The Justice Game

by Geoffrey Robertson

  Lord Gardiner died in 1990, a few weeks after he had the pleasure of hearing Lady Chatterley’s Lover read as a ‘Book at Bedtime’ on the BBC. His performance in defending that work I knew almost by heart, as the result of my schoolboy reading, but by the time I received a Rhodes Scholarship I had no intention of practising law at the Old Bailey. I was already a solicitor, and had begun to specialise in setting up tax havens for the corporate beneficiaries of Australia’s mining boom. Oxford, I thought, would be a pleasant diversion where I could briefly pursue a passing interest in liberal jurisprudence, so I chose to spend it at University College, where the exemplars of that philosophy, Professor H L A Hart and his successor Ronald Dworkin, were Fellows. I was, however, just beginning a doctoral dissertation on ‘blue sky laws’ over international stockmarkets and contemplating a respectable future at the Sydney Bar, when a small bear with a large penis came along and changed my career trajectory.

  Oz began in Sydney in 1963 as an Antipodean equivalent of Private Eye. I had been recruited to write for the magazine when two of its founders – Richard Neville and the artist Martin Sharp – left to take the yellow brick road which led, via Kathmandu, to the basements of swinging London. Here, in the late sixties, Oz was reborn in a blaze of local colour which rendered much of it unreadable, although Richard attracted contributions from his Australian friends like Robert Hughes, Clive James, Colin Maclnnes and Germaine Greer, and his new English ones such as David Hockney, David Widgery, Auberon Waugh and John Peel. Their articles, washed in day-glo, appeared flush against borrowings from the crude cartoons of Robert Crumb and Gilbert Sheldon and the hippie manifestos of the anti-Vietnam movement in the US (such was the idealism of the times that the ‘underground press’ proudly waived all copyright), interspersed with personal advertisements for sexual partners, all jumbled between the covers of Martin Sharpe’s Todd-AO coloured imagination. The magazine’s philosophy was later alleged by its prosecutors to be a glorification of ‘dope, rock and roll and fucking in the streets’, and it may be that the attraction for more credulous readers was to be made to feel that it was possible to achieve all three at once, but the notion of the ‘philosophy of Oz’ was a contradiction in terms. It was a coffee-table magazine for a revolution which would never happen – unless someone in authority took it seriously.

  A few months after arriving in Oxford, I caught up with Richard Neville. We met in the Balliol common room, where he was holding a seminar on the underground press with Tony Palmer (once famous for five minutes for comparing the Beatles to Schubert) and Caroline Coon, the beautiful and passionate dancer who had left the Royal Ballet to found ‘Release’, an organisation which helped drug victims and victims of drug laws. The student audience was large, but its curiosity languid: in privileged Oxford, the Thames Valley police were a good deal more respectful of young gentlemen than the drugs squad at Notting Hill. University life looked in and up itself: the Law Faculty seemed unaware that ‘rights’ might be conferred on anything other than property. A New Zealand don at New College called a meeting to set up a legal advice centre for unemployed car workers at Cowley: I attended but no one else bothered, and so Bryan Gould abandoned the idea. Many Rhodes Scholars regarded the university as little more than a five-star refuge from the draft: a place for post-coital punting and a base for touring Europe. It was not that we lacked all awareness: when we discovered that not a single black had ever been selected as a Rhodes Scholar from South Africa or Rhodesia, many of my year were so outraged we threatened to resign our scholarships (the Beatles, by returning their OBEs in protest against Vietnam, had made this kind of gesture fashionable). Yet it had not occurred to any of us, in 1970, that women had never been eligible for selection, or that such discrimination against them might be in any way objectionable. We had a lot to learn, and it would not be taught at Oxford.

