Unwritten Law
by Rib Davis

BBC Radio 4: Afternoon Play

Helena Kennedy, Q.C., presents eight dramatised accounts of trials that brought about a change in the law because of changing social attitudes.

Theme music by Simon Morecroft.

Series 1

1) 'A Case of Blasphemous Obscenity' (Friday 10th July 1998 @ 2:15 p.m.)

The year was 1976. Sexual liberation may have come in the 1960s but that had been an essentially heterosexual phenomenon. It was in the 70s that the Gay Liberation Movement really began to gather strength. This was also a time when many Christians felt their faith to be under attack. Not only was church attendance in steep decline, but it seemed to many that there was a general erosion of Christian values. More specifically, this was identified with a widening acceptance of sex outside marriage and of sexual practices which those like Mary Whitehouse, the spokesperson for the Viewers and Listeners Association, believed were condemned in the bible.

Mary Whitehouse decided to do something about this and brought a private prosecution for blasphemous libel against Denis Lemon and Gay News, who published an allegedly obscene poem ('The Love that Dares to Speak its Name') by Professor James Kirkup which seemingly portrayed Jesus as the object of love.

With Irene Sutcliffe [Mrs. Mary Whitehouse], Julian Rhind-Tutt [Denis Lemon], Geoffrey Matthews [John Mortimer, Q.C. for the Defence], Charles Simpson [Geoffrey Robertson, Q.C. for the Defence], Sean Baker [John Smyth, Q.C. for the Prosecution], Edward de Souza [Louis Blom-Cooper, Q.C. for Denis Lemon], James Greene [Judge Alan King-Hamilton], Geoffrey Whitehead [Lord Justice Roskill for the Court of Appeal], David Timson [Bernard Levin, Journalist and TV Personality], Christopher Scott [Graham Ross-Cornes, Mary Whitehouse's Solicitor], and Helena Kennedy, Q.C. [Narrator].

Directed by Janet Whitaker

45 minutes

2) 'A Bunch of Twigs' (Friday 17th July 1998 @ 2:15 p.m.)

Mr. Anthony M. Tyrer, a resident of Castletown, Isle of Man, on 7th March 1972, being then aged 15 and of previous good character, pleaded guilty before the local juvenile court to unlawful assault occasioning actual bodily harm to a prefect at his school. The assault, committed by the Tyrer in company with three other boys, was apparently motivated by the fact that the victim had reported the boys for taking beer into the school, as a result of which they had been caned.

The four 15-year-old boys were sentenced to be birched, three of them to receive five strokes and on, Anthony Tyrer, to receive three. Punishment was usually administered immediately after sentence but on this occasion, all four boys had their mothers in court, and all four mothers, extremely upset, immediately stated their intention to appeal, so the birching was not carried out there and then.

An anti-birching group had already been set up on the island and the issue was receiving some publicity but the general culture of acceptance of corporal punishment was very strong there and there never had been an appeal against birching. The day following the sentence, one mother gave in; another relented the next day; and a third the day after that. The three boys were duly birched but the parents of Anthony Tyrer did not change their minds and this first appeal ever against a sentence of birching was heard in April 1972. Tony Tyrer lost his appeal, so his birching took place many weeks after the offence. Unhappy with the result, his parents took his case to the European Court of Human Rights.

Tyrer claimed that his judicial corporal punishment constituted a breach of Article 3 of the European Convention which prohibits torture, degrading and inhumane treatment or punishment. He also claimed that the punishment was destructive to family well-being, contravening Article 8; that no remedies existed to rectify the violation as required by Article 13; and that the punishment was discriminatory because it was primarily applied to persons from financially and socially deprived homes (Article 14).

When this happened, the UK Government became reluctantly involved, since it is responsible for the Crown Dependencies' external relations and hence for their international treaty obligations. It is unclear whether the Manx Government had been consulted separately when the UK signed the European Convention on Human Rights in 1952, but at this point they certainly started wishing they were not bound by it.

