The Justice Game

by Geoffrey Robertson

  My stipend from the Rhodes Trust ran out so I tried a second career in journalism to tide me through the unpaid period of pupillage. I joined C H Rolph as a commentator on legal matters for The New Statesman. Tom Baistow, the kindly and painstaking deputy editor, would sub my prose, blue-pencilling any double entendres. (‘The editor’s father is a clergyman, remember’.) I was thrilled to be invited to lunch – which I attended straight from court, in wing-collar and white bands – and to be seated beside the entertaining Tom Driberg, with Christopher Hitchens (a more beautiful youth) on his other side. I was unaware of Driberg’s real appetites and did not understand the joke, until afterwards I overheard someone say, ‘Tom couldn’t believe his luck – he didn’t know which knee to stroke first.’

  One of my New Statesman investigations was expanded into a book – Reluctant Judas – about an Irishman shot through the head on Easter Sunday 1974. Two organisations had a motive for eliminating him: one was the IRA, the other was British Intelligence. Kenneth Lennon had been a Sinn Fein supporter turned Special Branch informant, responsible for long jail sentences imposed on three members of an IRA cell in Luton. He was arrested with another member while ‘casing’ the prison where the men were held; to maintain his cover both men were prosecuted, but the case against Lennon was ‘massaged’ to ensure his acquittal. On the day of his release, however, he claimed to have a flash of conscience: he sought out George Melly, in a break between his performances at Ronnie Scott’s nightclub in Soho, and confessed to ‘setting up’ innocent men. The next day he turned up at the NCCL, repeating these allegations and dictating to Larry Grant details of how the police had given false but favourable evidence at his trial to secure his acquittal. He concluded by predicting his own death: ‘the Special Branch may do me in and try to make it look like an IRA job’.

  It did look like an IRA job when Lennon’s body was found in a ditch near Gatwick Airport a few days later, but once his confession was published it seemed to many that his prediction may have come true. Court records confirmed that his trial had been ‘rigged’ to the extent that damaging evidence against him had been withheld and police witnesses had given untruthful testimony in his favour. So favourable, indeed, that it made his accomplice look guilty: he was found so, and sentenced to five years in prison, while Lennon was acquitted. A police report ordered by Home Secretary Roy Jenkins admitted that this had been done to protect an important informer, without the knowledge of judge or counsel but with the approval of the DPP. The IRA bombs in Birmingham had just killed twenty-one people, and no proper inquiry was deemed appropriate by the government or by the media. The Daily Express spoke for Fleet Street: ‘It is absurd and dangerous to apply Queensberry rules to measures taken by the authorities. In this context there is no “right” or “wrong” – all that matters is success.’ This was the moral mind-set, in courtroom and press room and police interview room, as the cases against Irish Sinn Fein sympathisers wrongfully accused of planting bombs – the Birmingham Six, the Guildford Four and Judith Ward – were prepared and tried, like Lennon, in 1974–5. It shaped the thinking of policemen who fabricated interview notes with some of them, and forensic scientists who dissembled in their evidence to assist the prosecution, and government lawyers who withheld evidence which would have been vital to the defence. They were behaving as the Daily Express had urged – ‘there is no “right” or “wrong” – all that matters is success’.

  Notwithstanding my view that Lennon, who was being paid by results, may have incited crime to achieve them acting as an agent provocateur, there was soon no doubt in my mind about who killed him. Lennon had been ‘arrested’ by the IRA after his acquittal, and brought before a kangaroo court. He was promised an ‘amnesty’ if he confessed in an appropriately public way to the NCCL, foretelling his death at Special Branch hands. But the hand that pulled the trigger of the gun held at his head was not serving the British State. He was executed by the IRA. This conclusion was not the one my Sinn Fein sources would wish or expect, and after publication of Reluctant Judas I waited with some trepidation for their call. It soon came, and the first words made me gulp: ‘I want you to know, your book’s been proscribed’. My knees started knocking, as if to remind me of the fact that they had caps. ‘Proscribed – what do you mean?’ (‘Proscribed’ was what the Catholic Church used to do to books it did not like, before burning their authors.) ‘Yes, you know, it’s been banned. By the Governor of Long Kesh. They won’t let it through the wire. It’s the truth they can’t take, isn’t it?’ I breathed a silent ‘thank you’ to the Governor of Long Kesh, whose act of prison censorship had convinced the IRA that my book must be on their side, and so relieved them from reading it.

