Tag Archives: Case Reports

C v X Local Authority And Z

A and F (children), Re [2015] EWFC B51 (14 May 2015)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

This is a handed down judgment. I have before me an application by the birth mother (whom I shall identify as ‘the mother’ in this judgment) for permission to oppose the making of an Adoption Order pursuant to section 47(5) and (7) Adoption and Children Act 2002 in respect of two of her children.

The mother appears as a litigant in person and she was assisted by an Aunt who was present with her.

The children I shall identify as A and F for the purpose of this judgment, a male and a female child aged six and five respectively. The children are not automatic respondents under FPR 14.3(1), unless permission to oppose is granted or the other circumstances set out therein apply. They do not. The “special circumstances” under FPR 14.3(2) also do not apply.

The Adoption Agency X County Council is represented by Mr Hornby.

The adopters (Z) are not represented but have prepared an anonymised statement in response to the application.

The children’s birth father has been served with notification of these proceedings. No application has been received from him, he is not present nor represented.

The applications for adoption were issued in November 2014. It was apparent that the mother wished to oppose these applications from the outset, and the Court listed the applications for directions on 2nd March 2015 at the Family Court at Wrexham before me.

I have considered the following documents from the trial bundle:

  1. The mother’s statement in support of her application for permission;
  2. The adopters’ statement, which is anonymised;
  3. the Local Authority’s skeleton argument and statement;
  4. the adoption reports; and
  5. the documents included in section E from the care and placement proceedings, which includes typed Threshold Criteria, the transcribed judgment of District Judge Shaw, the expert report of Dr Edwards and the Guardian’s report in those proceedings.

I have also heard the submissions made by the mother and by Mr Hornby on 10th April 2015.

The background to the case

In December 2012, A and F were removed from the mother’s care under a Police Protection Order and subsequently Emergency Protection and Interim Care Orders. The family were at that time living in North Wales. Care Orders and Placement Orders were made by District Judge (MC) Shaw in June 2013, after a contested hearing, the mother being represented in those proceedings.

The mother’s last direct contact with the children was in May 2013, pre-dating these final Orders due to the mother’s conduct during contact. The children were placed for adoption in August 2014 and they have settled well in their new homes.

One of the most significant features of these proceedings has been the mother’s extreme response to the removal and subsequent placement of her children away from her care. Her emotional response as a mother is understandable. Her opposition to the Local Authority and now the Adoption Agency’s plans within court proceedings is legitimate, but the mother has taken her opposition outside the court arena.

An injunction was made by the Family Division Liaison Judge for Wales, Mr Justice Moore, in July, September and October 2013, preventing her from using the internet/social media to breach the confidentiality of these proceedings. There were committal proceedings in January 2014, which were ultimately withdrawn.

The mother has also been involved (as she told me) in a recent episode where the premises of Dr Edwards, the expert who reported in the Care proceedings, was located and the mother attended there.

These are serial number adoption applications and confidentiality is crucial. The mother is a resourceful individual who believes she has been persecuted and unfairly treated by public officials and by the Family Courts, who have “kidnapped” her children. If she believed that her ends could be achieved by extra-legal action, then she would not hesitate to act in such a manner.

During the course of this application (at the first directions hearing) she requested disclosure of the adoption reports to her. While the mother is a respondent under FPR 14.3 to the adoption applications, she is not entitled to receive a copy of the applications under PD 14A without Court direction. Similarly, the adoption reports and medicals are confidential under FPR 14.11(6) and 14.12(3) respectively, unless the Court directs otherwise under FPR 14.13(1).

These documents contain detailed information about the children, the adopters and their whereabouts. Even if such documents were extensively redacted, the risk involved to the confidentiality/security of the placement (in the circumstances of this case) would rule out disclosure. The mother would be tempted to achieve indirectly the termination of the placement to which she is adamantly opposed.

The mother in correspondence by email with the Court, has also sought disclosure of a CV of the Family Division Liaison Judge for Wales, Mr Justice Moore. She has done so, I believe, in order to identify his whereabouts. No such document is retained by the Court. Even if such a document was retained, disclosure of such information to the mother would not be justified on grounds of judicial security.

I should note by way of completeness that while the mother, of course, is entitled to seek permission to oppose the Adoption Orders, and pursuant to FPR 14.16(1) to “be heard on the question of whether an order should be made”, if the Court refuses her application for permission to oppose, then she would “not be entitled to be heard on the question of whether an order should be made” under FPR 14.16(2). Her opposition would, in these circumstances, legally come to an end subject to any appeal.

I intend to proceed as outlined in Re W [2014] 1FLR 1266 at paragraph 31. If permission is refused and any Adoption Orders made, they will be postponed (together with any consequential hearings) and issued by the Court twenty-one days hereafter, i.e. after the expiry of the appeal time limit under FPR 30.4. I set this out clearly for the benefit of the mother because she does not have legal representation.

This hearing proceeds on the basis recommended in Re B-S [2014] 1FLR 1035 paragraph 74(v), i.e. following written evidence and submissions and without oral evidence.

The mother had asked for permission for family members to speak to me directly at page nine of her statement. This included a request on behalf of the subject children’s half-siblings. These family members, of course, are not respondents. I am aware that the maternal family share the mother’s opposition to these adoptions. They are not, however, the subject children whose welfare is paramount. Nothing would be gained by granting this request, which is refused.

There is another aspect which should be mentioned. The mother has indicated at page 17 of her statement (at paragraph four) that she pursued an appeal following the decision of District Judge Shaw in June 2013. That appeal to His Honour Judge Perry was unsuccessful, and there is an Order to that effect dated 15th July 2013.

The mother indicates in her statement that there was some other attempt by her to appeal out of time to the Court of Appeal, but no details are given.

It follows from this, that the judgment given at first instance by District Judge Shaw binds this Court. I mention this important aspect because the mother needs to understand that I am constrained by statutory provisions and appellate decisions which I am required to follow. I do not have a general discretion to revisit and review proceedings which have been concluded by District Judge Shaw and exercise my discretion afresh with regard to the Care and Placement Orders, after this lengthy passage of time.

The mother clearly is aggrieved at District Judge Shaw’s decision and she believes she is a victim of a miscarriage of justice. She complains inter alia of “disability discrimination, perjury, defamation, malfeasance in public office and kidnap” (see page four, paragraph 11 and page six, paragraph two of her statement of evidence) and she also made these submissions to me orally.

