The combined effect of these provisions is to create an absurd paradox. How can something be justified as being for the public good if its tendency is to deprave and corrupt? Is it like eating a cream cake, or too many chocolates: “naughty but nice”? Or is it more like those products of the “decadent” artistic imagination, as to which the damnably quotable Oscar Wilde remarked: “There is no such thing as a moral or immoral book. Books are well written, or badly written. That is all.”

Wilde was fond of paradoxes and in a different context (ie his trial for gross indecency) might have welcomed a defence of literary merit, as applied to his own conduct. What he would have made of Last Exit to Brooklyn must remain a matter of conjecture but another controversial writer, Anthony Burgess, in his introduction to the post-trial edition of Selby’s novel, describes it as  “a serious study of certain painful and shocking aspects of Western city life”.

It is not so much a novel as a set of linked stories about the hookers, hustlers, petty gangsters and decidedly hard-boiled drag queens inhabiting a seamy hinterland of the eponymous New York borough. There’s a lot of drink and drugs and profanity; there’s also some fairly breathtaking violence, including a horrific gang-rape; but “taken as a whole” (in the words of section 1) it has a strong flavour of 1950s pulp fiction and by current standards seems quaintly dated. It was subsequently made into a “cult” film (ie failed to secure major distributor).

The publisher, John Calder, was himself no stranger to controversy. An earlier novel published by his firm, Alexander Trocchi’s Cain’s Book, a harrowing portrayal of drug addiction, was successfully prosecuted under the 1959 Act, the Divisional Court ruling that obscenity was not confined to matters of sex:  see John Calder (Publications) Ltd v Powell [1965] 1 QB 509. 

Then, if they do so find (beyond reasonable doubt), they should consider the number of readers likely to be depraved and corrupted, the strength of the tendency and the nature of the depravity and corruption, and weigh those factors against the strength of the book’s literary, sociological or ethical merit to decide whether, on a balance of probabilities, the section 4 defence is made out: see p 172. The publishers’ appeal was allowed because the judge’s directions, though well meant, failed to thread the jury through the paradoxical maze and led to a miscarriage of justice.

The 1959 Act replaced what had been the common law offence of obscene libel, the test of which was very similar to that in section 1: see R v Hicklin (1868) LR 3 QB 360, 371. But the absence of a defence of literary merit under the common law made for a more logical approach to the issue of obscenity, as can be seen from a case decided shortly before the new Act: see R v Martin Secker Warburg Ltd [1954] 1 WLR 1138. In his summing up the trial judge, Stable J,  made continual references to art and literature, in essence directing the jury that a work having literary merit was by definition not obscene. The jury evidently agreed: they acquitted the publishers.  Having dutifully read The Philanderer all the way through, I would not say Stanley Kauffman’s depiction of a mean-spirited adulterer is a great novel, but neither is it, in Stable J’s definition of pornography, at p 1143,  “the filth, bawdy muck that is just filth for filth’s sake”.

To say that a work cannot be obscene if it has literary merit seems to me more logical than to say, as the 1959 Act requires, that it is obscene, but at same time has literary merit. The problem with the logical approach is presumably that it requires the Crown to establish lack of literary merit as an ingredient of obscenity, and perhaps that is rather difficult, especially when in artistic terms “anything goes”. The section 4 solution, which puts the burden on the defence, but creates an absurd paradox as a result, bears all the hallmarks of a Great British Fudge.

Despite this, or perhaps because of the “clarification” provided by the Court of Appeal in the Calder & Boyars case, the section 4 defence does not seem to have caused problems in subsequent obscenity cases. Another famous one, coming at the end of the decade after the Act, concerned the lewdly satirical “Oz” magazine: see R v Anderson [1972] 1 QB 304. According to Tony Palmer, author of The Trials of Oz (1971), it was “the longest obscenity trial in history”.