5) The Great Purge and the Jenkins Act 1954-59
By 1954 Lord Campbell’s original 1857 Obscene Publications Act was fast approaching its centenary, but few felt it in any particular need of updating. Occasionally, as we have seen, seriously-intended books fell victim to it, but this was typically because (deliberately or otherwise) they provocatively nudged the boundaries of their era in terms of frankness. The real strength of the existing law from a prosecutor’s point of view was that it provided no DEFENCE for Obscenity – juries were simply invited to recognise it and act accordingly. Providing the police didn’t get carried away and begin behaving oppressively, the status quo inevitably prevailed.
Various theories have been put forward to explain the origins of what subsequently became known as the Great Purge, but it was likely a combination of several disparate factors arising year or so earlier. In June 1953 an Interpol conference in Oslo had identified pornography as a major contributory element in sex-crime, and the assorted international delegates all returned home with a strong jointly-agreed resolve to do something about it. The vociferous Public Morality Council was also particularly active during this period. The PMC had been formed in 1899, and for its first three decades was led by Arthur Winnington Ingram, Bishop of London, a colourful character who during a 1934 Parliamentary debate on restricting the sale of contraceptives declared “I would like to make a bonfire of them and dance round it” – an undeniably arresting image. The Council campaigned tirelessly against such things as partial nudity on the stage, but their chief preoccupation was inevitably dirty books. In 1934 they sent 22 individual books and two separate deputations on allegedly obscene publications to the Home Secretary, and in 1938 were instrumental in getting the previously-mentioned To Beg I Am Ashamed dropped by its publisher Routledge. Different Home Secretaries naturally viewed their insistent approaches with varying degrees of enthusiasm, but by 1953 they had a very sympathetic ear indeed.
So sympathetic, in fact, that the relevant post-holder was Guest Speaker at their Annual Conference that year. That man was Sir David Maxwell-Fyfe, Tory Home Secretary 1951-54 (later Lord Chancellor), a fierce moralist who had made his name as one of the leading Nuremberg prosecutors. During his Home Office tenure he instituted a three-pronged ‘anti-vice drive’ consisting of a witch-hunt of public-figure homosexuals (initially prompted by the scandalous defection of Foreign Office spies Burgess and Maclean), a concerted harrying of street prostitutes, and – last but not least – a high-profile crusade against pornography. All three campaigns ironically later led to reforming (ie liberalising) legislation within their respective fields, but the relevant legal-action figures from 1954 speak for themselves. As a point of comparison, the year 1935 can be considered – there were then 39 obscenity prosecutions, with 39 individuals found guilty, and 900 publications destroyed. The respective figures for 1954 are 132 prosecutions, 111 people found guilty, and 167,000 items destroyed. Britain (or at least its judiciary) was in the grip of a full-blown moral panic.
We have already briefly noted the early-50s explosion in pseudo-American ‘pulp’ crime fiction, and the increasingly pained official reaction to this (despite its huge popularity). Arguably the genre’s leading light was Hank Janson, a hard-nosed US Private Eye who didn’t actually exist. He was the creation of Stephen Frances (1917-1989) an impoverished journalist / author from Lambeth who hit on a winning formula just after the War and rode it for all it was worth. Having invented Hank in 1946 (Hank Janson = Yank Handsome, dyageddit?), two years later he teamed up with emerging pulp publishers Julius Reiter and Reg Carter, and via their New Fiction Press imprint began churning out a book a month. By 1953 the trio had racked up astonishing sales of FIVE MILLION Janson books, having published over fifty individual titles – four separate Series of twelve, plus a handful of ‘Specials’ (random genres such as exotic Persian-set slavery romances). Hank was easily the country’s bestselling author, and the fact that he actually hailed from Lambeth’s slums was kept carefully under wraps.
Hank’s relationship with women is problematic, as most of the examples he meets are sex-crazed vamps looking to get him into trouble, and he has difficulty resisting their tainted charms. The titles are enough to give an indication: Honey Take My Gun, Sweetheart Here’s Your Grave, Sister Don’t Hate Me, Sweetie Hold Me Tight, Don’t Dare Me Sugar, Don’t Mourn Me Toots, This Dame Dies Soon, Baby Don’t Dare Squeal, Hotsy You’ll Be Chilled, Women Hate Till Death, Broads Don’t Scare Easy, Skirts Bring Me Sorrow ….. By the fourth series Hank’s creative lexicon has clearly been exhausted, and he is tersely resorting to single-word titles: Murder, Conflict, Tension, Whiplash, Accused, Killer, Suspense, Pursuit, Vengeance, Amok, Torment and Corruption. By this point he has also abandoned the necessity of personally appearing in all his stories, and (though always told in page-turning first-person), many of the later titles don’t actually feature him as a character at all.
