It is 40 years since Howard Brentons play The Romans in Britain, directed by Michael Bogdanov, opened at Londons National Theatre. Set in ancient Rome, it deals with themes of imperialism and abuse of power, and became infamous for a brief episode in its first act when actors Peter Sproule and Greg Hicks portrayed an act of male rape.

The play made legal and political history when morality campaigner Mary Whitehouse tried to prosecute Bogdanov using the Sexual Offences Act 1956, alleging that he had procured an act of gross indecency between two men by directing the two actors.

The controversy reflected the cultural wars of the time. Thirteen years before the play had opened, the Sexual Offences Act 1967 decriminalised homosexual acts in private between two men. Yet as Geoffrey Robertson QC, who was a junior barrister for the defence, says, the attitude of the law was that it was not to be encouraged or legitimised.

Theatre censorship became less common after the Theatres Act abolished the lord chamberlains historic role of censor in 1968, but homophobic attitudes were still the norm. In 1976, Whitehouse, described by Robertson as the self-appointed conscience of the nation, sent her solicitor Graham Ross-Cornes to see The Romans in Britain, and then sought to bring her case.

The director of public prosecutions, Thomas Hetherington, advised the attorney general, Michael Havers, that the play did not contravene the Theatres Act. So Whitehouse tried another route and sought to prosecute Bogdanov under the Sexual Offences Act 1956. The legislation was designed to prevent men soliciting in public lavatories which is why, according to Robertson, the prosecution treated the National Theatre as a large public toilet.

Defence barrister Jeremy Hutchinson compiled a list of actors who were willing to give evidence for Bogdanov, while the prosecution only planned to call Ross-Cornes.

His evidence in the trial at the Old Bailey, Robertson says, prompted one of the most amazing piece of cross-examination ever heard. Giving his evidence, Ross-Cornes had not said where in the theatre he had been sitting.

Barristers are reluctant ever to ask a question in court to which they do not know the answer, and Hutchinson had to be persuaded to ask Ross-Cornes to mark on a map of the theatre where he had watched the production from.

The plan came back showing he had been sitting in the back row of the upper circle, 90 yards from the action. This exchange followed:

Hutchinson: You know that theatre is the art of illusion?

Ross-Cornes: If you say so, Lord Hutchinson.

Hutchinson: And as part of that illusion actors use physical gestures to convey impressions to an audience?

Ross-Cornes: Yes, I would accept that.

Hutchinson: And from the back row, 90 yards from the stage, you can be certain that what you saw was the tip of the actors penis?

Ross-Cornes: Well, if you put it that way, I cant be absolutely certain. But what else could it have been?

At this point Hutchinson balled up his fist, placed his hand by his groin and his gown over his hand, stuck out his thumb and made a thrusting action. He then asked: Are you sure you did not see the tip of the actors thumb? Ross-Corness subsequent admission that he might have been mistaken halted the trial.

As Robertson says, the case put an end to Whitehouses courtroom crusades. Gay rights campaigner Peter Tatchell, meanwhile, says the cases impact went beyond the play itself: The failure of the prosecution was a huge victory, not just for LGBT+ people and the theatre world, but also against censorship and for liberal Britain. It struck a blow for gay visibility, against the homophobes and puritans.

But Lord Michael Cashman, the actor who played Colin Russell on Eastenders and portrayed the first ever gay kiss in a UK soap opera, says: The case was a very clear indicator that homosexuality would not even be tolerated, let alone expressed on a theatre stage.

He is unsure that the case accelerated the campaign for equality but says it was a vivid reminder that our rights were non-existent.

He says the support that the defence received from senior figures across the creative industries was heartening and encouraging, but adds: It must be remembered that they were defending not particularly homosexual issues but the right to artistic independence, as well as challenging the notion of censorship via the imposition of anothers perspective on morality.

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Landmarks in law: the controversial 80s play that defied gay censorship - The Guardian