have never appeared as Counsel, nor do I think I have entered its doors, certainly for 25 years. I do not know how people go or come out of the Divorce Court, but I should hope they go and come out, some of them, feeling very much ashamed of themselves.

a

266. Is it your opinion that if you try to get a grip on the Press, as is suggested in this Bill, you might not open a way, outside the Press, of publication of these cases?-It was that there should be no other means of publication which is not prohibited by this Bill that I suggested "statement "-" including any report or statement "-something other than a report. But you will not omit to notice that this Bill creates statutory offences. It does not touch the common law. The common law will be maintained by

reason of the provisions of the Interpretation Act, 1889, which provides that where a statute creates an offence and the common law creates an offence you may proceed under either method so long as the person is not prosecuted under both. So that even if this Bill did not touch all possible cases that arise, one has still the common law to rely upon.

267. Do you think there is any chance of this happening, should this Bill go through in the form suggested, that in a divorce case or a case of nullity-I understand from Sir Henry Duke the evidence in nullity cases is much worse than in ordinary divorce cases? -I should think so.

268. Is there any chance of this happening if Sir Henry Duke's idea were carried out of just giving the names and the grounds of the decision. Is it a matter of possibility from your experience that, say, the woman was rich and the man poor or that the man was rich and the woman poor, that the poverty of the one might lead to certain injustice by that poverty making it impossible for them to proceed to get the withdrawal of certain statements which were made and which left a general impression on the Court. There may be certain cases where, owing to the poverty of one of the persons, they might be unable to get a certain thing withdrawn or made clear. If I might cite the Russell case, for instance; if there had been a question of money certain things in that case could not have taken place?—I do not think the Bill touches that. Some Members of the Committee will know, very much better than I should, whether the Poor Persons'. provisions would apply to appealing. I suppose they could the Court of Appeal, and even to the House of Lords. If there were injustice done, and the person wanted to appeal, I presume he could appeal under the same system to the Court of Appeal.

any

269. Would not that be very costly? -No, he appeals as a poor person. There is a procedure giving representation free, or substantially free, to a person who is a poor person; that is, a person who is not possessed of more than a certain sum of money.

270. Do you not think that any tendency to curbing the Press in this country is a dangerous thing? -I do not think it is curbing

[Continued.

the Press. My private opinion is, although I have not any knowledge of Press views, that they would be heartily glad to see something of this sort. I believe a great deal of these reports have to be put in because other papers put them in, whereas if a standard is struck by a Bill like this, they would be glad to use their space in some other way.

271. But is it not a fact that certain Sunday papers live by such publications; that is to say, certain Sunday papers I have had sent to me since this Committee started, published in London, have their columns mostly filled with this kind of report. Would not that mean that if this Bill was passed, it would put them practically out of business?-I should say so, and I do not know why not. If they have nothing better to do than report details of divorce cases, they had better go out of business. Let them fill up their columns with something that is more useful to the subject to read. Gentlemen of the Press can write upon any conceivable subject at a moment's notice. You do not want to fill up columns of how Mr. So-and-So found somebody else's cigarette case on his wife's dressing table, and rubbish of that sort. That is not news. It is not the function of a newspaper to disseminate rubbish of that kind amongst people.

272. Do you not think that comes back to the question of the definition of a newspaper? What are we going to say. We are going to say publication." Does that include everything that is published?—Yes, there are things excepted, you will recollect, bona fide Law Reports and medical and surgical matters in the Lancet or other medical journals, so that the public generally shall only know the parties. and the nature of the case and the decision, but those whose interest it is to know the details of the case shall have it available in bona fide reports. That is, as I understand it, the key to the Bill.

273. Do you think there is some immediate need for a Bill of this kind? -Perhaps I am a little old-fashioned, but I do think that a great deal more space is devoted to these matters than need be, and if it did no harm and did not prejudice a newspaper, I think it is better to have a Bill of this sort on our Statute Book, than to be without