Jeremy Hutchinson QC was the leading criminal defence barrister of the 1960s and 1970s. I have just finished reading a book about fourteen of his famous cases by Tom Grant*. The book reveals a Zelig-like Hutchinson popping up throughout the twentieth century. Here he is representing at trial Penguin Books (for Lady Chatterley’s Lover) and Christine Keeler during the Profumo affair; here he is defending the spy George Blake and the Great Train robber Charlie Wilson; here he is battling Mary Whitehouse over the distribution of Last Tango in Paris; here he is representing a defendant charged with the theft of the World Cup in 1966. Here he is playing games on holiday with T.S.Eliot; here he is mentioned in Virginia Woolf’s and John Gielgud’s diaries; here he is married to the daughter of Coco Chanel’s lover ‘Boy’ Capel; here he is clinging to the wreckage with Lord Louis Mountbatten of H.M.S. Kelly after it was sunk by the Luftwaffe off Crete in May 1941; here he is in Los Angeles with Aldous Huxley; here he is building a brick wall with Churchill in the garden at Chartwell; here he is married to Dame Peggy Ashcroft; here he is being taught how to tie a bow tie by Lytton Strachey; here he is lunching with Charlie Chaplin. It is a remarkable fact that Hutchinson is still alive and well and living in Sussex, aged 100.
Hutchinson became a QC in 1961 and for the following twenty years was the most sought-after criminal defence barrister at the English Bar. Three of his high profile cases concern questions of censorship. Curiously all involve anal sexual intercourse.
Lady Chatterley’s Lover (1960)
Penguin Books was prosecuted under the recently enacted Obscene Publications Act 1959 for publishing D.H.Lawrence’s novel. The defence was (a) the work was not obscene and/or (b) it did not have a tendency to deprave and corrupt those persons who were likely to read it. Hutchinson called expert witnesses, including, E.M. Forster, Richard Hoggart, Roy Jenkins, Rebecca West and Cecil Day-Lewis. Famously the jury acquitted. The story has been told many times but Grant has had access to the correspondence and this sheds light on the tactics of the defence. There are letters to defence lawyers from Evelyn Waugh and Robert Graves criticising the novel (thus excluding themselves) and an analysis of why T.S. Eliot and John Betjeman were regarded as too unsound on the point to be called to testify. Grant also reveals how a misreading by both judge and prosecutor meant that they failed to understand that one of the passages depicting sexual intercourse between Connie and Mellors was in fact anal sex. The defence knew at the time and kept quiet about it. Had the jury been told this (consensual anal sex was illegal at the time) the outcome of the trial may have been a conviction.
Last Tango in Paris (1974)
In Bertolucci’s Last Tango in Paris there is a particular scene during which Marlon Brando in an anonymous sexual encounter with Maria Schneider uses a pat of butter to lubricate her anus before he penetrates it. After the British Board of Film Censors passed the film as fit to be shown, Mary Whitehouse called for the resignation of every member of the board. A private prosecution for obscenity was brought against United Artists (who distributed the film) under the Obscene Publications Act 1959. The Act does not apply to “anything done in the course of a cinematograph exhibition.” Hutchinson took a preliminary point of law before the Lord Chief Justice, Lord Widgery, arguing that it was absurd for the statute to be construed as applying to a distributor of an obscene film, when the cinema who actually showed the film to members of the public, whose morals the Act was designed to protect, was immune. Lord Widgery refused to construe the law this way and allowed the matter to precede to trial before a (different) judge and jury. Hutchinson repeated the same argument at this trial and, very surprisingly, the new judge Mr Justice Kenneth Jones departed from the legal interpretation by the Lord Chief Justice (his superior colleague) and so instructed the jury to acquit. Had Lord Widgery been the trial judge things may be have been very different.
Romans in Britain (1982)
Hutchinson defended the director of a National Theatre production called Romans in Britain by Howard Brenton. The play contained a scene where colonising Roman soldiers anally rape a subjugated British man. A private prosecution was brought under section 13 of the Sexual Offences Act 1956 which alleged that the director procured an act of gross indecency by requiring the actors to simulate this act on the stage. The argument was patently absurd. “If Hamlet was performed was one to say that the director had procured the death of Polonius?” Hutchinson cross-examined the witnesses and then made an application to the trial judge to withdraw the case from the jury for lack of evidence. Surprisingly the trial judge Mr Justice Staughton (an expert in admiralty law) ruled that the Sexual Offences Act could apply to events on stage and a simulated sexual act could amount to an act of gross indecency. The prosecutor Ian Kennedy QC (an experienced criminal barrister) sought to intervene and told the court that the prosecution had now, in fact, decided to withdraw the case notwithstanding the ruling of the trial judge. The judge extraordinarily refused to accept this. Mrs Whitehouse, it was known, had taken to her garden in Colchester to pray for a conviction; had God intervened? Hutchinson immediately approached the Attorney-General who took over the proceedings, dropped them, and overruled the Almighty.
