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After the Operation Tiger prosecution was dropped, the Defend Gay’s the Word Campaign continued the fight against censorship of gay publications. Most of the books seized by Customs and Excise (Customs) had been released, but nineteen titles that were still deemed to be obscene had been returned to the supplier in the United States.[1] Gay’s the Word (GTW) now reimported six of these titles to bring about a test case to clarify the law.[2] 

GTW wanted to argue that the literary or artistic merit of the reimported books meant that their publication was for the public good.[3] The ‘public good’ defence to obscenity charges was available for domestic publications under section 4 of the Obscene Publications Act 1959, but it was not clear whether it could also be used for imports.[4]

EEC law was also fundamental to the case: article 30 of the Treaty Establishing the European Economic Community prohibited restrictions on imports, but article 36 contained an exception which permitted restrictions imposed on grounds of public morality.[5] GTW’s position was that ‘a restriction on importation of obscene articles cannot be justified under article 36 if they could lawfully be put on sale in an English shop’.[6]

The test case begins

In October 1986, GTW’s solicitors notified Customs that they had imported the six titles again. The books were duly seized as prohibited imports under section 42 of the Customs Consolidation Act 1876. Customs then applied to Bow Street Magistrates’ Court for an order to have them destroyed.[7] The status of the matter as a test case is confirmed in one of the published reports of the court proceedings: ‘In a test case and in collaboration with H.M. Customs and Excise, the applicants imported from the Netherlands a consignment of books of a homosexual nature…’ [8] 

On 22 October 1987, the magistrate ruled that GTW could not put forward a public good defence.[9] The bookshop applied to have the ruling judicially reviewed in the Queen’s Bench Division of the High Court, but the court upheld the magistrate’s decision.[10] 

GTW persisted. At the time of Operation Tiger, they had decided that they could not let the targeting of gay publications by customs officers go unchallenged;[11] they knew they had a good case and they were determined to keep going. They appealed to the Court of Appeal. 

The Court of Appeal ruling

In December 1988, the Court of Appeal upheld the decisions of the two lower courts.[12] It ruled that article 36 made the prohibition on the import of obscene goods in section 42 of the Customs Consolidation Act 1876 compatible with EEC law, despite the fact that the Act imposed a stricter test on imports than would apply to books published in the UK, where a ‘public good’ defence would be available.[13] 

During the hearing, GTW argued that if there were any doubt about the interpretation of article 36 of the EEC Treaty, the Court of Appeal should refer the issue to the European Court of Justice for a preliminary ruling. However, the court refused to do this, saying there was no uncertainty[14] - a refusal which has been described by Bruno de Witte, Professor of European Law at the University of Limburg, as a lost opportunity for clarification of the article 36 public morality exception.[15]

Geoffrey Robertson – one of GTW’s barristers in the Operation Tiger prosecution – said the outcome of the test case was:

…difficult to reconcile with the reasoning in Conegate: if an obscene book may be manufactured and marketed within Britain because of its literary merit, there can be no logical reason for preventing its importation from other countries on moral grounds.[16]

The Conegate ruling had said that imports of sex dolls and other erotic items could not be prohibited when the same products could be manufactured and marketed lawfully in the UK. It had contributed to the dropping of the Operation Tiger case.[17] GTW had asked Customs to withdraw the prosecution in view of Conegate and the official announcement that the case had been dropped also cited it.[18] Geoffrey Robertson later said ‘I … was told directly – indeed, customs and excise wrote to us – to withdraw the case on the basis of the Conegate decision.’[19] 

The final push

The Defend Gay’s the Word Campaign were still not ready to give up. They applied for permission to appeal to the highest court, the House of Lords, and Gay Times published a call for donations to fund the continued legal battle.[20] However, the House of Lords refused to grant permission to appeal.[21] 

The test case was over. All that remained was for the magistrates’ court to decide the original question put before it: whether the six reimported books should be condemned as obscene. In November 1989, the magistrate ruled that they were ‘blatantly erotic and obscene’ and should be destroyed.[22]

Defend Gay’s the Word had shown courage and perseverance in taking the case as far as they could. The judgment is still referred to in books on the law of civil liberties and human rights,[23] as well as works on criminal law.[24] Despite the unfavourable result, the fact remains that the vast majority of the 142 books originally seized had not been found to be obscene. After the successful outcome of the Operation Tiger campaign, Defend Gay’s the Word had not rested on their laurels, but had worked tirelessly for three more years in the cause of equal treatment for domestic and imported publications.