One-hundred years ago today, the Law Lords delivered judgement in the so-called “Birth Control Libel Trial,” also known as Stopes v Sutherland (1923).
The legal battle began when Dr Halliday Sutherland wrote Birth Control: A Statement of Christian Doctrine Against the Neo-Malthusians. After publication, Dr Marie Stopes alleged that a passage in the book was defamatory and she sued him for libel.
The case began on 13 May 1922 when a writ was served on Dr Sutherland. He recalled the moment in a later memoir:
“I was at my Bristol office when a local firm of solicitors telephoned, on 13th May 1922, to say they were instructed to serve me with a writ for libel at the instance of Dr Marie Stopes. I told them to hold the writ until I found a London solicitor who would accept service, then wired two friends in London, a barrister and a journalist, to meet me in a quiet hotel in Dover Street at eight that evening.
“There at eight-o-clock I saw my two friends and showed them the passage in the book on which I knew the writ had been issued. The barrister read it carefully, said that the words had been defamatory, that a plea of “fair comment” would fail, and that my only defence was “Justification,” namely, that what I had written was true in substance and in fact. This is the hardest defence for any defendant in a libel action.
“The journalist suggested that I should ask the Church to assist me. This I declined to do, although if the Church on hearing of the case decided to help me I would be only too glad to accept. In any case I knew nobody at Archbishop’s House, and as a Catholic was unknown except for this book [Birth Control]. At that he left the room to telephone, and then returned. At ten o’clock he was called to the telephone by Monsignor Jackman, who sent this message: ‘Tell Dr Sutherland that Cardinal Bourne will stand by him to the end.’ Had it not been for that decision by His Eminence, I would have been ruined.”
923 days later, following 13 interlocutory hearings, a jury trial in the High Court, an appeal to the Court of Appeal and a counter-appeal to the House of Lords, the Law Lords ruled in favour of the co-defendants, Dr Sutherland and Mr Vincent Waring of Harding and More.
The five law Lords hearing the appeal in the House of Lords on 21st November 1924, were Viscount Cave, the Lord Chancellor, Viscount Finley, Lord Shaw of Dunfermline, Lord Wrenbury and Lord Carson who held that: (1) Judgement should be entered for the defendants on the ground that there was no evidence to support the finding that the comments were unfair; and by Lord Shaw of Dumfermline and Lord Carson on the further grounds that the finding of the jury on the plea of Justification afforded a complete answer to the action. (2) That a new trial not to be granted on the ground of misdirection, as no substantial miscarriage had been occasioned by the misdirection, if any. Lord Wrenbury dissented on both points.[1]
The legal battle exposed the eugenic agenda underlying Dr Marie Stopes’ Mothers’ Clinic. It slowed her plans to expand the clinics across Britain. The loss also damaged Stopes’ preeminence in the birth control movement, leaving space for those less inclined to eugenics and more towards family planning. Stopes v Sutherland also created a legal precedent which is cited in libel cases today.
[1] Source: The Trial of Marie Stopes. (1967) M. Box, Ed. London: Femina Books Ltd. Page 390.
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