My blogfollowers have justifiably complained that I have been silent for month after month. Well over a year in fact. I apologise. I've had things to say but I've said them elsewhere. So as to reactivate my blog I will (if I can manage it) post on it one of my cases which I wrote up about 10 years ago after I had retired from practice. It concerned a client who has, since I acted for him, become something of a household name more or less anywhere in the world. No need to say more since my account of him introduces him. So without more ado, here goes:
A BIT PART ON A TYCOON’S TRAJECTORY
There is talk now of the “swinging sixties”, the age when all inhibitions were swept aside and the last vestiges of Victorian prudery and repression disappeared. And true it is that Roy Jenkins, as Home Secretary in the first Wilson Administration, was responsible for legislation which decriminalised homosexual acts in private by consenting adults (Sexual Offences Act 1967) and marginally liberalised the obscenity laws (Obscene Publications Act 1964) and the Lord Chamberlain lost his power of censorship over our theatres (Theatres Act 1968), and our juries had played their part in throwing out the prosecution for obscenity of Lady Chatterley’s Lover. But there remained on the statute book archaic and repressive pieces of legislation, out of tune with the ethos of the times, as well as common law offences, ready at hand for our police to invoke and there were those responsible for law and order only too keen to do so. An example of this was the infamous prosecution for obscenity of Schoolkids’ Oz.
Another, less notorious, example of our police’s vigour in enforcing such laws, was the prosecution, just before the Oz case, of a young man for whom I acted, charged with offending under the Indecent Advertisements Act 1889 and the Venereal Disease Act 1917. The young man in question had been referred to me in January 1970, I believe by the National Council for Civil Liberties (now known as Liberty). He had applied for and been granted a Legal Aid Order to defend the case naming my firm as his solicitors. He was due to appear at Marylebone Magistrates Court on the 8th May and so I arranged to see him towards the end of February to take his instructions and start to prepare his case for court. A tousle-haired youth of 19 with a lively expression presented himself and, as his story unfolded, it was clear to me that he was an energetic, adventurous young man in a hurry who, as it transpired, more by judgment than by luck, found himself hauled before a ‘beak’. Ironic, considering that his father had recently been appointed a Metropolitan Stipendiary Magistrate. Based on my experience of him then and in the following few years when I acted for him on various matters, it does not surprise me in the least that my client over 40 years later is one of the world’s wealthiest and best known entrepreneurs. His name? Richard Charles Nicholas Branson.
I had not met Richard before he came to see me, but I felt I knew quite a lot about him and his doings since the prosecution had generated a flurry of publicity in the national press. Anthony Howard had had a piece in his Diary in the New Statesman in November 1969. Tony Geraghty had written a column in the Sunday Times five weeks later. At about the same time the Sun had a brief story subbed “Girls defy law just to be helpful” and the Guardian ran a report headed “VD leaflet team risks arrest”. So intense was the media interest that on the 22nd January 1970 Womens Guardian had a feature article by Rosalind Morris “Brisk, brash and Branson” (which, on reflection, might be a suitable epitaph). So, with that media introduction, I felt prepared for Richard, albeit that obviously, by some quirk, news of this clearly rising star streaking across the horizon at the dawn of the seventies had escaped me.
So how was it that Richard had provoked what turned out to be his virginal brush with the law? Two years before, I believe when still at school, Richard had established a magazine entitled Student which, he told me, had a circulation of 100,000 and was sold in colleges and schools and which W H Smith and other newsagents and booksellers handled. It appeared quarterly and by the Autumn issue 1969 it had notched up contributions from James Baldwin, John Lennon,, R D Laing, Stephen Spender, Henry Moore, John Peel, David Hockney, Mick Jagger, Bertrand Russell, David Mercer, Gerald Scarfe and Jean-Paul Sartre, among the better known intellectual and entertainment ‘glitterati’. Richard was its editor and publisher and the 12 full-time staff included managing, features, consultant, advertisement, careers supplement, production and export and poetry editors as well as numerous foreign correspondents. It was priced at 2/6p or FF4.
