The Justice Game

by Geoffrey Robertson

  Detective Inspector Frederick Luff was one policeman not motivated by money. He was religiously committed to the closure of Oz and throughout the trial he worked as if his life depended on the outcome. On its last day, he had taken me to lunch at The Magpie and Stump. So why, I asked as he threw back his head to suck at a burnt pub sausage, was he persecuting Oz and not the real pornographers? He took a deep breath and almost pleaded, ‘I know those boys in Soho. You have to believe me, I know them, and they would not – on their mother’s grave – those boys would not sell that stuff to a kid. But Richard Neville and these underground people . . . That Isle of Wight pop festival, that was part of it, it’s all organised, you see. I believe in God, and I’m doing this for our children . . .’ Luff’s eyes were blazing, on behalf of the kids my clients were Pied-Piping to their moral doom, and I believe he was sincere: several years later he gave a long witness statement to the investigators who came in with Robert Mark to clean up Scotland Yard. He was allowed to go off and do missionary work, while a dozen of his colleagues were prosecuted and jailed for – as Mr Justice Mars-Jones said – ‘turning the Obscene Publications Squad into a vast protection racket’. Porn may not deprave and corrupt its readers, but it certainly corrupted some of those charged with enforcing laws against it.

  And that was the end of Oz. This quintessentially sixties magazine, having proved its point in the law courts, lay down and died from an overdose of publicity. The editors went their separate ways – Richard returned to Sydney to raise children in a house called ‘Happy Daze’ by a waterfall in the Blue Mountains; Jim became a waiter at a gay restaurant in Sausalito and then wrote well-received novels; Felix, driven to refute the slur on his intelligence, built up an empire of art and land and computer magazines worth over £170 million by 1995. In that year Michael Argyle, now President of Restore the Death Penalty International Inc, wrote his own recollections of the Oz trial for the Spectator. He accused the defendants of importing drugs and selling them to schoolchildren and threatening his life. I advised Richard against suing the magazine, on the grounds that free speech was what the Oz trial was all about and that such evidence of the judge’s mentality had historical merit. Felix took less nostalgic advice from George Carman and hit the Spectator with a claim for exemplary damages. The magazine published a full-page apology to this leading British businessman and paid a substantial sum to a children’s charity of his choice.

  Finally, what good came of it at last? The Court of Appeal decision, by declaring that ‘obscenity’ was much more than something shocking and disgusting – that it required some seductive invitation to depravity – has served as a bulwark against the resurgence of political censorship by way of criminal trials. Artists and writers who obey Kafka’s injunction to ‘use your pen like an ice-pick, to smash the frozen sea inside us’ are in consequence unharassed, as are those whose shocking work is experimental or downright bad. The written word, certainly, is now beyond the long arm of the law, thanks to what was practically a replay of the Oz trial in 1976 – Brian Leary prosecuting, with John and myself and the ever-principled Professor Dworkin defending a shoddy little book called Inside Linda Lovelace. A jury of twenty-somethings acquitted without hesitation, after the judge had directed them, ‘If this is not obscene, you may ask yourselves “what is?”’ That acquittal, I suspect, was also a result, culturally rather than legally, of the Oz trial, which had aroused the hostility of the younger generation of jurors to a law which could apparently be used for political purposes. Ironically, in this way it may have proved a windfall for those involved in the commercial exploitation of sex – most notably for Rupert Murdoch, whose nudes began their appearance on page 3 of The Sun just after the Oz decision made clear that bad taste was not a crime.

  Perhaps the best thing about Oz is that they just don’t have trials like that any more. The last one of note was when John and I were enlisted to defend a particularly polite and studious young university graduate who sung under the sobriquet of ‘Johnny Rotten’. Virgin had just launched a new Sex Pistols album: Never Mind the Bollocks, Here’s the Sex Pistols. Display of the cover in shop windows was alleged to be an indecent exhibition and a test case was taken before the magistrates in Leicester. The justices made no attempt to hide their disapproval, so we called a Professor of English from Leicester University to trace for the court the etymology of the allegedly indecent word ‘bollocks’. He explained that it was in common usage in the Middle Ages as the word for testicles, but had altered its meaning in the late eighteenth century because of a character in popular literature called ‘Bollocks’, a parson. From this association with parsonical canting, it developed the meaning of ‘cant’ and its modern slang sense, ‘rubbish’ or ‘nonsense’. But it undoubtedly had respectable origins: indeed, the professor emphasised, Caxton in his Bible used the word ‘bollocks’ to mean ‘testicles’, and it had been republished in that sense until the King James edition, when it was replaced by the word ‘stones’. At this point Johnny Rotten passed me a note. It read: ‘Don’t worry. If we lose the case, we’ll retitle the album Never Mind the Stones, Here’s the Sex Pistols.’