Indeed, the majority of the mother’s statement is concerned with the repetition and correction of perceived past wrongs sustained by her. This was also the position with regard to her oral submissions. This means that inevitably she does not accept as a “starting point” District Judge Shaw’s decision nor his findings. As a matter of logic, therefore, she finds it impossible to address the issue of “changes in circumstances” because broadly her parenting circumstances, when the children were removed, were perfectly acceptable and therefore no change is required. Accordingly, an intellectual impasse results.

Legal provisions to be applied

There are three steps which the mother needs to surmount in this application:

Step One: she must establish a change of circumstances

Step Two: she must satisfy the Court that it would be right to grant permission and there must be solid grounds indicated. The Court will consider all the relevant circumstances and two inter-related aspects. Namely (a) the parent’s ultimate prospect of success if permission is granted, and (b) the impact upon the children if the mother is or is not given leave to oppose, remembering that the children’s welfare is paramount.

Step Three: the mother must, at the adoption hearing, after permission has been granted, persuade the Court that the Adoption Orders should be refused and the Court should reverse the direction in which the children’s lives have travelled since the Care and Placement proceedings. The mother must realise that time has moved on for A and F, even if time has stood still for the mother herself.

These above steps were outlined in Re W [2011] 1FLR 2153, Re B-S [2014] 1FLR 1035 and Re W [2014] 1FLR 1266. The mother has referred to some of these decisions in her statement and the Local Authority also in its skeleton argument.

There is another aspect which should be mentioned. District Judge Shaw’s decision pre-dated the decision of the Court of Appeal in Re B-S above. In these circumstances, I should consider whether his judgment engages with the essence of the case looked at as a whole, concentrating on substance rather than form. In short, were key answers provided for key questions? (See Re W [2014] 1FLR 1266 at paragraph 16).

Let me briefly amplify the steps outlined above.

In relation to Step One, any change in circumstances is an issue of fact. The test should not be unachievable. The changes must be relevant or material to the question of whether or not leave should be granted. The changes are not confined to those of a birth parent, but they may include a subject child (see Re T [2014] EWCA (Civ) 1369).

In relation to Step Two as identified, that is an issue of judicial evaluation or discretion. Paragraph 74(i) to (x) of Re B-S identifies the features to be weighed in the balance. I am well aware of the seriousness of adoption and the decision of the Supreme Court in the case of Re B [2013] 1WLR 1911. While it is resistance to the adoption rather than familial reunification which is key, the mother’s case is put on the basis of reunification and not long-term foster care.

In Re L [2014] 2FLR 913 at paragraph 45, Lady Justice Black said this:

“When a judge considers a parent’s prospect of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.”

I have regard also to Lady Justice Black’s observations at paragraph 58 of the same case.

The original decision

This is intended to be by way of summary only. The District Judge found the threshold criteria under section 31(2) Children Act 1989 to be established on the basis of the typed document at page E1 to E4 of the trial bundle. This is set out at internal pages 18 to 21 of his judgment. These features of “actual or likely significant harm” included the following:

  1. serious domestic violence;
  2. homelessness and unsettled home conditions;
  3. threatened physical harm;
  4. disclosed actual physical harm.

Additionally, there is reference to Dr Edwards’ diagnosis of an untreated personality disorder with regard to the mother (see page 18 of the judgment). This finding was supplemented by the District Judge’s own impression of the mother’s presentation and language during the five day contested hearing when she was represented by counsel.

The judgment refers to the mother’s “aggression, confrontation, threats and florid allegations which are inappropriate in every respect”. This included examples of her behaviour in Court (referred to at page 19 of District Judge Shaw’s judgment). The mother’s attitude of confrontation and non-cooperation were ingrained.

In relation to “welfare”, the District Judge referred to the diagnosis of Ehlers-Danlos syndrome (an inherited condition affecting the connective tissue in the body) raised as an issue on the mother’s behalf in relation to both her and her children. The District Judge at page 23 of the judgment referred to:

  1. past domestic violence;
  2. illicit substance misuse;
  3. the mother’s poor choice of partners;
  4. the absence of accommodation due to eviction and the unsettled nature of the children’s upbringing with the mother as a result; and
  5. the mother’s relationship with a man in the United States of America, she having indicated an intention to move there.

District Judge Shaw observed that the children had settled and then referred once more to Dr Edwards’ report and the mother’s personality disorder (see paragraph 2.18.25 of Dr Edwards’ report).

Dr Edwards (at page 49 of her report) described some of the personality traits identified in the mother:

  1. distrust and suspiciousness of others;
  2. cognitive and perceptual distortions and eccentricities of behaviour;
  3. instability of interpersonal relationships and self-image.

These traits were apparent in the content of the mother’s oral submissions to me when she spoke for forty-five minutes without interruption in the courtroom.

At page 52, Dr Edwards concluded:

“It is my opinion that living with the mother is likely to be an intense, chaotic and anxiety-provoking experience. The intensity of her presentation is likely to fluctuate in response to environmental factors and life events and that when the mother feels personally well supported and feels she is being validated, that she is more settled. However, the underlying difficulties are unlikely to change significantly.”

The District Judge did not perceive any change in the mother’s presentation (see page 24 of the judgment). Indeed, he identified a deterioration, exemplified by the problems which had led to the suspension of contact. Treatment of the personality disorder would “take a long time” and he “did not believe that she (the mother) could or would engage in such a regime” (see page 24 of the judgment).

He accepted the opinion of Dr Edwards and the Guardian, who recommended the granting of Care and Placement applications in her carefully prepared report. The Orders were necessary and proportionate and designed for the protection of the children’s welfare (see page 26 of the judgment).

Although I could not identify a reference to the Adoption and Children Act 2002 specifically in the transcribed judgment, the substance of the judgment clearly indicated that the overwhelming imperative of the children’s safety (having regard to their poor care while with their mother) led the District Judge to make these Orders and to dispense with the mother’s consent to the making of Placement Orders.

The mother’s suspicion of professionals would (I believe) have a number of potential consequences:

  1. If reunited with the children and if her future parenting standards slipped, she would be unlikely to request assistance from professionals, fearing a further removal and being generally mistrustful of them. Concealment would be more likely;
  2. The prospect of therapeutic engagement by the mother would be limited.

