Sex in the Dock - The Lady Chatterley’s Lover Trial

In 1960 at the Old Bailey, Penguin faced prosecution under the Obscene Publications Act for its publication of Lady Chatterley’s Lover by D.H. Lawrence who had died in 1930.

In the book, Lady Chatterley has an affair with her husband’s gamekeeper as her husband is unable to have sexual intercourse due to a WW1 injury.

Did the book tend to deprave and corrupt? If so, was its publication 'for the public good' on the grounds of its literary merits?

Apart from the “f” word being used 30 times, the Prosecutor listed sexual intercourse taking place “thirteen times” including in “her husband’s house,…a hut,…the undergrowth,…when stark naked and dripping with raindrops…" He concluded, “And finally…we have it all over again in the attic in a Bloomsbury boarding-house.”

The Prosecutor asked, “Would you approve of your… young daughters – because girls can read as well as boys – reading this book?... Is it a book that you would even wish your wife or servants to read?”

The Defence said that society cannot fix its standards by what is suitable for a 14-year-old.

Over a six-day trial there were a number of witnesses, including:

1. Author Rebecca West who gave evidence that the book had literary merit, but was badly written by a man who had no sense of humour and no background of education in his home.  

2. The Bishop of Woolwich who agreed that Christians ought to read it. This led to the headline in the evening papers, “A Book all Christians should read”.

The Defence contended that Shakespeare’s Antony and Cleopatra may as well have been a “story of a sex-starved man copulating with an Egyptian Queen.”

The Judge summed up suggesting that the jury think of “factory girls reading in their lunchtime.”

After a six-day trial, the Jury found Penguin not guilty.

(c) Paul Brennan 2015. All rights reserved. 

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An Inspiring story for Prosecutors

Dear John

With crime rates falling, we Prosecutors have had to turn to our back catalogue of offences by ageing celebrities but with memories lapsing and witnesses dying the evidence in such cases can be questionable.

Should we just wait and hope that crime picks up, or should we press on and take what we can get?

P.

Dear P.

There is no patron saint of hopeless cases, but there are many examples of Prosecutors pulling some very unlikely convictions out of the hat.

For instance, during the Napoleonic wars a ship’s pet monkey was shipwrecked on a beach in the North of England. The locals captured the monkey mistakenly believing it to be a French spy as it was dressed in military uniform.

The monkey was interrogated, tried, found guilty and hung. 

In that case, the burden would have been on the Prosecutor to prove beyond reasonable doubt that the monkey had an intention to spy-no easy task.

Let us not forget the defence lawyer’s task of taking clear instructions long before the advent of dedicated Animal Rights Lawyers.

All this, on a windy beach, with the constant chatter of the defendant in the background.

It is work like this which is an inspiration to Prosecutors everywhere.

Ed  note: Years ago, I was asked to represent a defendant before a Magistrates Court. I calculated his legal aid contribution, and when I told him that he would need to contribute $2.00 for my services, he decided to represent himself. He gets out next week.

Extract from - I'll have the law on you - The selected letter of John Fytit  

(c) Paul Brennan 2014. All rights reserved. 

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# 79. They do not take death seriously enough

The Grim Eater

Dear John

I was very distressed to hear lately that in New Zealand, Funeral Directors noticed that a quiet, respectable looking man in his 40’s and wearing a suit was attending up to four funerals a week.  Some reported that he had plastic containers and took away food.  Newspapers reported that the “Grim Eater” was eventually taken aside by a funeral director and given a stiff talking to.

Surely, this can only serve to drive up the cost of funerals for we senior citizens.

JB

Sydney

Dear JB

Dishonestly taking funeral refreshments belonging to another without consent is theft.

This is not an uncommon problem especially where the deceased was unpopular and the relatives are desperate to get bums on seats and do not carefully vet attendees. 

