07:45, August 01 45 0 theguardian.com

2019-08-01 07:45:10
Landmarks in law  Lady Chatterley's legal case: how the book changed the meaning of obscene

The 1960 obscenity trial that lead to the acquittal of Penguin Books for publishing DH Lawrence’s novel Lady Chatterley’s Lover is a seminal case in British literary and social history.

The verdict was an important victory for freedom of expression, and saw publishing in Britain become considerably more liberal.

It is credited as being a crucial step in liberalising the country’s cultural landscape, encouraging frank public discussion of sexual behaviour that meant sex was no longer a taboo in art and entertainment. It also shifted views on major human rights issues including the legalisation of homosexuality and abortion, the abolition of the death penalty and divorce reform.

The trial highlighted the gap between modern society and an out-of-touch establishment, demonstrated most tellingly in the opening remarks to the jury of the prosecutor, Mervyn Griffith-Jones: “Is it a book that you would even wish your wife or your servants to read?”

Now, almost 60 years later, the trial remains the landmark case in British obscenity law, and its wider cultural and historic significance was demonstrated earlier this year. An annotated copy of the book used by the trial judge, Sir Laurence Byrne, was sold at auction to an overseas bidder for £56,250, but the then arts minister, Michael Ellis, placed a temporary bar preventing its export.

English Pen, the charity and writers’ association that promotes freedom of expression and literature across frontiers, launched a crowdfunding campaign to keep the book in the country.

Philippe Sands QC, the writer, human rights barrister and president of English Pen, says that Lawrence is “unique in the annals of English literary history” and that the book “was at the heart of the struggle for freedom of expression” in the courts and beyond. Calling for support to keep the book in the UK, he says it is “a symbol of the continuing struggle to protect the rights of writers and readers at home and abroad”.

Lady Chatterley’s Lover tells the story of an affair between the young, married and upper-class Lady Chatterley and her married, working-class gamekeeper, Oliver Mellors.

Aside from the fact that both protagonists were separately married at a time when divorce was only granted on proof of a matrimonial crime, the book became notorious for its explicit descriptions of sex, ​its use of then-unprintable four-letter words and a reference to anal sex, ​which was illegal at the time.

The book challenged establishment values and, although it had been published elsewhere in Europe in 1928, remained unpublished in the UK for 30 years following Lawrence’s death in 1930, as publishers were fearful of prosecution.

Penguin’s co-founder Allen Lane wanted to publish an unabridged cheap paperback version for three shillings and sixpence, the same price as 10 cigarettes, to make it affordable for the “young and the hoi polloi”.

The previous year had seen the enactment of the Obscene Publications Act 1959, which introduced a defence for publishers if they showed that a work was of literary merit and for the public good. The trial of Penguin Books was a test case of the new law.

The defence called 35 professors of literature, authors, journalists, editors, critics, publishers and child education experts, and four Anglican churchmen, who each declared that the book had sufficient literary merit to deserve publication for the public good.

The jury returned in three hours and on 2 November 1960 delivered a verdict of not guilty. Within three months, Penguin had sold more than 3m copies.

Human rights barrister Geoffrey Robertson, who was an independent assessor for the board that determined that the book should not be sent abroad, says the trial was “probably the most significant of any at the Old Bailey”.

“The verdict freed great literature from the shackles of the common law of obscenity,” he says. “Works of no literary merit were not freed until the Oz trial in 1971 and works of demerit had to wait until the acquittal of Inside Linda Lovelace in 1977.”

In his forward to the 30th anniversary edition of CH Rolph’s The Trial of Lady Chatterley, Robertson says the verdict “has been hailed in retrospect as the harbinger of a more enlightened decade, the first breach in the repressive dam of establishment hypocrisy”.

The cultural change it sparked, he says, is encapsulated in Philip Larkin’s poem Annus Mirabilis, which begins:

“Sexual intercourse began

In nineteen sixty-three (which was rather late for me)

Between the end of the Chatterley ban

And the Beatles’ first LP.”

Robertson says the trial of Lady Chatterley’s Lover is of continuing legal importance because it contains a series of rulings that, thanks to Rolph’s book, have become part of the modern law of obscenity and “remain the ground rules for obscenity trials today”.

For example, it is the basis for the jury direction during obscenity trials that “the mere fact that you are shocked or disgusted, the mere fact that you hate the sight of the book when you have read it, does not solve the question as to whether you are satisfied beyond reasonable doubt that the tendency of the book is to deprave and corrupt”.

As Myles Jackman, a solicitor advocate who specialises in obscenity and extreme pornography cases, says: “Lady Chatterley continues to resonate through obscenity law history since it demonstrates the absurdity of deploying the criminal justice system to resolve a societal conflict.”

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