The Prosecutors, The Spectator, August 26, 1960
As Penguin Books Ltd. have been summoned under the Obscene Publications Act, the case of Lady Chatterley’s Lover is now sub judice; and this means…
But what does it mean? The trouble with the law of contempt in this country is that because defendants are allowed neither trial by jury nor the right of appeal it tends to be more arbitrary, and more capriciously exercised, than any other law. The fact that it is arbitrary and capricious has actually convinced the Government that legislation on the subject is required; but until the new law (if it is passed) has been in operation for some time, so that a body of fresh precedent can be established, it will be impossible to define contempt with any degree of certainty.
In the meantime, though, the pessimism of some members of the profession, reflected in Mr. Blom-Cooper’s letters in our correspondence columns this week, is hardly justified. Undoubtedly contempt can be committed by a journal which is held to have prejudiced the chance of a defendant receiving a fair trial even though no formal charge has been made against him at the time the article appears; but whether contempt ought to be made retrospective in this fashion is very doubtful. Certainly the procedure can be justified only where its aim is to protect the accused, to ensure him a fair trial. The State does not need such protection; and to allow the authorities the right to invoke the threat of the law of contempt before they make any formal charge would offer them a tempting device to hush up scandals simply by insisting or insinuating that the prosecution was imminent.
Nor can we accept Mr. Blom-Copper’s assertion that if he had praised the literary merits of Lady Chatterley’s Lover in his letter he (and The Spectator, for publishing it) would be committing a contempt. It is true that, technically, almost any reference to Lawrence could be claimed as having a possible relevance to the trial; but to regard the law of contempt as a great wet blanket covering all such contingencies is to misunderstand its purpose. It is not designed to prevent discussion of anything that could conceivably influence a juror; its aim is to ensure that no juror’s mind is changed by improper influence.
This is particularly important in connection with any trial for obscenity. Most juries are employed simply to decide on matters of fact. In other cases, such as libel, though they have to base their decisions on a matter of opinion, it is their own opinion which counts. But in a trial for obscenity their own opinion – in the narrow sense – may not matter. They are asked to take a wider view; perhaps to set aside their own feelings, if they are convinced by the evidence that a work which they may personally find revolting is deemed to have literary or artistic value (which they may be incapable of assessing) transcending the risk that it may deprave. In such circumstances, it can be argued, the public (of which the jury will in theory be a representative microcosm) should be encouraged to have as comprehensive an idea of the book on trial, and the whole literary complex surrounding it, as possible – including praise and condemnation. The fact that some policemen have decided that Lady Chatterley’s Lover ought to be prosecuted ought not to be considered a sufficient reason for stopping all comment on Lawrence or the book for the duration of the case. We are not arguing for trial by newspaper; obviously it would be contempt if a journal now decided, say, to publish an open letter to the jury arguing for or against the defendant, or in any way tried directly to influence the result of a trial. But justice, in these cases where juries have to exercise opinion, cannot exist in a vacuum; and references to Lawrence or his works, favourable or unfavourable, should not be held to jeopardise the prospects of a fair trial.
Mr. Blom-Cooper might have made another point. The Observer this week courageously called the decision to prosecute Lady Chatterley’s Lover ‘wrong-headed’ – courageously, because its legal correspondent (who happens to be Mr. Blom-Cooper) well might have been worried that by doing so they were committing a contempt. But any decision to prosecute is an administrative decision; it consequently must be subjected to the same scrutiny and, if necessary, the same criticism as any other act of State. And whatever the outcome of the trial, one criticism has to be made.
Prosecutions are not necessarily justified because they are legal; not even because they are successful. A classic instance of a wrong-headed prosecution was a case not so long ago when a motorist left his car to rescue somebody from drowning, and was rewarded for his good deed by a fine for illegal parking. So it is with the case of Lady Chatterley’s Lover. Sir Allen Lane can reasonably compare himself to a motorist who is summonsed – as he thinks, wrongly – for obstruction; and who finds that on the same street, apparently creating much more obstruction, there are a dozen other cars whose owners the police have not summonsed. Where this happens, the law is not broken, but it is brought into disrepute; and one of the duties of the authorities who control prosecutions is to see that it is not thus brought into disrepute. How, then, can they account for the fact that, at a time when London is deluged from shops and stalls with the works of authors whose avowed object in writing is to exploit indecency, they have picked on Lady Chatterley’s Lover?
The reason, apparently, is that Lawrence in the book makes explicit what others tend to leave to the imagination – thought making sure that the imagination is first well stoked up with salacity. And it is understandable that the police should work by this simple test: they are not, after all, literary critics, but they are capable of recognising certain words and phrases, and underlining them. Naturally, then, the police are more likely to pounce on an author who is explicit than one who operates through suggestiveness. But there is no reason why the authorities – the Home Secretary, the Crown Law Officers, the Director of Public Prosecutions – should fall into the same error: particularly in view of the fact that, as Roy Jenkins points out in his letter, the police representatives went on record before the Select Committee – on whose report the Obscenity Act was based – that they intended to use the powers to deal with the obviously pornographic, leaving works which were even marginally ‘literature’ alone.
In the circumstances, it is disheartening that they should have sanctioned this prosecution while turning a blind eye to – say – the recent Diana Dors serial in The News of the World and a score of other seamy publications of a similar nature. Not that we would argue that The News of the World ought to have been prosecuted: but if such palpable salacity is allowed to slip through the net, at the same time that action is being taken against Lady Chatterley’s Lover, then something must be seriously wrong with the mechanism which controls prosecutions for obscenity under the new act – or with its controllers.