IN the Summer 2002 issue of the Gay and Lesbian Humanist, BRETT HUMPHREYS provided a comprehensive account of events before, during and after the notorious Gay News trial.
JULY 2002 sees the twenty-fifth anniversary of the extraordinary trial of the fortnightly newspaper Gay News and its editor, Denis Lemon, on a charge of blasphemous libel brought by Britain’s best-known vigilantist of the day, Mary Whitehouse – co-founder and leading light of the National Viewers’ and Listeners’ Association (NVALA, now known as Mediawatch-uk), and once dubbed “Director of Private Prosecutions” because of her propensity for such litigation.
The story begins in May 1976, when NVALA obtained legal advice on a plan to resurrect the common law offence of blasphemy by prosecuting the BBC over an item in the television satire Beneath the News – so it was revealed three years later by Mike Tracey and David Morrison, who had access to Mary Whitehouse’s private archive while conducting research for two planned books on her and her organisation. Robert Ward QC suggested that a private prosecution was preferable in order to retain control over such a case, but advised waiting for something more “grossly offensive”. Mary Whitehouse followed his advice.
Meanwhile, at the west London offices of Gay News, Denis Lemon was preparing to publish the now famous poem The Love That Dares To Speak Its Name, written several years earlier by the well-established poet and academic James Kirkup. The poem duly appeared on page 26 of issue 96 dated 3 June 1976, accompanied by a drawing by the paper’s regular freelance illustrator Tony Reeves.
It wasn’t the first of Professor Kirkup’s poems to appear in Gay News – his Elegy for Pier Paolo Pasolini had been printed just six weeks earlier – but as a necrophilic fantasy about the death of Jesus of Nazareth it proved to be the more controversial, provoking letters from gay Christians decrying it as “blasphemous” in the next two issues, followed by some counter-reactions wondering what all the fuss was about.
On the surface the dust seemed to settle, although blasphemy remained a hot topic that long dry summer, peppered with vigilantist campaigns trying to prevent the Danish filmmaker Jens Jørgen Thorsen from coming to Britain to make a film about the sex life of Jesus. A Gay News editorial on the subject innocently proclaimed:
In case Gay News readers are in any doubt, there is no such crime as ‘hurting people’s feelings’.
It was indeed widely assumed that the law of blasphemy was a dead letter – after all, Lord Denning had said so in 1949. The law had not been successfully invoked since John W Gott satirised the biblical story of the entry of Jesus into Jerusalem (Matthew 21:2-7), which is based on a literal interpretation of the prophecy that the King of Zion would come “riding upon an ass, and upon a colt the foal of an ass” (Zechariah 9:9).
Gott received the draconian sentence of nine months’ imprisonment with hard labour, which he served in 1922 after losing his appeal. But in a letter to The Times (3 November 1976), Mary Whitehouse ominously wrote: “Although broadcasting is exempt from the Obscene Publications Act, we are advised that broadcast blasphemy is a common law offence and that, though dormant, the relevant law is still operative.”
Around the beginning of November 1976 Mary Whitehouse received a copy of James Kirkup’s poem from a source she refused to identify. On 30 November, having failed to obtain the backing of church leaders, she announced her intention to launch a prosecution herself.
Under Section 8 of the Law of Libel Amendment Act 1888, intended to protect newspapers from vexatious litigation, this required the leave of a judge in chambers. Leave was granted on 9 December to proceed against Gay News Ltd and Denis Lemon for publishing, and Moore Harness Ltd for distributing:
A blasphemous libel concerning the Christian religion, namely an obscene poem and illustration vilifying Christ in his life and in his crucifixion.
The charge against the distributor was subsequently dropped.
By a legal manoeuvre described by Francis Bennion in a letter to The Times (17 June 1977), the prosecution bypassed committal proceedings in a magistrates’ court and the trial opened before Judge Alan King-Hamilton QC in the Central Criminal Court (Old Bailey) on Monday 4 July 1977, with John Mortimer QC and Geoffrey Robertson as counsel for the defence and John Smyth representing Mary Whitehouse.
Most of the week was taken up with legal argument as the judge systematically rejected each of the defence’s submissions: he disallowed expert literary witnesses; he disallowed expert theological witnesses; he even refused to let Denis Lemon explain his intention in publishing the poem. In the end, the defence was left with only two witnesses – novelist Margaret Drabble and journalist Bernard Levin – who were allowed to testify to the good character of the paper.
The sole witness for the prosecution was Kenneth Kavanagh, a probation officer, active campaigner against gay rights, and head of the Parents Advisory Group a Bedford-based pressure group concerned with sex education.