Louis J. Blom-Cooper, Q.C., may not have known all the details of the relationship between the Isle of Man government and the legistrators at Westminister as D. H. Anderson, Legal Counsellor at the Foreign Office did, but Blom-Cooper certainly knew what he was being asked to get involved in. The case had, after all, not only made the front pages British newspapers, but was also featured in papers all over Europe. It had even been mentioned in Pravda where the Soviet government had its own reasons for highlighting it.

The first appeal against birching on the Isle of Man sparked demonstrations and even the threat of secession from the UK. But the growing anti-birching lobby had found a cause as what once began as a minor affair of assault on the Isle of Man in 1972 became a major affair when it reached the European Court of Human Rights in 1978. ...

With David Antrobus [Anthony Tyrer / The Prefect], Gareth Armstrong [Mr. Tyrer / Deemster (A Judge in the Isle of Man) George Edgar Moore / Mr. L. Kellberg, Principal Delegate], Susan Sheridan [Mrs. Tyrer / Angela Kneale of the Anti-Birching Movement], Gavin Muir [The Constable / Louis J. Blom-Cooper, Government Q.C.], Don McCorkindale [Judge Sir Gerald Fitzmaurice / Geoffrey Cairn, Manx Appeal Counsel for Anthony Tyrer / J. W. Corrin, Attorney-General, Isle of Man], Keith Drinkel [D. H. Anderson, Legal Counsellor at the Foreign and Commonwealth Office], Jenny Lee Minze [Millicent Faragher of the Anti-Birching Movement], Steve Hodson [The Inspector / The Prosecutor / The Public Speaker], and Helena Kennedy, Q.C. [Narrator].

Directed by Peter Kavanagh

45 minutes

3) 'The Case of the Ladies' Directory' (Friday 24th July 1998 @ 2:15 p.m.)

In the new liberal climate of 1959, a publisher tries to defend his magazine's offering prostitutes services.

Frederick Shaw published a booklet of some 28 pages called 'The Ladies' Directory', most of which were taken up with the names and addresses of women who were prostitutes, together with a number of photographs of nude female figures, and the matter published left no doubt that the advertisers could be got in touch with at the telephone numbers given and were offering their services for sexual intercourse and, in some cases, for the practice of sexual perversions.

Frederick Shaw had admitted publication and his avowed object in publishing was to assist prostitutes to ply their trade when, as a result of the Street Offences Act, 1959, they were no longer able to solicit in the streets. There was evidence that on October 22, 1959, prior to publication, he had taken advice as to whether publication would be legal, and had shown a police officer at Scotland Yard the first issue of the booklet and asked him if it would be all right to publish; apparently he had arranged that the Director of Public Prosecutions should see a copy. There was also evidence that he had assured the owner of a kiosk, whom he had asked to sell the booklet, that he would not have published it unless it was legal.

But Shaw was still charged with 'conspiracy to corrupt public morals.' Shaw went to court to argue that this charge is illegal because no law criminalising conspiracy to corrupt the public morals existed.

With Iwan Thomas [Frederick Charles Shaw], Charles Simpson [Billy W. R. Rees-Davies, Shaw's Counsel during Appeal], Geoffrey Whitehead [Anthony Babbington, Counsel for the Defence], Gareth Armstrong [John J. H. Buzzard, Counsel for the Prosecution], Alistair Danson [Detective Inspector Charles Monaghan of Scotland Yard], Timothy Bateson [Mr. Justice Streatfield], Stephen Thorne [Detective Constable Clissold], Rosie Fellner [Carla, a Call Girl], Kristin Millwood [June, a Call Girl], and Helena Kennedy, Q.C. [Narrator].

Other parts were played by members of the cast.

Directed by Peter Kavanagh

45 minutes

4) '85 Burglaries and a Phone Tap' (Friday 31st July 1998 @ 2:15 p.m.)

The trial of eight people in 1978 for 85 burglaries in and around London was to launch a much more important investigation into the secrecy of the state.