So successful was the magazine that it sprouted an offshoot, the Student Advisory Centre, also run by Richard and I think financed by the magazine, based at 142 Piccadilly, and staffed by Magazine staff with many volunteers including some 50 doctors and psychiatrists..The basic function of the Centre was to deal with queries and problems of readers of Student. Those of a practical nature, such as matters of accommodation or problems of loneliness, would be dealt with by Centre staff but the majority, requiring specialist medical or legal advice, would be referred to professional advisers. By late 1969 the Centre was seeing about 500 young people a week and centres had been set up in France and Germany where the Magazine was published under the title “Help International”. A psychiatric institution in the US had offered £500,000 to establish something similar there. Ancillary to the London Centre was a “Union for Nurses” which I was told had over 1000 nurses on its books.
Early in 1969 the Centre produced a small leaflet. Around a circle was printed boldly “Give us your headaches” and, in smaller print, “The Advisory Centre has given free help to hundreds of young people. If you (or any of your friends) need help ring student magazine and ask for the Advisory Centre. AMB 2872”. In the middle of the circle appeared the words “abortion adoption contraception drugs educational problems homosexuality lesbianism marriage pregnancy testing psychiatric help venereal disease”. Originally 100,000 copies were printed and they were distributed by volunteers on the streets and in colleges. A copy of the leaflet also appeared in the Autumn issue of Student along with articles including “The Biafra Affair – British complicity” (with a graphic photo by the photographer Don McCullin on the front cover), “Undress – The Sensual Experience of the Wearer”, a short story by Alan Coren “When the kissing had to stop” and Alastair Hetherington, editor of the Guardian “A Radical Voice”. Towards the end of this issue, coming just before “Marketing/sales: a Student career supplement which opened with the words “Marketing is the Most Fashionable Career in Contemporary Business ” (sic -trust Richard), were two pages devoted to the Advisory Centre reproducing a “cross section” of the many letters received every week This was followed by an article headed “My doctor struck me off his list for asking for contraceptive advice” describing the different kinds of contraception and illustrated with pictures of 13 contraceptive devices; it stated “Lack of practical help and education on the subject of contraception has resulted in the Advisory Centre being inundated with people who need contraceptive advice and frequently many who are already pregnant ‘I just didn’t think somehow I would become pregnant’. In this article we examine the advantages and disadvantages of the main methods” and referred readers to the Centre for further information and advice.
Some of those responding to the leaflet had venereal disease problems and the Centre simply acted as a post office, putting inquirers in touch with clinics and hospitals in the area that specialised, such as James Pringle House run by Dr R D Catterall of the Department of Venereology at the Middlesex Hospital and University College Hospital. Some cases were referred to Dr Nicholas Malleson at the Student Medical Centre he ran. Throughout 1969, Richard told me, until the events now unfolding, they had encountered no problems with the leaflet, nor had the police expressed any interest.
One of the cases referred to the Centre concerned a young man of 19 who said he had been accused of something he had not done at Marylebone Lane Police Station; the suggestion was that police had planted drugs on him. Richard decided to lay a complaint against the police and he and Amanda Young, one of the staff of Student, went to the Station and asked to see the Chief Inspector. About a week later two plain clothed officers turned up at Richard’s home in Albion Street, Paddington. They asked to see him alone and they produced one of the leaflets and said that, unless he dropped the reference to VD from the leaflet, they would have to arrest him. Richard thought he recognised one of the officers and the officer said he had met him at Marylebone Lane the week before. The police station for the district in which Richard lived was Harrow Road and Richard expressed surprise that they had come all the way to Paddington and asked why Harrow Road were not doing so. There was no answer. The officers went on to say that they could always get him for references on the leaflet to homosexuality, abortion, lesbianism etc, since these were all the result of sexual intercourse. Richard told the officers he would speak to his solicitors and the men left. After this Richard saw his solicitors (not me) and decided to replace “venereal disease” by “social diseases” on the leaflet which was re-printed. He then received from the Chief Superintendent at Marylebone Lane a typewritten form dated 11th November, appropriately Armistice Day, which stated that he had been reported for committing two offences, “advertising to give advice in connection with the treatment of VD” contrary to the Venereal Diseases Act 1917 and “delivering written matter of an indecent nature to persons passing along any street” contrary to the Indecent Advertisements Act 1889, in each case in Oxford Street on the 1st October. The message concluded: “I am now directed by the Commissioner of Police of the Metropolis to inform you that, after careful consideration, it has been decided not to institute proceedings against you in this instance. If you are reported again, however, it may be considered necessary to take action in respect of the latter occasion. I am, Sir, Your obedient servant. Chief Superintendent”.