From c.1950 the Janson books (and their innumerable lesser imitators) were the subject of continual police seizures up and down the country, which (at least to begin with) Reiter and Carter had no option but to swallow. However in Jan 1954 – when seven new titles were seized and destruction orders routinely made – they finally had the funds to fight, and ended up defending them in the Old Bailey. The seven books comprised an (apparently random) quintet of Fourth Series crime titles – Killer, Vengeance, Accused, Amok and Pursuit – plus two ‘Specials’, Auctioned and Persian Pride, all published the previous year.
Given the (comparatively) muted treatment of sex in the Janson books, the main plank of Reiter and Carter’s defence was that public taste had changed and the law had simply failed to keep up. As evidence of this contention the pair handed in several ‘serious’ contemporary novels (it now seems uncertain exactly which ones, or precisely how many) claiming these all contained material at least as explicit as anything they had published. This attempt was firmly rejected both in the original trial and subsequent (March) Appeal, Lord Chief Justice Lord Goddard commenting in the latter that “The character of the offending books should be ascertained by reading them, and the character of other books which might be in circulation is a collateral issue, the exploration of which would be endless and futile”. However, there was a rider.
The DPP involved – Sir Theobald (Toby) Mathew – was interviewed three years later by a Commons Select Committee (of which more anon) about the origins of the 1954 Purge, and his account was quite specific: two of the five books involved, Mathew explained, “had been found by a court on the Isle of Man to be obscene, and were referred to me. I referred them to the Treasury Counsel, and he advised me that there was a prima facie case to be put before the court [for an identical mainland prosecution]. The other three cases arose in this way. We were prosecuting in a case called Reiter books which, if I may say so, I don’t think anybody could have argued were not pornographic. The defence in that case sought to put in a number of novels, including these three, which they said were as bad as – if not worse than – the ones which were being prosecuted, to show that public taste had changed. They were not allowed to put the books in, but an intimation was given, both in the court below and in the Court of Criminal Appeal, that those books might be looked at. That is not an intimation which I can ignore”.
The Isle of Man case that Mathew refers to was, if anything, even more unlikely. At that point Circulating (or Subscription) Libraries were still a mainstay of Britain’s High Streets, though the advent of free council-run Public Libraries in the 1920s was steadily chipping away at their popularity. Notable Victorian chains were Minerva and Mudies, but the two big C20th companies were WHSmiths (1860-1961) and Boots the Chemists (1898-1966), both of whom had branches (ie dedicated depts within their existing stores) in every major town and city across the country.
Join Boots Booklovers Library! Then complain about them to the police!
Presumably following a public complaint, in August 1953 a junior police constable joined his local Boots library in Douglas on the Isle of Man and loaned two recent novels – Julia by Margot Bland and The Philanderer by Stanley Kauffmann – before informing the startled manager that he believed them to contain obscene passages and the company would accordingly be prosecuted for offering them. Critically however, the (autonomous) Manx law concerned – the Obscene Publications and Indecent Advertisements Act of 1907 – did not utilise the Hicklin ‘deprave and corrupt’ test, and simply took the (far broader) dictionary definition of Obscenity. The only defence available under the Act was that publication was somehow in the Public Good, which everyone conceded was a bit of a stretch.
The High Bailiff trying the resulting case was obviously unhappy with the situation, and made it quite clear that in his view the books were essentially harmless. Nevertheless, as he was forced to admit, judged by the standards of 1907 – which were the standards he was ludicrously obliged to apply – they WERE indeed technically obscene. He reluctantly found them Guilty. but demonstrated his disapproval by imposing nominal fines of £1 per charge only. Under normal circumstances that would have been the end of the matter. But it wasn’t.