The mother’s application

The mother, at significant length, sets out both in her statement and in her oral submissions her family history. She also confirmed the opposition of the family to adoption, and she referred to the assistance received from campaigning networks which have supported her. She refers also to her educational history. She takes issue with District Judge Shaw’s judgment and she maintains that there is no basis for his Orders (see page four and page five of her statement). The mother attacks the Local Authority social workers and refers to “a paedophile ring within our Royals, Government, Courts, Children’s Services”. She has sustained a miscarriage of justice “that would warrant the arrest of [the] parties involved”.

At page eight to ten of her statement, under the heading “Background”, she amplifies her family history and she refers to her other children. Pages 11 to 15 of her statement appear to be the draft, or the actual grounds of appeal, previously deployed by her when she sought to appeal the original Orders. At pages 15 to 16, she refers to the statutory provisions under section 47 Adoption and Children Act 2002 and the relevant appellate decisions. At page 17 paragraph 7, she asks for permission to appeal my decision, in anticipation (presumably) of an adverse outcome. At page 18, she states as follows, and this probably encapsulates her position:

“As the grounds for removal are proven to be invalid, there are no change of circumstances required”.

Attached to the last page of her statement there is a newspaper cutting of the mother and her children under the headline “Benefit Britain”.

The children’s circumstances

From the adoption report and the adopters’ anonymised statement, it is clear that the children have settled well. This should be of some comfort to the mother. The loss of the children would “cause severe distress and anguish to them” (see page B21 of the adopters’ statement).

When District Judge Shaw considered the original applications, he could not be sure that:
(a) adoptive placements would be identified for the children together; and
(b) that they would settle in their new home.

I have information, however, which confirms both of these key factors. The pre-adoption medicals do not indicate that the children’s health precludes any adoption.

Conclusion

As I have indicated already, because the mother remains fixated with the injustice of the original decision made by District Judge Shaw, she sees no reason for changing her circumstances. Indeed, the mother provides little actual detail about her current circumstances.

There is no indication that the mother has obtained any therapeutic assistance, as identified by Dr Edwards. The mother’s personality disorder therefore remains untreated.

The mother appears to be single; I have no idea about her future intentions. She has accommodation (she told me) with an Aunt, but little detail is provided.

The mother told me that she had seen a General Practitioner, without indicating to me why, nor what ensued as a result of such a visit. The mother remains hostile to any authority which has thwarted her or is likely to stand in her way.

She appears to believe that she could (very easily) resume her care of A and F despite the very significant changes in their lives, and appears to anticipate very little difficulty whatsoever.

I believe the children A and F would suffer significant harm if their current home circumstances were dissolved.

I am as certain as I can be in this case that the mother:
(a) has not demonstrated a change in circumstances;
(b) that her ultimate prospect of success, if given leave to oppose, lacks the necessary degree of solidity; and
(c) that the impact on the children (if given leave to oppose) would be adverse.
Accordingly, I refuse the mother’s application for permission.

I am satisfied with regard to the identification of the applicants and the subject children. The Agency post-box arrangements for indirect contact are appropriate in this case. The second condition under section 47 of the Adoption and Children Act 2002 is satisfied.

Furthermore, I am satisfied under section 1(2) of the Adoption and Children Act 2002 that A and F’s welfare throughout their respective lives and the ‘checklist’ provisions under section 1(4) of the Adoption and Children Act 2002 lead me to conclude that Adoption Orders are required in the case of both children.

The adoption reports and the statement of the adopters confirms A and F’s happy and settled home circumstances as a prelude to a legally secure and hopefully stable adoptive placement, with carers able to nurture the children during their childhood, as a building block for a grounded future adult life. To dissolve this happy domestic environment would be harmful to both children.

Pursuant to FPR 14.16(8), there are special circumstances of security and confidentiality here for making Adoption Orders, without the personal attendance of the adopters. Accordingly, after twenty-one days, Adoption Orders will be made and issued – as set out above.

I propose to proceed as outlined in the case of Re W above at paragraph 31, and I will clarify with the mother, whether she intends to ask for permission to appeal as indicated in her statement where permission is requested.

This transcript has been provided at public expense and could be published on Bailii in anonymised form so the children and the adopters are not to be identified, because this is a serial number application. I will hear representations as to whether any party objects to this disclosure. The mother, I suspect, will publish her own distorted version of events and the public may prefer to judge the truth for themselves. The transcript will be retained for A and F on their adoption files and they may have access to my judgment as adults, so they can read for themselves what led to this decision.

Accordingly, the following Order will be made after the usual recitals:

Upon hearing the birth mother in person and counsel for the Adoption Agency and upon consideration of the documents filed herein, the Court orders that:

  1. The mother’s application for permission to oppose the Adoption Orders is refused;
  2. Unless the mother within twenty-one days:
    1. Obtains a stay/extension of time;
    2. Obtains permission to appeal from the single judge of the Court of Appeal;
  3. The Court shall proceed to make and issue Adoption Orders for both children after [twenty-one days]. The mother shall be served with notification that the Orders have been made by the Court in the case of both children under FPR 14.26(1)(f).
  4. The transcript of today’s judgment (handed down) is to be discharged from central funds.
  5. Paragraphs (3) and (4) of the Order made on 10th April 2015 is discharged.
    I will deal in a moment with the application (if the mother wishes to pursue it) for permission to appeal.

That concludes my judgment.

The Applicant was a Litigant in Person. Mr Robert Hornby appeared for the Local Authority. Hearing dates: 10th April 2015.

Further information

Cite as: A and F (children), Re [2015] EWFC B51 (14 May 2015). Source: http://www.bailii.org/ew/cases/EWFC/OJ/2015/B51.html
Transcript provided by: Posib Ltd, Y Gilfach, Ffordd y Pentre, Nercwys, Flintshire, CH7 4EL. Official Transcribers to Her Majesty’s Courts and Tribunals Service
DX26560 MOLD. Tel: 01352 757273 Fax: 01352 757252. translation@posib.co.uk www.posib.co.uk Crown Copyright ©

R v Raphael Gray

R v Raphael Gray was a case involving the Computer Misuse Act 1990 against a computer hacker who, at the age of 19, hacked computer systems around the world over a period of six weeks between January and February 1999 as part of a multi-million pound credit card mission. He then proceeded to publish credit card details of over 6,500 cards as an example of weak security in the growing number of consumer websites.

Gray was able to break into the secure systems using an £800 computer he bought in his home town Clynderwen, Pembrokeshire, Wales. After publishing the credit card info on his websites, Gray posted a personal message saying law enforcers would never find him “because they never catch anyone. The police can’t hack their way out of a paper bag.”

