The Justice Game

by Geoffrey Robertson

  About the Author

  Geoffrey Robertson QC is Head of Doughty Street Chambers and the author of textbooks on constitutional and media law. He has appeared as counsel in many landmark cases in Britain and the Commonwealth and in the European Court of Human Rights, and has conducted missions for the Bar and for Amnesty International. He has received a number of awards for his writing and broadcasting, and is currently a visiting Professor at Birkbeck College, he helped to found Charter 88 and is an executive member of JUSTICE and the Institute of Contemporary Arts. He is married to the author Kathy Lette; they live in London with their two children.

  ALSO BY GEOFFREY ROBERTSON

  Reluctant Fudas

  Obscenity

  People Against the Press

  Geoffrey Robertson’s Hypotheticals

  Does Dracula Have Aids?

  Freedom, the Individual and the Law

  Media Law (with A. Nicol)

  This ebook is sold subject to the condition that it shall not, by way of trade or otherwise, be lent, resold, hired out or otherwise circulated without the publisher’s prior consent in any form (including any digital form) other than this in which it is published and without a similar condition including this condition being imposed on the subsequent purchaser.

  Epub ISBN: 9781446444504

  Version 1.0

  www.randomhouse.co.uk

  Published by Vintage 1999

  27 29 30 28

  Copyright © Geoffrey Robertson 1998

  The right of Geoffrey Robertson to be identified as the

  author of this work has been asserted by him in accordance

  with the Copyright, Designs and Patents Act, 1988

  First published in Great Britain by Chatto & Windus 1998

  Vintage

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  ISBN 9780099581918

  For my mother and father

  Contents

  Preface

  I. Sounds of the Seventies

  1. Who is Mr Abbie Hoffman?

  2. The Trials of Oz

  3. One of Our MPs is Missing

  4. Michael X on Death Row

  5. Ferrets or Skunks? The ABC Trial

  6. Gay News: The Angel’s Advocate

  II. Lawyers, Guns and Money

  7. The Romans in Britain

  8. Invitation to an Inquest: Helen Smith

  9. The Prisoner of Venda

  10. Show Trials

  11. Fantasy Island

  12 . Come Up and See My Boggs

  III. Hard Cases, Real Time

  13. Ali Daghir and the Forty Nuclear Triggers

  14. Friendly (sic) Fire

  15. UK Ltd: The Matrix Churchill Trial

  16. Diana in the Dock: Does Privacy Matter?

  17. Cash for Questions?

  Afterword: The Justice Game

  Chapter Notes

  Preface

  I could tell you a lot about the law . . . we got a man to argue for me tomorrow who wouldn’t have me to dinner in his house. But I have paid his price and he will be at my side for as long as it takes.

  Mr Schultz, Billy Bathgate, E. L. Docterow

  In 1989, on an Amnesty International mission to Vietnam, I was told in several villages the same story, about a farmer who one day vanished. The local communist party chief had the farmer’s enemy arrested and executed for murder. Years later, the farmer was found tending ducks in another village. This story was repeated as a parable for political change – a demand, if not for democracy, at least for a legal system independent of the State. In the same year in England, where such a system had existed for centuries, its justice was being called into question by the dawning realisation of the wrongfulness of the convictions of the ‘Birmingham Six’, the ‘Guildford Four’, Judith Ward and others. The message of these miscarriages was more complicated, but essentially the same: they had been caused by State agencies – police and prosecutors and Home Office scientists – who had been so blind to the possibility of innocence that they had withheld, as irrelevant, information consistent with it.

  This book is an attempt to explain why justice matters. It matters because we have an elemental need for reassurance that there is some chance of winning a legal contest against the powers that be. Most of us will never find ourselves accused of crimes we did not commit, or oppressed by Whitehall or by the most mighty in the land, or wish to publish something so shocking that public opinion will want to string us up. What we need to feel is that should this (heaven forbid) ever happen, we can turn to a legal system which will give us a reasonable chance of victory – preferably not posthumously. Justice is the great game precisely because its rules provide the opportunity of winning against the most powerful, and against the State itself. This does not mean that David will necessarily slay Goliath, but that laws of battle will prevent Goliath from sidling up and hitting him on the head. They arm David with a slingshot, a possibility of victory.

