R Vs Penguin Book Case

This Final Draft is Submitted in fulfillment in the subject of Law and Literature
for B.A., LL.B. (Hons.) for the Second Semester.

Submitted to: Submitted by:

DR. PRATYUSH KAUSHIK Jahanvi

Professor of Law and Literature Roll: 2734

B.A., LL.B.(Hons.)

Semester: 2nd

Chanakya National Law University,

Patna February, 2023

1
 DECLARATION BY THE CANDIDATE

I , JAHANVI student of Chanakaya National Law University , Patna hereby declare that the project
work entitled “R Vs Penguin Case Law ” submitted to the Chanakaya National Law University,

Patna is a record of an original work done by me under the guidance of Dr. Pratyush Kaushik
teacher in subject Chanakaya National Law University, Patna.

JAHANVI
2ND SEMESTER
ROLL NO.- 2734
B.A., LL.B. ( HONS.)
2022-2027

2
 ACKNOWLEDGEMENT

I give all the honour and glory to God Almighty, who gave me the grace to complete this project. I
acknowledge with great appreciation, my professor, Dr Pratyush Kaushik for his guidance and
commitment to the success of his work, despite the large workload on his table. I am grateful to you
sir.
I also appreciate with great joy my parents, the best parent on the face of the planet, who ensures
my success academically. Thank you for your support spiritually, financially and morally.
I owe the present accomplishment of my project to our CNLU librarians, who helped me
immensely with materials throughout the project and without whom I couldn’t have completed it in
a present way.
I would also like to extend my gratitude to my friends and all those unseen hands that helped me out
at every stage of my project and for accommodating my trouble during the writing period of this
project. God bless you all.

Thank You ,

JAHANVI
2ND SEMESTER
ROLL NO.- 2734
B.A., LL.B. ( HONS.)
2022-2027

3
 Contents
DECLARATION BY THE CANDIDATE..................................................................................................2
ACKNOWLEDGEMENT.................................................................................................................................3
Chapter 1 : Introduction...............................................................................................................................5
Chapter 2 : Legislative and Legal Backgrounds..........................................................................................6
Chapter 3 : Publication History...................................................................................................................7
Chapter 4 : Trial..........................................................................................................................................8
Counsels' opening addresses................................................................................................................8
Bishop of Woolwich............................................................................................................................9
Richard Hoggart..................................................................................................................................9
Chapter 5 : Legal and Cultural Consequences...........................................................................................10
Chapter 6 : The Arguments.......................................................................................................................10
Chapter 7 : Conclusion..............................................................................................................................12
Bibliography :............................................................................................................................................14

4
INTRODUCTION:
R v. Penguin Books Ltd (“Regina versus Penguin Books Limited”) was the public
prosecution at the Old Bailey of Penguin Books under the Obscene Publications Act for the
publication of D. H. Lawrence’s Lady Chatterley’s Lover. The trial took place over six days
from 20 October to 2 November 1960.
Lawrence’s novel had been the subject of three drafts before being published privately in
1928 in Italy, and in 1929 in France and Australia. Some months later, both US customs and
Scotland Yard. confiscated imported copies of this edition.
An unabridged edition was not published openly in the United Kingdom by Penguin until
1960, thirty years after Lawrence’s death.
In 1959 the Obscene Publications Act made it possible for publishers to escape conviction if
they could show that a work was of literary merit, in “the interests of science, literature, art or
learning, or of other objects of general concern”.
In August 1960 the attorney general, Reginald Manningham-Buller read the first four
chapters of Lady Chatterley’s Lover on the boat train to Southampton and wrote to the
director of public prosecutions approving the prosecution of Penguin Books (“I hope you get
a conviction”). Maybe, the key factor in the decision to prosecute was that Penguin proposed
to sell the book for 3/6; in other words, to put it within easy reach of women and the working
classes, which the upper-middle-class male lawyers and politicians of the time refused to
tolerate.
The trial was a major public event and a test of the new obscenity law. With two different
worlds facing each other across a packed court, Penguin was firmly on the side of the
common man.
Various academic critics and experts of diverse kinds were called witnesses. Judges in 1960
regarded themselves as the custodians of moral virtue and the prosecutors were complacent:
they would have the judge on their side, and a jury comprised of people of property,
predominantly male, middle-aged, middle-minded, and middle-class.
The defense attorney addressed the jury in powerful but straightforward language, respecting
them but never condescending or playing obviously to their sympathy. He firmly indicated
that they, not the judge, were responsible for the verdict, and the unanimous verdict,
delivered on 2 November 1960 after three hours of deliberation, was “not guilty”.
No other jury verdict has had such a deep social impact as the acquittal of Penguin Books,
which quickly sold 3 million copies. This is an example of what many years later was

5
described as “the Spycatcher effect”, by which the attempt to suppress a book through
unsuccessful litigation serves only to promote huge sales.

