“It is some time,” intoned His Honour Judge Argylle as the OZ trial entered its fourth week, “since I have had to remind people that this is not a theatre but a court of law.” The reminder was timely if vain. A few days later one of the hundreds of American tourists who had tramped noisily in and out of the proceedings was overheard to ask: “Are they running this thing right through the tourist season?”
At that level it was great entertainment. In the dock stood the prisoners: Richard Neville, Jim Anderson and Felix Dennis, hair close around their shoulders, dressed in long flowing robes or dungarees and brightly coloured teeshirts with the words “University of Wishful Thinking” emblazoned across the front. Facing them from on high, the Judge, equally bizarre in his black robes and tight white wig. We watch him closely — a soft pale pink face, pince-nez covering rarely blinking eyes, an occasional neat smile, a dry distant voice; middle-aged. On his right, down in the well of the court sits Detective-Inspector Luff whose zeal has enabled this event to take place. For nearly three years he has tirelessly pursued the accused: advising, admonishing, raiding and seizing. Now, his duty performed, he relaxes amid piles of the offending OZ, turning occasionally behind him with some whispered information for the prosecution counsel Mr Brian Leary. In this airless ritualistic atmosphere Luff is unmistakably an outsider: dark-suited, club-tied, well-slicked black hair, suede shoes, a face roughened by the outside back-street world of the Vice Squad.
Mr Leary for the Crown is slim, dapper, sharp-featured, his voice well trained in the arts of moral outrage and silky sarcasm. At his side defending: John Mortimer QC, playwright. A shaggy yellowing wig fails to hide shaggier hair; his waistcoat is ill-fitting. A man of sharp wit, he has an air of world-weary tolerance.
As the court processed through its days of debate it was easy to forget what everyone in the courtroom knew: that the three OZ editors were liable to be sent to prison for publishing what was eventually found to be an obscene magazine.
By the end the jury had spent some five weeks hearing an assorted collection of sociologists, psychologists, writers and teachers inform them that this School Kids issue of OZ could not possibly have any harmful effect on young people. These “persons with progressive opinions” as Mr Leary disapprovingly described them, parade an impressive if repetitive wealth of experience. John Mortimer gently extracts their knowledge. Richard Neville, conducting his own defence with daily increasing expertise, playing the game the law’s way, seeks deeper moral support. “Is it true that the authorities are likely to be out of touch with what young people think?” “Is open discussion healthy?” “Why don’t university authorities ‘moralise’ about drugs and promiscuity?” The answer comes exquisitely: “It would be a completely mindless thing to do.”
The prosecution has a hard time of it. One detects, though, a pattern. First the witness’s social (and thereby moral?) standing.
Mr Leary: “Dr Klein, we know you are a doctor; what we don’t know is whether you’re Miss or Mrs?”
Dr Klein: “Miss.”
Mr Leary : “So you have no children?”
Dr Klein: “No.”
Mr Leary (slowly): “I see.”
He rubs his hands, pauses and glances significantly at his jury sitting opposite.
Then comes the cross-examination proper. The prosecution is nothing if not thorough. Each witness is taken slowly through the magazine stopping at length to examine some dozen drawings and strip cartoons, a paragraph here and there, and the small ads. The cartoons vary. Some are crude, some silly, some funny; often sexually explicit, usually fantastic. The magazine had been compiled by around 20 teenagers at the invitation of the three defendants. The prosecution allows no detail to escape. Where is that hand? At what? That cane — what is it doing? What does this word signify? That smile? That gesture? The witnesses pore hopelessly over the pages, desperately trying to recall their first-year undergraduate skills at textual analysis; the concentrated stares of the jury diffuse into blankness; a policeman resumes his reading of Reveille; an exasperated witness bursts out: “But to go through it inch by inch, line by line is judging it at an absurd level.”
Rupert Bear rubs the point home. In OZ 28 the little bear is provided with a massive phallus and a girl friend, the virgin Gypsy Granny. They have intercourse. The cartoon is absurd by itself; it did not need the memorable exchange between the prosecution and the psychologist Michael Scofield.
Mr Leary: “What sort of age is Rupert Bear to your mind?” Mr Scofield intimates that his mind had never considered the question before. Mr Leary offers assistance: “He’s a young bear isn’t he, he goes to school…” and then with sudden vehemence: “children that can identify with the young bear, isn’t that the truth?” Utterly incredulous Scofield expostulates: “What, children identify with a bear?” The public gallery, watching from above, explodes with mirth and two friends of OZ are escorted away.