To summarise the approaching storm then, in late 1953 DPP Toby Mathew (no doubt under pressure from Maxwell-Fyffe) decides to launch a series of high-profile literary Obscenity trials at the Old Bailey. But he needs acceptable precedents. The oddball Isle of Man prosecution handily provides his first two cases, and the subsequent Janson trial (which saw Reiter and Carter fined a crushing £6,000 and sentenced to six months each in Brixton) conveniently offers a further three. These five books would controversially be tried in sequence over the remainder of 1954, and we must now briefly consider each one in turn.
First up was Julia by ‘Margot Bland’ (Kathryn Dyson Taylor) at Clerkenwell Magistrates Court in May 1954. This is a racily unpretentious little page-turner, a deliberately overheated melodrama whose title-character – glamorous jet-setting sexpot socialite Lady Julia Lang-Crawford – is quite clearly a thinly-disguised authorial self-portrait. The book is frothy and entertaining, and the voice of its narrator (a restlessly impulsive US pilot) notably well-realised: Dyson Taylor certainly understood male psychology. There is some mildly daring sexual detail but – critically – zero pretence to any literary significance. James McConnell’s jacket-illustration – featuring the perky heroine kneeling on a rug and invitingly pushing her generously-exposed chest out as far as it will go – basically tells you all you need to know.
Publisher Werner Laurie had started out very respectably in 1904, but following its founder’s death in 1944 had begun to drift downmarket, developing a contemporary reputation (to quote its commissioning editor) for ‘frilly-knicker books’. At any event fighting the case was clearly felt to be a waste of time / money, and all concerned – printer, publisher and (no doubt with arm twisted) author – formally pleaded Guilty at Clerkenwell to publishing an Obscene Libel. The fines imposed were thus nominal – £25 for Dyson Taylor, £30 for Werner Laurie, and £15 for printer Northumberland Press – and a routine order made for the remaining stock to be pulped. Julia has never been reprinted in England, and surviving UK copies are now accordingly scarce.
Barely a month later in June the next book in the sequence – The Philanderer by Stanley Kauffmann – was up at the Old Bailey, publishers Secker & Warburg having tenaciously opted for full jury trial. In some ways this was the most significant of the five cases, not so much for the book itself (which is frankly pretty drab) but the impact of the resulting judgement. Kauffmann was a highly respected New York author / critic, and his novel (originally appearing as The Tightrope in the US) is an impeccably serious-minded character study of a compulsively (indeed self-destructively) adulterous young Ad Executive. The judge in the case – Winteringham ‘Owly’ Stable – clearly didn’t think much of it, but equally clearly thought its prosecution badly misguided, and had no hesitation in politely saying so. Selected highlights of his landmark summing-up can thus be quoted verbatim:
Stable opened by outlining the 1868 Hicklin test, but made the point that The Philanderer was a modern novel, and the test should be applied by – gulp – modern standards. He followed that up by observing that (1) Sex was the greatest motivating force in human history, and (2) A society’s literature was the only lasting source of insight into its everyday conventions and thinking, particularly if (like Ancient Greece or Rome) it was subsequently swept away. Furthermore, this observation applied to physical as well as historical distance – in other words, a modern American novel might offer English readers valuable evidence – no matter how potentially unappetising – of important trends in modern American life.
There were, of course, two poles of thought concerning the acceptable boundaries of taste in sexual expression – the ultra-conservative and the ultra-liberal. Most reasonable people probably fell somewhere between these two extremes – we no longer decorously covered table-legs, as did the Victorians, but then neither did we all frequent nudist colonies. Now, the test in question was that a particular book depraved and corrupted its readership – but who exactly WAS that readership?
“Are we to take our literary standards as being the level of something that is suitable for the decently brought-up young female aged fourteen? Or do we go even further back than that, and are we to be reduced to the sorts of books that one reads as a child in the nursery? The answer to that is: Of course not. A mass of literature, great literature from many angles, is wholly unsuitable for reading by the adolescent, but that does not mean a publisher is guilty of a criminal offence for making those works available to the general public…. This book is a very crude work, as you may think. You will consider whether or not it does seek to present a fair picture of aspects of contemporary American thought in relation to this problem [of promiscuity]. You will no doubt further consider whether or not it is desirable that on this side of the Atlantic we should close our eyes to a fact because we do not find it altogether palatable. You have heard a good deal about the putting of ideas into young people’s heads. Really, members of the jury, is it books that put ideas into young heads, or is it Nature?