Richard advised me that, after VD was excised from the leaflet, the number of people coming to the Centre for help fell from about 60 a week to about 5 and they decided to reinstate VD. Richard took a copy of the leaflet with the reinstated reference to VD to Marylebone Lane on the 23rd December and handed it to a uniformed officer saying “We have decided to put VD back on the leaflet. Please inform your Chief Superintendent.” Richard had by then taken the precaution of informing the media, the BBC and ITV, of his actions and they had their cameras at the ready; an early taste of the master public relations tactician! Just to rub it in, a number of colleagues were distributing the unbowdlerised leaflet outside the police station.
The inevitable happened. Some three weeks later a police inspector, Edward Jones from Marylebone Lane, laid informations at Marylebone Magistrates Court that Richard “on the 23rd December 1969 at Marylebone Lane did deliver to a person passing along the said street a printed matter of an indecent nature” contrary to Section 3 of the Indecent Advertisements Act 1889 and “did by an advertisement offer to give advise (sic) in connection with the treatment of venereal disease” contrary to section 2 of the Venereal Disease Act 1917, and the Court duly issued summonses. Since Richard admitted all the police evidence against him the story continues with the officers’ unchallenged statements.
Police Inspector Jones attested that on 23rd December he had seen about 20 “persons, male and female” – why doesn’t the constabulary’s vocabulary use the colloquial “people, men and women”? – outside Marylebone Police Station distributing leaflets to passers by. He went out to the street and “there saw a man whom I now know to be Richard Charles Nicholas Branson”. Pausing there, I ponder how many people almost anywhere in the world would say that of Richard now. Continuing in ponderous constable-speak, the Inspector said that Branson “presented himself” to him outside the station as the leader of the group and showed the officer a leaflet, the same as those which had been distributed. “I saw that amongst other words on the leaflet were the words ‘venereal disease’ and ‘If you (or any of your friends) need help ring student magazine and ask for the Advisory Centre. AMB2872” Mr Branson had told the officer that they had previously been warned that the giving out of the leaflets might be an offence and that at one time the words ‘venereal disease’ had been removed but that now they had been replaced. Inspector Jones “took possession” of one of the leaflets and told Mr Branson that the facts would be reported, to which he had replied ‘Yes, that’s all right’. “The group of persons including Mr Branson then left the vicinity”.
A Chief Inspector John Perrett then took up the story. He it was who had gone to Richard’s home in October and produced a copy of the offending leaflet and asked him “Have you anything to do with the distribution of these advertisements?” To which Richard replied “I am the editor of Student magazine and director of the Advisory Centre and I am responsible for their publication and distribution.” When the Chief Inspector pointed out the offences Richard had said: “I’ll have to get legal advice”. The officer then told Richard to withdraw the “advertisements” and if he failed to do so he would be liable to prosecution.
That was the sum total of the police case against Richard. He was responsible for publishing and distributing a leaflet which contained the words “venereal disease” and offered to help young people through his advisory centre. That, it was alleged, contravened the two statutes under which he was prosecuted, the words “venereal disease” turning the leaflet into “printed matter of an indecent nature” and the leaflet constituting “an offer to give advice in connection with the treatment of VD”.
How were we going to run the defence to the charges? We didn’t challenge the facts alleged. What we sought to do was to satisfy the Court that the facts alleged by the prosecution, coupled with evidence we proposed to call, did not constitute any offence. And who did we brief to represent Richard in Court? None other than Rumpole of the Bailey himself, personified by his creator John Mortimer QC. In fact Richard’s case might well have made a nice little episode in the Rumpole series.