He was tracked down by ex-hacker Chris Davis who was insulted by Gray’s “arrogance”. It took Davis under a day to find Gray’s information, which he then forwarded to the FBI. “The FBI was actually quite easy to deal with, although technically, they didn’t really understand what it was I was explaining to them. The local police were also very polite, but they didn’t understand it,” said Davis. Gray was arrested when FBI agents and officers from the local Dyfed Powys Police turned up at the door of his home, which he shared with his mother and two sisters, in March 2000.

Obtained from Wikipedia.

Case Report: DPP v Chambers

The case of R v Paul Chambers (appealed to the High Court as Chambers v Director of Public Prosecutions), better known as the Twitter Joke Trial, is a United Kingdom legal case centred on an incident in which Paul Chambers was convicted of using Twitter to send a “public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to the Communications Act 2003”.

The conviction was widely condemned as unfair, and referred to as a miscarriage of justice; and was appealed three times. After the first two appeals failed, the judgement in the third appeal, in London’s High Court, was in Chambers’ favour, resulting in the quashing of his conviction.

Background

During late December 2009 and early January 2010, cold weather had resulted in considerable disruption across northern England. Robin Hood Airport in South Yorkshire was one of many airports which was forced to cancel flights. On 6 January 2010,  an intending traveller, Paul Chambers (who was 28 at the time), posted a message on Twitter:

“ Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!! ”

A week later, an off-duty manager at the airport found the message while doing an unrelated computer search.The airport management considered the message to be “not credible” as a threat, but contacted the police anyway. Chambers was arrested by anti-terror police at his office, his house was searched and his mobile phone, laptop and desktop hard drive were confiscated. He was later charged with “sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to the Communications Act 2003”.

On 10 May, he was found guilty at Doncaster magistrates court, fined £385 and ordered to pay £600 costs. He lost his job as a consequence.

Response

A number of legal commentators and celebrities criticised the conviction and called for it to be overturned. They include journalist Nick Cohen, who drew comparison with Milan Kundera’s anti-communist novel The Joke; television writer Graham Linehan; and the comedian and television presenter Stephen Fry, who offered to pay Chambers’ fine and subsequent legal bills.

First appeal

Chambers lost an appeal against his conviction. Judge Jacqueline Davies, sitting with two magistrates, heard his appeal in Doncaster Crown Court; she judged that the tweet contained “menace” and that Chambers must have known that it might be taken seriously. Thousands of Twitter users responded by reposting Chambers’ Tweet including the hashtag #iamspartacus, in reference to the climactic “I am Spartacus!” scene in the 1960 film Spartacus.

High Court appeal

Chambers lost a further appeal, at the High Court on 8 February 2012, before Lord Justice Gross and Mr Justice Irwin. The “appeal by case stated” was made by Chambers’ barristers, Ben Emmerson QC and Sarah Przybylska, and David Allen Green (who acted for Chambers in earlier proceedings) acted as his solicitor, through Preiskel & Co LLP. The appeal was entirely on points of law and centred on the correct interpretation of section 127(1) of the Communications Act 2003.

Second High Court appeal

Chambers (centre), with Al Murray (left) and Stephen Fry (right) outside the High Court on 27 June 2012
A second High Court appeal, before a panel of three judges, headed by the Lord Chief Justice Lord Judge, opened on 22 June 2012. On 27 June, they announced a reserved judgement. Chambers arrived at court accompanied by Stephen Fry and the comedian Al Murray.

Chambers’ conviction was quashed on 27 July 2012. The approved judgement concluded that “a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision [of the 2003 Act]“.

Accordingly, the appeal against conviction was “allowed on the basis that this ‘tweet’ did not constitute or include a message of a menacing character”.

It later emerged that staff at the Crown Prosecution Service had been in favour of dropping the case, to the point of informing Chambers, via his solicitor, that they would not oppose the final appeal, but had then been overruled by their head of service, the Director of Public Prosecutions, Keir Starmer. Chambers’ MP, Louise Mensch, called for a House of Commons committee to investigate Starmer’s behaviour.

Obtained from Wikipedia.

McAlpine v Bercow

McAlpine v Bercow was a landmark legal case in 2013 between Conservative peer Lord McAlpine and Sally Bercow the wife of John Bercow, Speaker of the House of Commons.

Lord McAlpine alleged that he was defamed by comments implying that he was a paedophile published by Sally Bercow on Twitter, a social networking service. This followed the broadcast on 2 November 2012 of a report by BBC Two’s Newsnight which falsely linked an unnamed “senior Conservative” politician to sex abuse claims. On 4 November 2012, Bercow tweeted “Why is Lord McAlpine trending? *innocent face*”
When the allegations against McAlpine proved to be unfounded, Bercow was one of a number of people that the peer threatened with legal action.[6] The BBC subsequently apologised and paid £185,000 to McAlpine in damages and the ITV television network paid him £125,000 in damages. McAlpine commenced legal actions against users of Twitter who had repeated the claims but users with fewer than 500 followers were allowed to settle the matter by making a donation of £25 to the BBC Children in Need charity.
McAlpine’s lawyers said that they would continue to pursue 20 “high profile Tweeters” (users with more than 500 followers) including Bercow, comedian Alan Davies and writer George Monbiot.[4] Acting on behalf of McAlpine, solicitor Andrew Reid announced: “Twitter is not just a closed coffee shop among friends. It goes out to hundreds of thousands of people and you must take responsibility for it. It is not a place where you can gossip and say things with impunity, and we are about to demonstrate that.” McAlpine donated the libel damages from BBC and ITV to Children in Need and other charities.
In November 2012, Monbiot published “Lord McAlpine – An Abject Apology” on his personal website and apologised for acting “in an unprofessional, thoughtless and cruel manner.” Monbiot also wrote personally to McAlpine[11][12] and agreed to undertake charity work. Davies apologised publicly and privately to McAlpine in November 2012. In contrast, Bercow “consistently denied that her tweets were libellous” and in December 2012 she appointed the law firm Carter-Ruck to defend her against the claim. At the time that the tweet was made she had 56,000 followers, described by Edward Garnier QC, for McAlpine, as “a bigger readership than many regional newspapers.”