  So we listened condescendingly to Richard Neville and Caroline Coon talk of busts in London basements and of police brutality, much as one might hear missionaries recount tribal behaviour in lower Volta, until Richard mentioned that the editors of Oz had just been hit with a conspiracy charge – something called ‘conspiracy to corrupt public morals’. Now this really was a hot topic of conversation in Oxford common rooms, if nowhere else in the world. Our liberal jurisprudes, under Hart and Dworkin, argued that conspiracy to corrupt public morals was a crime which should not exist. Their opponents, led by Patrick Devlin, found elegant reasons for a law so vague that it permitted the judges (as one of them had declaimed) ‘to guard the moral welfare of the State against attacks which may be more insidious because they are novel and unprepared for’. Hence my postgraduate excitement at surveying a member of this academically significant species, a real-life conspirator to debauch and corrupt the morals of the realm. That the crime is charged no more is largely due to Richard Neville, but in 1970 the debate over its existence was truly at the cutting edge, or the interface, between academic and practical law (and scholarly dialogue was happily free of phrases like ‘cutting edge’ and ‘interface’).

  The crime of corrupting public morals had been created by the King’s judges in 1663 to punish the drunken poet Sir Charles Sedley for urinating from a Covent Garden balcony over a crowd below. The law reports, the last to be written in Norman French, are not unanimous on the nature of Sir Charles’s momentous act. One contemporary translation has him ‘inflamed by strong liquors, throwing down bottles, piss’d in’ whilst another avers that ‘pulling down his breeches, he excrementaliz’d into the street’. The poet claimed ‘benefit of clergy’ – his right to be tried in the over-merciful ecclesiastical courts, which were run by the Church and had, up to that time, a monopoly over morals, but the King’s judges refused: only they had the power to punish ‘offences against good manners and decency’. The poet was heavily fined and set in the pillory, as a health warning to others inclined to rain on Covent Garden parades.

  On any view of 1663, this was progressive law reform. As the centuries passed, however, Parliament got around to defining fairly comprehensively in statutes the kind of conduct which offended morals and decency. Sedley’s case remained an historical footnote for three hundred years, until in 1961 the Law Lords needed a precedent to punish a man named Shaw, for publishing The Ladies Directory, a ‘Who’s Who’ of London prostitutes. No doubt Mr Shaw thought he was serving the public as well as the prostitutes and indeed himself, but the judges had become alarmed at the slowness of Parliament to legislate against such depraved initiatives. So they dramatically arrogated to themselves a power to turn conduct they did not like into a criminal offence, whenever they thought it showed a ‘tendency to corrupt public morals’. One dissenting judge aptly remarked, ‘where Parliament fears to tread, it is not for the courts to rush in’. But rush in they did, with increasing fervour as the sixties began to swing. Club-owner Paul Raymond was convicted and fined £5,000 in order to discourage what the Court of Appeal described as ‘this new craze for what we are told is called strip-tease’, and he was soon followed by the proprietors of shops in Soho selling appliances the uses for which the judges did not wish to imagine. The high-watermark of ‘swinging London’ came with the conviction, for corrupting public morals, of a man who was advertising chastity belts.

  For prosecutors, using this conspiracy device was a neat way of side-stepping the ‘public good’ defence which had saved Lady Chatterley and other books from conviction on obscenity charges. In 1969 the Law Lords refused to heed academic criticism, and upheld the conspiracy conviction of the editors of International Times (IT), an underground competitor of Oz. It had more Marxism and less wit, and lots of personal advertisements for homosexual partners – a ‘Gentlemen’s Directory’. This decision outraged the legal philosophers of Oxford, but for policemen and prosecutors it was the sledgehammer they needed to crack nuts like Oz. The offence carried a maximum sentence of life imprisonment – a fact of which Richard Neville seemed only dimly aware before I reminded him of it at Balliol. He offered me the job
, then and there, of preparing his defence, against the accusation of: ‘Conspiring to produce a magazine containing divers lewd, indecent and sexually perverted articles, cartoons, drawings and illustrations with intent thereby to debauch and corrupt the morals of children and young persons within the Realm and to arouse and implant in their minds lustful and perverted desires’.

  The magazine which inspired this condemnation – Oz: The Schoolkids’ Edition – was a piece of late sixties juvenilia, put together by two dozen bright but bored teenagers from London comprehensives. Quite a few of them grew up to work for The Sunday Times, before moving in middle age to the Independent, but at this precocious stage, aged between fifteen and eighteen, they were alleged to be co-conspirators in a plot to undermine the nation’s morals, with older flower children whose fun was over, and who were to be punished for having it.

