Keep the baby safe

Everyone​  knows that Mervyn Griffith-Jones QC asked an Old Bailey jury in 1960 whether Lady Chatterley’s Lover was a book they would want their wives or servants to read. The jury – which included three women – is said to have laughed. Its acquittal of Penguin on a charge of violating the newly minted Obscene Publications Act 1959 is widely regarded as a turning point in the centuries-long persecution of literature and philosophy in the name of morality.

It would be a pity if this were attributed to a single ill-judged remark, which Christopher Hilliard describes in A Matter of Obscenity as ‘the most famous self-inflicted wound in English legal history’. There is plenty of competition for that distinction, starting with Oscar Wilde’s ‘Oh dear, no, he was a particularly plain boy.’ Griffith-Jones, who regularly advised the director of public prosecutions on possible obscenity cases, was once asked by a colleague how he decided what advice to give. ‘I don’t know anything about literary merit,’ he is reputed to have said. ‘I just read what the director sends me, and if I get an erection we prosecute.’

To Griffith-Jones’s professed literary innocence, folklore has added a degree of sexual naivety, which Hilliard, who at one point not very fairly calls him a ‘double-barrelled bully’ (he was a toff, but an urbane and measured prosecutor), has dispelled. In the course of what have evidently been long hours in the National Archives, Hilliard has turned up what must be the prosecution brief, routinely endorsed with the verdict and returned to the DPP. It contains Griffith-Jones’s copy of the book, including the scene in which Lawrence vividly describes the sensation of anal intercourse without spelling out what it is. Griffith-Jones did not use this passage in cross-examining any of the defence witnesses; he saved it for his final speech and then read it out very deliberately to the jury, pausing occasionally to remark ‘Not very easy to know what he is driving at’ and so forth. The belief that Griffith-Jones didn’t realise what Lawrence was describing is put to bed for good by Hilliard’s discovery that in the margin of his copy he had written ‘BUGGERY’.

Hilliard is principally concerned with the use of the law to suppress indecent publications between the passing of the 1857 Obscene Publications Act and the publication in 1979 of a report to the Home Office by the Committee on Obscenity and Film Censorship, chaired by the philosopher Bernard Williams, which advances a case for moral pluralism. The Labour-appointed committee found itself addressing a newly elected Conservative administration which dispatched its findings swiftly into the long grass.

It is not obvious why Hilliard takes this as an endpoint. As his closing chapter acknowledges, the business of pornography has changed since 1979, and with it the business of censorship. The explosion of hugely profitable online pornography, and the dissemination of often brutal pornographic images by means of the internet, have made it necessary to criminalise possession as well as distribution. Williams was able to dismiss the testimony of a psychologist, put forward by Mary Whitehouse, of a causal link between pornography and sexual crime: it ‘cannot … even survive as a plausible hypothesis’. But it no longer requires a moral crusade to endorse the Online Safety Bill now making its way through Parliament, which aims to establish some form of control over the worst of the addictive and destructive user-to-user and search services that have rendered old-style pornographic publications all but obsolete. The last schoolboy with copies of Playboy under his bed must be drawing his pension by now.

Until it was abolished by the 1959 legislation, the keynote common law offence, triable on indictment before a jury, was the misdemeanour of publishing an ‘obscene libel’ (libel did not have its modern association with defamation; it connoted simply a written publication). The act of 1857, known as Lord Campbell’s Act, didn’t create a new crime but introduced machinery, operable by local magistrates, for forfeiting and destroying indecent material stocked or distributed ‘for purposes of gain’. It was this statutory procedure, seemingly free of the taint of pre-censorship, that became the procedure of choice.

In 1867, in a case known as Hicklin, Campbell’s successor as lord chief justice, Lord Cockburn, had to deal with an appeal against the oversetting of an order made by the Wolverhampton magistrates for the destruction of a prurient anti-Catholic tract, The Confessional Unmasked. On appeal from the magistrates to the quarter sessions it had been held that, though in part obscene, the publication’s purpose was political rather than commercial, putting it beyond the reach of the law. In the course of what was evidently an extempore judgment on a further appeal to the high court, Cockburn said: ‘I think the test of obscenity is this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.’ The tract before the court, he went on, ‘would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of a most impure and libidinous character’. Here, couched in Victorian prose, was the erection test.

Victorian legislators were careful, when draining the bathwater, to keep the baby safe. The bathwater was the tide of public immorality, in particular street prostitution and the public sale of salacious books and magazines. The baby was the private enjoyment of these things by the well-off, many of whom were MPs and peers. So long as the paterfamilias kept the bookcase locked and was discreet in his sexual arrangements, the police were to take no interest.

The law remained in this form, without any defence of literary or moral merit, until in 1959, after five years’ travail by a committee set up by the Society of Authors and some persistent lobbying, Parliament finally passed the new Obscene Publications Act. The act began unpromisingly by readopting the ‘corrupt and deprave’ definition of obscenity. It again criminalised publication rather than possession. But it abolished the old common law offence of obscene libel, preserved the right to trial by jury, and introduced a defence of public good.