….The book does deal, with candour or if you prefer it crudity, with the realities of human love and human intercourse. There is no getting away from that, and the Crown say ‘Well, that is sheer filth’. Members of the jury is it? Is the act of sexual passion sheer filth? It may be an error of taste to write about it. It may be a matter in which perhaps old-fashioned people would mourn the reticence that was observed in these matters yesterday. But is it sheer filth? …You will have to consider whether this author was pursuing an honest purpose and an honest thread of thought, or whether that was all just a bit of camouflage to render the crudity, the sex of the book, sufficiently wrapped up to pass the critical standard of the Director of Public Prosecutions….. I do not suppose there is a decent man or woman in this court who does not wholeheartedly believe that pornography, filthy books, ought to be stamped out and suppressed. They are not literature. They have got no message; they have got no inspiration; they have got no thought. They have got nothing. They are just filth, and of course that ought to be stamped out. But in our desire for a healthy society, if we drive the criminal law too far, further than it ought to go, is there not a risk that there will be a revolt, a demand for a change in the law, so that the pendulum will swing too far the other way, and allow to creep in things that under the law as it exists today we can exclude and keep out? Members of the jury that is all I have to say to you…. will you consider your verdict?”
Faced with this gentle prodding, the jury of nine men and three women needed a retirement of just fifty minutes to return a verdict of Not Guilty, and the next day the press hailed Stable’s summing-up as the greatest pronouncement on the law of Obscene Libel since Cockburn’s original 1868 dictum. There was an optimistic assumption that a new age of enlightenment had finally dawned, but this overlooked the inconvenient fact that – as it was not an Appeal Court judgement – all Stable’s cool eloquence had set no actual precedent and was binding to no one. At best it carried ‘persuasive authority’ only, and even that wouldn’t count for much if another less liberal judge happened to feel differently later – step forward Sir Gerald Dodson, who had already made his feelings abundantly clear during the trial of Reiter and Carter back in January.
The third book of the quintet – September In Quinze by Vivian Connell – hit the Old Bailey in Sept. In contrast to Kauffmann’s dogged seriousness this is an unapologetically lurid potboiler, chaotically chronicling the adventures (financial and sexual) of a group of mixed visitors to Quinze (ie Cannes) on the French Riviera at the end of the season. While born in Cork, louche author Connell had taken to drifting around Europe, and was actually resident in Cannes (at the Hotel Gallia) when he wrote the book – as with Kauffmann his absence from the UK saved him from appearing in the dock alongside his mortified publishers Hutchinson. September in Quinze is quite frankly a sprawling incoherent mess, though admittedly rather more fun to read than the coldly forensic plod of The Philanderer.
Dodson nevertheless loathed the book, and delivered an unprecedentedly harsh summing-up, more or less openly directing the jury to convict – which they dutifully did. He showed some restraint in his sentencing however, generously declaring imprisonment inappropriate – stood helplessly in the dock, Hutchinson’s MD Katherine Webb (62) must have been grateful for small mercies. Instead, crushingly punitive fines totaling £1,500 were levied, and another destruction order made. As with Julia, September In Quinze has never been reprinted in England (though a heavily-bowdlerised version, re-titled The Naked Rich, was quietly paperbacked by Mayflower in 1965).
With the Old Bailey scoreline dramatically set at one-all, a theoretical draw would have been needed next in order to keep things balanced on a knife-edge, and – quite incredibly – that is what actually happened. The fourth book in the sequence – The Image and the Search by Walter Baxter – arrived in court a month later in Oct, and went through THREE SEPARATE TRIALS when its by-now completely baffled juries proved unable to agree on whether or not it was obscene.
Baxter’s novel is a hand-wringingly sincere narrative, detailing the emotional journey of an oversexed young London heiress following the tragic wartime death of her fighter-pilot husband – initially consoling herself with rampant promiscuity, she finally finds some sort of internal peace following a strange spiritual redemption in India. A long and peculiar book, it is both daringly frank (by some way the most explicit of the five concerned) and simultaneously the most serious-minded: Baxter (a devout Catholic) is clearly trying to make a point about the fleeting ecstasies of sex being a shallow / ephemeral substitute for true religious acceptance. His debut novel, Look Down in Mercy (1951) had been exceptionally well-reviewed, and while The Image and the Search got a far more mixed reception, the literary world’s attention was very much focused on its trial as a watershed test case.