  I have sought to explain this by recounting actual cases, the method by which law itself develops as it narrows down from precedent to precedent. These were hard cases, although some made good law and others exemplify the need to make law better. No human trial system is infallible: compromises must be made, in doing the best we can. The minimum which the law must offer is a possibility of success to those up against it, irrespective of their wealth or indeed their guilt. That applies to all defendants on criminal charges, especially when those charges are brought to protect the State in the name of national security or national morality. It must apply to those who challenge the State to obtain ‘rights’ which have been denied them – rights as basic as to know how their children have died or as paradoxical as to be treated with decency on the way to the gallows. Law is erroneously regarded as a tool for oppression: in this book I have tried to show how it can serve as a lever for liberation.

  That was not what I had been taught at Law School, which dunned into me that law was a system for applying rules made by legislators or by judges to facts elucidated by evidence, through which process a just result would be achieved. We were dubious enough in the sixties about this ‘slot machine jurisprudence’ to be taken in by a most charismatic and controversial judge, Lord Denning, whose slogan was ‘I must do justice, whatever the law may be’. His invitation to tear up the rule book in order to reach popular results suited the iconoclasm of the time. That it was dangerously simplistic only became evident years later, as I sat in courtrooms in Singapore and Kenya and South Africa, listening to his idiosyncratic judgments being quoted by State prosecutors as warrant for locking up dissidents without trial, as threats to national security. Denning played Prospero to lawyers of his generation, creating the result his own opinionated mind believed ‘just’ through the alchemy of obscure precedents he found in the common law: his prejudices were his principles. ‘Trust the judges’ became his motto, and although my cases show that judges usually favour liberty more than governments do, they need advocates to push them and principles to protect them.

  ‘Law is the wisdom of the old,’ says Auden, but neither law nor lawyers strike me as repositories of any sort of wisdom at all. What we normally distil is convenient sagacity: ways around statutes, the likely outcome of precedents, the tactics which may triumph at trial. At a functional workaday level, the law is a mechanism for reducing the level of grievance in a society. It serves to let blood, mostly
with clinical skill although sometimes by leeches whose conduct has inspired most of the lawyer jokes through the ages. We get results for clients by constructing arguments which win the day because they are judged better than the arguments offered by the other side. If that seems a weary, jobbing definition, it is less cynical than the one offered by the American realist school of jurisprudence, that ‘law is what officials do in fact’. The whole point of law, it seems to me, is that it offers the possibility of establishing that what officials do is, in fact, wrong. The value we call ‘justice’ is the description applied to (or withheld from) the result of an actual case, although it more accurately describes the rules by which the case was decided or settled. These rules are ordained by the State: whether they are just depends on whether they provide for the possibility of beating the State at its own game.

  This book begins in 1970, with the State’s first cack-handed attempts to punish some excesses of the sixties, such as the crude effusions of the underground press. This political use of the law culminated in the sledgehammer prosecution of Duncan Campbell under the Official Secrets Act and the wrongful conviction for blasphemy of Gay News. More extreme examples of repression I later observed in South Africa and Malawi, and fought against in Prague and Singapore, but all derived from the same error: the perception that laws can and should silence subversive people and ideas. The government learned a lesson from the ABC Trial, but the powerful private prosecutors of the artist Stephen Boggs and the director of The Romans in Britain had to be taught it as well. It was the adversary system that gave these dissidents a chance: there was always the jury, the ‘gang of twelve’, its constitutional power to cause an upset confirmed, curiously enough, by the case of runaway MP John Stonehouse. But juries do not always do justice to unpopular people. That task calls for unflinching appellate judges, like those who freed the man convicted of supplying ‘nuclear triggers’ to Saddam Hussein, because his trial was unfair.