[The Parents Advisory Group is now the homophobic Family Education Trust]
He said he had bought a copy of Gay News 96 at a St Pancras bookstall in order to read the front-page report headlined “Probation Officers campaign for gays”. He subsequently gave it to Valerie Riches, Secretary of the Responsible Society (later renamed Family and Youth Concern), another organisation specialising in sexual morality.
The judge – who later wrote in his autobiography And Nothing But The Truth (1983) that during the trial he felt “half-conscious of being guided by some superhuman inspiration” – made his own views clear in his summing-up. The jury, however, were unable to come to a unanimous decision after five hours’ deliberation, notwithstanding the attempts of Mary Whitehouse and her associates to influence the outcome by praying very publicly in the precincts of the courtroom for a verdict in their favour.
In the end, by a majority of 10 to 2, on Monday 11 July the jury returned a verdict of guilty on both defendants. The following day the judge fined Gay News Ltd £1,000 and ordered it to pay four-fifths of Mary Whitehouse’s costs. He fined Denis Lemon £500, sentenced him to nine months’ imprisonment suspended for 18 months, and ordered him to pay the remaining fifth of Mary Whitehouse’s costs (which, when the bill eventually arrived, were found to total £7,763). It had been “touch and go”, said the judge, whether he would actually send Denis Lemon directly to jail.
Gay News Ltd and Denis Lemon soon began an appeal against both conviction and sentence, alleging a catalogue of misdirections and errors in law by the judge. The four-day appeal hearing at the Royal Courts of Justice was eventually scheduled to start on 13 February 1978. Despite reports that one of the three Appeal Court judges was to be the reactionary Mr Justice Melford Stevenson – famously reprimanded a few months later by Lord Chancellor Elwyn Jones for calling the Sexual Offences Act 1967 a “Buggers’ Charter” – in the event the appeal was heard by Lord Justice Roskill, Lord Justice Eveleigh and Mr Justice Stocker.
On 17 March, in a one-and-a-quarter-hour judgment read by Lord Justice Roskill, they quashed Denis Lemon’s suspended prison sentence but otherwise unanimously rejected all the grounds of appeal. They ordered Mary Whitehouse’s appeal costs to be paid out of public funds.
In a straw poll, Gay News reported that readers had voted by a majority of over twenty to one in favour of carrying the appeal on to the House of Lords. Gay News Ltd and Denis Lemon accordingly lodged a petition for leave to appeal. In November 1978 five Law Lords spent a week considering the arguments and legal precedents, with Louis Blom-Cooper QC and Geoffrey Robertson representing the appellants and John Smyth again appearing for Mary Whitehouse.
By this stage the issue had been narrowed down to the question of mens rea – the legal term for the mental element of a crime. The appellants contended that intention to do wrong was an essential ingredient of the crime of blasphemy, as of most other crimes; the respondent contended (and the trial judge and Appeal Court judges had agreed) that it was not.
In February 1979, at the Law Society, Alan King-Hamilton delivered the sixth Winston Churchill Memorial Lecture which he gave the title of “Blasphemy – the Twelfth Commandment”. He made it clear that he wanted to see the blasphemy law extended.
Asked by Jim Herrick, General Secretary of the National Secular Society, whether in view of his “known prejudice against homosexuality” he was an appropriate person to have been an unbiased judge in the Gay News trial, the judge replied “What known prejudice?”.
The Law Lords eventually delivered their judgment on 21 February 1979. They were in agreement that intention had been irrelevant at one time – certainly before 1792. But then Lord Chief Justice Coleridge had ruled in the Freethinker blasphemy case R v. Ramsey & Foote, 1883, that it was relevant.
Was it relevant in 1976? Delivering their opinions in order of seniority, Lord Diplock said yes; Viscount Dilhorne said no; Lord Edmund-Davies said yes; Lord Russell of Killowen said no; and so the decision lay in the hands of the newest appointee, Lord Scarman. He made it clear from the outset that his approach to the appeal was determined by his desire to see the blasphemy law extended.
While freely acknowledging that this was beyond the powers of the judiciary, he was clearly going to do his bit to strengthen that law. The appeal was lost.
In a final attempt to obtain redress, on 7 August 1979 the two convicts lodged a complaint with the European Commission of Human Rights alleging a breach of four articles of the European Convention on Human Rights – Article 7 (no punishment without law), Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 14 (prohibition of discrimination).
On 7 May 1982 the Commission announced their ruling. They allowed that there had been an interference with freedom of expression but, remarkably, justified this on the grounds that the publication of the poem had infringed Mary Whitehouse’s human rights. Consequently they declared the case inadmissible to be heard by the European Court of Human Rights.