At a preliminary hearing held on 16 April 2013 it was decided that the trial should be split into two stages. The first stage would decide if the words of the tweet could be considered defamatory. If this was found to be the case a second hearing would be held to determine the level of damages unless both parties were able to reach an agreement.
The judgment in the first stage was handed down on 24 May 2013. The Hon. Mr Justice Tugendhat was asked to rule on the meaning of Bercow’s tweet, particularly the phrase “innocent face” which the judge said was intended to be read “as a stage direction” with readers “imagining that they can see [Bercow’s] face as she asks the question in the Tweet. The words direct the reader to imagine that the expression on her face is one of innocence, that is an expression which purports to indicate (sincerely, on the Defendant’s case, but insincerely or ironically on the Claimant’s case) that she does not know the answer to her question.”
The judge said that there were two different kinds of meaning recognised in law: “a natural and ordinary meaning” and “an innuendo meaning.” Citing Jones v Skelton.

Mr Justice Tugendhat explained that a natural and ordinary meaning may be either the literal meaning or a meaning “that does not require the support of extrinsic facts passing beyond general knowledge.” An innuendo meaning, he said, “is a meaning which can be implied from the words complained of, but only if the reader also knows other facts (which are not general knowledge). These are generally called extrinsic facts.”

The judge decided that any reasonable reader would understand both meanings of Bercow’s tweet and interpret the “innocent face” as insincere and ironical: “There is no sensible reason for including those words in the tweet if they are to be taken as meaning that the defendant simply wants to know the answer to a factual question.”[20][23] The judge decided that the Tweet meant “in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care.”

With regard to the innuendo of the tweet Mr Justice Tugendhat found that the Tweet carried a meaning “to the same effect” and found that the tweet was “an allegation of guilt. I see no room on these facts for any less serious meaning.”

As it had already been accepted by Bercow prior to the hearing that McAlpine was innocent of the allegations her tweet was “seriously defamatory” and indefensible in law.

Following judgment both parties reached an agreement and Bercow agreed to pay damages.[26] She must also apologise in open court to McAlpine. He has said that he will travel to London from his home in Italy “to hear it personally.”

Prior to judgment Bercow made two offers to settle out of court. Both were rejected by McAlpine, leading to Joshua Rozenberg, a lawyer and columnist for London’s The Guardian newspaper, to opine “that the undisclosed, agreed damages were higher than she had hoped.”[20] McAlpine’s solicitor Andrew Reid said: “The apologies previously received from Mrs Bercow did not concede that her tweet was defamatory but clearly she must now accept this fact. Her failure to admit that her tweet was defamatory caused considerable unnecessary pain and suffering to Lord McAlpine and his family over the last six months. The judgment is one of great public interest and provides both a warning to and guidance for people who use social media.” Rozenberg noted: “The law of defamation is well known to those who write for a living. One hopes Twitter users are beginning to learn what a powerful and potentially dangerous weapon they have at their fingertips. A tweet is more like a broadcast than an email and is subject to the law of libel in the same way.”

Bercow said: “The High Court found that my tweet constituted a serious libel, both in its natural meaning and as an innuendo. To say I am surprised and disappointed by this is an understatement. I will accept the ruling as the end of the matter. I remain sorry for the distress I have caused Lord McAlpine and I repeat my apologies. Today’s ruling should be seen as a warning to all social media users.”

Patrick Strudwick, also writing in The Guardian, noted that on the day of the hearing many Twitter users tweeted: “Why is Sally Bercow trending? *libel face*”, a humorous reference to her defamatory tweet.

Obtained from Wikipedia.

Commentary on R v Woods (Matthew) – When is a joke “grossly offensive”?

Recently, a youth, Matthew Woods, aged only 20, was jailed for 12 weeks for writing offensive jokes about April Jones, a 5-year-old girl, feared dead, which he posted to his Facebook profile.

Most of us would agree that if every post we made on Facebook was scrutinised that there would probably be some offence or other we could get done for.

It might not be what others want to hear, but I’m convinced Matthew Woods was innocent of the charges against him, and that it is others who should be prosecuted if April Jones’s family were offended by the remarks.

As far as I understand it, Matthew Woods posted the offensive joke to his own private Facebook Wall after getting the idea from a public website, called Sickipedia, where offensive jokes, worse than his, are posted for the public to see.

One can apply the case of DPP v Connolly, which defined “grossly offensive” – Woods was prosecuted for sending a ‘grossly offensive’ message. This case says as message is only grossly offensive if the intended recipients of the message would be grossly offended. As Woods is likely to only have intended for his friends to see it then he should have been found not guilty under Section 127 of the Communications Act 2003. If anyone were to be prosecuted, it should be those whom shared the posts with other people, including the newspapers who repeated them online.

Applying DPP v Collins, as the subject of the offensive posts – April Jones – would be unlikely to be grossly offended by them as a 5 year old, then again Woods should not have been found guilty. It is unlikely that assuming April Jones is found alive that when she gets older she would know anything of Woods postings if he had not been prosecuted. But now, as they are published for everyone to see in Internet archives, she will find out and be offended. Again, the websites who repost these offensive jokes could be committing a worse act than Woods when April Jones is able to read them herself in later life.

Applying Chambers v DPP, then in order to be grossly offensive the offensive joke would have to cause “apprehension”. As it would not have caused apprehension to April Jones’s family if people hadn’t shared the post over the Internet beyond Woods’ friends, then had this case been applied Woods should not have been found guilty. The person whose republication of Woods’ message caused April Jones’s family apprehension is the one who should have been prosecuted and not Woods!

Further information

The campaigning group, 38 degrees, have started a petition calling for the Communications Act 2003 to be used responsibly.

Case Report: DPP v Connolly

Connolly v. DPP [2007] EWHC 237 (Admin); [2008] 1 W.L.R. 276, is an English criminal law case, decided with reference to the Human Rights Act 1998.

Veronica Connolly sent graphic images of aborted foetuses to pharmacies. She was a Roman Catholic who objected to the morning after pill. She was prosecuted under the Malicious Communications Act 1988. She held that the prosecution violated her right to freedom of expression under Article 10 of the European Convention on Human Rights. She was represented by Paul Diamond.

Her appeal against prosecution was dismissed. Under the Human Rights Act 1998, the restriction on her “freedom of expression” was justified because the images were grossly indecent and offensive. The restriction was for the protection of the rights of others, in accordance with the exception of Art.9 ECHR.

Obtained from Wikipedia.

Case Report: Bishop v Powell (2006)

Naomi Campbell and the European Court of Human Rights made an ‘appearance’ at Pontypridd County Court when a judge was asked to ban publication of this picture.

