R v. Penguin Books Ltd, the trial in the autumn of 1960 of whether publication in England of an unexpurgated edition of D H Lawrence’s novel Lady Chatterley’s Lover should be prohibited for obscenity, is sufficiently famous to have been commemorated in a poem of the era.
Philip Larkin’s “Annus Mirabilis” (Year of Miracles), written in 1967, begins
These laconic lines say a great deal about the revolution in the permissive society which is commonly believed to have characterised the 1960s in Britain, and the coming of age of the generation born immediately after the Second World War.
The jury openly ridiculed the prosecution’s question
..[W]ould you approve of your young sons, young daughters — because girls can read as well as boys — reading this book? Is it a book that you would have lying around in your own house? Is it a book that you would even wish your wife or your servants to read?”
Their verdict of Not Guilty ripped this Edwardian vision of upper middle-class life as a world immune from corruption and depravity into shreds forever. It isn’t only these much-quoted words which anchor the case firmly in its moment in history. Nor the images from 1960, of men in bowler hats and women with fashionable haircuts and coats holding the unforbidden orange fruit of the unexpurgated Penguin edition of the book, reading it on public transport or in the street outside the bookshop, glancing over one another’s shoulders and giving as little as possible away in their expressions. The very premise of the prosecution, that a printed book describing lawful sexual behaviour in a relationship between two adults could be seriously considered liable to deprave and corrupt its readers, seems archaic in an era of fathomless streams of internet pornography.
The trial of Lady Chatterley’s Lover was a test case for the then-new Obscene Publications Act 1959, which introduced a defence justifying an otherwise obscene publication if it was for the ‘public good’ in the interests of literature or learning, a justification which could be supported by expert evidence. The 1959 Act also required the jury to consider a work as a whole and not merely a sequence of ‘purple passages’ selected by the prosecution. And it required the prosecution to prove that the work was such as to tend to deprave and corrupt persons who were likely to read it, and not, as previously, a person, such as a hypothetical fourteen-year-old school girl, ‘into whose hands a publication of this sort may fall’. The 1959 Act had been preceded by a period of prosecutorial activism against literary ‘obscenity’. In 1953 a London magistrate had described Lady Chatterley’s Lover as “absolute rubbish . . . . but not sufficiently obscene for me to order its destruction.”
Penguin Books’ successful defence at trial was based on the evidence of thirty-six (with more prepared to testify) carefully-chosen and well-prepared experts on literature and contemporary culture and society. In his summing-up, the judge, Mr Justice Byrne, told the jury, in words that have striking contemporary resonance:
In these days the world seems to be full of experts. There is no subject you can think of where there is not to be found an expert who will be able to deal, or says he will be able to deal with the situation. But the criminal law in this country is based upon the view that a jury takes of the facts and not upon the view that experts may have. . . .
Don’t allow yourselves to get lost in the higher realms of literature, education, sociology and ethics, but keep your feet on the ground.
The English law of obscene publications has not itself fundamentally changed since 1959, although it has been augmented by an offence relating to “extreme pornography”, and the Crown Prosecution Service published Legal Guidance was last revised in January 2019 following public consultation in 2018. It’s impossible to imagine a book with similar content to Lady Chatterley’s Lover being prosecuted under that updated guidance now. Reported cases about publishing which attract public attention now seem more frequently to be those which raise questions of individual harm, rather than of a public standard of morality — cases of defamation, harassment, malicious communication, or wrongful disclosure of private information. In the summer of 2018, a self-published book arising out of a family feud, called Behind the Artichokes, attracted headlines, as its trial, like that of Lady Chatterley’s Lover included a direction for the jury to read the book. But the prosecution, which failed even before it was put to the jury to decide, was not one which turned on any question of either obscenity or literary merit, but of whether the author was guilty of publishing what she knew to be false, under the Malicious Communications Act 1988.
A great deal has been written about the trial of Lady Chatterley’s Lover and the way it marked a turning point in attitudes and culture in post-war Britain. One excellent modern account is in Thomas Grant’s 2015 book: Jeremy Hutchinson’s Case Histories, Hutchinson having been junior counsel for Penguin Books and discussed his memories of it with the author. Although the views expressed by the members of the jury will never be known beyond their collective verdict, some must have been echoed in the debate in the House of Lords shortly after the end of the trial, on 14 December 1960, on a motion which, predictably, failed, asking the government to “take such steps as are possible to ban for all time writings of this nature, particularly those of the author of this book”. The progenitor of this motion, Lord Teviot, was a career soldier and had been a member of an unequivocally anti-Semitic group of establishment figures formed in 1939. He said:
Everyone who has written or spoken to me takes the strongest possible view about this situation, and disapproves of allowing this book to be accessible to family or respectable society. To-day I am an old man [He was 86]. In the earlier days of my life …. I mixed with tough fellows on the frontiers of the Empire, and also through the war; but there is nothing that has been said during my life, nothing that has been brought to my notice, that touches the horrible state of affairs which I see in this situation to-day. We must do something about it.
