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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# 99. They make some questionable submissions

The Diarrhoea Defence

If we lawyers do seem occasionally wistful it may be because our moment of fame has eluded us.

In my case, a client had been charged with failing to supply a sample of breath. His car had been stopped by the police, he had tried to run away and during a struggle with a police officer had had an attack of diarrhoea.  

Suspected drunken drivers often fail to provide sufficient breath and are routinely convicted unless they have a reasonable excuse.  An attack of diarrhoea seemed a good reason for not doing any strenuous blowing, or at least it was in my book.  We entered a plea of not guilty.

The cross examination of the police officer began tastefully enough, given the circumstances. But soon descended into unnecessary detail. The failure to control bowel movements seemed further evidence of my client’s bad character and the officer did not want to leave anything to the imagination.

The magistrate remained throughout the evidence with a pained, constipated expression. She seemed unable to step over the diarrhoea part of my submission onto the firmer ground of the legal principles behind the defence. She convicted my client with what seemed to me indecent haste.

My footnote in legal history was snatched from under my nose.

(c) Paul Brennan is a business and property lawyer 'deals and disputes" on the Sunshine Coast, Queensland.  Both  "Deals and disputes".

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# 67. Judges

Quiet in the Court!

Nowadays, judges often feel that they should give the appearance of being impartial even when one party has a hopeless case.

This impartiality could have been achieved by listening quietly and politely. However, judges have found it difficult to restrain their traditional pent up anger, general grumpiness and twisted sense of humour which has always made listening such a challenge for them.

Therefore, judges took to criticizing both sides in what they believed was an even handed manner. In practice, this usually amounted to launching blistering attacks against anyone who raised their head above the parapet.

Advocates became fearful to say anything at all, which only encouraged judges to greater outbursts.

Lawyers became too embarrassed to bring their clients to Court who turned out to prefer short upbeat briefings rather than wasting a day at Court. Lawyers began to send clients text message updates often during the hearing itself.

Lawyers who had always made their bravest and most confident speeches in conference with their clients at their own offices, days or weeks before the court case, now wondered, why go to court at all? So they didn’t.

Client meetings were no longer rushed and could take all day. Without the oppressive atmosphere of a court room and in the comfort of their own offices, lawyers started to enjoy advocacyonce again. They were able to quote Henry V and even Mel Gibson without snide remarks from the Bench. They even got a few laughs which had become almost impossible in the Courtroom.

Lawyers were no longer “In Court” when clients called. They became quite efficient and were able to get on with their real work. They no longer had to bother reading court rules or old cases; there was no need to prepare lengthy affidavits and written submissions. Litigation became cheap and even cheerful.

With the advent of Twitter some lawyers reduced lengthy reporting letters to 140 characters. But other lawyers included romantic interludes, car chases, Vampire Ushers and Zombie Clerks in their reports which were snapped up by publishers and some became best sellers.

Judges promised to be less cranky and offered 5 day trials in Bali but it was too late. Lawyers had become so popular that the Attorney General finally accepted that Judges had been to blame all along and they would all need to go out and get proper jobs.

So ended the Era of the Judges.

 (c) Paul Brennan 2009. All Rights Reserved.

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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
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