Observer correspondent for Treforest and Labour Party member Jonathan Bishop – shown chatting to former Plaid Cymru councillor Colin Gregory at Parti Ponty in Ynysangharad Park, Pontypridd – argued it was an invasion of privacy.

The image so incensed Mr Bishop that he sought an injunction citing case law from the European Court of Human Rights,.

He told Judge D Wyn Rees that Trallwn’s Welsh Liberal Democrat councillor for Rhondda Cynon Taf, Councillor Mike Powell, had posted it on a Pontypridd town website claiming it showed two politicians ‘doing a deal’.

Mr Bishop said publishing the picture subsequently would infer that he was the person ‘doing a deal’ when he was not, and asked for costs and for all copies of the picture to be destroyed.

Coun Powell retorted that the need for privacy had to be balanced against the right to freedom of expression and quoted from a 54-page dossier quoting supporting arguments from cases such as Elton John v Associated Newspapers and Naomi Campbell v Mirror Group Newspapers.

He said the picture was not taken surreptitiously with a long view lens but in a public place, and did not impinge on anything confidential in respect of Mr Bishop’s private life.

The Lib Dems’ Assembly candidate for Pontypridd stressed that Mr Bishop, while demanding privacy, had put himself in the public eye by launching his own website and weblog and writing a district news column for the Observer.

Judge D Wyn Rees dismissed the appeal pointing out it did not disclose any information relating to Mr Bishop’s personal life and ordered him to pay £130 costs to Mr Powell.

He said: ‘It was just two members of different political parties having a discussion in a public place and in my view there is nothing private about the information shown in the picture.’

Speaking afterwards, Mr Bishop said: ‘This is a defeat for the ordinary man and woman in the street who want to be able to go into a public park without the fear of their freedom being taken away.

‘I did not take this court action lightly. It was a last resort after negotiations with Mr Powell failed.’

Further information

This law report was published in the Pontypridd and Llantrisant Observer on 28 September 2006 and is reproduced here for educational purposes.

Case Report: Bishop v Powell (2006)

The claimant, Bishop (B), sought a county court injunction against Powell (P) to prohibit P from publishing a photograph of him  that was taken by P when B  was engaged in conversation with a member of another political party, Plaid Cymru, in a public park during a public event called ‘Parti Ponty’. B was a Labour community councillor between 2003 and 2004, a Labour county borough council election candidate in 2004, and had been a columnist in the local newspaper, the Pontypridd & Llantrisant Observer, since 2005. P was a county borough councillor for the Liberal Democrats and leader of a local authority group of councillors.

P posted a message to an online discussion group used by B and others, asking other users: “If I were to take a photo or two of say, people enjoying a day out in the Park, am I allowed to post them or print them or do whatever I like with them?

B telephoned P saying that he did not consent to the images being published and followed this up with an email saying in part; “Further to our telephone conversation, which concluded at 15.44 today, I am writing to indicate that I do not wish for you to publish any photographs you have taken of me during my private life, which includes the ones you took of me in Ynysangharad War Memorial Park today.” P replied saying in part; “Johnathan are you saying that a photo of you, a public political figure, talking with a public political figure in public would, if published, impinge on your human rights under article 8 of the European convention? Surely not. The photos of the Plaid stall in the park were surely a public place where you were in conversation with a plaid politician, a secenario which surely would not have been taking place if it were not for your public political life and profile!

B contested that his privacy had been infringed contrary to article 8 of the European Convention on Human Rights through P taking the photographs and “threatening” to publish them. P made the counter-claim that his rights to freedom of expression under article 10 of that convention was of greater importance than B’s right to a private life, in particular because B was a public figure. P contested that B was a public figure by virtue of him having a website that displayed his biography, his curriculum vitae with his education, political experience and his political opinions. This was furthered by B’s presence in local media such as a news column and news releases P contested.

Hearing granted. B’s article 8 rights were plainly engaged by P’s threat to publish. The photographs showed B having a private conversation with another individual in a public place. P’s rights to freedom of expression were equally engaged by B’s public profile.

Held. Dismissing the application for injunction. Whilst B did not play a significant role in public life, the fact that he had made images and other information about himself available online and was known in the locality through his public profile he could be deemed a public figure, Campbell v Mirror Group Newspapers Ltd [2004] 2 W.L.R. 1232 considered. As B was a public figure it would not be necessary for his consent to be obtained prior to the publication of the photograph, Elton John v Associated Newspapers Ltd [2006] EWHC 1611 QB followed. The photographs were of two members of different political parties having a discussion in a public place. As B was known to hold political opinions and it was reasonable to assume the nature of the discussion between B and the other activist was of a political nature. There was therefore nothing private about the information shown in the picture beyond what B made available through his website and other media, Von Hannover v Germany and [2004] ECHR 59320/00 applied.

Judge D Wyn Rees sitting in Pontypridd County Court.

Significant cases cited

  • Campbell v Mirror Group Newspapers Ltd [2004] 2 W.L.R. 1232
  • Von Hannover v Germany and [2004] ECHR 59320/00
  • Elton John v Associated Newspapers Ltd [2006] EWHC 1611 QB

Legislation cited

  • Human Rights Act 1998

Further information

Alcock v Chief Constable of South Yorkshire Police

Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 is a leading English tort law case on liability for nervous shock (psychiatric injury).

Facts

The claims were brought by Alcock and several other claimants after the Hillsborough disaster in 1989, where 96 Liverpool fans died in a massive crush during the FA Cup Semi Final at Hillsborough Stadium in Sheffield. According to the Taylor Report (as well as the later report of the Hillsborough Independent Panel), the accident was caused by the police negligently allowing too many supporters to crowd in one part of the stadium. Many alleged to have seen their friends and relatives die in the crush and suffered psychiatric harm or nervous shock after the incident.

Judgment

The plaintiffs in this case were mostly secondary victims, i.e. they were not “directly affected” as opposed to the primary victims who were either injured or were in danger of immediate injury. The Judicial Committee of the House of Lords, consisting of Lord Keith of Kinkel, Lord Ackner, Lord Oliver of Aylmerton, Lord Jauncey of Tullichettle, and Lord Lowry has established a number of “control mechanisms” or conditions that had to be fulfilled in order for a duty of care to be found in such cases.

