The law won't find Frankie Boyle obscene (probably)

Says law student Jonathan Down

Many things have been said of Frankie Boyle: offensive; rude; crude; callous; hurtful; unsympathetic; ‘comedian’ (in sarcastic air quotes, obviously) ; not very nice. The list continues. Just look up one of the above in a thesaurus and every synonym you can find has been used to describe Boyle. But now the line has been somewhat blurred. Charity chief Brendan McConville has seen fit to drag into the argument the legal word ‘Obscene’.

The Obscene Publications Act is a series of statutes governing what can and cannot be published. Skipping the history lesson of why we have these laws and how they have evolved to this point, the 1959 version of this Act, still in force today, contains a test to determine what is an obscene publication.

The test is: ‘An article shall be deemed to be obscene if its effect... 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.’

In layman’s English, an article is obscene if it is likely to corrupt those who are likely to read it.

So, let’s apply this to Frankie Boyle’s recent book, which contained jokes abot the deaths of Gordon Brown and David Cameron’s children; Kate Middleton dying in a car crash and about the Queen being gang raped. Therefore the substantive issue is: Are jokes about this subject obscene?

A case on this issue has been decided in court before and therefore forms a precedent. In 2009, a man named Darryn Walker wrote a short story, which appeared online, in which Girls Aloud were kidnapped, raped and murdered.

Mr Walker was taken to court after being arrested for an alleged obscene publication. Mr Walker was found not guilty. ‘Why?!’ I hear you shout. ‘Surely this man is sick, depraved and his disgusting stories are completely obscene’. That may be so, but the defining detail was not the substance of his stories, but the location. Mr Walker’s stories were hosted on a website dedicated to these kinds of sexual fantasy tales therefore only available to people specifically searching out tales of Cheryl Cole’s body being invaded by force and left for dead.

‘But, But!’ I hear you cry. ‘Frankie’s book isn’t hidden in the dark corners of the internet, his hardback ramblings are available in most high street retailers, therefore open to the public’. While I cannot definitively tell you how a judge would decide such a point, I can give a well reasoned guess. The reason Frankie’s book can be both obscene in nature and still available for purchase in the public market is one simple, human factor: choice.

I’m willing to say a good majority of the people who buy Boyle’s latest writing endeavour will have heard of him before and be actively seeking out the book. The others will either have read the blurb, or possibly a well-written Chortle review and will know what to expect.

I would now like to address Mr McConville personally. Since you are the sort of person who is willing to pick up a book, fully knowing that you are not going to enjoy it and will almost definitely be offended by it, the law will offer you no protection. The law does not suffer fools. Judges are busy. Dangerous paedophiles; murderers; rapists and the like are society’s first attention, not people who waste their money needlessly offending themselves. A case that has only one possible ending: you wasting a lot more public money to no avail.

The Obscene Publications Act is not a tool that will undermine comedy as long as the majority of society continues to be smart enough to know what they want out of a book.

P.S. If Frankie Boyle is ever convicted under the Obscene Publications Act, I will write a follow-up article about his subsequent successful appeal courtesy of the Human Rights Act.

  • Jonathan Down is a law student at the University of the West of England in Bristol.

Published: 28 Nov 2011

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