  Soon after, the magistrates faced a courtroom packed with tabloid journalists. ‘We have to find, unfortunately, that this charge is not made out,’ grumbled the chairman, ‘but don’t think you are going to get any costs out of us.’ John Mortimer, who belonged to that old school of advocates which thought that applying for costs slightly lowered the tone of a victory, had no intention of asking. Richard Branson was already leading the press-pack to a priceless front-page photo opportunity outside a record shop festooned with the acquitted cover: publicity over this would turn the Sex Pistols’ heavy metal into gold. This is the abiding irony of all censorship, what might be termed ‘the Spycatcher effect’ – attempt to ban by law any form of artistic expression, and the publicity you bestow upon it will only serve to promote massive sales.

  We seem to have laughed ‘lifestyle’ prosecutions out of court – even out of magistrates’ courts. For authors, the accolade of an Old Bailey trial is unavailable and the testimony of that once familiar figure, the ‘expert on literature’, is no longer heard in the land. For ten years, between 1987 and 1997, I was a director of the Institute of Contemporary Art, and not once did we suffer a police raid. I did stop one show by an HIV-positive performance artist whose idea of attaining empathy with his audience was to splatter them with infected blood (his own). This was not censorship, it was applying health regulations.

  In 1992 the BBC produced my play re-enacting the Oz trial. In the direction box high in the cavernous studios at Television Centre, I looked down on the cardboard courtroom set as the actors took their place: there was one person missing. There was no postgraduate student at the solicitors’ table in front of John Mortimer, looking appalled at the realities of English justice, circa 1971. I pointed out the omission, and hopefully added that I could always play myself. The producer and director – both were in nappies in 1971 – smiled and let me down politely. ‘OK, but we’ll get a young extra. You are – well, too old to be credible, really. What was that Oz slogan – never trust anyone over thirty.’

  As I watched, the sentence of imprisonment and deportation of Richard Neville still fell with a shock, even though it was falling on the head of Hugh Grant, bowed in the dock to take the dramatic blow from a judge played by Leslie Phillips. I watch the extra recruited to play myself turn in distress to Simon Callow’s John Mortimer. Simon’s face, like John’s, collapses to that precise level of weary resignation at which the barrister’s emotion must bottom out, for below it lies tears, and further down, fury. The camera does not pan through the walls of the Old Bailey to the hundreds of angry demonstrators on the street outside, who burned the effigy and then formed what the Daily Express described as ‘a wailing wall of weirdies’ trying to levitate the foundation-stones. BBC2 did not have the budget. When the play was first performed by the Royal Shakespeare Company, I wanted the judge to have a magnifying
glass, through which he would peer at Rupert. The director demurred. ‘But he did. I was there,’ I insisted. ‘Of course it happened – in court. In a theatre, the audience won’t believe it happened in court.’ The most difficult thing about re-creating the Oz trial is that it was the sort of life which art cannot imitate.

  Chapter 3

  One of Our MPs is Missing

  Gerald Gardiner started his career on the stage: he switched to the Bar because he wanted to deliver his own lines. In 1972 that yellow brick road beckoned briefly, when my Oz play attracted an off-Broadway production as a musical. Despite inspired direction by Jim Sharman, my theatrical career was short-lived: the New York Times critic, the Englishman Clive Barnes, hated the ridicule it heaped on his homeland. So I returned to Oxford to complete my thesis – and to find another friend in peril in the Old Bailey. This time it was twenty-two-year-old Peter Hain, who was being prosecuted on a blunderbuss conspiracy charge for organising the anti-apartheid demonstrations which had forced the MCC to cancel the 1970 test series against South Africa. His defence was being organised by the NCCL’s solicitor, Larry Grant, who invited me to spend the summer of 1972 playing the justice game against the supporters of apartheid in sport. My acceptance was made possible – ironically – by Cecil Rhodes, whose Trust extended my scholarship for another year so that I could move to London to qualify for the Bar – and join Peter’s legal team.