The claimant who is a “secondary victim” must perceive a “shocking event” with his own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its “immediate aftermath”. This requires close physical proximity to the event, and would usually exclude events witnessed by television or informed of by a third party, as was the case with some of the plaintiffs in Alcock.

The shock must be a “sudden” and not a “gradual” assault on the claimant’s nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages.

If the nervous shock is caused by witnessing the death or injury of another person the claimant must show a “sufficiently proximate” relationship to that person, usually described as a “close tie of love and affection”. Such ties are presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved.

It must be reasonably foreseeable that a person of “normal fortitude” in the claimant’s position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that he would succeed in this element. However, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible to psychiatric illness – the defendant must “take his victim as he finds him” and pay for all the consequences of nervous shock (see “Eggshell skull” rule).

Significance

The impact of this on the area of law once described as a ‘”patchwork quilt of distinctions which are quite difficult to justify” is significant because the decision made by the Law Lords was heavily influenced by the greater social concern of allowing a flood of claims with which the judicial system would not be able to cope (the “floodgates argument”). The decision has been criticised as being excessively harsh on the claimants, as well as not fully corresponding with medical knowledge regarding psychiatric illness brought about by nervous shock. Although reform has been widely advocated and a legislative proposal to mitigate some of the effects of Alcock was drafted by the Parliamentary Law Commission in 1998, the decision in Alcock represents the state of the law in the area of liability for psychiatric harm as it currently stands.

Obtained from Wikipedia.

Case Report: R v Penguin Books Ltd

R v Penguin Books Ltd was the public prosecution at the Old Bailey of Penguin Books under the Obscene Publications Act 1959 for the publication of D. H. Lawrence’s Lady Chatterley’s Lover.

The trial took place over six days in No 1 court between 20 October and 2 November 1960 with Mervyn Griffith-Jones prosecuting, Gerald Gardiner counsel for the defense and Mr Justice Byrne presiding. The trial was a test case of the defense of public good provision under section 4 of the Act which was defined as a work “in the interests of science, literature, art or learning, or of other objects of general concern”.

The jury found for the defendant in a result that ushered in the liberalisation of publishing, and which some saw as the beginning of the permissive society in Britain.

Legislative and legal background

The Obscene Publications Bill was put forward to Parliament in 1955 as a private member’s bill on the recommendation of the Herbert Committee in response to what was seen as the failure of the existing common law offence of obscene libel. The Bill’s sponsor Roy Jenkins cited five prosecutions in 1954 which highlighted the uncertainty of the law on obscenity and that the basis of the existing law, R v Hicklin, had the effect of a stringent literary censorship. Consequently the resultant Act made specific provision for a defense of public good, broadly defined as a work of artistic or scientific merit, intended to exclude literature from the scope of the law while still permitting the prosecution of pornography or such works which would under section 2 of the Act ”tend to deprave and corrupt persons likely to read it”. The Act also required the court to consider the work as a whole, put a time limit on prosecutions, provided booksellers with a defense of innocent dissemination, gave publishers a right of defense against a destruction order, the right of appeal, and limited the penalty of conviction. The Act came into force on 30 August 1959.

The then Director of Public Prosecutions (the DPP), Sir Theobald Mathew, made submission to the Bill’s Commons Select Committee on 27 May 1957 that his office would “take into account the existing reputation of the author, the publisher, the printer” before deciding on prosecution. Roy Jenkins wrote to The Spectator on 26 August 1960 that the DPP’s decision to indict Penguin was a misapplication of the law.

Publication history

Lawrence’s novel had been the subject of three drafts before the final unexpurgated typewritten transcript was submitted to the Florentine printers on 9 March 1928 with the intention of publishing a private limited edition of 1000 copies. Martin Secker refused to publish the work in this form, forcing Lawrence to publish the first edition of the final version himself without copyright protection in July 1928.

In August the same year US customs confiscated imported copies of this edition as indeed did Scotland Yard. Despite the fact that The First Lady Chatterley published by the Dial Press in 1944 was declared obscene by a US court (overruled several months later) it would take until 21 July 1959 for a US court to rule that the first authorised unexpurgated edition of Lady Chatterley’s Lover (published by Grove) was not obscene.

On 16 August 1960 Penguin published the first unexpurgated English edition of Lady Chatterley’s Lover.
It was on 18 March 1960 that the Chief Constable of Peterborough wrote to the DPP regarding the imminent publication of the book seeking advice though there was no evidence of publication at this time. It was not until 16 August when Penguin presented 15 copies to D.I. Monahan that legal proceedings were instituted, and a summons was issued on the 25 August at Bow Street Magistrates’ Court.

The Trial

Mervyn Griffith-Jones began by laying the issue before the jury: that they must decide if the book was obscene under section 2 of the Act and if so whether its literary merit amounted to a ‘public good’ under section 4, and that they must judge the book as a whole. Inviting them to consider as a test of whether it would deprave or corrupt he asked “Would you approve of your young sons, young daughters – because girls can read as well as boys – reading this book? Is it a book you would have lying around your own house? Is it a book that you would even wish your wife or your servants to read?” This last question was the cause of some amusement in the court, and as a signal of how out of touch the establishment were with everyday life has echoed in popular culture since. He also conceded that Lawrence was a writer of stature and that the book may have had some literary value but the obscenity of its language, its recommendation of what appears to be adulterous promiscuity and that the plot is mere padding for descriptions of sexual intercourse outweighed any such defense.

Gerald Gardiner outlined the case for the defense: that the book was not obscene under section 2 as it would not deprave or corrupt anyone, and that due to Lawrence’s status the work satisfied section 4. That “Lawrence’s message, as you have heard, was that the society of his day in England was sick, he thought, and the sickness from which it was suffering was the result of the machine age, the ‘bitch-goddess Success’, the importance that everybody attached to money, and the degree to which the mind had been stressed at the expense of the body; and that what we ought to do was to re-establish personal relationships, the greatest of which was the relationship between a man and a woman in love, in which there was no shame and nothing wrong, nothing unclean, nothing which anybody was not entitled to discuss.” Therefore, the descriptions of sex were necessary and appropriate.

The defense then called 35 witnesses to testify to the artistic, sociological and moral value of the book, the prosecution called no witnesses.