If you are unable to vet the attendees, I suggest that you avoid general invitations to mourners such as “You are all welcome to join us for refreshments afterwards”.  This is implied consent and a defence to a charge of theft.  It is probably better to say nothing as choosing the right words can be difficult.  Words such as “Will friends of the deceased…” could exclude many attendees especially ex-spouses.

A refreshment ticketing system often used at accountants' funerals is ideal and particularly useful in the event of a tax office audit.

Another argument used by sandwich stealers, especially great aunts, is that the sandwiches were left over and therefore could be taken away.  A small tasteful sign saying "Food must be consumed on the premises"  is useful evidence.  But, legally if the sandwiches were to be thrown away it could mean that they belonged to no one which is a defence to theft.  In the case of left over sandwiches, it is difficult to get the Funeral Director to give evidence that they would have been re-circulated at the next funeral. Therefore a "doggy bag" clause in the funeral contract would be further evidence that the sandwiches were not abandoned.

A trespasser once discovered can be asked to leave and ejected with reasonable force.  If forcible ejection is necessary it is best to have the trespasser dragged rather that lifted up onto the shoulders to avoid any claim for injury against the estate from over-enthusiastic mourners or from the trespasser him or herself.

J.F.

(c) Paul Brennan 2010.  Extract from John Fytit’s International Legal Problem Page. Now written on this blog

John Fytit is the name of the central cartoon charter in Law & Disorder cartoons which started in Hong Kong in 1992. He is from the fictitious Hong Kong firm Fytit & Loos (pronounced “Fight it and Lose”). A very unsuccessful name as people read “Fytit” as “Fit it”. The International Problem Page started in 2005 and was merged into Paul Brennan’s blog. But, not before John Fytit started to receive real legal questions from various parts of the world.

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# 78 They can be difficult neighbours

Fight the Good Fight

In writing the Ten Biggest Legal Mistakes I put fighting with a neighbour near the top of the list.  It can lead to you moving house, I advised.

However, against my own advice, I once punched my own neighbour in the mouth. 

I had just moved to the Sunshine Coast.  My son was playing outside in a noisy way and my neighbour swore at him.  My son told his Mum and she went outside to reason with my neighbour.

By the time that I had got outside my wife and neighbour were arguing. I had never spoken to my neighbour but he was as usual holding a beer can in his muscly hand and wearing a white vest with little tuffs of hair growing on top of his shoulders. 

I tried to steer my wife indoors, but as we moved back, the argument continued and he pressed forward in a sort of menacing drunken manner.  Eventually, he raised his fist and motioned to me that he was going to hit her.  He seemed to expect me to support him.  He kept moving forward towards us and I hit him.  He shouted that he would “sue” and then changed it to “kill” me which I felt was more appropriate in the circumstances. 

The next morning, the police arrived.  However, they decided that I was entitled to defend my wife in these circumstances. 

Therefore, I have revised my advice to - if you cannot resist attacking your neighbours, rent. 

For those of you who long to prevail in hand to hand combat, against overwheming odds, in defence of your loved ones, my wife’s verdict was “You didn’t hit him hard enough”. 

(c) Paul Brennan 2010 

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# 60. They can do a runner

Let sleeping clients lie

You would expect every lawyer to have a story about a client falling asleep on him or her. In fact, it is fairly rare and has happened to me, only once.

I was a defence lawyer appearing at Horseferry Road Magistrates Court near Victoria Station, London.

My client in his 50s was well turned out in shirt, tie, blazer and grey flannel trousers. He was on a suspended sentence. I told him that he was going to prison where he had been many times before, always for theft. Like so many clients, drink had been his downfall.

By 11am he seemed jolly. By noon he had a manic grin. I started to beg the list officer to get us on. Just before lunch he had become morose and disshellved which could hopefully be mistaken for remorse rather than extreme drunkeness. We were called on.

During my plea in mitigation the Magistrate drew my attention to the snoring coming from the dock which had grown to an unacceptable level which even the legal process could not ignore.

I looked into the dock and there was my client on the floor, fast asleep.

The Magistrate unexpectedly sentenced my sleeping client to probation and went to lunch. The courtroom cleared. We were alone.