LITERATURE REVIEW:
1. D. H. Lawrence, Lady Chatterley’s lover, ReadHowYouWant, 2008
This book, Lady Chatterley's Lover (1928) was published in Florence and immediately
banned around the world. This last and most famous of Lawrence's novels is the explicit
account of the affair between Lady Constance and her husband's gamekeeper. This book
gives us reasons for the ban of the book and is the root cause of this case.

RESEARCH OBJECTIVES:
1. To critically analyze the notion of the people of that time?
2. To examine the findings of the case?

RESEARCH QUESTIONS:
1. What was the Penguin Books obscenity trial?
2. What was so obscene about Lady Chatterley's lover?

HYPOTHESIS:
1. Lady Chatterley’s lover book doesn’t contain any obscene content.
2. The people of that time were in the favor of the book.

SCOPE AND LIMITATION:

The researchers intended to study the root cause, consequences, and impact of this case.
However, researchers do not cover the scenario of today’s world related to obscene acts.

6
 RESEARCH METHODOLOGY
 Sources of Data:
1. Books and Publications
2. News Articles
3. Journals
4. Internet sources: websites
 Primary and secondary sources:
The Researcher has used secondary sources of data or Doctrinal Methods majorly because of
the dearth of Non – Doctrinal methods / Empirical Research.
 Mode of citation:
The researcher has followed the 20th edition of the Bluebook for citation.

Legislative and Legal Backgrounds

The Obscene Publications Bill was first put before the UK Parliament in 1955 as a private
member's bill on the recommendation of the Herbert Committee 1 in response to what was
seen as the failure of the existing common law offence of obscene libel23. 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
defence 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 defence of innocent
dissemination, gave publishers a right of defence against a destruction order, provided the
right of appeal, and limited the penalty of conviction. The Act came into force on 30 August
1959.

1
At the instigation of the Society of Authors. Penguin had previously run the risk of prosecution for obscene
libel with the publication of Germinal and The Decameron, Hare, S. (1995). Penguin Portrait. pp. 231–236..
See "Obscene Publications". Parliamentary Debates (Hansard). Vol. 533. House of Commons. 22 November
1954. col. 1012–1020.
2
Obscene Publications Bill (Second Reading)". Parliamentary Debates (Hansard). Vol. 546. House of
Commons. 25 November 1955. col. 1883–1892.
3

7
The Director of Public Prosecutions (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. That August, US customs
confiscated imported copies of this edition, as indeed did Scotland Yard. Although The First
Lady Chatterleypublished by the Dial Press in 1944 was declared obscene by a US court
(overruled several months later), it took 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.

On 18 March 1960 the Chief Constable of Peterborough wrote to the DPP seeking advice
regarding the imminent publication of the book, [6] though there was no evidence of
publication at this time. On 16 August Penguin presented 15 copies to D.I. Monahan; legal
proceedings were instituted, and a summons was issued on 25 August at Bow Street
Magistrates' Court.

Trial
Counsels' opening addresses

Prosecuting, Mervyn Griffith-Jones began by urging the jury to decide if the book was
obscene under section 2 of the Act and if so whether its literary merit provided for 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

8
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 defence.

Gerald Gardiner outlined the case for the defence: 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 defence then called 35 witnesses to testify to the artistic, sociological and moral value of
the book. The prosecution called two witnesses; DI Monahan and Stephen Webb from
the Board of Trade.

Bishop of Woolwich

The defence called Dr John Robinson, the 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 said that while Lawrence’s view was not Christian his intention "is to
portray the sex relationship as something essentially sacred." 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." Pressed by
Griffith-Jones on whether the book had any instructional value the Bishop admitted it did not
but, asked by 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

9
justified. Nevertheless, the Bishop’s statement led to 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 defence
examination, Hoggart was asked about the purpose of the obscene 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."

