Stopes v. Sutherland 1923: A last-minute change

One-hundred years ago, the preparations for the Stopes v Sutherland libel trial were in earnest.

In November 1922, Mr. Percy Braby (plaintiff’s solicitor) had conferred with Sir Hugh Fraser as to whom should represent Dr Stopes in in the High Court. Fraser’s first two suggestions were turned down: the first had acted for the Catholic Church and Stopes thought he might be “got at”, while Braby had used the second previously in two cases which had been lost, he felt, through that fellow’s incompetence.

Fraser’s next two suggestions were Sir Leslie Scott and Mr. Patrick Hastings, both of whom were K.C.s and described as “favourites at the Bar.” Neither was entirely satisfactory to Stopes. Scott was a member of the Eugenics Education Society, but as a High Church Anglican he might have had traditional views on birth control, while Hastings was a Labour MP. Nonetheless, Scott was chosen as the “senior” barrister with Hastings as his “junior”.

Early in 1923, Scott’s clerk contacted Braby to tell him that Scott was so busy in January and February that “it may be impossible for him to do full justice to this case” and suggested Hastings as an able replacement. Braby was reluctant to change barrister so close to trial and Stopes (understandably wanting “every consideration and attention possible” to her case) offered to increase Scott’s fee “to induce him to take a greater interest.”

Subsequently, conferences were scheduled but postponed, each time owing to Sir Leslie’s workload. On 13^th February 1923, Scott returned the brief, news that pleased the defendant, Dr Sutherland:

“The great news tonight is that Leslie Scott, K.C. Plaintiff’s leader, has thrown up his brief.”

Exterminating Poverty: The true story of the eugenic plan to get rid of the poor, and the Scottish doctor who fought against it (2020) Mark H. Sutherland (in conjunction with Neil Sutherland), page 75.

Why did Scott return the brief?

As a “favourite at the Bar,” Scott would have had many competing demands for his time. In my opinion, though, it is likely that Stopes’ domineering manner gave him misgivings as to whether he would be able to run the case in the way he wanted, which in turn leding to him being less than enthusiastic about representing her.

Stopes insisted on the inclusion of matters that were legally irrelevant. These had the potential to not only damage the likelihood of her success, but Scott’s reputation as well. For instance, she suggested they subpoena Cardinal Bourne to appear, a move he “strongly opposed” (presumably because he knew that judges take a dim view of those who try to turn their court into a circus).

Then there was Stopes’ instructions for him to use the trial to attack Roman Catholics:

“The Plaintiff would like also brought out the harm Roman Catholics are doing to our nation as a whole. This would require some further material. She could give a good deal more information: for instance in a return of Religious Creeds of prisoners for 1906, over one-half of all the prisoners in Scotland were Roman Catholics, although they form a very small part of the total population. In similar ways one could bring out in Court that Roman Catholics on the whole are the most immoral of the sections of our community, and for them to gain ascendancy is nationally very dangerous and harmful.”

Exterminating Poverty: The true story of the eugenic plan to get rid of the poor, and the Scottish doctor who fought against it (2020) Mark H. Sutherland (in conjunction with Neil Sutherland), page 58.

There is evidence too of a personality clash. In letters to Braby, Stopes described Scott as “a bit of a nuisance” and she urged him to “please try to drum into [Scott’s] head which I fear is very incapable of receiving impression…” certain aspects of the case. She opined that it would be wiser to devote their attention to Mr. Hastings, because “it seemed to me that in ten minutes he had got the hang of the position more usefully than Sir Leslie in all these weeks.” For his part, Braby cautioned Stopes against undermining Scott.

The Gold Pin

On 16^th February 1923, the defendants gave formal notice to the Court that they were including an additional defence, namely:

“The Plaintiff during the year 1921 at the said clinic advocated the use by certain women whose names are unknown to the Defendant of the said Gold Pin or wishbone pessary; and also invited one Norman Haire to fit such women with the said appliance.”

Exterminating Poverty: The true story of the eugenic plan to get rid of the poor, and the Scottish doctor who fought against it (2020) Mark H. Sutherland (in conjunction with Neil Sutherland), page 67.

It is likely that the solicitors for the defendants would have informally notified the plaintiff’s solicitor prior to that date. The Gold Pin was a device that attracted great controversy and, in my opinion, its inclusion in the case was the likely the reason that Scott threw up the brief (and particularly if he had found out about Stopes changing the statements of her medical witnesses).

While Hastings had been involved in the case, it had been as a junior barrister and a change at this late stage – merely eight days before the trial opened in the High Court on 21^st February 1923 – was less than ideal. It may have been at this point that Stopes offered to settle out of court: if Sutherland would apologise, she would stop proceedings and pay his costs. The offer was declined.

What was the Gold Pin? Why was it controversial? What impact did it have on Stopes v. Sutherland libel trial? The answers to these questions will be addressed in my next post on 15th January 2023.

Mark Sutherland
Curator, hallidaysutherland.com
Author, Exterminating Poverty: The true story of the eugenic plan to get rid of the poor, and the Scottish doctor who fought against it (2020) Mark H. Sutherland (in conjunction with Neil Sutherland).

Photo by Sear Greyson on Unsplash