  Investigative journalism, clearly, was a more dangerous career than barristering. And it lacked the law’s long-term advantage, that the older you get the more distinguished you are presumed to have become. So I cleaned my fingernails and cleared my throat for my first solo appearance in a courtroom. I still spoke with Australian irritable vowels, which lend a different and more nasal aspect to words like ‘France’ and ‘branch’. My debut was at Knightsbridge Crown Court, appearing for a company accused of manufacturing indecent T-shirts. It fell to me to explain the nature of the offending logo to a judge renowned for his rectitude and propriety. Nervously, I ventured that it read ‘Fuck Art, Let’s Dance’. There was a shocked silence in court. The judge’s eyebrows narrowed with irritation. ‘Fuck art let’s what, Mr Robertson?’ ‘Let’s dance, Your Honour.’ ‘Oh, you’re an Australian,’ he muttered. ‘What you mean to say is “Fuck art, let’s darnce”.’

  My next brief was a four-week committal proceeding at Watford Magistrates’ Court, concerning a conspiracy to make blue movies in divers fields, barns and houses in the suburb of Rickmansworth. I was representing two of the actors, a spray-painter and his girlfriend: he appeared with some thirty partners in the course of the making of dozens of short films, but she refused to have sex with any partner but him. Their pièce de non-résistance was entitled Santa’s Coming, in which he emerged in Father Christmas attire from the chimney to kiss and copulate beneath the mistletoe. They married shortly before the committal, and held hands every day in court. I could not resist asking the police officer in charge of the case whether he would accept that my clients were very much in love. He accepted it, just before the deadline for the final edition of the Evening Standard, where I made my first reported appearance as counsel under the head-line ‘Porn Couple “Very Much In Love”’. In court next day, a man in a grubby raincoat sidled up to me and pressed a calling card into my hand. ‘I’m from the News of the World,’ he explained. ‘We’ll be hearing more of you.’

  They did, but only because in my first year of practice masturbation was an endless preoccupation of policemen and lawyers. The Old Bailey at times resembled a pornographic cinema complex as judges came to grips with this new form of entertainment. Jurors, solemnly empanelled for what they imagined would be a murder or a robbery, could be in for a surprise. At the trial of the first importer of the film Deep Throat, the all-male jury were told no more by the prosecutor’s opening but that they would be shown a film, and it would be their task to say whether it constituted an indecent import. The courtroom lights were then dimmed, and Ms Linda Lovelace appeared. Some ninety minutes later the lights went up and the judge adjourned for lunch, making his exit in a crouching position. The jurors, red-faced and saucer-eyed, remained seated in their jury box. ‘Come along now,’ urged the prim lady usher. Not one of them moved. ‘It’s lunchtime,’ she exclaimed, ‘I’ve got to lock the court.’ She could not understand why still there was no movement. It took some minutes for them to stand upright and shuffle out, on the only occasion on which I have been forced to acknowledge the benefit of wearing a gown.

  These early adventures in the skin trade brought an invitation from Clive Landa to speak at the Young Conservatives 1974 Annual Conference. They wanted to open proceedings with a bang, by having me ignite Mrs M
ary Whitehouse, a Colchester housewife who billed herself as leader of the ‘moral majority’ and was developing formidable political skills. The Young Conservatives were an engaging and libertarian lot in these days: Mary’s thesis, that pornography was a communist plot to destabilise Western society, met with their free-market mirth. That evening, as the band struck up at the Young Conservatives Ball, I asked Mrs Whitehouse for a ‘darnce’. ‘This could be the start of a long relationship, Geoffrey,’ she warned, as I trod on her toes.