  Peter Hain was the world’s least likely law-breaker: he was excruciatingly polite, with hair the most conscientious prison barber would not have dared to touch. He had led the Young Liberals, and had come to stand for peacefulish protest (i.e. protest that was peaceful until the police arrived). He advocated ‘direct action tactics’ which meant running onto sportsgrounds during play and being carried off without a struggle: this, alleged his prosecutors, amounted to ‘conspiracy to trespass’, another obscure offence against the common law which carried a maximum sentence of life imprisonment. He faced four conspiracy charges, three of them serious, in a prosecution funded by a company – ‘Freedom Under Law Limited’ – which had raised money in South Africa under the slogan ‘Pain for Hain’. In that country, they had no doubt that when football and cricket matches were disrupted in England, ‘Hain stopped play’. But Peter had really been the spokesperson for mass protests in which tens of thousands of people had demonstrated in different ways their abhorrence of apartheid. The mistake his private prosecutors made was to claim that the rule of law required him to be convicted and jailed, when the law they relied upon – conspiracy to trespass – had never been approved by Parliament and was so vague in its definition and uncertain in its scope that some criminal textbooks denied its very existence. It was, in any event, irrational that an action (trespass) which if done by one person was merely a civil matter should be turned into a serious crime by the fact that it was done by agreement with others.

  Hain’s judge did not think that way, however, and the trial lasted for five weeks: for most of it, Peter defended himself with Larry and myself as his advisers. The prosecution Q.C. called sports stars (including Dawie de Villiers, South African football captain) and a journalist who later admitted working undercover for BOSS, the South African secret police. We countered with bishops and Liberal MPs. The jury was out for seven-and-a-half hours, and it was terrifying to think that they might return a verdict which would put Peter in prison and lead to dancing in the streets and segregated sporting clubs of Johannesburg. In the Oz case the jury had done their best to help without actually disobeying the judge’s instructions; Peter’s jury made in the end an acceptable bargain between the law and their consciences. They convicted him by a majority verdict only on the most minor count (of disrupting a Davis Cup tie for five minutes) and he was fined £200 – a disappointing dividend for investors in ‘Freedom Under Law Limited’. The crime of ‘conspiracy to trespass’ was soon abolished by Parliament following a Law Commission report that it offended against the fundamental principle of certainty in the criminal law. Peter Hain’s defence had, I think, a small part to play in preventing the rule of law being misinterpreted to mean the rule of lawyers.

  My student summers had been spent as script-writer for two notable self-defenders, and as Larry Grant observed, ‘it’s always your contributions that provoke the judge’. In 1973 I finally qualified to speak for myself. The law exams were easy compared to the statutory ordeal of dining – not well, but very often – with fellow students at the Middle Temple. I suffered thirty-five boarding-school meals, washed down by cheap Spanish wine and a non-vintage port which we learned to pass in a direction I now forget. On my ceremonial ‘call’ to the Bar the authorities discovered that I had eaten one dinner less than I should as the result of wishfully thinking I could count that night’s dinner as part of my tally. ‘This is an appalling way to begin a career at the Bar,’ said Mr Justice Milmo, in the tone of voice he normally reserved for sentencing offenders to long periods of imprisonment. I offered to return to Australia, where communal dining was not a vital professional qualification, but at the last moment he relented: ‘I think I may – just may – have a discretion to lift the requirements of the statutes.’ With a grimace as painful as Samson’s when he held up the pillars of the Temple, the judge lifted an ancient statute and I crawled from underneath it to a career at the Bar.