Mr. Malone was an antique dealer from Dorking who was charged in 1977 with dishonestly handling stolen goods. He was tried twice, in 1978 and in 1979, but the jury could not agree a verdict. He was formally arraigned once more, but the prosecution offered no evidence and he was acquitted.

It was police practice not to reveal in court that telephone tapping had been used in the pursuit of an investigation, even when a tap had yielded conclusive evidence of guilt. But in the course of Mr. Malone's first trial, a police officer under cross examination had read out extracts of conversations recorded during an authorised intercept of Mr Malone's telephone.

The policeman's mistake allowed Mr. Malone to challenge in the high court the lawfulness of the Home Secretary's warrant procedure for phone tapping. The High Court judge observed that there were no legal safeguards against abuse under English law. It was a subject, he said, "that was crying out for legislation". Mr. Malone proceeded to the final remedy, a complaint about the tapping and metering of his telephone before the European Court of Human Rights.

Mr. Malone's case was twofold. Under Article 8 of the ECHR he argued that his right to private life and correspondence had been breached and, under Article 13, that there was no legal remedy in Britain for this abuse.

With Jonathan Keeble [James Malone, an Antiques Dealer], Jane Whittenshaw [Margaret Malone, James's Wife], Geoffrey Whitehead [Colin Ross-Munro, Q.C., James's Lawyer], Colin Starkey [Ian Mikardo, Labour M.P.], Roger Hammond [William Whitelaw, the Home Secretary], Keith Drinkel [Bob Cryer, Labour M.P.], Charles Simpson [Donald Rattee, Q.C., Defending for the Metropolitan Police], and Helena Kennedy, Q.C. [Narrator].

Other parts were played by members of the cast.

Directed by Janet Whitaker

45 minutes

Series 2

1) 'I've Only Just Learned to Cry' (Wednesday 1st December 1999 @ 2:15 p.m.)

The tragic story of Emma Humphries who, on the night of 26th February 1985, at just 17 years of age, led the driver she had flagged down to a house. He followed her in, noticing blood on her arms and jumper, and found a man lying on the landing floor with a gaping wound on his chest. The man died within minutes of their arriving. He was Trevor Armitage, Emma Humphries boyfriend and pimp, and she never denied having killed him. She did, however, plead 'Not Guilty' to murder. The defence which was presented on her behalf was of provocation: she had been provoked beyond endurance. The case was heard at Nottingham Crown Court.

Emma was given a sentence "at her Majesty's pleasure" of life imprisonment but in the early 1990s, Advocate Helen Grindrod, QC, took up her cause and had the court of appeal substituted a verdict of manslaughter in 1995, which allowed Emma, aged 27, to be released from prison for time served. Emma's case changed the law for battered women who kill. It established that provocation could be cumulative and did not have to occur immediately before a murder to form a legitimate defence.

With Gemma Saunders [Emma Humphries], Tracy Wiles [Harriet Wistrich, Editor of 'The Map of My Life: The Story of Emma Humphreys'], Beth Chalmers [Julie Bindel, Editor of 'The Map of My Life: The Story of Emma Humphreys'], Elizabeth Bell [Helen Grindrod, Q.C., Emma's Appeal Advocate], and Helena Kennedy, Q.C. [Narrator].

Other parts were played by Stephen Critchlow, Ioan Meredith, Tim Treloar, and members of the cast.

Directed by Janet Whitaker

45 minutes

2) 'Only a Phase' (Wednesday 8th December 1999 @ 2:15 p.m.)

The mid-70s in Belfast, the height of 'The Troubles' in Northern Ireland. For many in the homosexual community such as Richard Kennedy and Jeff Dudgeon, the laws regarding their sexual orientation were of even more concern than the bombs going off around them.