  To Mary’s chagrin, jurors were now much younger than at the time of the Oz trial because the property qualification had been abolished, and they looked more cynically on obscenity prosecutions. This led them to acquit, or at least fail to agree, thereby mirroring the community confusion about sexual explicitness. The police resorted to raiding bookshops and delivering their contents to strait-laced lay justices who, unlike jurors, could be relied upon to reject my arguments and order the burning of magazines like Forum. My lectures on the jurisprudential subtleties of obscenity law were too much for one magistrate, David Hopkin, with whom I spent a day at Bow Street contemplating several hundred ‘spanking’ magazines. ‘I’ve had enough,’ he interjected, a few hours into my speech. ‘If the gels are being spanked with their pants off, that’s obscene. If their pants are on, then it’s not obscene. Sort it out between yourselves – I’m going home.’ Others were less robust, like Mr Pugh, the very old stipendiary in Liverpool, to whom I had to address an argument about Alex Comfort’s book The Joy of Sex, which had been seized from the local W H Smith. ‘But it is about perversion,’ he complained, ‘it has pages on . . .’ he whispered, ‘oral sex.’ I produced an expert’s report, which showed that by now, three years on from Oz, a majority of married couples in Britain were admitting some indulgence in the practice. Mr Pugh sighed, and said in a voice of infinite sadness, ‘If that is really so, Mr Robertson, I’m glad I do not have long to live.’

  I turned with some relief to real crime, and began to spend much of my time ‘down the Bailey’, restoring many a burglar to his friends and relations. The Old Bailey in 1974 was a kind of Jurassic Park, in which judicial dinosaurs still roamed. There was Judge Mervyn Griffith-Jones, a footnote in history for prosecuting Lady Chatterley’s Lover and asking a lower-middle-class jury whether they would allow their wives or their servants to read the book. He was a burned-out case by the time I came to do a trial before him. ‘He’s had twenty-two acquittals in a row,’ whispered my co-defender. His main concern was that counsel should sit up straight and not slouch in their chairs, and the jury soon added a twenty-third. Justice Melford Stevenson, however, was in full flight. He caused consternation at the defence bar by cutting the fees of barristers who had dared to waste the court’s time by accusing police of ‘planting’ fingerprint evidence against a group of Irish defendants: ‘Counsel has no duty,’ he intoned in his gravel-pit voice, ‘to be a loudspeaker to a maladjusted set’. It was Melford who gave my career its first boost, by insisting that I appear without a leader in a complex and serious case of industrial espionage. Sensing reporters in court when I made the application for a Q.C. on behalf of the penniless defendants, he delivered them a sound-bite about the need to empty ‘the bottomless cornucopia of legal aid’.

  My career had till then been stuck at the very bottom of Melford’s alleged cornucopia. Legal aid paid solicitors to prepare cases, but not to attend them: they would instead send ‘outdoor clerks’, usually ‘resting’ actresses or ‘retired’ policemen (i.e. police who had been given the option of retiring rather than being prosecuted for corruption). I had a strange experience one day at Bow Street, where the client I had been sent to represent demanded a change of solicitor, and the officer on custody duty seemed to understand why. I didn’t, and asked the solicitor’s clerk, a kindly old ex-copper with sad eyes, what the problem was. ‘It’s me, sir,’ he confided. ‘This is the third villain that’s turned me down. I’ll lose my job, now.’ The custody officer did not seem sorry: ‘We don’t want him down here, either. We can forgive what he did, but we can’t forgive what he did to those young police officers. They went down for five years, and Challoner wasn’t even tried!’

  I realised then that my sorry old solicitor’s clerk was the single most significant contributor to the national awareness of civil liberties. Detective Inspector Harry Challoner had been in charge of West End Central in the early sixties, when police officers could, in the public mind, do no wrong. The wrong he did – with the assistance of his junior officers – was to arrest political demonstrators, force their fingers around builder’s bricks, and then have them and the bricks fingerprinted. They were invariably convicted and imprisoned, and Challoner’s crimes were covered up by his superior officers – until they realised he was not just overzealous, he was a paranoid schizophrenic. The younger policemen were convicted of perverting the course of justice, while Harry was found to be too mentally ill to stand trial. That day at Bow Street I took him for a coffee, with which he took his medication. Delicately, I touched upon his dealings with protesters, and he told me how his voices had directed him to plant the bricks and fabricate the evidence. His pills now helped him to lead a normal life, but he missed his days in the force. Did he regret sending innocent people to prison? He looked at me with astonishment, and the sadness in his eyes lifted for one moment. ‘Of course not. My voices were right. They were all guilty.’