Cross-examining for the prosecution, 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 and Cultural Consequences

Lord Teviot moved for the Second Macmillan ministry to ban all such publications on 14
December 1960; peers exchanged 18,770 words but voted down his motion on an aye/noe
(spoken) vote. An aye vote would have needed Commons backing to make legal change.

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, publicly clashed as
rarely before – to the confusion of more conservative attitudes. On the far side of that

10
watershed and largely as a consequence, the favoured story continues, we had the Permissive
Society.

The Arguments

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 defence was not justified in calling evidence to prove that
there was no intent to deprave and corrupt, that defence 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', Gardiner began by
recapitulating the testimony of the defence 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,

11
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 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 anal sex, then a criminal act in
England and Wales, which (though Griffith-Jones didn't belabour the point), had it been
examined more closely, might have been damning to the defence case that the book was not
obscene.

After three hours of deliberation the jury returned a unanimous verdict of not guilty.

12
CONCLUSION

R v. Penguin Books Ltd (“Regina versus Penguin Books Limited”) was the public
prosecution at the Old Bailey of Penguin Books under the Obscene Publications Act for the
publication of D. H. Lawrence’s Lady Chatterley’s Lover. The trial took place over six
days from 20 October to 2 November 1960 Lawrence’s novel had been the subject of three
drafts before being published privately in 1928 in Italy, and in 1929 in France and Australia.
Some months later, both US customs and Scotland Yard. confiscated imported copies of this
edition. An unabridged edition was not published openly in the United Kingdom by Penguin
until 1960, thirty years after Lawrence’s death. In 1959 the Obscene Publications Act had
made it possible for publishers to escape conviction if they could show that a work was of
literary merit, in “ the interests of science, literature, art or learning, or of other objects of
general concern”. In August 1960 the attorney general, Reginald Manningham-Buller read
the first four chapters of Lady Chatterley’s Lover on the boat train to Southampton and wrote
to the director of public prosecutions approving the prosecution of Penguin Books (“I hope
you get a conviction”). Maybe, the key factor in the decision to prosecute was that Penguin
proposed to sell the book for 3/6; in other words, to put it within easy reach of women and the
working classes, which the upper-middle-class male lawyers and politicians of the time
refused to tolerate. The trial was a major public event and a test of the new obscenity law.
With two different worlds facing each other across a packed court, Penguin was firmly on the
side of the common man Various academic critics and experts of diverse kinds, were called
as witnesses. Judges in 1960 regarded themselves as the custodians of moral virtue and
the prosecutors were complacent: they would have the judge on their side, and a jury
comprised of people of property, predominantly male, middle aged, middle minded and
middle class. The defense attorney addressed the jury in powerful but straightforward
language, respecting them but never condescending or playing obviously to their sympathy.
He firmly indicated that they, not the judge, were responsible for the verdict and the
unanimous verdict, delivered on 2 November 1960 after three hours of deliberation, was “not

13
guilty”. No other jury verdict has had such a deep social impact as the acquittal of Penguin
Books, which quickly sold 3 million copies . This is an example of what many years later was
described as “the Spycatcher effect”, by which the attempt to suppress a book through
unsuccessful litigation serves only to promote huge sales.

BIBLIOGRAPHY:

1. D. H. Lawrence, Lady Chatterley’s lover, ReadHowYouWant, 2008

2. Famous cases: R v Penguin Books, brightknowledge,
https://brightknowledge.org/law/famous-cases-r-v-penguin-books#:~:text=Famous
%20cases%3A%20R%20v%20Penguin%20Books (31st Jan 2023, 4:05 PM)
3. At the instigation of the Society of Authors. Penguin had previously run the risk of
prosecution for obscene libel with the publication of Germinal and The
Decameron, Hare, S. (1995). Penguin Portrait. pp. 231–236. See "Obscene
Publications". Parliamentary Debates (Hansard). Vol. 533. House of Commons. 22
November 1954. col. 1012–1020.

4. Obscene Publications Bill (Second Reading)". Parliamentary Debates (Hansard).

Vol. 546. House of Commons. 25 November 1955. col. 1883–1892.

14