No trial in British history other--than that of Charles I--has had such profound social and political consequences as the trial of Penguin Books for publishing D.H. Lawrence's novel of 1928, Lady Chatterley's Lover. It marked the first symbolic moral battle between the humanitarian force of English liberalism and the dead hand of those described by George Orwell as 'the striped-trousered ones who rule'; a battle joined in the 1960s by issues such as the legalisation of homosexuality and abortion, abolition of the death penalty and of theatre censorship and reform of the divorce laws, all crucial to human rights. The acquittal of Lady Chatterley on November 2nd, 1960, was the first sign that victory was achievable and with the guidance of the book's great defender, Gerald Gardiner QC (Labour Lord Chancellor from 1964 to 1970), victory was, in due course, achieved.
There was a myth, perpetuated by Professor A.V. Dicey, that freedom of speech had been safely protected in England by the jury. This is almost precisely the opposite of the truth. Old Bailey juries (comprised until 1972 of property owners) usually did what they were told by judges and convicted. Until 1959 the publisher of a book which contained any purple passage which might have a 'tendency to deprave and corrupt those whose minds are open to such immoral influences' was liable to imprisonment. Literary standards were set at what was deemed acceptable reading for 14-year-old schoolgirls--whether of not they could, or would want to, read the novel in question.
Merit was no defence; in 1928 The Well of Loneliness was destroyed by a magistrate who realised to his horror that one line in the novel ('and that night they were not divided') meant that two female characters had slept with each other. He said this would 'induce thoughts of a most impure character and would glorify the horrible tendency of lesbianism'. (The prosecution had Rudyard Kipling attend the court, in case the magistrate needed a literary expert to persuade hito to 'keep the Empire pure'.)
Censorship of sexual references in literature was pervasive in England in the 1930s (there was a brief respite for James Joyce's Ulysses when a sumptuously bound copy was found among the papers of a deceased Lord Chancellor). In the 1950s four major publishers were prosecuted for works of modern fiction--three of whom were convicted. In this period, books by Henry Miller, Lawrence Durrell, Cyril Connolly and others were available only to those English readers who could afford to travel to Paris to purchase them.
In 1959 the Society of Authors finally persuaded Parliament to pass a new Obscene Publications Act with a preamble which promised 'to provide for the protection of literature and to strengthen the law concerning pornography'. The distinction was to prove elusive, certainly to the attorney general, Reginald Manningham-Buller. In August 1960 he read the first four chapters of Lady Chatterley's Lover on the boat train to Southampton and wrote to the DPP approving the prosecution of Penguin Books ('I hope you get a conviction'). The key factor in the decision to prosecute was that Penguin proposed to sell the book for 3 shillings and 6 pence: in other words, to put it within easy reach of women and the working classes. This, the DDP's files reveal, was what the striped-trousered ones refused to tolerate.
The choice of Lady Chatterley asa test case was inept, but it suited the anti-intellectual temper of the legal establishment and for Conservative politicians it would mean the defeat of an impeccably liberal cause.
The prosecutors were complacent; they would have the judge on their side and a jury comprised of people of property, predominantly male, middle-aged, middle-minded and middle-class. And they had four-letter words galore. The prosecuting counsel's first request was that a clerk in the DPP's office should count them carefully and in his opening speech to the jury he played them as if they were trump cards:
The word 'fuck' or 'fucking' appears no fewer than 30 times; 'cunt' 14 times; 'balls' 13 times; 'shit' and 'arse' six times a piece; 'cock' four times; 'piss' three times. …