The bishop of St Alban’s, who advocated a “decent reticence” in giving adolescents the opportunity to read the book, reflected a churchman’s anxiety at what now seem the innocuous entertainments of the times:
Young people growing up in 1960 have, besides novels, a choice of many stimulants — magazines and comics, strip-tease, dance fever, violence shown on the cinema and T.V. This book must be seen and considered in that wide context.
Another supportive voice (although not for an outright ban) was that of Lord Amwell, formerly an MP from a working-class background who represented (then working-class) Islington. He said:
I do not understand the moderns — these people who call themselves modern and whose standards of value seem to be governed by clocks and railway timetables. … These modernists are the people who talk about Anglo-Saxon literature and Anglo-Saxon words. In my youth I did some study of English literature, and I do not remember those words. I dare say there were some words equally bad, but I certainly do not remember those particular words in any Anglo-Saxon literature that I read. But it is easy to say things like that. Anyhow, why go back to the Anglo-Saxons? Why not go back to the ancient Britons or to the citizens of Sodom and Gomorrah? It would not make any difference to the argument.
Reading through the speeches in Hansard, it’s impossible not to both wince and laugh as Lord Amwell argues against the merits of Lady Chatterley’s Lover and the absence of any reason
as Whistler said about certain painters, for flinging a pot of paint in the faces of the multitude
— only to be interrupted by another Lord pointing out: “It was Ruskin”.
Most memorable of all, perhaps, is the Earl of Craven, excoriating “unscrupulous publishers” and “woolly-headed intellectuals”, and taking up the promotion of spiritual values in the language of a jingle from the new consumer society, saying:
If Omo [a widely-sold laundry detergent] adds brightness to material whiteness, we surely need a spiritual detergent for the mind.
Omo or no Omo, this passage from his speech leaves an indelible image of a man, as impotent to turn back the tide as King Canute, confronting mid-20C modernity as it literally rushed towards him at speed, in a self-service restaurant on Britain’s first, newly-opened motorway:
I made a trip up the M.1 the other day, on my way to Manchester, and stopped at Forte’s restaurant, which spans the motorway. It was the day that Lady Chatterley’s Lover was on sale to the public and there, at every serving counter, sat a snigger of youths. Every one of them had a copy of this book held up to his face with one hand while he forked nourishment into his open mouth with the other. They held the seeds of suggestive lust, which was expressed quite blatantly, by glance and remark, to the girls serving them. That I saw with my own eyes.
I was less than a year old, too young to read or speak, or enjoy any stimulant other than mother’s milk, at the date of the trial of Lady Chatterley’s Lover, but even sixteen years later my father, an educated man of generally progressive views, made ridiculous attempts to hide the Penguin edition he and my mother had bought in the 1960s and no doubt read. I was about to start English A level, for which we studied The Rainbow, a novel with many similar themes and industrial-and-pastoral Midlands setting to Lady Chatterley’s Lover. Earlier that year, I’d spent a happy Friday afternoon at school, finding an abandoned copy of Sons and Lovers in the changing room for games, and spending the next few hours peacefully ‘keeping’ goal in an incomplete lacrosse team made up of other hopeless rejects, reading it undisturbed.
D H Lawrence’s novels appear less prominent amongst A level set texts now, but the book and the trial have reappeared in the news this week with the announcement that the government has imposed a temporary export bar on the copy of the book used by the judge himself during the trial. In an echo of the trial itself, this is a decision influenced by the judgment of experts: the eight members of the Reviewing Committee on the Export of Works of Art and Objects of Cultural Interest, a panel which advises the government whether to refuse export licences for objects of cultural interest, are experts in arts and culture.
Part of the point of Penguin books publishing Lady Chatterley’s Lover as a paperback priced at 3/6 (17.5p in decimal currency) was to contribute to the democracy of reading — each reader’s cheap paperback edition widely available and identical to the next, so why should the copy in the hands of the judge be thought worth preserving? The reason is that this copy contains annotations made by the judge, and notes written by his wife, Lady Byrne, who helped her husband by reading the book and marking up a list of pages which she summarised with comments on the content, and who exercised a now-obsolete privilege of sitting in court with her husband on the judicial dais as the trial took place. Thomas Grant comments
To modern eyes, it is an extraordinary fact that Byrne was joined on the bench by his wife, Lady Byrne, who remained there throughout the trial. Jeremy [Hutchinson] explains that it was at the time unremarkable for judges to be sometimes accompanied during trials by their wives, or even on occasion a friend, though it is baffling that this judge should want to subject his wife to the salacious material that the trial would inevitably rake over. Jeremy remembers Lady Byrne, seated beside her husband with her arms crossed, glaring down at him, a grim and disapproving spectator.