One popular legal theory of the time held that juries in obscenity trials would generally just reflect the personal prejudice of the judge instructing them – they had dutifully acquitted for Stable and convicted for Dodson. Faced with a judge careful to keep his feelings (if any) to himself, they would simply not know what to do. So after Justice Devlin delivered what was apparently an impeccably fair and neutral summing-up, the jury returned following a retirement of three hours to say they could not agree on a verdict. Devlin sent them back to try again, but after a further two hours they trooped back in to admit they were still hopelessly deadlocked. Devlin gave up and discharged them, ordering a retrial for the following month.
This was a new result, and only fanned the flames of controversy already burning brightly in the press. On 22nd Oct the Spectator printed the following editorial, giving a clear indication of the direction in which the by-now thoroughly alarmed literary establishment was already heading:
“After a retirement of five hours on October 18th the jury in the case of The Image and the Search failed to agree upon a verdict, and Messrs Heinemann the publishers and Mr Walter Baxter the author face a fresh trial on the charge of publishing an obscene libel. No comment can therefore be made upon this case. But it is proper to extend sympathy to the discharged jury, whose inability to agree represents the confusion into which public opinion has been thrown by two other recent verdicts. In the case of The Philanderer, Messrs Secker & Warburg were found not guilty upon the same charge, after a summing-up by Mr Justice Stable which is already classic and which represents the liberal and humane view of standards of taste of the mid twentieth century. In the other case of September in Quinze the Recorder of London summed up in very different language, and the defendants were heavily fined.
The result of these two verdicts have been to create a profound uncertainty and confusion amongst publishers. In some quarters indeed there is a feeling almost of panic. If this feeling were confined to the handful of disreputable fly-by-nights, there would be no occasion for anything but approval. But it is not. It is the directors of old-established firms of unimpeachable reputation who are anxiously thumbing through the manuscripts of established writers in the fear that some delineation of lust (described, perhaps, only to illustrate its evil consequences), some unguarded reference to the facts of life, some touches of Rabelasian humour, will involve a prosecution. This is a very undesirable state of affairs, and it is much to be hoped that responsible bodies such as the Publishers Association and the Authors Society will devote themselves to the – admittedly very difficult – task of devising some proposals which would put an end to it”.
The second trial opened in Nov before Mr Justice Lynskey, who in his own summing-up offered the following: “Members of the jury, the matter is a serious one. It is a serious one not only for the defendants: it is a serious one also for the general public. You only have to look at my list at this Assize to see the kind of immorality of a criminal character that exists in this country – case after case of buggery, case after case of incest and case after case of abortion. So you will realise this is not an evil lightly to be brushed aside; it is an evil, if it exists, that has got to be cleaned up”.
But it was now 4.15pm and Lynskey decided not to pursue this novel line of thought, instead breaking off and declaring he would finish his summing-up in the morning. The evening press had a field day – this was surely a blunder on the scale of Norman Birkett’s infamous “Is it obscene?” witness-question back in 1928, a misdirection so fundamental that a Guilty verdict would be very likely to result in a successful Appeal. No one had previously heard evidence that a book had ever led to any individual crime, let alone that The Image and the Search was directly responsible for most of the capital’s buggery, incest and abortion. The defence must have been delighted, but someone – likely prosecuting counsel Mervyn Griffith-Jones – got to Lynskey later that evening and delicately pointed out the problem. When he resumed the following morning, the contrite judge took a very different tack:
“Members of the jury, when we adjourned last evening I had endeavoured to explain to you what was the offence of publishing an obscene libel, and I had endeavoured to point out to you the importance of this case from the point of view of each of the defendants, or all of the defendants, and also from the point of view of the general public, and I did refer, you may remember, to the type of cases I have had to try during this session. Well, I did not want to suggest to you – did not even want to hint to you that this book has had anything whatever to do with those cases. It is perhaps a possible inference you might have drawn. Please do not. There is not a single scintilla of evidence that any one of those people with whom I have had to deal has ever read the book, or seen it, or heard of it”.