In 1553, Henry VIII had passed a law by which an act of buggery was punishable by death. In fact, the last of such executions took place as recently as 1836. Twent-five years later, the Offences Against the Persons Act substituted life imprisonment for death as the maximum penalty. Over a hundred years after that came the 1967 Sexual Offences Act as a result of a Private Member's Bill, after the fifth attempt. Essentially, this legalise homosexual acts between consenting adults over the age of 21 in private, but it applied only to England and Wales. So an activity that was entirely legal in one part of the United Kingdom carried life imprisonment in another part of the United Kingdom, and gays in Northern Ireland were very aware of the fact.

In 1975, Jeffrey Dudgeon, a shipping clerk and gay activist in Belfast, Northern Ireland, was interrogated by the Royal Ulster Constabulary about his sexual activities. He decided to file a complaint with the European Commission of Human Rights, which declared his complaint admissible to the European Court of Human Rights. On 22nd October 1981, the Court agreed with the commission that Northern Ireland's criminalisation of homosexual acts between consenting adults was a violation of Article 8 of the European Convention on Human Rights. However, the ruling continued, "it was for countries to fix for themselves...any appropriate extension of the age of consent in relation to such conduct."

As a consequence, male homosexual sex was decriminalised in Northern Ireland in 1982. (Female homosexual behaviour was never criminal anywhere in the United Kingdom.) Male homosexual behaviour was previously decriminalised in England and Wales in 1967, and in Scotland in 1980. It remained illegal in the neighbouring Republic of Ireland, however - ironically, under the same nineteenth century British law struck down by the ECHR in Northern Ireland - until 1995, following the ECHR decision in Norris v. Ireland (1993), for which Dudgeon was the keystone precedent.

With Stephen Hogan [Jeff Dudgeon, a Belfast Shipping Clerk], Lloyd Hutchinson [Brian], Harry Towb [Reverend Ian Paisley, Leader of the Democratic Unionist Party (DUP)], Robert Patterson [Richard Kennedy], David Jarvis [Doug], and Helena Kennedy, Q.C. [Narrator].

Other parts were played by Nicholas Boulton, Gavin Muir, and Fiona Clarke.

Directed by Janet Whitaker

45 minutes

3) 'Breaking the Chain' (Wednesday 15th December 1999 @ 2:15 p.m.)

The year was 1974 and Jacolyn Woodhead, a 17-year-old, had decided to take instruction from her Aunt and her Aunt's husband, an Elder of the church, with the aim of becoming a Jehovah's Witness.

Jacolyn had had a turbulent few years. Rebelling against what she saw was the conventional lifestyle of her parents, she had run away from home to live with hippies in Cornwall. She'd come back sometime later, pregnant. This was still a time when motherhood outside of marriage carried a real stigma and in addition Jacolyn was very young. But, aged only 16, she went ahead and had the baby. But after another period with her parents, went to live closer to her aunt, Brenda Perkins,about 60 miles away. Jacolyn's parents were not Jehovah's Witnesses but while they had strong reservations about the religion, they recognised that perhaps the Witnesses could keep her out of further trouble. If nothing else, they were providing her with a stable, secure social structure. She seemed to be settling down.

In March 1974, Jacolyn Woodhead was baptised into the Church of Jehovah's Witness. There were few people Jacolyn would not talk to in evangelising for the Church but one was Robert Blaue who had been expelled or disfellowshipped by the Jehovah's Witness. Jacolyn, like all other Witnesses, was forbidden to talk to him. Blaue's grandmother, a neighbour of Jacolyn's, tried to introduce him to her but Jacolyn refused to speak with him. But two months later, during the late afternoon of May 3, 1974, Robert Blaue came into her house and asked her for sexual intercourse. She refused. He then attacked her with a knife inflicting four serious wounds. One pierced her lung. Robert ran away while Jacolyn staggered out into the road. She collapsed outside a neighbour's house. An ambulance took her to hospital, where she arrived at about 7.30 p.m. Soon after, she was admitted to the intensive care ward. At about 8.30 p.m. she was examined by the surgical registrar, who quickly decided that serious injury had been caused which would require surgery. As she had lost a lot of blood, before there could be an operation there would have to be a blood transfusion. As soon as the girl appreciated that the surgeon was thinking of organising a blood transfusion for her, she said that she should not be given one and that she would not have one. To have one, she said, would be contrary to her religious beliefs as a Jehovah's Witness. She was told that, if she did not have a blood transfusion, she would die. She said that she did not care if she did die. She was asked to acknowledge in writing that she had refused to have a blood transfusion under any circumstances. She did so and died the following day at 12.45 a.m.