With great difficulty, I woke my client up and tried to explain what had happened or at least my understandably inflated version of it.

But, by then he was unbearably drunk and seemed not to understand his good fortune and my role in it. He wanted money. He advanced on me with his hand out.

I did what many other lawyers have done over the centuries ...... a runner. Easily outpacing him on the stairs, past security, out onto the street, never to see him again.

“Things won are done, joy's soul lies in the doing”.

© Paul Brennan 2009

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# 56. They hate cats

John Fytit’s International Problem Page

- Your Legal problems shared

Dear John

Despite having a cat door, every night, my cat wakes me up wanting to be let in and out or vice versa. My sleep is being severely disturbed. Is it illegal to kill a cat?

H.M. Dublin, Eire

Dear H.M

Cats do not have nine lives. This old adage is a reference to failed assassination attempts by their owners, so you are not alone. My own cat has a permanent scowl.

Your cat is your property and you can kill it, provided it is not done in a cruel manner. For instance, drowning in a bucket although quick, may be prohibited as an extreme form of water boarding. Even a pillow placed gently over the face after it has dozed for 20 hours straight in its favourite chair may be considered cruel in the cold light of the court room.

Therefore, it is best left to your Vet. But, most Vets, not all, are animal lovers and treat requests for execution of a healthy albeit malevolent animal as motivated by cruel intent and therefore illegal.

This is why many regimes, when dealing with subversives, use “trumped up” charges. As the Vet’s determination is behind closed doors with no witnesses, no investigation and no appeal, accusations of attacks on pregnant mothers, babies, widows or, as a last resort, puppies should work fairly well. As many cats have a night life that Hannibal Lechter would be proud of, the Vet should be easily convinced that he is dealing with an enemy of the state and any delay on his part may result in a law suit against him by one of the victims.

But, your cat’s untimely death may not improve your sleep. Guilt may weigh upon you as it did with Lady Macbeth. Alternatively, your small triumph may result in you turning on other members of your family who are even more irritating.

If you have reached an age where you find that your only nemesis is your cat it probably means that you should get out more. At least, that is my plan.

J.F.

(c)Paul Brennan 2009.

John Fytit is the name of the central cartoon charter in Law & Disorder cartoons which started in Hong Kong in 1992. He is from the fictitious Hong Kong firm Fytit & Loos (pronounced “Fight it and Lose”). A very unsuccessful name as people read “Fytit” as “Fit it”. The International Problem Page started in 2005 and was merged into Paul Brennan’s blog. But, not before John Fytit started to receive real legal questions from various parts of the world.

For further extracts from John Fytit’s International Problem Page sign up to the free monthly Law & Disorder eZine.

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# 55. They blame their clients if they lose

The best criminal defence ever

If there was an Oscar for the best criminal defence ever it would go to what I know as the ‘Jump Up’ defence. I don’t know why it is called that. Imagine that you are a criminal. You have just stolen a TV and you are carrying it down the street. A policeman catches you red-handed. Being a criminal you stay stumm. At your trial you say that you were walking along the road when a man said to you, ‘Do you want to make some cash?’ Being out of work, you agreed. The man tells you to pick up a TV and follow him. You were following him, carrying the TV, when the policeman stopped you.

In criminal trials the prosecution must prove the case beyond reasonable doubt so that the jury is sure. Juries often give the defendant the benefit of the doubt especially where the Jump Up defence is used.

So why doesn’t everyone plead clever defences like the Jump Up? Well, defence lawyers are not able to assist their clients (even a little bit) in concocting untrue defences. Defendants often learn basic defence strategy in prison, however, it displays a marked lack of creativity. They can’t all have brilliant criminal minds. If they were that smart at school they would now be bank managers.

What lawyers will not do is represent you in a not guilty plea to the court if they know you are guilty. I have had to work with some lousy, implausible defences over the years, but some have turned out to be true—so you never know. Therefore, the only way to be sure that your lawyer knows that you are guilty is for you to tell him.