Once Lynskey had finished this juddering reverse, the jury were sent out to deliberate. Two hours later they returned to announce they could not agree, prompting the following exchange:
LYNSKEY: Is there anything I can add to help you in any way, or anything I can clear up for you?
FOREMAN: Speaking on behalf of the jury, I do not think so. We understood your summing-up completely, including the definition of the word Obscene etc, and we are in disagreement. Is it not a majority verdict you want?
LYNSKEY: No. It must be a unanimous verdict. You think there is no hope at all?
FOREMAN: No hope. If we were to stay here for a few hours or a few days I do not think we should get any further. I am sorry, my lord.
Lynskey accordingly dismissed the jury, and Griffith-Jones announced the DPP did not intend to proceed with the case. Following long-established tradition, the following day a third jury was sworn-in before Sir Gerald Dodson, told it was to hear no evidence, and instructed to return a verdict of Not Guilty, which it dutifully (if uneasily) did. The defendants were then formally discharged, to face a legal bill covering three separate trials. A shattered Baxter never wrote another book, and abandoned literature entirely to open a fashionable French Bistro in South Kensington.
Simultaneous with these high-profile melodramatics, the last of the five books concerned – The Man In Control by Hugh McGraw – reached the Old Bailey in late Nov, but ironically proved something of a climactic damp squib. The author was not in court (having died the previous year), and his publisher Arthur Barker (along with almost everyone else) plainly bemused at what they were doing there. The Man In Control is a quietly likeable little book, easily the best-written of the quintet under consideration and also (crucially) by far the least controversial. It is the wittily and sympathetically told story of an uptight middle-aged widower who develops an unlikely crush on a beautiful teenage secretary in his office and contrives (despite the thirty-year age gap) to marry her, but then finds to his dismay she is already in a discreet lesbian relationship with her GP. There is no explicit detail whatsoever, and indeed nothing for even the most determined prude to get upset about. The case was tried by Judge Aarvold, who according to one observer “allowed the jury to see (or if not the jury, then everyone else in court) that he himself thought the prosecution rather silly”. The jury’s own opinion can be gauged by the length of their deliberations – they needed a retirement of just TWELVE MINUTES to bring the inevitable verdict of Not Guilty. And thus ended the Great Purge – at midday on Thursday 2nd Dec 1954, almost a year after Reiter and Carter”s conviction back in January.
The photo is actually prosecutor Mervyn Griffiths Jones – the real Man In Control….
It is difficult now, nearly seventy years after the event, to appreciate the unprecedented amount of public interest and controversy the Great Purge generated. There were endless newspaper and periodical articles, long-running correspondences in the letter-columns, and even several radio discussions – the BBC devoted two separate Third Programme broadcasts to the topic in early 1955. The recurrent theme was the need to somehow reform the law to protect serious literature. One particularly weighty contribution was the following letter, published in The Times on 27th October, a week after the first trial of The Image and the Search had ended:
FREEDOM OF THE PEN – AUTHORS GRAVE CONCERN TO THE EDITOR OF THE TIMES:
Sir, The authors whose names appear at the foot of this letter are gravely concerned with the prosecutions for alleged ‘obscene libels’ charged against a number of authors and publishers. Such prosecutions threaten to establish, they think, something like a police censorship of literature, constituting an attack upon the freedom of the pen for which a long and sometimes bitter struggle was fought and won in the past. It is, of course, recognised by all decent authors that certain books of an entirely obscene and filthy kind should be condemned and destroyed, but it is equally recognised that the duty of the Law should not be allowed to open the way to a puritanical crusade, backed by police prosecution, against authors who claim the liberty and the right of describing the realities of life, freely and fearlessly for adult minds.
On this subject Mr Justice Stable recently gave a wise and liberal direction in which he invited a jury to recognise that novels are not written solely for adolescent minds, and that what might have been thought improper at one period of history may be considered permissible at the present time when there is greater freedom of public opinion on such subjects as sex. Unfortunately this does not seem to have influenced other judges in recent cases, and authors and publishers are at the mercy of juries who vary in their verdicts according to their level of intelligence, or their ignorance of the great masterpieces of literature and contemporary writing. It would be disastrous to English literature if authors were to write under the shadow of the Old Bailey, if they failed to produce works suitable for the teenager, and if publishers were forced to reject books which, however serious in intent and however lit by genius, contained passages which might be blue-pencilled by a police sergeant or a common informer.
