Theatre Censorship – 35: How Mrs Whitehouse got her knickers in a twist, or The Romans in Britain trial (Part 2)

Ian Kennedy QC in 1987

Ian Kennedy QC in 1987

The trial itself spread over the four days from 15th – 18th March 1982. Press and media coverage was enormous. The case divided the public, with perhaps more support for Mary Whitehouse than she usually earned in her campaigns, but still with most people in favour of the defence. On the first day, the prosecuting counsel, Ian Kennedy QC, who had taken over from John Smyth, who contracted a virus, put his case. He was most concerned to emphasise certain facts, including that the act took place in the centre of the stage in full light, implying that not only was the act particularly blatant, but also that his witness, Mr Ross-Cornes, could not be mistaken in what he saw. Kennedy also insisted that the charge was nothing to do with theatrical freedom but with gross obscenity. He emphasised, and Ross-Cornes agreed, that the fact that the audience was asked to believe that penetration was not complete, nor was the act being simulated carried to its normal physical completion, was totally irrelevant to the case. Similarly, he insisted the question of whether the play tended to deprave and corrupt, or whether it was in good or bad taste did not matter, and nor did the unquestioned fact that the performance did not take place for the sexual gratification of either the actors or the audience. As Kennedy summed up, and as reported in the Daily Telegraph on 16th March 1982: “that makes no difference, the law prohibits the commission of the act of gross indecency and it doesn’t examine the act that is done.”

Lord Hutchinson cross-questioned Ross-Cornes during the first and second days of the trial. The witness denied that he went to the play intending to view it in the worst possible light. He also denied confusing the actor’s penis with his thumb, an undeniably most important distinction under the circumstances. This was also relevant to Bogdanov’s stated difference between the simulation of homosexual rape and the illusion of it. Ross-Cornes told the court that he had not known that 99% of cases brought under the Sexual Offences Act involved the motive of sexual gratification.

Jeremy Hutchinson

Jeremy Hutchinson

However, Hutchinson’s chief line of questioning concentrated on whether or not Ross-Cornes differentiated between an act of gross indecency on the street and on the stage. All along Ross-Cornes admitted that he did not differentiate between the two. Although he conceded that three young men walking naked on a stage does not contravene any laws whereas if they were walking in the street they would be breaking the law, he thought there was no difference in the degree of obscenity between a man and a woman making love on a street and in a film or on a stage. Nor did he discriminate between bad language spoken by invading soldiers and by guests at a church tea party, nor between bad language on stage and the same words printed in a book. At the end of the second day Lord Hutchinson repeated: “Do you still stick with the idea that the thirty-second rape scene would be just the same in impact as if it had happened by itself in the street?“ Ross-Cornes’ reply was unchanging as ever: “What I intended to say was that it would be just as grossly indecent on the stage as in the street”.

To the great surprise of legal commentators – again – on the third day the judge not only threw out Lord Hutchinson’s submission that no triable offence had been committed, he also agreed that there was no difference between a simulated act on stage and a real one. This pronouncement astounded the theatrical profession who had always assumed that the presence of the stage meant that drama was obviously “unreal”. Peter Hall stated on the Artsweek programme: “I am sure there is a statute which says that you mustn’t run crap games on a pavement in the middle of the town, and somebody could actually prosecute us for doing “Guys and Dolls”, because the law has also… during this trial… said that what happens on the stage and what happens in life is one and the same thing which… is not true. The theatre is not life, it’s imitation.” Such a judgment, taken in isolation, certainly seems to threaten basic theatrical freedom, and the outrage expressed by the theatrical profession was the panicky cry of people fighting for their livelihood.

However, the surprises provided by this case did not end there. The judge’s decision on whether or not the Sexual Offences Act was applicable in this case was paramount; if he decided that it was not, then the case would have to be dropped, and if not, the case could go ahead. Having decided that the act was applicable, the prosecution lawyer decided to withdraw the case. This, of course, begged the question “why”, and naturally many rumours instantly started spreading that the bottom had fallen out of the case and that Ian Kennedy had decided to withdraw because he knew he had no chance of winning. However, the judge’s opinion patently precludes this possibility. In Mary Whitehouse’s words, as she wrote in her book A Most Dangerous Woman?, “we had established a very important legal verdict and there seemed to me absolutely no point in prolonging Michael Bogdanov’s agony.”

According to the strict terms of law, it is not permitted for a private prosecution to be withdrawn after the presiding judge has decided that a triable offence has been committed. However, this transgression is only minor in comparison with the legal errors made on all sides of this lawsuit. The judge would not have allowed the prosecution lawyer to withdraw, apart from the fact that the defence counsel had told Bogdanov of this fact and that by means of this by-pass, the judge’s own role had been disregarded. The Attorney-General had been consulted and had decided to issue a nolle prosequi on the case. There followed further confusion and consternation, because at the time there was a good deal of legal debate as to what the exact meaning of a nolle prosequi was. Strictly speaking it is as though the case never existed and any penalties or personal judgments made in it are negated, a little like an annulment of a marriage.

However, nobody could decide whether other rulings should stand, and so nobody could decide whether the Sexual Offences Act could be brought in to prosecute a similar play in the future. NVALA insisted that the judge’s ruling did provide a precedent; Equity rather thought that it did not, but that it was reasonably likely that, given the same circumstances all over again, that the Sexual Offences Act could successfully be invoked. However, the Attorney-General cleared up most of the confusion in the House of Commons when he stated his intention behind issuing a nolle prosequi was that the judge’s ruling should apply in future cases. Doubtless if any such cases were to take place, the defence counsel would contest this in court.

At any rate, Michael Bogdanov came away from the trial without a slur on his name, and in fact he probably benefited a little from this succès de scandale. He was certainly relieved that the case against him was dropped, but he was also annoyed that he never got the chance to defend his actions, or to justify the exclusion of the theatre from this kind of law. It was ironic that, as the man at the centre of the trial, he remained silent throughout. However, he determined to join the Theatre Defence Group’s fight to amend the Theatres Act so that a prosecution like this could not be brought again.

Next Tuesday, 25th September, it will be exactly 50 years since theatre censorship was abolished. Come back then for my final blog post on the subject!