  The book chronicles a sea change in the attitudes of judges, partly generational and partly through the influence of human rights treaties. This can be seen most markedly in the decisions on the death penalty made by the Privy Council and described in Chapter 4, between the judgment which hanged Michael X in 1975 and the decision which saved the lives of Earl Pratt and Ivan Morgan and hundreds more in 1993. A reminder that justice is reasonably demanded by victims of crime and can take precedence over the interests of the State is found in the battles of Ron Smith to establish how his daughter Helen died in Saudi Arabia and in the similar crusade of the ‘Friendly Fire’ parents to penetrate the army’s all-purpose excuse that their sons were killed in the ‘fog of war’. As a further reminder, in ‘Fantasy Island’ I describe some international efforts on behalf of the innocent victims of drug cartels, the honest judges and journalists whose killers were helped by irresponsible bankers and businessmen and politicians. In contrast, ‘Diana in the Dock’ is a tribute to one would-be plaintiff who was partly the author of her own misfortune, but whose claim for privacy does need to be weighed with the value (heavily supported in other chapters) of freedom of expression.

  Although British culture and history sustain a rhetorical commitment to ‘fair play’, decisions taken behind the closed doors of Whitehall may nonetheless lack consistency and sometimes honesty – as the Matrix Churchill trial revealed. That case was important not only as an example of how the justice game can be played against the State, but for setting the sleaze ball rolling towards the 1997 general election. This picked up speed with the collapse of another trial – Neil Hamilton’s libel action against The Guardian, a game won in the teeth of odds which the Lords and Commons had stacked in the plaintiff’s favour by tinkering with the Constitution. Although Sir Humphrey Appleby and the Yes Minister brigade regard open government as a contradiction in terms (‘You can be open, or you can have government’), my point in these chapters is that openness is conducive to better government, part of which entails respect for the value of justice.

  All these case histories serve as jumping-off points for a wider argument about the role of law in guaranteeing individual liberty. Considered in isolation, they demonstrate how this has been achieved, variously and haphazardly – sometimes by strokes of advocacy, occasionally by an ingrained sense of fairness in the trial judge; more often by politic bargains in the jury room or by proper application of precedent in appellate courts. Taken together, I believe they make an overwhelming case for a return to first principles, for approaching all these problems not just with a grab-bag of precedents and a sentimental faith in the jury or the adversary system, but from the bedrock of a Bill of Rights. The absence of human rights as a starting point for legal argument is the great and glaring defect of the common law tradition, in England which developed it and Australia which inherited it. Studying and practising law in these two countries over the past quarter-century has often felt like worshipping scientology rather than true religion, a search for artificial arguments to win cases which should be decided by appreciation of basic values. In Australia, progressive-minded judges have sought to import these values from international human rights treaties (somewhat to the discomfort of politicians who signed them without thinking they would have any real effect). In Britain at last we have a government prepared, at the time of writing, to make the European Convention on Human Rights a part of domestic law, thereby willing to have its exercises of arbitrary power controlled by independent arbiters of fairness. For many reasons – enumerated in the last chapter – I believe that this will lift the justice game to First Division level. It will not mean that the best team will always win, but the match will be worth watching.

  The book argues for freedom of information and libel law changes, for abolition of blasphemy, for proper inquiries into violent deaths, for a privacy law, for an Independent Commission Against Corruption, and for an end to that great British confidence trick, ‘voluntary self-regulation’, as it is deployed to excuse the misbehaviour of politicians and newspaper editors. These populists are the first to cry ‘let’s kill all the lawyers’ when the law does not conform to their expectations, although their ‘Privileges Committee’ and ‘Press Complaints Commission’ are fraudulent bodies through which they contrive to avoid conforming to law. It is a great mistake for lawyers to want to be loved: their job is to ensure that the value of fair adversarial trial is recognised as a guarantee for civil liberty of importance equal to a free press and a democratically elected Parliament. The advent of a Bill of Rights will make this role both explicit and worthwhile. They must prepare themselves to perform it in return for more satisfaction and less money.