This defence had been long in gestation. The conservative jurist James Fitzjames Stephen had proposed it in his draft criminal code: ‘A person is justified in exhibiting disgusting objects, or publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their exhibition or publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature or art, or other objects of general interest.’ The first publication of Stephen’s draft, in 1877, coincided with a case Hilliard mentions only in passing, though he describes it as important. This was the prosecution of Charles Bradlaugh and Annie Besant for republishing Charles Knowlton’s 1832 book The Fruits of Philosophy: An Essay on the Population Problem, which advocated birth control. A sixpenny reprint had been seized and condemned as obscene by local magistrates. Bradlaugh and Besant, having announced their intention, republished it, and were indicted, with what Keith Smith, in the Oxford History of the Laws of England, calls ‘evangelical indignation and hyperbolic fervour’, for ‘wickedly devising … to vitiate and corrupt … and to incite and encourage … indecent, obscene, unnatural and immoral practices, and bring them to a state of wickedness, lewdness and debauchery’.

Lord Cockburn, who presided over the trial, complained in his summing-up that the main effect of the case had been to afford the book a good deal of publicity. Although the jury convicted, the Court of Appeal managed to quash the six-month sentences passed by Cockburn because the indictment had been technically faulty. And thereafter, Besant’s The Law of Population, which included advice on birth control techniques, sold widely without repercussion. Here, if anywhere, are the politics of censorship in England. Change was brought about not by lawmakers and judges but by individuals prepared to risk their liberty.

Even so, it was not until the 1959 act was passed that it became permissible to acquit a book gauged obscene by Cockburn’s criterion, if publication was ‘justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern’. Among the first products of the new regime were the wise decision not to prosecute Lolita and the unwise decision to prosecute Lady Chatterley’s Lover.

In the years before the law was changed there had been indications that Victorian notions of decency were ceasing to be a viable test of criminality. Perhaps the clearest signal was the prosecution of Secker and Warburg in 1954 for publishing Stanley Kauffmann’s novel The Philanderer. By the time it came to trial before Mr Justice Stable and a Nottingham jury, Kauffmann’s book already had form, having been condemned as obscene on the Isle of Man, and few thought much of its chances before Sir Wintringham Norton Stable MC, known to the world as Owlie and to all appearances a choleric old conservative.

Stable’s summing-up is still a pleasure to read. It can be found as an appendix to the 1957 Penguin edition of Kauffmann’s book. Having first told the jury to ignore Mervyn Griffith-Jones’s warning that its verdict would affect what books might be published in the future, and having reminded the court that the book was required by law to be evaluated as a whole and not by picking out choice bits, Stable stressed to the jury that to deprave and corrupt must mean something more and worse than to shock or disgust, and reminded its members that they were not being asked whether this was the kind of book they would put in the hands of a 14-year-old girl. He spoke of literature as an essential window on a sometimes sordid world:

Really, members of the jury, is it books that put ideas into young heads or is it nature? When a boy or girl reaches that stage in life’s journey when he or she is passing from that state of blissful ignorance through that perilous part of the journey that we call adolescence, and finds himself or herself traversing an unknown country without a map, without a compass, and sometimes, I am afraid, from a bad home, without a guide, it is the natural change from childhood to maturity that puts ideas into young heads.

It was parents, teachers and society itself, Stable said, whose responsibility it was ‘to see that those ideas are wisely and naturally directed to the ultimate fulfilment of a balanced individual life’. The jury acquitted.

Later came the prosecution of the three editors of the 1970 ‘School Kids Issue’ of Oz. The classic defence tactic was used of having counsel – John Mortimer QC – representing two of the editors and arguing issues of law, while the other, Richard Neville, represented himself and said things that lawyers were not permitted to say (though Mortimer was at his fluent best when not talking about the law, which he generally found either confusing or boring). But nothing availed against the combined hostility of the prosecutor, Brian Leary, and the judge, Michael Argyle QC. The jury convicted, and the accused were jailed. They were bailed pending appeal, and in November 1971 their appeals were allowed on the ground that Argyle had failed to give the jury an adequate direction on the meaning of obscenity, in particular by failing to distinguish it from indecency. Superb advocate though he was, Mortimer’s eventual success before a hardboiled court (Lord Chief Justice Widgery with Mr Justices James and Bridge) may also have been owed to what is said to have happened when the judges were deliberating in private. James had remarked that far worse stuff could be freely bought half a mile away in Soho, and when the other two expressed incredulity sent his clerk with £20 to see what he could buy. The clerk returned an hour later with an armful of hard porn, and the case was over.