The witnesses we called were few in number. Richard gave evidence himself admitting his part in the production and distribution of the leaflet and explaining the function of his Advisory Centre which did not, he pointed out, give any advice to inquirers asking about VD but referred them to specialist medical bodies such as the James Pringle Clinic and University College Hospital and the student Medical Centre. We called Dr Nicholas Malleson of the Medical Centre to confirm that they had dealt with and given advice to the inquirers. And we called one of the inquirers, a young man who had had treatment for VD, having got in touch with the Advisory Centre and been referred on. We called the well-known MP Tom Driberg to vouch for the good social work done by the Advisory Centre; Tom Driberg had previously written to the Home Secretary Jim Callaghan to express his concern at the police action, referring to Richard as a “vigorous, reputable and responsible young man and it seems to me that nothing but good can come of his activities.” Chad Varrah, the founder and chairman of the Samaritans, gave evidence to the same effect. Dr Catterall of the James Pringle Clinic profferred a written statement, as did John Trevelyan, Secretary of the British Board of Film Censors, who said that he admired Richard’s work in publishing “an interesting and intelligent “ journal for students and also for establishing an advisory service “for which I believe there is a real need….. I have no reason to doubt that this service is given with total integrity and that it has been of value to many students.”
The evidence we called was half the battle. The other half was to make our legal submissions. As to the Venereal Disease Act charge, we submitted quite simply that the leaflet did not, in the words of the section, “offer to give advice” in connection with VD. We argued that the Act must be read in the light of its preamble: “An Act to prevent the treatment of venereal disease otherwise than by duly qualified medical practitioners and to control the supply of remedies therefor…..” We pointed to a case in 1919 (Rex v William Shadforth) where the court had said there had to be some “recommendation amounting to advice”, something quite absent in Richard’s case. Telling someone where to go to get proper treatment was not giving advice in connection with such treatment. We made the customary point that we were dealing with a criminal statute which, if there was any ambiguity, must be strictly construed and any doubt resolved in the defendant’s favour.
As to that late Victorian piece of legislation, the 1889 Indecent Advertisements Act, invoked against Richard, just how all pervading it was intended to be is to be seen by the terms of a section, 4, which states “Any advertisement relating to syphilis, gonorrhoea, nervous debility or other complaint or infirmity relating to sexual intercourse shall be deemed to be printed or written matter of an indecent nature…..if such advertisement is affixed to or inscribed on any house, building, wall, hoarding, gate fence, pillar, post, board, tree or other thing whatsoever….or is delivered or attempted to be delivered to any person being in or passing along any street, public highway or footpath.” The section of the Act under which Richard was charged, section 3, made it an offence punishable by one month’s imprisonment or a fine of £20 “to deliver or attempt to deliver or exhibit to any inhabitant or to any person being in or passing along any street, public highway or footpath….any picture or printed or written matter which is of an indecent or obscene nature.”
There is no definition in the Act of “indecency” and, in researching material for the defence, I consulted Hansard’s report on the Bill in the House of Lords in 1889. The Earl of Wemyss, clearly an early Human Rights agitator, drew their Lordships’ attention to “the very stringent character of the measure.” Pointing out that the Bill provided that any person exhibiting a picture of an indecent nature in a shop was liable to be convicted and, further, that one of the clauses empowered any policeman to arrest any person whom he may find to be committing an offence against the Act, he presciently observed “Therefore it would seem that any prudish policeman who sees in a shop window a photograph of the statue of the Venus de Medici may arrest the shopkeeper. In the Act there is no definition whatever of the word ‘indecent’ and I think it right to protest against such stringent legislation.” And a fellow libertarian, the Earl of Kimberley, warned “…. It would be illegal to introduce a copy of Aristophanes or Boccaccio into a house. Extreme care, therefore, will have to be exercised to prevent abuse of the Act.”
