In October 1960, a jury formed at the criminal court in central London was asked to consider what would become one of the most important cases in modern English history. The trial concerned neither murder, treason, nor espionage, but the publication of D. H. Lawrence’s Lady Chatterley’s Lover by Penguin Books. In honour of Lord Jeremy Hutchinson QC, a member of the Penguin defence team who passed away yesterday, here is a reminder of why Regina v. Penguin Books was such an enormous decision for the freedom of expression.
First published in 1928, Lady Chatterley’s Lover tells the story of a young married woman, Lady Constance Chatterley. Her husband, Sir Clifford Chatterley, is handsome and wealthy, but paralysed from the waist down after injuring himself in the First World War. In addition to his physical (read: sexual) limitations, Clifford neglects Constance emotionally: her frustration leads to her affair with the estate’s gamekeeper, Oliver. A particular sex scene and liberal use of strong language including “fuck” and “cunt” led to it being banned in several countries.
the first lines of the Obscenity Act 1959 sets out the offence of “depraving and corrupting” material
Prior to 1959, English law on publishing obscene materials was governed by custom and judicial decisions, rather than legislation. The Obscene Publications Act 1959 set into statute a new criminal offence, under which publishers could be imprisoned for publishing books which had “a tendency to deprave and corrupt those whose minds are open to such immoral influences.” The following year, Penguin Books published an unedited version of Lady Chatterley’s Lover. When the Crown brought criminal charges against the publishing house, it became an opportunity to test the legal validity and social implications of the new law.
To secure a conviction, the jury would need to find the novel obscene. Acting for the Crown, Mervyn Griffith-Jones asked the jury if Lady Chatterley’s Lover was “a book that you would even wish your wife or your servants to read?” Comments like these were not uncommon: British prosecutors would often cite the moral protection of vulnerabe working-class readers, or the intellectually and morally fragile female reader. At the time, laws relating to expression were treated as necessary components of propriety and social order. However, British culture was slowly starting to change. Popular media and consumerism had begun to cut across class divisions, and Griffith-Jones’ comments were perceived as elitist and archaic.
Jeremy Hutchinson, pictured soon after being called to the Bar in 1939
What the Crown further failed to appreciate was that the new 1959 Act required juries to consider a work of literature as a whole. It was not enough to examine the offending passages out of context. Even if the jury found the book obscene, the publishers could be saved from a guilty conviction if the publication “was justified in the interests of science, literature, art and learning or any other object of general concern.”
In defence of Penguin Books, Jeremy Hutchinson and his colleagues argued Lady Chatterley’s Lover was not obscene, but rather explored human relationships “in which there was no shame and nothing wrong, nothing unclean, nothing which anybody was not entitled to discuss.” Furthermore, in light of Lawrence’s contribution to the tradition of English fiction, his novel satisfied the requirements of being a literary work protected under the public good provision.
In closing arguments, lead defence barrister Lord Gardiner stated that “it would be for the public good that this book should be generally available. All you can do is to judge it as a whole in the existing climate of literature and with your own knowledge of human life.” After only three hours of deliberation, the jury returned a unanimous verdict of not guilty. Penguin Books was acquitted of all charges and, almost immediately, the book became a best-seller. While 1960s Britain remained culturally conservative by many standards, the Chatterley trial marked the beginning of the end for the state regulation of private morality.
After the Chatterley trial, Jeremy continued his work in obscenity cases. He prevented the suppression of Bernardo Bertolucci’s notorious film Last Tango in Paris, and successfully defended the director of the play Romans in Britain. In 1971 he further helped to pave the way for freedom of expression with his successful “literary merit” defence in the trial concerning Paul Ableman’s The Mouth and Oral Sex. He also had considerable expertise in trials involving the security services and state secrets. Notably, the government’s attempt to treat investigative journalists as spies ended in failure thanks to his advocacy in the ABC Case of the late 1970s. Hutchinson’s career illustrates post-war Britain’s gradual end of deference and secrecy, and the creation of a more permissive society.
In addition to his career as a barrister, Jeremy served on the Arts Council of Great Britain, was a trustee of the Tate Gallery, a chairman of London Historic House Museum Trust, and served on a number of legal committees. His obituary in the Guardian noted that he enjoyed a long and quiet retirement among neighbours who had little idea of his adventures at the bar.
Jeremy Nicolas Hutchinson, Baron Hutchinson of Lullington, QC 28 March 1915 – 13 November 2017