  Richard showed me the page which had caused all the fuss, a cartoon of Rupert Bear with an erection, and I wondered whether it might not be too late to change my thesis topic from regulation of stock exchanges to freedom of speech. It is never too late to do anything at Oxford, and so I read up on free speech philosophy and sought to do some practical research by descending into the underworld of alternative London.

  The first step was a seat in a solicitor’s office in Old Bond Street, which featured in that summer of the mini-skirt more flesh than I had seen since leaving Bondi Beach. Here was the fashionable apotheosis of the sixties revolution, the Revolt into Style identified in the title of George Melly’s new book, presaging a revolt into money. Offenbach and Co was a family firm which had for many years looked after the tax and probate requirements of Harry Offenbach’s neighbours and golfing partners in Harrow, until his son David, down from the LSE, had turned it into a legal aid factory for the defence of drug-takers and dissident pornographers. Harry was uncomfortable at first, but after the Oz trial had pioneered the defence of pornography, some of the golfers went into that business and paid for the firm’s services. But for the present I was given the run of David’s office and his permission (subject to legal aid limits) to turn the case of Regina v Neville, Anderson, Dennis and Oz Publications Ink into the trial of Lady Chatterley, part II.

  Richard expressed the hope that it would become ‘the English version of the Chicago conspiracy trial’. But the Chicago trial, in 1969, had been presided over by an angry and reactionary judge, who ordered one defendant, Bobby Seale, to sit bound and gagged in a court which was routinely disrupted by the antics of ‘yippie’ co-conspirators. It had been difficult to decide who was the more provocative – the judge or the defendants – and it must have been obvious (I thought) that any ‘English equivalent’ of such a circus would be out of the question. Richard Neville had the boarding-school mannerisms of Prince Charles, Jim Anderson was a gentle, gay ex-barrister and Felix Dennis, despite a South London abrasiveness, had all the makings of the multi-millionaire mogul he later became. The ‘English equivalent’, I had no doubt, would be a trial in which the jury would be taught, if not to love the lifestyles of the defendants, at least to extend that toleration for which their nation was celebrated. But then, I was quite literally an innocent abroad. I had been in the country a few months, with a cargo-cult view of the Old Bailey as the citadel of fair trial and of Scotland Yard as a model of honest policing. I had, as I have said, a lot to learn.

  In mounting a defence to the conspiracy charge it would be necessary to destroy its theoretical basis – the notion that there is one moral standard to which all right-thinking persons must subscribe. Philosophers could give expert evidence that the times were a-changing and how the ‘alternative society’ had values as morally principled as the mainstream. I had scoured the Bodleian law library at Oxford and could find no compelling reason for excluding such evidence. There was no precedent: Sir Charles Sedley had not sought to justify the ethics of public urination, nor Mr Shaw the morality of prostitution; but the first rule of creative lawyering is that if something has not been done before, that means there is no precedent to stop you from trying to do it for the first time. (The second rule is that there soon will be.)

  The three months before the trial were a mad scramble for expert witnesses. I interviewed over one hundred, dictating their statements to Marsha Rowe, the good-humoured secretary assigned me by Oz, whom I treated so much like a secretary that she later started the feminist magazine Spare Rib. In the universities and research institutes there was eager support from dons under thirty, while a few distinguished professors with principles – like Hans Eysenck, Ronald Dworkin and Richard Wollheim – were willing to stand behind the logic of their own beliefs, even for such a wretched article as Oz 28. It was at the mid-life redbrick lecturer and pontificating left-wing journalist level that nervousness set in: my first lesson was that many of these English liberals, who exuded tolerance in speeches on campus and in letters to the Guardian, were too worried about what funding institutions or neighbours might think to stand up and be counted in the witness box. We invited Richard Crossman, the luminous Labour intellectual, to take the stand: instead he gave us an hour-long lecture on how to conduct the defence. Would he testify? I asked at the end. ‘Of course not. But if you follow my advice you will most certainly be acquitted.’ The man’s arrogance was breathtaking: he had missed his true vocation as a Queen’s Counsel.