By coincidence, Lady Byrne, then Dorothy Tickell, and her husband, then a rising criminal barrister, had married in 1928, the same year that D H Lawrence’s novel was first published, privately, in Florence. Lady Byrne’s notes were handwritten on the headed stationery of the Central Criminal Court (the Old Bailey) and consisted of a list of significant passages, with page numbers — “love making”, “coarse”, etc — Lady Byrne unsurprisingly refraining from the insistent “fuck” and other simple English words that Lawrence purposefully used in his writing, and which the prosecution counted up to build their case on obscenity. Lady Byrne’s other contribution to her husband’s involuntary possession and reading of Lady Chatterley’s Lover was to sew a blue-grey damask bag with blue ribbon tie, in which he could carry the book to and from court and preserve his modesty as an otherwise improbable reader of the novel. It’s impossible not to wonder, with a coincidental echo of the pre-1959 Act hypothetical fourteen year old schoolgirl whose mind might be open to depravity and corruption, whether this bag might have followed the pattern of something similar sewn by Dorothy at her menarche, or later, as a young working woman, to preserve the modesty of her Edwardian sanitary protection from public gaze as she went about her day, menstruation then being a subject no more mentionable in public than the “coarse” scenes in D H Lawrence’s novel. Indeed there are further parallels between accounts of people concealing embarrassing purchases of the unexpurgated book in 1960, and of the first commercially produced “sanitary napkins” in the 1920s (a by-invention of the First World War, when nurses on the Western Front discovered the qualities of disposable wood pulp bandages for staunching the flow of blood). A correspondent to the Guardian on 16 May 2019 wrote:
and newspapers reported that not all bookshops would display it openly — W H Smith’s policy was not to do so, but to supply it to any customer who asked for it. Author Annabel Abbs reports being told of a woman’s first glimpse of Lady Chatterley’s Lover, in the hands of a teacher who had wrapped it in brown paper, but the paper slipped off, to the shock of her class of 15 year old girls. All very similar to the plain packaging and ambiguous brand names adopted by the early manufacturers of “sanitary napkins”, and elaborate arrangements they offered for women to purchase them by means of handing the shop assistant a slip of paper or putting money in a box rather than asking out loud for the unmentionable product.
Nor is Lady Byrne the only person to have been moved to needlework by Lady Chatterley’s Lover — in 2017, designer Paul Smith produced a needlework cover design for the book for Nottingham University’s D H Lawrence collection, depicting the pubic hair, from which Lady Byrne averted her eyes, in little silk-embroidered lilac and purple forget-me-nots. This image illustrates a passage in the book which had been described in the 1960 House of Lords debate by Lord Hailsham in language of the kind which inevitably makes serious lawyers, who have from time to time to describe art or popular culture in legal prose, sound quite ridiculous:
I cannot conceive of anything more calculated to arouse the sniggering and offensive attitude to sex, which Lawrence particularly disliked, than Mellors’ lengthy, and to my mind ridiculous and offensive, apostrophe to a portion of his own anatomy in a local dialect… I could also refer to the long and, to my mind, highly ludicrous passage in which the lovers entwined wild flowers in each other’s bodies. I do not believe that this is the stuff of which great literature is made.
To return to 1960, Lady Byrne must by then have known the Old Bailey well and felt as if she had been both born and married into it. Her husband had been a successful criminal barrister, and before that her father, Joseph Tickell KC, likewise, for many years holding the medieval-sounding title of Clerk of the Arraigns at the Old Bailey. Her brother, also Joseph, was deputy clerk of the Old Bailey in the 1930s, and his middle name, Avory, was the surname of a well-known and feared criminal judge of his father’s day, who had himself been the son of a clerk at the Old Bailey. Joseph Tickell the older and Horace Avory were close contemporaries and would have known each other very well. Perhaps Avory was young Joseph’s godfather, duly honoured with the use of his surname, but whether he was or not, Dorothy’s father & Horace Avory must have shared endless stories of the Old Bailey as they knew it, from the mid-1870s onwards, as a theatre of crime and punishment, where the only fabric accessory a judge carried was a black cap for pronouncing the death sentence on those condemned to hang. A 1915 newspaper obituary (from the Penrith Observer © British Newspaper Archive) of Dorothy’s father recorded
Mr. Joseph Harkness Tickell . . . was called to the Bar in 1873 and went to the Western Circuit; but in the discharge of his duties in the Old Bailey and its handsome successor [the present building, opened in 1907] he must have been one of the most familiar officers of justice to Londoners. In appearance he had a marked Pickwickian aspect, and his disposition and gifts were of a similar order. He always wore his wig tilted forward sideways on his right eyebrow, and his pince nez (of an ancient and honourable pattern) invariably rested on the extreme end of his nose. His voice had a fierce note which struck terror into prisoners, and many were heard to answer him tremblingly as “ My Lord.” But “ Joe Tickell,” as he was always called, was a man of fine and varied sensibility. He looked like a bit of old English oak, gnarled and sturdy, but he had a kind heart and was a wag of no uncommon order. For the good things of this world, which he had countless opportunities of cultivating during his long service, he had a rare and immense taste. An authority on beverages, he would have rivalled Dr. Middleton in counsel as to good port.