Their Noble Earls’ cris de coeur, alas, fell on deaf ears, so concerned were their Lordships with “the suppression of indecent advertisements.” The Earl of Meath, in introducing the Bill, had raised the alarm (characteristically using imagery with sexual connotations) “….It is almost impossible to pass down certain streets of this large city without having thrust into one’s hands indecent and filthy publications which ought not to come before the eyes of any decent man or woman…..steps (should be) taken to prevent such inducements to promiscuous sexual intercourse, for at present there are no means of preventing the dissemination of such filthy literature…..those papers are thrust not only into the hands of men, but into the hands of women. They are often sent by post, and the persons who receive them, especially young women, are, of course too ashamed of having received them to complain…..All I can say is, I hope….that you will do your best to free the country from this stream of pollution which is contaminating the minds of the young…” The Earl of Aberdeen had taken up the hue and cry - “the broadcast distribution of this pernicious literature has a very bad effect in counteracting the education of the school children. Some 80,000 children go through our Board Schools every year. They go to work in factories and workshops, and in the evenings their only resort is the streets. No efforts of city missionaries, however industrious, can counteract the evil done by literature of this sort…. I am entirely in favour of (the Bill’s) object….the suppression of mischief of a most insidious kind.” And, not to be outdone, the Established Church added its pennyworth of alarmist indignation, with His Grace, the Archbishop of Canterbury (Edward White Benson) speaking of “the poor of London….defiled by literature of this character….The country is strewn with these abominable papers” adding his own personal anecdote “I may give your Lordships an instance which happened the other day. While some girls were taking their recreation in a meadow attached to their school, two men drove rapidly by in a gig and flung over the wall two packages of literature of the most horrible description. Fortunately one of them happened to fall at the feet of one of the mistresses and the mischief intended was not done. But it is impossible to imagine the mischief that is done by the distribution of this stuff….” Odd how the word “literature” permeates the debate.
Unlike the Venereal Disease Act, which contained a let-out for public or local authority notices or those sanctioned by the Ministry of Health referring to VD (and so did not criminalise, for instance, advertisements of the Health Education Council such as their posters in lavatories “How to catch gonorrhoea”), the Indecent Advertisements Act had no exemptions. So how did we wriggle out of the blanket provision of section 5 which “deemed” ( an insidious legalism) any advertisement relating to VD “to be printed or written matter of an indecent nature” if delivered to someone in the street i.e. just the type of situation that their libertarian Lordships had forecast might arise in the absence of a definition of indecency?
Well, when lawyers are in the deepest rough, they call for their mashie-niblick, creative word-play. In our case we tackled the riddle by looking at the way our courts had interpreted the word “deem”. In one nineteenth century case a judge had said “When a statute enacts that something should be ‘deemed’ to have been done which, in fact and truth, was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.” And, in a more recent case, in 1945 Mr Justice Romer declared “To deem…..that a thing happened when not only is it known that it did not happen but it is positively known that precisely the opposite of it happened, is a conception which, to my mind….amounts to a complete absurdity.” The courts often referred to “deeming” as a “statutory fiction” which “had an element of finality” about it but was not inflexible and could be rebutted; if the fiction extended the meaning of a subject matter to something which it did not properly designate, then “it becomes very important to consider the purpose for which the statutory fiction is introduced” as Chief Justice Griffith said in a 1909 decision.
Applying these dicta of our courts, we submitted that it would indeed be a “complete absurdity” to treat the Student Advisory centre leaflets as if they were printed matter of an indecent nature simply because they contained the words “venereal disease” on them, particularly when the Act failed to contain a definition of indecency. The purpose of the Act was to stamp out the popular dissemination of what would now be called “pornographic” material, not to penalise someone for informing others where they could get advice for a medical condition. We satisfied the “rebuttable presumption” test that has to be applied to “deeming” clauses in statutes. And once again, for good measure, we threw in the caution that, if there were any doubt, this penal statute must be interpreted strictly and in favour of our client.
Richard’s case came before Mr Rawdon-Smith, the stipendiary magistrate then sitting at Marylebone Court. Mr Rawdon-Smith was certainly not the easiest ‘stipe’ to persuade that a prosecution was fatally flawed. But, having heard John Mortimer put our case on both summonses as persuasively as Rumpole would have done, he dismissed the VD Act summons on the first appearance but adjourned the Indecent Advertisements Act summons for his reserved judgment. I wrote to Richard to say I’d be at court to hear the reserved decision and, although he wrote back to express his appreciation and not to waste my time if otherwise busy, I did attend a fortnight later to hear the magistrate find the summons proved and to fine Richard £7. Richard deserved to be cleared on both charges and would have been had the case come before one of the then, few in number, more tolerant and less police-minded ‘beaks’ such as Sir Frank Milton, then Chief Metropolitan Magistrate who sat at Bow Street. As it was we had a classic piece of ‘fudge’ and the case starkly demonstrated the accuracy of the prognostications of those peers who, when the Bill was being debated, had warned of “the extreme care” needed to be exercised if the Act was not to be abused.
And so concluded my baptism as Richard’s solicitor.
Benedict Birnberg
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