Was this murder, or was the fault partly hers? The Defence's case was to shift as much responsibility to Jacolyn's death away from Robert Blaue and on to Jacolyn, herself. If Jacolyn's behaviour could be shown as abnormal, and if her refusal to accept blood be seen as a break in the line of causation from stabbing to death, then that refusal, itself, could be deemed the cause of death and whatever else Blaue could be guilty of, he'll be not guilty of murder.

With Julian Wadham [W. Steer, Q.C. for Robert Blaue], Elizabeth Bell [Brenda Perkins, Jacolyn's Aunt], Gemma Saunder [Jacolyn Woodhead], John Turner [Justice Mocatta / Ron Perkins, Brenda's Husband], Shireen Shah [Vilasini, a Doctor / Jean Woodhead], Stephen Thorne [Donald Herrod, Q.C. for the Crown], Andrew Heath [Lord Justice Lawton / Dr. Ennis, the Coroner], Tom George [Robert Konrad Blaue], Tim Treloar [DC Hocking / James Comyn, Q.C. for Robert Blaue], and Helena Kennedy, Q.C. [Narrator].

Other parts played by members of the cast.

Directed by Peter Kavanagh

45 minutes

4) 'On Self-Deliverance' (Wednesday 22nd December 1999 @ 2:15 p.m.)

Dr. Colin Brewer, a London physician and psychiatrist, had written an article on the philosophy of voluntary euthanasia and in the course of that article, admitted that he had tried to end the life of a terminally ill cancer patient, but had failed. Under the 1961 Suicide Act, suicide itself was no longer an offence, but it was illegal to aid, abet, counsel, or procure someone else to do so. The maximum penalty was 14 years imprisonment. Had the doctor admitted to a successful attempt, he could have well of landed in prison as others already had done.

Brewer joined the Voluntary Euthanasia Society where in 1978 a new General Secretary was appointed by the name of Nicholas Reed. Reed decides to publish a booklet on how to commit suicide because one of the biggest problems was that even when people are really desperate and totally sure that this is what they want to do, they don't actually know how to do it. So, either they don't do it at all or they bungle it with sometimes horrible consequences. Nicholas decides to go ahead with publication after seeing no response by the government or courts after the publication of "Jean's Way: A Love Story", a book by Derek Humphry. The book was Humphry's true account of helping his terminally ill wife's planned self-deliverance from suffering through the final stages of breast-cancer. Also, at the same time as the booklet's publication, the Voluntary Euthanasia Society changed its name to 'Exit', thus avoiding use in their title of the word 'euthanasia' with its Nazi overtones.

When the publication of this booklet suggesting practical ways of taking your life finally came out, how did the government respond? Was this technically a prisonable offence? How did the courts respond?

With Iwan Thomas [Nicholas Reed, General Secretary of 'Exit' (formally 'The Voluntary Euthanasia Society'], Tim Treloar [Dr. Colin Brewer, a member of 'Exit'], Lynne Verrall [Jean Davies, a member of 'Exit'], Elizabeth Bell [Brenda Able, a member of 'Exit' / Celia Fremlin, the Mystery Writer, a member of 'Exit'], Derek Waring [Mr. Justice Woolf / Mark Lyons, a member of 'Exit'], and Helena Kennedy, Q.C. [Narrator].

Other parts were by James Greene, Gavin Muir, and John East.

Directed by Peter Kavanagh.

45 minutes


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