  There was the delicate matter of Germaine Greer’s tax break. Germaine was without doubt Mother Superior to those who had taken vows of poverty, promiscuity and disobedience during the sixties: she had written for Oz, and her powers of explication were awesome and cross-examination proof. If anyone could make others understand what Oz was about, it was she. Unfortunately, Germaine was out of the country. I was referred to her accountant, who explained that under the crazy tax laws which then prevailed, the only way she could receive more than a tiny fraction of her royalties from the paperback of The Female Eunuch was not to set foot in Britain for the entire year. If she came back to give evidence at the Old Bailey she would be ruined. I explored alternatives – the BBC was prepared to let us use their satellite link from New York with a feed to the Old Bailey courtroom: her evidence would be admissible by this means if she were very ill, or too nervously disposed to travel. I had a feeling that fear of landing rather than fear of flying would not be good enough.

  Should I ask Germaine to play cuckoo to her nest egg? When I caught up with her by telephone, at some mid-western campus on an extended book tour, I have to say she actually relished the dilemma. ‘This is all the money I’ve made from slaving in libraries for years. But I’d do anything to save Richard, Jim and Felix from prison. Tell me, is there any real chance they will go to prison?’ I told her that there was a real chance if someone like Judge Argyle tried the case. ‘Will I make a difference? Can you assure me that my absence from the trial could mean their conviction?’ It is a tribute to Germaine that she actually seemed to want this reassurance in order to forgo her life savings. I was sure she would make a formidable witness, but what made the lawyer in me hesitate was the small matter of her anus which had appeared in a joke photograph published by the notorious European ‘sexpaper’ called Suck, depicting her grinning face upside-down between her legs. Scotland Yard was well aware of it (they showed it to visitors as an example of the filth they were fighting from abroad) and I did not want to give the prosecution an excuse to show it to the jury as the downside of Dr Greer. So I thanked her for offering to give up her money for the sake of her friends, and decided that on balance I would not ask her to make the sacrifice.

  By the time the trial date loomed, we had mustered an impressive collection of expert witnesses. All we needed now was a barrister who would accomplish the difficult forensic task of persuading a judge that their evidence was relevant and admissible. This would not be easy: English judges distrust ‘experts’, and the law relating to expert evidence is pretty much a list of reasons for not allowing it. The notion that defending Oz might be regarded as anything other than a privilege h
ad not occurred to me. The QC who had originally been booked pulled out eleven days before the trial began, claiming other commitments, so the brief was sent to the silk who seemed, from reading the newspapers, to be the doughtiest defender in the land. He accepted it, or so we thought. We all had a two-hour conference with him on the Thursday before the trial, but just half an hour later, when we returned to Bond Street, he called to say he was returning the brief. ‘He says he can’t take the risk,’ our solicitor David Offenbach explained, dropping the phone in disgust. ‘What risk?’ I innocently enquired. David shrugged. ‘Maybe he thinks it will stop him becoming a High Court Judge.’

  This was my first experience of the British Bar. Renowned as an independent and courageous profession, here it was quailing at the prospect of defending the editors of Oz. We had only four days to find a QC: the next morning someone mentioned that John Mortimer was defending an axe-murderer at the Old Bailey. He had successfully argued the appeal for the publishers of Last Exit to Brooklyn, and was our only and last hope. Richard and I tracked him down, lunching with two young women of my own age. ‘What exactly is the case all about?’ he enquired. Nervously, and somewhat shamefacedly, we unfurled Rupert the Bare, shielding him self-consciously from the ladies. To our enormous relief, John giggled – and showed it to them. Penny (later Mrs Mortimer) and her sister laughed, too. I produced the brief, crossed out the names of the QCs who had become mysteriously unavailable and inserted his. ‘Goody,’ he said. ‘When do we start?’ On Tuesday. ‘I must just finish my poor axe-murderer,’ he cautioned. ‘The blood-stains are not running our way.’ He left us to his dessert and his companions, and he shuffled over the road to cross-examine a forensic scientist on a subject he – and years later his fictional character Horace Rumpole – knew everything about: how to deduce a reasonable doubt from the pattern made by splashes of blood.