The times were very confusing for many. My genteel paternal grandmother, brought up as a girl and young woman in India, went with her sister to see Kenneth Tynan’s provocative nude review Oh! Calcutta! expecting a comfortable evening of tales from the heyday of the Raj. They left early.
All three of these censorship trials could have on another day resulted in convictions, with far reaching consequences. It is easy to lose sight of that and thus underestimate their importance. Because the morals and mores of the day seem so distant to us fifty years on, it is seductively easy to imagine their outcomes were inevitable. The social changes of the sixties and seventies are usually portrayed using one of two narratives:
– Narrative one: the permissive society overwhelmed Britain which was subsumed in a tide of depravity and obscenity. Blasphemy went unchallenged and rampant sexuality was tolerated. This attitude is, of course, associated with Mary Whitehouse, the judiciary of the day and figures of religious authority. It is exemplified by HH Judge King-Hamilton who asked a witness in 1971 (who was giving expert evidence about a book on oral sex): “Do you agree that in this country in recent years there are signs of increasing decadence and immorality…is this book likely in your opinion to continue that process?”
– Narrative two: liberalism promoted a more civilised and humane society that was destined to sweep away the prudery of the Victorians. British society was progressing gradually on a path away from Victorian moral rectitude to enlightenment and freedom. These prosecutions were a petulant and futile Canute-like attempt by the establishment to try to hold back progress. This narrative can be characterised as the Whig view of ethics. This is the story of a self-satisfied liberal elite congratulating itself (whilst conveniently ignoring the rise of religious fundamentalism in many parts of the world).
The truth is that attitudes and morality and culture are constantly shifting. Ethics is cyclical. It is terribly easy to think of the past as better than the present; or the present as better than the past. Teleological narratives are an intellectual mistake. This book avoids that mistake, and the pitfalls of the easy narrative, in two ways. First, by presenting the cases thematically not chronologically. Secondly, by concentrating on the specificity of the facts within the trials themselves and revealing how contingent they were. Trials are unpredictable; whether they are won or lost turns on very little and could have been different.
A charming case included is Kempton Bunton’s (1965). Goya’s 1812 portrait of the Duke of Wellington triumphant in Madrid was saved for the nation when the Treasury paid a substantial part of £140,000. Bunton, a 61 year old 18-stone retired bus driver from Newcastle, outraged over this (mis)use of public funds confessed to the police that he’d squeezed through a small window in the National Gallery and had taken the painting as ‘ransom’ until the Government spared pensioners the mandatory television licence fee. He took the Goya out of it’s frame (which he discarded) rolled it up and put it in the cupboard of his bedroom ready to be returned on the condition that the licence fee was scrapped for pensioners. He confessed all to the police. (Guilty.) At his trial for theft Hutchinson successfully argued that because Bunton did not intended to permanently deprive the owner of the painting he could not be guilty of theft. This was a correct construction of the Theft Act as the law then stood and Bunton, to the surprise of many, had to be acquitted of the theft of the painting. (Not guilty.) He had previously conducted a very public campaign against the mandatory fee; as part of that he had altered his own television set so that it could not receive the BBC and refused to pay for a licence. He was convicted however of theft of the frame of the painting, because he had disposed of this (worthless) piece of wood. The judge gave him three months. (Guilty.) Years later Bunton’s son confessed to being the man who entered the gallery and took the Goya and frame: it was not Kempton Bunton all along. (Not guilty.) This tale is a repost to the (inevitable) question asked of all criminal barristers: how can you defend someone you know to be guilty? Things are rarely as straightforward as they first appear.
Finally, there are a series of cases included in which politicians and police and spooks seem to make full use of every section of the Dirty Tricks Act. They reveal an untrammelled authoritarian state in full flow. A jury is secretly vetted and (possibly) tampered with by the Crown prior to trial; a defendant, Duncan Campbell, the journalist who first revealed the existence of GCHQ, has his telephone secretly tapped; it is highly likely that a Lord Chief Justice received secret-off-the-record communications from a Government lawyer before he sentenced the spy George Blake; Hutchinson’s own private phone is tapped at one point and the security services open a file on him; a politically motivated trial is prosecuted in revenge for causing embarrassment to the Prime Minister of the day (John Vassall). The editor of the Sunday Telegraph is punished with a prosecution under the Official Secrets Act for publishing an official British report into Biafra during the Nigerian civil war that disclosed the duplicity of the Government.
These cases could not be further from self-congratulatory war stories on behalf of a reminiscing misty-eyed Hutchinson. What this book demonstrates is how difficult the job of a criminal barrister is, and how crucial. The liberty of the citizen requires as a bare minimum: trial by jury, an independent judiciary and a strong, able and independently-minded criminal bar. The sting in the tail is contained in Hutchinson’s own resounding postscript. It is a call to arms, a cri de coeur, and a warning to politicians that our system of criminal law must be permitted to retain what ability it has to hold an overbearing state to account. More interesting cases are hinted at in this book. Let us hope that a second volume of Grant on Hutchinson makes its way into the law library.
*Jeremy Hutchinson’s Case Histories; Thomas Grant (John Murray London, 2015). Full disclosure: I am a friend of the author.