It’s​ not altogether satisfactory to characterise most of the history traced by Hilliard as ‘the politics of censorship’. Censorship it certainly was, but home secretaries repeatedly said it was a matter for the police; police commissioners and chief constables said it was a matter for the DPP; and the DPP said it depended on what verdict his counsel reckoned a jury was likely to return. The one postwar obscenity case that stands out as truly political is the prosecution in 1971 of Richard Handyside, the publisher of the English-language version of The Little Red Schoolbook. A copy is beside me as I write (I was junior counsel for the defence), alongside The Little White Schoolbook, a sanctimonious rebuttal that was handed out by evangelical demonstrators on the steps of the court. Taking its cue very obviously from Quotations from Chairman Mao Tse-tung, Handyside’s book set out to reassure older children that the adult world is not the confusing and intimidating place they are led to believe. It explained some of the difficulties faced by teachers and parents. It contained factual information and advice about drugs, sex, abortion and contraception. It told schoolchildren how to complain about bad teachers. It explained that homosexuality was perfectly normal (cf The Little White Schoolbook: ‘practising homosexuals are very aggressive … Jesus Christ can deliver the homosexual’).

During the appeal against Handyside’s conviction by the stipendiary magistrate to the Inner London sessions, where the entirety of the case was retried, a succession of headteachers, bishops, doctors and psychologists trooped through the witness box. My own recollection is riveted to the moment when Mortimer was cross-examining a bishop and his clerk rushed into court with a note telling him that his wife, who had just had their first baby, was haemorrhaging. Mortimer stopped in mid-question, turned to me, said ‘Carry on’ and shot out of court. He returned an hour or more later to find me still grappling with the bishop.

It’s not easy to work out how these two courts managed to find the book obscene, at least until one recalls that there is no explicit element of sexual stimulation in the requirement that the publication be ‘such as to tend to deprave and corrupt’. The book’s opening caption, ‘All grown-ups are paper tigers,’ may have sounded an initial alarm bell about the corruption of the minds of the young; and by the pages on orgasm, intercourse, contraception, molestation and pornography (‘a harmless pleasure if it isn’t taken seriously and believed to be real life … But … you may get some good ideas from it’), the magisterial urge to convict may have been irresistible. Whether a jury would have done the same is anyone’s guess. Hilliard suggests that Handyside opted for summary trial because of the high cost of a jury trial, win or lose. It may also have been because he found it hard to believe any court could find the book obscene.

Handyside went from there to the European Court of Human Rights, accusing the UK of violating his right of free expression. This is a right that Article 10 of the convention allows to be proportionately restricted ‘for the protection of health or morals’. The outcome was again a disaster: the court applied its ‘margin of appreciation’, a doctrine in practice reserved for blasphemy and obscenity cases, which enables the Strasbourg court to defer to local prejudice. By this time The Little Red Schoolbook had been published without repercussion all over Europe. It was also prosecuted in Scotland, where a sheriff court threw the case out.

The fightback of Mary Whitehouse and her Viewers and Listeners Association was far from over. In 1977 she staged a remarkable legal coup, bringing a successful private prosecution for blasphemous libel against Gay News and its editor, Denis Lemon, for publishing a designedly shocking homoerotic poem about the Crucifixion. On appeal, the law lords (the liberal Lord Scarman among them) held that the offence of blasphemy – confined, as ever, to insults directed at Christianity – still existed. Later, the trial judge, Alan King-Hamilton QC, revealed that God had personally guided his summing up. For England and Wales, the crime was finally abolished by Parliament in 2008, in large part because other religions, Islam in particular, were demanding equal protection.

Hilliard locates the origin of the common law of obscene libel in the case of Edmund Curll, an innovative, canny and unscrupulous bookseller who in 1724 anticipated the Hicklin case by publishing Venus in the Cloister, or, The Nun in her Smock with the pious object of exposing ‘the Abuses and Corruptions of the Church of Rome’. The King’s Bench was initially divided as to whether an offence against public morals was a breach of the peace, but eventually agreed that it was, and put Curll in the pillory. Two decades earlier a bookseller called Read had been acquitted by the same court on a charge of publishing an obscene libel, The Fifteen Plagues of a Maidenhead, on the ground that no breach of the peace was involved. ‘There is no law to punish it,’ Justice Powell said. ‘I wish there were, but we cannot make law.’

Really? In any event, the ground for Curll’s conviction had been laid some time earlier. In 1663 Sir Charles Sedley, a minor poet, dramatist and rake, had been fined, given a week in jail and bound over to keep the peace because (in the legal French reintroduced at the Restoration) ‘il monstre son nude Corps in un Balcony in Covent Garden’, in addition, according to another report, to ‘throwing down bottles (pist in) … contra pacem, and to the Scandal of the Government’. His counsel argued that since the abolition of Star Chamber by the Long Parliament in 1641, there had been no court of public morals. On the contrary, the judges said, counsel should know that the court of King’s Bench was the guardian of public morals – ‘de touts les Subjects le Roy’.