  A man who would have understood Challoner was my next client, Professor R D Laing, whose work had opened so many minds to the illnesses in them. He had been licensed to prescribe LSD to patients, and when that drug was eventually banned, he had left some capsules forgotten at the back of his fridge where they were discovered one night by some very thorough burglars. Ronnie called the police and was gratified when they made a quick arrest, but less pleased when they prosecuted him for possession of the illegal drugs which had been stolen from him. The charges were finally dropped, with Hampstead justices awarding Ronnie his costs as a mark of displeasure that they should ever have been brought: the scene of his non-crime is now the well-adjusted home of Helena Kennedy and her family.

  That case was a success, but the day had to come when I first lost a client to prison. He was a man of my age – twenty-six – who had no previous convictions and who on my advice pleaded guilty to stealing an almost out-of-date tax disc from a car which was nearly – but not quite – abandoned. He was crippled by polio in one leg – a matter to which I was warming in my mitigation until I noticed that the judge had only one arm and was becoming impatient with this line of pleading. He jailed the man for twelve months, and in the cells later the probation officer thought it more necessary to counsel me than my client. I continued to feel a personal responsibility for the young man whose plight, I believed, was due to my own inadequacy and inexperience. After days of self-doubt I took myself off to the theatre, where providentially I saw the Mortimers. I must have been in a bad way, because John, who always teaches by example, gave me the only lecture I can recall ever receiving from him. He told me I would destroy myself if I became emotionally involved in the fate of my clients. And he asked whether I had yet found chambers.

  This was the final milestone: to find a ‘seat’ – a permanent place – in a set of chambers. For a few heady months I had planned, with Tony ‘Lord’ Gifford and others, to take the revolutionary step of establishing chambers outside the rabbit-warren of the Temple. Because no barrister had done this for centuries, we wondered whether it was even ethically possible, so we sought an audience with the legendary Mr Boulton, General Secretary of the Bar Council and author of at least five editions of Boulton on Ethics, a slim volume of biblical stature solemnly presented to all barristers on their call to the Bar.

  For all the fear that his written words had instilled, Mr Boulton of Boulton on Ethics was a kindly, owlish man whose advice was limited to the numbered paragraphs of his textbook, which he kept at his fingertips. Tony and I visited him, with all the trepidation of those an
cient messengers who approached the shrine at Delphi, to enquire as to the propriety of establishing chambers outside the boundaries of the four Inns of Court. Mr Boulton picked up his book and slowly and carefully thumbed through its pages, as if reading them for the first time. Eventually, he pronounced judgment: ‘I find nothing in Boulton on Ethics against a set of chambers located outside the Temple.’ This ruling in our favour emboldened us to seek another breach in tradition: would it be proper to employ a clerk on a salary, rather than on the universal percentage? Again, the sage consulted his book, from front to back cover. ‘There is nothing in Boulton on Ethics against a barrister employing a clerk on a salary.’ Tony tried our luck a third time, with the most radical proposal ever to emanate from an English barrister. Could we share our fees equally? Mr Boulton’s eyebrows raised imperceptibly at this Marxist idea, but he followed the same course before at length declaring, ‘There is nothing to be found in Boulton on Ethics which precludes fee-sharing arrangements’. We left his office, feeling as excited as Lenin on leaving the Finland Station: permission had been given for the revolution to begin. (Had we asked permission to make bombs in the basement, I imagine Mr Boulton would have gone through the same procedure, and declared that there was nothing in Boulton on Ethics against the making of explosive substances in barristers’ chambers.)