Born in the autumn of 1894, Dorothy Tickell had grown up in London, in a mansion flat by Battersea Park, crossing the Thames to attend Chelsea Secondary School between the ages of 13 and 16, and then what appears to have been a finishing school abroad. Both her parents having died, in the decade between the First World War and her marriage to Laurence Byrne she lived independently in “ladies’ residential chambers” in York Street in the West End, a place purpose-built for educated working women to live a kind of collegiate life, in the recognisable architectural style of other women’s Edwardian educational institutions, such as Newnham College, Cambridge, and St Paul’s Girls’ School, London. Its history is described in this interesting blog by Elizabeth Crawford. The Marylebone electoral register for 1920 records Dorothy’s residence, together with the names of the Agneses and Phyllises and other middle-class young unmarried women who lived there then. Many of them, women who came of age during the First World War, would have lost brothers, sweethearts, fiancés and husbands in the slaughter of a generation of young men, and many would never marry, such was the shortage of men in the post-war years. In the borough of Marylebone alone, there were over 20,000 more women than men in 1921, and half of the women in the borough were unmarried. It’s a melancholy reflection that the war which inflicted this unimaginable loss should also have brought these young women greater freedom to be active outside the home without a monthly fear of bleeding visibly through their clothes. Although Dorothy Tickell’s brother survived his military service, she might well have been one of those who mourned a lost lover in the Great War and wondered if she would ever marry, for she was in her early 30s when she married Laurence Byrne. As she read Lady Chatterley’s Lover, a novel in which the central character was exactly her own age, she surely must have thought of her own post-war life as a young women — like the fictional Lady Chatterley, a young woman of London’s “well-to-do intelligentsia”, living amongst many with similar lives. However “coarse” she found D H Lawrence’s writing about sex, Lady Byrne must have been one of the few, if not the only, woman in the court room who knew what it had been like to be a young woman with little or no hope of any sort of sex life after the first World War
Such are the few known facts about the life of the woman who annotated Lady Chatterley’s Lover and created the damask bag for it for her husband.
Should this trial ephemera be preserved in some public collection in England? I think it should. It is a record of the moment, and of the people present in the court room, and of a woman who sat at the right hand of the judge to whom she was married, in the sight of the lawyers, witnesses and jury throughout the trial, but without a speaking role in it. There is little or nothing about many trials which remains tangible or accessible to non-participants after they have ended. Material objects like this can stimulate interest in the history of the law and a better understanding of it. These notes, the annotated book and Lady Byrne’s damask bag are eloquent fragments from a turning point in legal and cultural history, and surely belong to the English public no less than Lady Chatterley’s Lover itself.
© Barbara Rich 2019, published 16 May 2019, minor amendments 17 May
English PEN is fund-raising to keep these objects in England — a link to the fund-raising page is here.
  Crim LR 176
 An old-fashioned expression which itself “came of age” at the very end of the 1960s, when the age of reaching adulthood was changed from 21 to 18 by the Family Law Reform Act 1969
 In his summing up in R v Martin Secker & Warburg Ltd  1 WLR 1138, the 1954 prosecution of the publisher of the novel “The Philanderer” by the American writer Stanley Kauffmann, Mr Justice Stable told the jury that they were not to take their literary standards as being the level of something suitable for a fourteen-year-old school girl but to recognise that even if literature was unsuitable for adolescents, the publisher was not guilty of a criminal offence by offering the book to the general public.
 The 19C case of R v Hicklin (1868) LR 3 QB 360 articulated a common law test of whether an obscene publication had ‘a tendency to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall’
 Reported in The Times October 7 1953
 Quoted from the summing-up in the Daily Mirror 3 November 1960
 Thomas Grant: Jeremy Hutchinson’s Case Histories p.131, published by John Murray 2015
 In giving evidence, Richard Hoggart, senior lecturer at Leicester University was asked about the genuineness and necessity of the “four letter words” in the book. He answered “Fifty yards from this Court this morning I heard a man say ‘fuck’ three times as he passed me.”