Finally, I suggest that you expect professional detachment from your lawyer rather than tea and sympathy. If you can’t do the time, don’t do the crime.

Extract from The Law is an Ass...Make sure it doesn't bite yours!

(c) Paul Brennan 2006. All rights reserved.

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# 42. They have done some dirty deeds

The importance of avoiding legal potholes

In 1895 “The Importance of being Earnest” opened to packed theatre audiences. The playwright, Oscar Wilde received rave reviews except from the Marquis of Queensbury who was the father of Oscar’s “partner”, Lord Alfred Douglas (“Bosie”).


What was acceptable homophobia in those days is probably illegal today and what was an illegal practice then is “A” ok now which just shows you how fickle the law can be, especially if you are on the wrong end of it.


The Marquis added his then understandable (but now unreasonable) righteous indignation, to his eccentric, cantankerous and feisty (he did invent the Queensbury Rules) nature and tried to make their life a misery. Oscar considered having the Marquis bound over to keep the peace, but wanted to avoid scandal.


The Marquis finally went too far when he left a card at Oscar’s club saying "To Oscar Wilde posing as a Somdomite".


Either the insult or the misspelling or both drove Oscar over the edge. He decided to have the Marquis charged with criminal libel. Oscar’s lawyer exercising caution required Oscar to swear on a bible that the insult was not true, which he did.


The trial was abandoned after the defence threatened to produce evidence from rent boys, to support the allegation. However, the lawyers for the Marquis sent the papers to the Director of Prosecutions. Oscar was convicted of gross indecency.


You would need to be very unlucky if your legal dispute resulted in your financial ruin, divorce, two years hard labour and caused you to leave the country in disgrace, quickly followed by your early death in poverty. But what was a disaster for Wilde, regrettable for his own lawyer and a tragedy, was probably considered a good result for the other lawyer.


Avoiding disputes in the first place especially with the cantankerous, violent, mad and bad is often the most effective, but least popular option.


Paul Brennan
This is an extract from Paul Brennan’s eBook:
“RELEASING THE DOGS OF LAW...
How to win your legal dispute or at least struggle through it,
remaining relatively sane without losing your shirt”

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# 37. They can be late

Sean Carter’s Lawpsided View of the Law reports that a US Prosecutor was fined $5 for turning up 5 minutes late to Court.

It must have been a difficult moment when the Prosecutor arrived back at his office at the end of that day to explain that he had managed to have himself convicted, a little like a taxi driver running himself over,

Concern has been expressed that this is part of a worldwide legal movement to exclude the public from the legal process. The legal profession is taking turns to act as the accused and even sending each other to jail to avoid legal work.

After centuries of public complaint about the quality of legal services the lawyers have finally snapped and are “picking up their ball” and going home. “The Public frequently call for justice only to be bored stiff when they get it” said one lawyer ”Some of my clients ask “Are we there yet?” before I have even opened the file”.

The Prosecutor has appealed to the Court of Appeal.

# 27 The evidence that they rely on can be a little suspect

The Spectator reports that in 1958 a Disney wildlife film crew wanted to shot lemmings jumping off a cliff into the sea to their deaths. As they were in Alberta where there was no sea, no cliffs and no lemmings they needed to be inventive. Especially, as Lemmings do not commit suicide in this way. It is a myth.They imported a lemming, who was filmed being thrown into a river in a very cliff like fashion. The lemming duly drowned.

At one time in almost every criminal case, lawyers would present police evidence in which the criminal admitted the offence, which was very helpful in a guilty plea but not so helpful in the, I know unlikely, event that the defendant didn’t do it. We have now discovered that alleged criminals rarely admit the crime, it is a myth.

For the most part, juries have stopped believing police “verbals”.

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#15 They even win car park confrontations

RAGE IS ALL THE RAGE

With the advent of “boxasize”, the traditional ladylike slap on the face is being replaced by the right hook.