Bishop of Woolwich

Defense called Dr John Robinson, Anglican bishop of Woolwich, to elicit “[w]hat, if any, are the ethical merits of this book?” After objection from the prosecution on the relevance of this testimony the judge agreed it satisfied the “other objects” criterion of subsection 2 section 4 of the Act. Robinson asserted that while Lawrence’s view was not Christian his intention “is to portray the sex relationship as something essentially sacred.”[20] He continued “…as in a real sense a holy communion. For him flesh was completely sacramental of spirit. His descriptions of sexual relations cannot be taken out of the context of his whole, to me, quite astonishing sensitivity to the beauty and value of all organic relationships.”[21] Pressed by Mr Griffith-Jones on whether the book had any instructional value the Bishop admitted it did not, but asked by Mr Gardiner if it were a book Christians ought to view Robinson said yes over the objection of the prosecution that it was for the jury to decide if its publication was justified.[22] Nevertheless the Bishop’s statement garnered the newspaper headline “A BOOK ALL CHRISTIANS SHOULD READ”.

Richard Hoggart

In testimony that was later seen to have had a deciding influence on the trial the sociologist and lecturer in English Literature Richard Hoggart was called to testify to the literary value of Lady Chatterley’s Lover. In a detailed textual analysis of the book under defense examination, Hoggart was elicited on the purpose of the four-letter words in the book: “[t]he first effect, when I first read it was some shock, because they don’t go into polite literature normally. Then as one read further on one found the words lost that shock. They were being progressively purified as they were used. We have no word in English for this act which is not either a long abstraction or an evasive euphemism, and we are constantly running away from it, or dissolving into dots, at a passage like that. He wanted to say, ‘This is what one does. In a simple, ordinary way, one fucks,’ with no sniggering or dirt.”

Under Prosecution cross-examination Griffith-Jones pursued Hoggart’s previous description of the book as “highly virtuous if not puritanical”. “I thought I had lived my life under a misapprehension as to the meaning of the word ‘puritanical’. Will you please help me?” “Yes, many people do live their lives under a misapprehension of the meaning of the word ‘puritanical’.

This is the way in which language decays. In England today and for a long time the word ‘puritanical’ has been extended to mean somebody who is against anything which is pleasurable, particularly sex. The proper meaning of it, to a literary man or to a linguist, is somebody who belongs to the tradition of British puritanism generally, and the distinguishing feature of that is an intense sense of responsibility for one’s conscience. In this sense the book is puritanical.”

Legal argument and ruling

During examination of James Hemming the question was submitted by Gardiner whether reference to other books was permissible as evidence with respect to the author’s intention and particularly the production of other books to show by way of comparison what the climate of literature was and how well the authorial intention was carried out; further, that the 1959 Act had changed the law regarding judging the work as a whole and whether the Act required proof of criminal intent. Gardiner’s contention was that intent to deprave and corrupt was a rebuttable one and hence evidence can be called to prove there was no intent to deprave. In reply Griffith-Jones cited R v Montalk 1932 that “the offence of uttering and publishing an obscene libel[…] is established as soon as the Prosecution has proved the publication and obscenity of the matter charged, and a jury should not be directed that, beyond this, they must find an intent to corrupt public morals.‘”

Gardiner countered that while he accepted the Prosecution’s argument in R v Montalk that intent to corrupt public morals is inferred from the act of publication that presumption is itself a matter of fact and rebuttable.  The judge gave his opinion that the Defense was not justified in calling evidence to prove that there was no intent to deprave and corrupt, that Defense could not produce other books with respect to evidence of the present book’s obscenity rather than literary merit and that expert testimony could not be called as to the public good of the work which was a matter for the jury.

Closing statements

In a lengthy speech, which has been praised for its ‘forensic advocacy’,  Mr Gardiner began by recapitulating the testimony of the defense witnesses, after which he went on to examine the tactics of the prosecution: “In answer to what these witnesses have said, hardly any question has been put to them by the prosecution about the book as a whole. The technique has been just as it used to be before the Act: to read out particular passages and say “Now do you call that moral?”, or “Do you think that is a good bit of writing?” The one thing which this Act has made plain is that in future, in fairness to the author, the book must be judged as a whole.” In reference to the desirability of publication Gardiner invited the jury to consider that, “In my submission to you the defendants have shown, on the balance of probabilities, that it would be for the public good that this book should be generally available. I say on the balance of probabilities because … where the prosecution has to establish something in a criminal case the burden which rests on them is to satisfy a jury beyond a reasonable doubt; where the defence have to discharge some burden of proof it is a lesser burden, it is the burden of satisfying a jury on a mere balance of probabilities.” And in referring to the judge’s ruling on the admissibility of other books for comparison Gardiner simply entreated the jury: “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”

In his closing remarks Mr Griffith-Jones examined the definition of obscenity and the change of its wording in law: “It is true that the old definition is now altered, and the words ‘those whose minds are open to such influences’, are changed to ‘those who may in all the circumstances read the book’. You may think that place rather a less burden upon the prosecution than hitherto, that it rather widens the scope of this Act than otherwise, for now, irrespective of whether the person reading the book is one of a rather dull or perhaps retarded or stupid intellect, one whose mind may be open to such influences, there is not any such restricted class. It is anyone who may read the book in all the circumstances.”

With respect to the moral character of the book he observed: “It is said that this book condemns promiscuity. Does it? […] But it does [condone promiscuity], doesn’t it? The earlier sexual experiences of both parties, then Michaelis, then Mellors – it is said that this is only showing how perfect sexual intercourse can lead to ultimate happiness. Members of the jury, the short answer to that view of the matter is this, which I think I put to one witness: what is there in the book to suggest that if the sexual intercourse between lady Chatterley and Mellors had not eventually turned out to be successful she would not have gone on and on and on elsewhere until she did find it?” In a point not raised in cross-examination Griffith-Jones asked the jury to consider the passage of the novel on p. 258 which suggested heterosexual buggery, then a criminal act in England and Wales, which though Griffith-Jones didn’t labour the point had it been examined more closely might have been damning to the defense case that the book was not obscene. After three hours of deliberation the jury returned a unanimous verdict of not guilty.

Legal and cultural consequences

The verdict was the subject of a debate in the House of Lords on 14 December 1960. Richard Hoggart in his autobiography wrote of the trial: “It has been entered on the agreed if conventional list of literary judgements as the moment at which the confused mesh of British attitudes to class, to literature, to the intellectual life, and to censorship, publically clashed as rarely before – to the confusion of more conservative attitudes. On the far side of that watershed and largely as a consequence, the favoured story continues, we had the Permissive Society. All of which is excessive and over-simple, but has some truth.

Obtained from Wikipedia.