We are Sir, your obedient servants,
Bertrand Russell, Harold Nicolson, Compton Mackenzie, JB Priestley, HE Bates, WS Maugham, Philip Gibbs. October 25.
Retitled US pbk editions
In November the move for reform began to get organised. The Society of Authors set up a working committee, presided over by Sir Alan Herbert, which included authors, publishers, printers, critics, lawyers and an MP (Roy Jenkins) who soldiered patiently on – in the face of implacable hostility and indifference – for five long years. In Feb 1955 a proposed new Bill was drafted for which Lord Lambton secured a key second reading in May 1957 (ie two entire years later). This promisingly led to a Commons Select Committee, hearing evidence from all sides (including DPP Toby Mathew, reluctantly hauled in to explain why the Purge had occurred in the first place) over the next nine months. Alan Herbert put his case with admirable candour:
“It is the other man you want to get after, the man who sits down and thinks ‘I want to make my readers as randy as I can, as often as I can’. That is the man you are after always. He is not bothering whether he corrupts anybody. He is frankly marketing lust, he is marketing something he knows he can sell. The problem you have to face is to distinguish, shall we say, between myself and the other fellow…. We do say that the dominant effect is the thing that matters. You may get a phrase which may shock some old lady and may surprise some young girl, but unless the whole purpose of the thing is to make people randy, or the author goes so far that it is against common decency, then we say that man ought to be left alone”.
In other words, the (somewhat optimistic) underlying philosophy was that pornography and literature were two completely different things which the law could somehow be employed to distinguish. The (broadly supportive) Select Committee report was submitted in March 1958 and Roy Jenkins accordingly introduced another revised version of the Bill the following month. After yet more delay, in October this finally found its way into the Queen’s Speech, and as one observer put it: “It was this version on which, at last and in real earnest, battle was joined behind the scenes with the Home Office legal advisors and Law Officers of the Crown, the former being in the main helpful, the latter relentlessly obstructive”.
The precise wording became a bitter trade-off: “The final product… included a number of provisions which the Society of Authors and the Bill’s other supporters had accepted with great reluctance, and only because continued opposition to them would have meant the loss of the Bill altogether”. The Obscene Publications Act 1959 was finally passed on 29th July, becoming law a month later on 29th August, after almost five years of dogged campaigning. Was it worth it?
The Act itself is a short document of only four pages, comprising five brief sections (the last simply gives the name and date of the Act). The introductory sentence tersely states its aim: “An act to amend the law relating to the publication of obscene matter; to provide for the protection of literature; and to strengthen the law concerning pornography” (this last reflecting the often tortuous haggling with the police). Section One restates the test of obscenity, slightly rephrasing Hicklin: “… the effect, taken as a whole, is to tend to deprave and corrupt persons who are likely to read [etc] it”. This crucially adds both the “as a whole” caveat (meaning prosecutors could not pick out the purple passages) and is now aimed squarely at a “likely” readership (rather than the theoretical young girl of fourteen).
Section Two deals with prohibition and penalties: Summary conviction (ie before a Magistrate) carried a maximum £100 fine and/or imprisonment for a maximum six months, while conviction on Indictment (ie following jury trial, which the defendant had the right to request) carried unlimited fines and/or imprisonment for a maximum three years. A time limit on prosecutions meant they could not be launched more than two years after original publication (one year in the case of summary proceedings), and prosecutions under the Common Law were abolished – this was technically the end of Obscene Libel.
Section Three deals with powers of search and seizure, and essentially just restated (while usefully speeding up) Campbell’s 1857 forfeiture proceedings – police could act upon a Magistrate’s warrant, though only within fourteen days of its issue (to prevent random oppression). However Section Four – “The Defence of Public Good” – was really what Herbert and co had fought so long and hard for, and can be quoted in full: “A person shall not be convicted… if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern. It is hereby declared that the opinion of experts as to the literary, artistic, scientific or other merits of an article may be admitted… either to establish or to negative the said ground”.
The stage was now set for a major test case, and just twelve months later Britain’s most famous publisher would obligingly supply one, beginning a process that within two dramatic decades had (depending upon one’s point of view) either victoriously freed English literature, or alternatively dragged the new law into the mud.
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