  The chapters come chronologically rather than logically, spanning twenty-five years. Some of the earlier forensic flashpoints could not happen now (which is some measure of progress) while others have done something to penetrate the secrecy and upset the complacency which have been the abiding features of British Governance over the period. The book offers a view from the robing room, a place as important as the jury room and the police canteen in the hidden culture of the English adversary system. Yet however objective an advocate tries to be, you cannot cut psychologically adrift from that obsessive commitment to the side you were on at the time, no matter how many years have elapsed, and these histories should be read with that caveat. For that reason too, the reader is owed some explanation of where I am coming from – hence the accounts of Sydney and Oxford and of early days qualifying for the Bar. This is not intended as an autobiography and is probably too argumentative to qualify as a memoir. It is a chart of some cases which I look back on in the way airline pilots think of radio beacons – they call them ‘way points’, aids to work out how far they have come, and how far they have yet to go.

  It remains to thank those clients who have entrusted me with their battles and encouraged me to write about them. For editing, my thanks to Jenny Uglow and Jonathan Burnham, and for preparing the manuscript to Anthony Hudson, Jane Mulholland and Christopher Whitehouse. My colleagues
at Doughty Street Chambers have suffered my distraction over this book in silence, unlike my wife whose support has, as ever, been critical. Most of these cases can be found in skewed perspective in the press clippings and in the more circumspect pages of the law reports. I have tried to show how they really happened and for what they stood or fell in the long march for human rights.

  Geoffrey Robertson

  Doughty Street Chambers

  November 1997

  I

  Sounds of the Seventies

  Chapter 1

  Who is Mr Abbie Hoffman?

  ‘That was Abbie Hoffman – he’s catching the nine o’clock flight from Paris, and he wants a lawyer at Heathrow in case they try to deport him.’ Richard Neville, the editor of Oz magazine, put down the telephone and looked at the only lawyer immediately available to the English underground press on a Sunday night in March, 1971. Not really a lawyer – a 24-year-old postgraduate whose thesis on freedom of speech had provided the excuse for descending from Oxford at weekends to Richard’s basement flat in Notting Hill, scene of the crime of conspiracy to corrupt public morals for which he was shortly to stand trial at the Old Bailey. I was a strait-laced, short-haired, pedantic Rhodes Scholar; Richard was London’s latest Peter Pan, a charming chat-show revolutionary whose basement served as a crash-pad for the lost boys and girls of fin de sixties England. This never-never land had Tinkerbells, I noticed, who rolled fairy dust and evinced a mixture of dread and contempt for the pirates moored at Scotland Yard, who made regular raids to spoil their fun.

  Richard’s eyes gleamed at the prospect of meeting the star of the Chicago conspiracy trial, who had defied a reactionary judge and turned a prosecution for disrupting the 1968 Democratic Convention into an epic courtroom clash between the American protest movement and the establishment. But there was a dab of caution beneath his bravado. The Oz editors had been committed for trial for an offence carrying a maximum sentence of imprisonment for life. After Richard’s arrest, Scotland Yard had objected to bail, and even objected to his surety, a long-haired television producer of apparent good character named John Birt. Abbie Hoffman, he suspected, would be banned from entering Britain as the result of an escapade the previous year involving his co-conspirator Jerry Rubin, whose appearance on The David Frost Show had been interrupted by ‘yippies’, led by Richard and Oz co-editor Felix Dennis, squirting water-pistols. Frost had become hysterical, and the government had overreacted by placing all the Chicago conspirators on a ‘stop-list’, as persons whose presence in the United Kingdom was ‘not conducive to the public good’. As an Australian, Richard too was liable to deportation if convicted (although the journalist Anna Wintour had graciously offered her hand should he need to avoid transportation).