The inch by inch analysis completed; the witnesses almost to a man unyielding; the prosecution shifted its ground, fortifying itself behind some general unstated but only too visible moral principles from which it advanced armed with the General Question – so simple, so lethal: is it a good thing that children discuss drugs, take part in group sex … is it a good thing? Or, similarly: “Have you ever come across pornography?” It depends, as the witness points out, what you mean by pornography. The question, the Crown retorts, is really very simple. He sighs and the Judge steps in: The answer is either “Yes”, or “No” or “I don’t know”. The statement has depressingly ruthless overtones. Do we really seek the truth, the whole truth and nothing but the truth by these means?
Witness: “I don’t know because I don’t know what the Court means by pornography.”
Judge: “I am recording that answer as: ‘I don’t know because I don’t understand the question’.” (Later Mr Leary offers us a definition: something is pornographic “…if it is there to present sensuality in an attractive light”.)
Sometimes the Judge partakes of the general question, too: “Do you think prostitution is a good thing or a bad thing?” “It depends…” His Honour puts down his pen with a flourish of irritation. Why won’t they answer simple questions? Have they no morality? Judge Argylle’s skill with the pen is soon renowned. To note or not to note – his choice is made decisively; no one (least of all the jury) can fail to detect what in his view is significant, and more important, insignificant.
In his closing address to the jury Mr Leary expressed the hope that they had found the trial interesting, informative, and intelligent. It was certainly revealing; not least for the fact that the prosecution conspicuously ignored the bulk of the magazine – some 21 pages of the youthful anti-authoritarian political writing. According to the Crown, neither “politics”, nor what the kids thought of “the pigs” were relevant in what was merely a criminal trial. Quite so. But as the trial wore on despite repeated protestations of this kind, it emerged that like politics and sport, quite plainly politics and morals do mix, indeed are inextricably entangled.
When Felix Dennis gave evidence, pale-faced, leaning heavily on the witness box, few could have missed the antagonism concentrated in the few feet separating him from Mr Leary. He was taken through the production history of OZ.
Mr Leary: “How did the sex get in?”
Dennis: “I’m not sure what you mean.”
Judge (sighing): “Take as long as you like. The question has five simple single-syllable words.”
And then onto the small ads. One advertises an “exclusive private male ‘Gaye’ guesthouse”. Does it not, Mr Leary wonders: “pander to the lusts of homosexuals”.
Dennis: “I find that question repulsive. Would you re-phrase it?”
Judge (with irritation): “No. Answer it.”
Mr Leary seemed to have doubts about Felix Dennis’s integrity. Surely the witness knew, if he were to be honest with himself, that OZ 28 was both indecent and obscene before it came out? Dennis made it clear he knew nothing of the sort.
Mr Leary (heavily sarcastic): “Is there anything you consider indecent?” Suddenly the court-room tensed. Felix Dennis looks down as if he will lose control, but sits down heavily, and pausing between each word, quietly and with contempt says: “There are a great many things I find indecent, Mr Leary.” Moments like that were rare. Suddenly the tiresome details of OZ 28, the pictures, the drawings, the swear words, the slang, the small-ads, even the children, fade from thought. Here is the confrontation that matters: one morality set resolutely against another: an “alternative” challenging to the Establishment. And in case any of us should have been in doubt about this, Mr Leary made it quite clear in his closing address. The alternative society, represented by the defendants consisted of those “…drop-outs who expect the state to provide for them – and by the state I mean nothing more than you and me – those of us who are fools enough to work.”
“Remember,” learned counsel continued, “morality is essential to the well-being of a community like ours. It is up to you members of the jury to set the standard.”
There was perhaps little else for them to do. After five weeks they had heard one policeman (Luff) and one hostile teenager (Vivian Berger who was originally indicted as a co-producer of OZ 28) called on behalf of the prosecution, and more than a dozen defence “experts” all of whom had testified at great length that OZ could do no harm. Perhaps fundamental questions like: “What is corruption? and depravity? and indecency? and how are people corrupted? and by what?” are not susceptible to an easy “yes, no, or I don’t know” formula, so favoured by the criminal law. As a result, the witnesses were all but ignored.
The judge’s summing-up was stunning. Suddenly the defence witnesses became “so-called defence experts”, some of whom, members of the jury: “you may think you reached the position… where they either had to admit they were wrong or tell a lie.” If OZ was a window on the hippy world – “well, windows sometimes need cleaning, don’t they?” As he finished with a witness, he would toss his copy of OZ disdainfully down onto the table, and with it, one felt, the case for the defence. It was a distressing and perhaps crucial exercise. For after constant “exposure to” (a favourite expression of Mr Leary’s) “fucking in the streets”, “masturbation”, “deviation”, “lesbianism”, “corruption”, and “cannabis”, this middle-aged group of British householders – the jury – was asked quite simply “to set the standard”. What an invitation.
First published in the New Statesman 30 July 1971