This week, I was backing into a public car parking space. A lady driver beeped her horn and when I stopped to let her pass, cut into the (my) space.

At first, she explained she was in a hurry and needed the space, then that she saw it first and then that I was a dickhead (I do not know how she worked that out). She was a lady in her 40s with that scary blond, gym user look. Alarmingly, she then said “get out of my face” in that tone the police use before they apply the Taser.

A nearby crowd of people waiting at a bus stop, outraged at her actions, began shouting at her to move her car.

My wife attempted to reason with her. “Are you going to try and hit me?”, she hopefully replied to which my wife responded “No, you are in bad enough shape as it is”(she always gets the best lines).

“Outgunned”, she drove off and victory was ours.

Road rage, trolley rage and all sorts of other rage is becoming well…all the rage. One supermarket incident ended with a customer being hit with a flying frozen turkey.
But there are those who take advantage of peoples’ propensity to be “wound up” and use provocation to win disputes aided by the system.

In these politically correct times the police are less likely to take a view and let people off with a warning. People can end up in court over something as petty as a car parking space dispute if they do not keep their cool.

If you are a crazed individual with a short fuse and a criminal record, go for it. However, for ordinary people, confrontation with strangers is best avoided as you can no longer be sure of their reaction. A lone gunman who recently opened fire in a US church was immediately, and unexpectedly, shot dead. Incredibly, God was given credit for the kill (sic). Statistically, there are more loonies alive today than ever before, or at least it seems that way.

Now, it is acceptable for security guards, emboldened by the terrorist threat, to resort to physical violence to resolve disturbances rather than urge moderation. I recently intervened when I saw a flight attendant bait an irate passenger with the clear intention of calling security to have her dragged away in those plastic handcuffs.

As a lawyer my job is to advise clients to walk away from potential legal issues. In retrospect, would it not have been better for me to avoid the dispute all together and drive on? Well, certainly yes, but only over her dead body.

A week later I read in the Darwin Awards that a man who shovelled snow for an hour to clear a space for his car during a blizzard in Chicago returned with his vehicle to find a woman had taken the space. Understandably, he shot her.

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#12 They have an unhealthy interest in obscenity

There are people in our society who do not have a high appreciation of art, such as the ladies who convinced a US museum to cover up the genitals of an exhibition of Greek statutes. In fact, sticking a clay fig leaf on certain statues has been popular for centuries and probably requires a steady hand.

Therefore, when an art exhibition by an internationally renowned artist is raided by police and photographs of pre-pubescent girls in a “sexual context” have been seized, people are either outraged at the photographs or the raid itself.

Obscenity is difficult to prove. The pictures may need to “deprave and corrupt”, which takes some going, especially nowadays as anybody who has watched shows like “The Simpsons” and “Southpark” will know. The Jury may be told that “depravity and corruption” are given their ordinary dictionary meaning, which is not much help. One judge said of obscenity, “I cannot describe it but I know what it is when I see it”.

In the “Lady Chatterley’s Lover” trial, a judge said it was the sort of book that you would not want your servants to read, which explains why those charged with obscenity can be glad that a jury decides.

The divide for most legislation and many of us is that if it can be called “art”, however weird it seems to us, it is probably alright. In this case, the photographs were on sale for $25,000 each so that must be art or at least he has got me fooled.

In obscenity trials the Prosecution produce po-faced Puritans, who are disgusted and the Defence produce “Oscar Wilde” types who say, in art, anything goes. There can be a party atmosphere. But, if there is a guilty verdict, the defendants will probably be sent to prison as in the Oz trial because they have gone too far in the view of a jury.

So what is normal? Well, I thought I had a handle on this until a few weeks ago, when a primary school teacher was suspended from her job for appearing naked in Cleo magazine and speaking candidly about her sex life with her husband. Asked if she ever brought “toys” into the bedroom The Australian reported her reply as “Yes, the usual stuff - dildos, clitoral stimulators, whips and cuffs”. Understandably, now, I am not so sure.

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