Regina v Hicklin (1868)

Citation:

L.R. 3 Q.B. 360 (1868), Court of Queen’s Bench

Bench:

Chief Justice Cockburn, Justices Blackburn, Mellor, and Lush

Regina v Hicklin (1868) is a landmark case in English law that primarily deals with the definition of “obscenity” in relation to the sale and distribution of materials considered obscene. The case examines whether a publication, intended to expose the practices of the Roman Catholic Church, could be considered obscene and whether its publication could be defended on the grounds of a righteous motive. 

In this case, the appellant, Henry Scott, challenged an order by the justices of Wolverhampton to seize and destroy copies of a pamphlet he had been distributing. The case raises critical questions about the boundaries of obscenity, public morals, and the role of intent in legal defences.

Facts of Regina v Hicklin

Henry Scott was a metal broker residing in Wolverhampton and a member of the Protestant Electoral Union. The Union’s goal was to expose the alleged errors and immoral practices of the Roman Catholic Church, particularly in relation to the confessional. 

In order to promote these views, Scott distributed a pamphlet titled “The Confessional Unmasked; shewing the depravity of the Romish priesthood, the iniquity of the Confessional, and the questions put to females in confession.” This pamphlet contained extracts from various theological writings that critiqued the Roman Catholic Church and the practice of auricular confession.

The pamphlet consisted of two sections: one that was purely controversial, discussing doctrinal issues of the Church, and another that was deemed obscene due to its explicit descriptions of immoral acts. Despite its content, Scott did not intend to profit from selling these pamphlets but instead sought to expose what he considered the immoral practices of the Roman Catholic Church. The pamphlet was sold at the price of 1 shilling per copy, and Scott distributed around 2,000 to 3,000 copies.

A complaint was made to the local justices by a police officer, acting under the direction of the Watch Committee of Wolverhampton, and 252 copies of the pamphlet were seized from Scott’s house. The justices, under Section 1 of 20 & 21 Vict. c. 83, ordered the pamphlets to be destroyed as obscene material. Scott appealed this decision, arguing that his motives were pure and that the pamphlet should not be considered obscene.

Lower Court Decision

In the lower court, the Recorder of Wolverhampton quashed the justices’ order. The Recorder acknowledged that the pamphlet contained obscene content, but he argued that the appellant’s intent was not to harm public morals. Rather, Scott’s goal was to expose what he saw as the errors and immorality of the Roman Catholic Confessional system. Therefore, the Recorder concluded that the sale and distribution of the pamphlet should not be considered a criminal act.

However, this decision was challenged and brought before the Court of Queen’s Bench for final determination.

Legal Issue

The central legal issue in Regina v Hicklin was whether the publication of the pamphlet, although containing obscene material, could be justified on the grounds of the appellant’s intent to expose what he believed were the immoral practices of the Roman Catholic Church. More specifically, the case addressed whether the act of distributing obscene materials for a “righteous” cause could be excused under the law.

Statutory Context

The case hinged on the interpretation of Section 1 of 20 & 21 Vict. c. 83, which empowered justices to seize and destroy obscene books or materials if they believed that the publication of such items would be deemed a misdemeanor. This statute focused on preventing the sale and distribution of obscene material with the goal of protecting public morals. The law allowed the seizure of such materials if the justices believed they were harmful to public morality.

According to the statute, the justices were required to be satisfied that:

1. The material was of an obscene character.
2. The publication of such material would be a misdemeanor.
3. The distribution of the material was for the purpose of sale or distribution.

Arguments

For the Appellant

Scott’s counsel, represented by Mr. Kydd, argued that the publication of the pamphlet was not an indictable offence. They asserted that Scott’s intention was purely to expose the errors and immoralities within the Roman Catholic Church, not to corrupt public morals. Kydd referenced various legal principles, including the need to prove a “criminal intent” before a publication could be considered obscene. He pointed out that in many works of literary or religious criticism, there may be obscenities or controversial passages, but these were not automatically criminal.

Furthermore, Kydd argued that the prosecution must prove that the publication had an intent to corrupt public morals, which was not the case here. According to Kydd, the appellant’s intentions were honest and did not warrant a prosecution under the statute.

For the Respondents

The respondents, represented by A.S. Hill, contended that the pamphlet was indeed an obscene publication. They argued that whether the appellant’s intent was to expose the Church’s practices or not, the fact remained that the pamphlet contained material that was inherently obscene. The publication of such material, they argued, could not be excused, even if the intention behind it was to promote a righteous cause. Hill further emphasized that the law did not provide exceptions based on the intent of the publisher and that the justices were within their rights to order the destruction of the pamphlets.

Regina v Hicklin Judgement

The Court of Queen’s Bench delivered a unanimous judgement reversing the Recorder’s decision and upholding the order for destruction made by the justices. Chief Justice Cockburn, who wrote the leading opinion, stated that the publication of the pamphlet was a violation of the law, irrespective of the appellant’s motives. 

The court agreed that while Scott’s intent was to expose what he viewed as errors within the Roman Catholic Church, the effect of publishing such an obscene work was damaging to public morals.

Cockburn emphasised that obscenity, in this case, was defined not only by the content of the pamphlet but also by its natural consequences. The court ruled that Scott must have known that distributing such material would inevitably corrupt the minds of those who read it. The Court of Queen’s Bench rejected the idea that the appellant’s good intentions could justify an act that had the clear potential to harm public morals.

Justices Blackburn, Mellor, and Lush concurred with the judgement, each highlighting the principle that the law does not excuse illegal acts based on the intentions behind them. They pointed out that the act of publishing an obscene work is in itself an offense and that no amount of good intent could change the harmful effects of such a publication.

Legal Principles

1. Obscenity as a Strict Liability Offence: The case reinforced the concept of strict liability in obscenity law. Even if the publication was made with good intentions, the mere act of publishing obscene material made the act illegal. The law does not require proof of criminal intent for obscenity offenses.
2. Implied Criminal Intent: The Court ruled that criminal intent could be inferred from the act of publishing obscene material. If a publication is inherently obscene, it is presumed that the publisher intended the natural consequences of their actions, even if the publisher’s motives were ostensibly noble.
3. The Role of Motive in Legal Defence: The case reaffirmed the principle that a defendant cannot justify an illegal act based solely on their motives. While the appellant may have had a legitimate and honourable objective, such as exposing the alleged errors of the Catholic Church, this did not excuse the illegality of the act of distributing obscene material.
4. Public Morality and the Law: The ruling also highlighted the importance of protecting public morals. The Court emphasized that the harmful effects of obscene material could not be overlooked, even if the material was intended for a larger social or moral purpose.

Conclusion

Regina v Hicklin (1868) is a pivotal case in the development of obscenity law in the UK. The judgement reinforced that the act of publishing obscene materials, regardless of the publisher’s intent, is a punishable offence. The case established that the natural consequences of such a publication—namely, the potential to corrupt public morals—were sufficient to render it illegal. 

This case is significant in the context of understanding the limits of free speech and the role of intent in justifying otherwise illegal acts. The ruling made it clear that a good or noble cause cannot justify actions that are harmful to public morality, setting an important precedent for future obscenity cases.