Less than a year later Gay News was dead. The blasphemy case had lasted almost exactly half of its brief life. But when Gay News Ltd ceased trading on 15 April 1983, its financial problems were of its own – or rather its proprietor’s – making and nothing to do with Mary Whitehouse’s action. The costs of defending the case were met from the Gay News Fighting Fund, a separate trust fund set up specifically for the purpose in December 1976.
The £26,435 raised largely during the first half of 1977 through benefits and donations from the gay community and other well-wishers, supplemented by interest of over £7,000, turned out to be enough to cover the costs associated with the trial and all the appeals and still leave several thousand pounds to spare.
Mary Whitehouse regarded the Gay News prosecution as one of her greatest successes – and so it was, in the sense that it gave a new lease of life to an archaic and moribund law. On the recommendation of the Law Commission, the statute law relating to blasphemy had already been repealed by the Criminal Law Act 1967 (enacted, incidentally, just six days before the Sexual Offences Act 1967 which began the long slow decriminalisation of sex between men).
But the English common law of blasphemy remains stubbornly in force to this day despite the Law Commission’s majority recommendation in 1985 to abolish it without replacement and despite attempts over the years to abolish it by parliamentarians including Lord Willis (1978), Tony Benn (1989), Bob Cryer (1990) and Frank Dobson (2001). The Whitehouse legal actions were not always so successful: she incurred huge legal costs with the collapse of her prosecution of Michael Bogdanov, director of the National Theatre’s production of The Romans in Britain, in March 1982, and again in 1985 on the failure of her action against the Independent Broadcasting Authority over the film Scum.
Apart from resurrecting the blasphemy law, Mary Whitehouse achieved the opposite of what she might have hoped for in almost every respect. If she hoped to suppress the poem, she failed. James Kirkup himself, describing it as “not aesthetically a successful work” (New Humanist, November/December 1976), had no wish to preserve it. More recently Tony Reeves called his illustration “among the worst I’ve ever done, if not the worst” (Gay Times, February 2001).
Both poem and illustration would naturally have faded into oblivion. Instead the poem was widely reprinted at the time and, although it remains a crime in England or Wales to publish the poem or illustration, copies of the poem are now readily available on the World Wide Web.
If Mary Whitehouse hoped to damage Gay News, she failed. According to the paper’s Literary Editor, Alison Hennegan, staff estimated the value of free publicity resulting from the trial and its aftermath at £1½ million. What was already “the world’s largest circulation newspaper for homosexuals” reached many new readers who had previously been unaware of its existence, and in later years its average sales exceeded 18,000.
Whitehouse was not averse to a bit of free publicity herself: with adroit timing, just weeks before the trial was due to begin she published her book Whatever happened to sex?, in which she called the gay liberation movement the “most insidious of all pressure groups” and accused what she called the “humanist lobby” of working to “burrow … under the very fabric of our society”.
If Mary Whitehouse hoped to dampen the ardour of the gay community, she failed. Her action gave new focus to a movement that was drifting somewhat after the first flush of gay liberation in the early 1970s. A rally held in Trafalgar Square, London, on 11 February 1978 – the Saturday preceding the Appeal Court hearing – was the largest gay rights demonstration the country had ever seen.
The blasphemy case gave rise directly to the short-lived Gay Activists Alliance and indirectly to the more durable Gay Humanist Group, which continues to thrive as the Gay and Lesbian Humanist Association. But that’s another story.
Note: Seven years after Whitehouse’s death, the common laws of blasphemy and blasphemous libel laws in Britain were finally abolished in 2008.
Gay News 1 to 263 (22 June 1972 to 14 April 1983). The Lesbian and Gay Newsmedia Archive at Middlesex University holds a complete bound set.
Hanscombe, Gillian E. & Andrew Lumsden. Title Fight: The Battle for Gay News (London: Brilliance Books, 1983). An insiders’ account of events leading up to the paper’s demise.
Nash, David S. Blasphemy in Modern Britain: 1789 to the Present (Aldershot: Ashgate, 1999).
New Humanist. Contemporary issues reported the Gay News case in detail, including the full Appeal Court judgment (Spring 1978) and House of Lords judgment (March 1979).
Robertson, Geoffrey. The Justice Game (London: Chatto & Windus, 1998; Vintage, 1999).
Tracey, Michael & David Morrison. Whitehouse. (London: Macmillan, 1979).
Walter, Nicolas. Blasphemy Ancient & Modern (Rationalist Press Association, 1990). Reviewed in G&LH Spring 1990.
Whitehouse, Mary. Whatever happened to sex? (Hove: Wayland Publishers, 1977). Gives the author’s views on humanism and homosexuality.