There is one further point concerning the spirit of the law that could do with some clarification. Many people, including Sir Peter Hall, accused Mary Whitehouse of bringing the law into disrepute because, as he said on LBC’s Artsweek programme on 21st March 1982, “the Theatres Act of 1968 was designed to protect the theatre from private individuals or minority sects prosecuting the theatre for their own ends.” Certainly, the act was designed to form some protection for the theatre, chiefly against the ritual submission of new plays to the Lord Chamberlain’s office. It was never the intention of the 1966-67 Committee to protect the theatre from the catalogue of injustices listed in the 1909 report, except that of offending a friendly power (i.e. political censorship) which they recommended should cease. All the other categories would simply rely on the law of the land, and, as Lord Chesterfield said to Walpole, “the king’s courts are open.”
However, the Committee also stated that any legislation should have regard to five common considerations – the right of trial by jury, the admissibility of expert evidence, the effective treatment of obscene plays, the uniform application of the law, and, especially appropriate to “The Romans in Britain” trial, the prevention of frivolous prosecutions. The Committee went on to say, as is stated in their report, “no criminal prosecution whether under statute or common law arising out of the performance of a play should take place without the order of the Attorney-General having been first obtained. Subject to this provision, any individual would have the right to take legal action against a stage performance which he considered contravened the law”.
Therefore, one can claim that when Mary Whitehouse continued to attempt to prosecute Bogdanov after the Attorney-General had specifically refused permission to prosecute under the Theatres Act, it was then that she transgressed the spirit of the law. In fact, it was only the poor wording of the Theatres Act – which in effect permitted other laws to apply to the theatre – that caused the whole legal comedy of errors in the first place. Even Mr Harrington – the magistrate at Horseferry Road who found in favour of Mrs Whitehouse – pointed out that he thought it was extraordinary that the Act had failed to exempt sexual offences at Common Law and under the Vagrancy Act.As Bogdanov had his costs paid for him – although Mary Whitehouse and NVALA had to pay theirs – the Theatre Defence Fund money suddenly became a useful financial weapon with which to fight for an amendment to the Theatres Act. The change that would be necessary to prevent a similar occurrence was merely to include the words “and statute law” in its list of items which have no association with the Act. Following the trial, Christopher Price, then MP for Lewisham West and Spokesman for the House of Commons Select Committee on the Arts, pledged to fight for the amendment in Parliament, and until this amendment were to be made, asked the Attorney-General to issue a nolle prosequi in all similar cases, so that, even if the theatre and the law were brought into disrepute, at least the play’s director should not be sent to prison. In a letter he wrote to me dated 14th January 1983 he confirmed that he’d had no success in this venture, saying “there is no prospect of an amendment either to the Theatres Act or the Sexual Offences Act.” Mr Price lost the 1983 general election and was never returned to Parliament. Finally, to return to NVALA’s constant assertion that it was not a case about censorship, this is perhaps a rather sweeping statement whose degree of truth depends on how you define the word. Strictly speaking, “censorship” simply means the prohibition or prevention by someone to allow someone else to read or see a particular thing. The word itself implies no particular motivation, not any attribution to good or bad. It does, however, imply that the censor is invested with more power and freedom than the recipient of the material to be censored; an absolute ability to judge what is either acceptable to or required for the recipient. Mrs Whitehouse wished to prevent the general public from seeing a scene of “gross indecency” on stage at the National Theatre for no reason apart from the fact that she thought it offended public morals. Despite possibly well-meaning intent, she invited the law to act as a censor, although she denied it: “If I had the power to go into the National Theatre and stand on that stage and say, “away with all you, I will not have this on this stage”, you could accuse me of censorship.” If she had brought a successful prosecution, the effect would have been virtually the same. Whatever one’s interpretation of the case, it set a sort of precedent, and one which certainly contravened the spirit of the Theatres Act.
As for the play, despite Howard Brenton’s rather over-confident belief that “this play is going to prosper”, no management dared to present it for several years. Was that because of the quality of the play itself, or because no one knew what legal wrangles it might incur? Apart from a student production by the Bristol Old Vic School in 1994, its only professional reappearance on stage has been at the Sheffield Crucible Theatre in 2006, directed by Samuel West; theatre, cast and director survived unscathed – although the young Celt still felt the pain of invasion.
And that’s as far as my post-grad research took me. Of course, drama didn’t stop in 1982, and plays that would have sent the Lord Chamberlain reeling still took to the stage. The works of Sarah Kane, Mark Ravenhill, even One Man One Guvnor’s Richard Bean have challenged their audiences with sex, violence and all forms of Rock ‘n’ Roll. Maybe that’s some research for me to do another day.
If you’re reading this on the day it was published, 26th September 2018, it is exactly fifty years today since the introduction of the Theatres Act and the abolition of stage censorship. But where are all the flags and banners of celebration? Nowhere. So often we take our freedoms for granted! In the meantime, thank you for your time and effort and I hope that you found some of the little nuggets of interest, or enjoyed some detailed lit-crit of the big plays of Osborne, Bond and Brenton. As for me, I’m going to clear my head by watching some Disney.