  There were other obstacles. Australians were not unwelcome, but some of us – those who could not claim new-fangled ‘patriality’ by possessing a grandparent born in Britain – had to be sacrificed so that the government could stop black settlement. My Surrey ancestors had lost the family fortune at Paris gaming tables and had been reduced to commissions in the navy, leaving on convict escort duty in 1837. They had been too long gone to make me a true Brit, so my application for a permanent residence permit would depend on whether I could maintain myself without becoming a burden on the rates, which in turn depended upon whether I could practise at the Bar. The Council for Legal Education had a monopoly on that decision, and under Home Office made it depend on attending a course of ‘practical exercises’, which foreign students were not allowed to undertake unless they had permanent residence permits. This catch-22 had the effect (and the intention) of preventing a lot of black barristers from working in Britain. The pretence that it was not a racist rule was that it would catch a few whites, like me. My old tutor Lennie Hoffman, a brilliant Chancery barrister, found a way around the impasse: he explained to the credulous council that I should be allowed to do the practical exercises ‘de bene esse’ (i.e. ‘just in case’). If my residence application was eventually granted, then I would have been qualified to practise all along. But if it wasn’t, then I would not have done the course at all. The result of Lennie’s sophistry was that my hypothetical presence was permitted in the drab rooms of various down-at-heel barristers, imbibing their sweet sherry and their approach to cross-examination.

  I began pupillage in chambers and acquired a clerk named Arthur (clerks are always referred to by their Christian name, which is usually Arthur) who refused to pass on telephone messages from the National Council for Civil Liberties. When I taxed him with this, Arthur replied elliptically, ‘It’s for your own good, sir.’ ‘Why is that, Arthur?’ I asked innocently. ‘Because it’s a fucking communist front, innit sir?’ I begged to differ, and suggested that the NCCL was precisely the sort of organisation which might put impecunious young barristers in the way of interesting and ultimately lucrative briefs. Arthur’s eyes rotated in their sockets. ‘I will now give you a piece of advice, sir, that you should never forget if you want a career in this profession. Take my Guv’nor. He’s the best fucking silk there is. And why is he never going to be made a fucking High Court judge? Just answer me that. I will tell you why he’s never going to be made a High Court judge. Because when he was a young barrister, he took telephone calls from the National fucking Council for Civil fucking Liberties.’

  I had been warned. Arthur’s ‘Guv’nor’ was Lewis Hawser QC, and he was indeed one
of the best silks in practice, but he had acted for civil liberties causes many years before, and he never was made a High Court judge. He became an Official Referee, of great distinction, but the prize he sorely wanted and surely deserved was never vouchsafed him. Many years later, and shortly before his death, he invited me to speak at a weekend he organised for Bar students, and he took me aside and asked if I knew why he had never been appointed. I knew nothing more than Arthur had told me. Nor did he.

  I was elected in 1974 to the NCCL’s executive council, deepening Arthur’s despair. Fellow members ranged from young Tory Clive Landa, who eventually married into the Thatcher Ministry, to youngish Trotskyite Paul Foot, whom I enjoyed embarrassing at meetings by pointing out that Private Eye in those days accepted ‘D’ notices, directives from government forbidding publication of official secrets. Monthly meetings were dull affairs, at which Arthur’s communist front did little more than give retrospective approval to the actions of its General Secretary, Patricia Hewitt (daughter of Australia’s Cabinet Secretary) and her legal officer, the beautiful and bossy Harriet Harman, niece to Lord Longford. This eclectic mix was secretly dubbed subversive by MI5, which took the liberty of tapping our telephones. Many years later when this was confirmed by Cathy Massiter – an MI5 official who spent so much time listening to the intercepts on the Campaign for Nuclear Disarmament that she resigned in order to join it – I took the case for Pat and Hattie to the European Court, which condemned the UK government for invading their privacy. (The government did not put up much of a defence, since it was still pretending that MI5 did not exist.) It was of course ridiculous for MI5 to behave in this way, as I said to its former Assistant Director, Peter Wright, during the Spycatcher saga. To my surprise, this most paranoid of spooks actually agreed. ‘Of course it was a scandal, but – don’t you see – it proves my point that the communists were in control of MI5 by 1974. They actually took resources away from bugging their friends the Soviets, and deliberately wasted them on bugging insignificant organisations like the NCCL. Do you see?’ Wright had lived for too long in a Little Buttercup world, believing that things are the opposite of what they seem. The MI5 bosses who decided to waste taxpayers’ money on targeting the NCCL were not Russian spies; unlike the KGB, they thought the NCCL a significant organisation.