Stopes v. Sutherland libel trial – Day Six.

On the morning of the sixth day of the trial, Sir Hugh Fraser (for the plaintiff) was the first to address the Court. He argued that the jury:

• had found the words to be defamatory,
• had found the expressions of opinion in the libel were not fair comment and,
• had awarded damages of £100.

He argued that, notwithstanding the jury’s answer to question two, judgement should favour the plaintiff with the award of damages of £100.

Mr Ernst Charles, K.C. countered for the defence, pointing out that the jury’s answer to question two indicated that the primary defence of “Justification” (i.e. that Sutherland’s words were true in substance and in fact) had succeeded. He repeated the first two questions set by the Lord Chief Justice:

“Were the words complained of defamatory to the plaintiff – Yes.”

“Were they true in substance and fact? – Yes.”

He argued that, as soon as the second question had been answered “yes”, the answers to questions three and four became superfluous because the case was over. Charles drew on legal precedent and he knew that Fraser – an acknowledged expert in the law of libel – knew that his argument was sound.

“My Lord I submit that by every rule of law, and, indeed, I think my friend, with his very great knowledge, and I will say unequalled knowledge of this particular subject, could not point to a case where the conclusion which has been arrived at by the jury that the words complained of were true in substance and in fact does not conclude the matter.

“They have found that it was true, and I submit that by every rule of law, and by every decided case, only one verdict can follow from that finding, and that is a verdict for the defendants.”

Following discussion, Lord Chief Justice Hewart said that there was no course open to him other than to give judgement for the defendants. Charles successfully applied for costs (in other words, that the legal costs of the defence would be paid by the plaintiff).

Co-defendants, Sutherland and Harding & More, had won and Stopes had lost…

… for now. There was always the possibility that Stopes would appeal.

Cardinal Bourne wrote to Sutherland on 2nd March 1923 to tell him:

“Monsignor Coote has just telephoned to me the result of the action and I hasten to send you my heartiest congratulations. May God bless and reward you for your plucky and persevering fight for purity and morality.”

“Exterminating Poverty: The true story of the eugenic plan to get rid of the poor, and the Scottish doctor who fought against it” by Mark H. Sutherland (in conjunction with Neil Sutherland), page 264.

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