The Justice Game

by Geoffrey Robertson

  More amusement was caused when the prosecution called a fifteen-year-old schoolboy who had corresponded with Campbell about the location and function of microwave stations along the East Coast. Phillip Quigley was from Ampleforth College. He had been introduced to Duncan by a schoolmaster, Father Anselm Cramer, who gave lectures on civil defence. This monk was as interested in SIGINT as trainspotters are in trains, and had taken the boy on a ‘microwave treasure hunt’ by compass near the East Coast as part of a school project. Master and pupil spoke with genuine enthusiasm of their journeys of discovery, of their curiosity about the American bases and the aerials dotting the landscape, and how it never occurred to them that they were breaking the Official Secrets Act by photographing ‘prohibited places’. ‘Inside every schoolmaster,’ Cramer told the jury, ‘there is a small boy.’ Civil defence had been a compulsive interest, and until the Special Branch had raided Ampleforth: ‘I didn’t know I was doing anything wrong’.

  At the forensic level, the trial was going beautifully for the defence. But I am always mindful of the story about the advocate congratulated by his client on a particularly skilful cross-examination: ‘We’re doing great.’ ‘I’m doing great,’ corrected the lawyer, ‘you are going to jail for many years.’ Jeremy’s cross-examination was delighting everyone in court who was sceptical about official secrecy. Did that include the jury? It was hard to tell: they had listened so attentively as John Leonard told them they would sleep more easily in their beds without Duncan Campbell’s curiosity about the signals intelligence system that served the Western alliance. We noticed one juror in particular – a well-built man in his thirties – aiming very hostile glances in the direction of the dock. He had been elected foreman, and our hearts sank one morning as we read the officious note he passed to the judge: ‘Only three members of the jury have signed the Official Secrets Act!’ We were appalled to learn that any member of the jury had signed the Act. The judge made enquiries and it turned out that one of the three was a civil servant, another a former security officer in the army, but the third – the foreman himself – had been a soldier in the SAS, who had done duty in Northern Ireland, the Far East and Cyprus. Some of the exhibits included articles written by Duncan which were critical of the SAS. All defence counsel applied for the jury to be discharged on the grounds that justice must not only be done but be seen to be done, and that A, B and C could not in these circumstances be perceived to have a fair trial. This was a powerful application, but the judge turned it down.

  The next morning, a Friday, there came a witness from a top-secret communications station outside Dover. Leonard showed him what he had described in opening as the prosecution’s best single piece of evidence: a photograph from Campbell’s collection which could only have been taken from a helicopter. The witness agreed it was a very high-quality photograph of a secret site which must have been taken from the air – one juror was heard to gasp at Campbell’s audacity, apparently hiring a helicopter and leaning out of it to take the forbidden photograph. Then it was Jeremy’s turn to ask whether Marconi had been responsible for the installation (it had been) and whether it had arranged for some aerial photographs to be taken of its handiwork (yes, probably) and whether the photograph had been issued for publicity purposes by the Ministry of Defence (he didn’t know). ‘It will be the defence case that this high-quality photograph of a top-secret installation was supplied to the defendant and numerous other journalists in a press pack by the MOD,’ Jeremy explained serenely. John Leonard, normally the most unflappable of counsel, turned to the MI5 lawyers behind him, who shrugged helplessly.

  We broke for the weekend, pleased at the prosecution’s disarray but more worried than ever about the jury foreman, who had been overheard in the corridors talking to other jurors about his SAS exploits. Journalists covering the trial found it astonishing that the prosecution could vet a jury for ‘loyalty’, yet the defence could not object to jurors who had been indoctrinated into the cult of official secrecy. To their frustration, the judge had ruled that none of this could be published. One journalist, Christopher Hitchens, and the television producer Barry Cox decided to take the law into their own hands. Hitchens was the guest that weekend on a late-night satire show produced by Cox and hosted by Russell Harty, called Saturday Night People. It was full of ‘scripted ad-libs’ and when Harty invited Hitchens to tell the audience something they could not read in the papers, he announced that three of the vetted jurors in the ABC trial had signed the Official Secrets Act, that the foreman had been in the SAS and that the judge had refused a defence application to discharge them.

  Monday was another dramatic morning: the Special Branch descended on London Weekend Television to seize a video of the offending programme to show in court, after which the judge condemned this ‘piece of gratuitous journalistic gossip’. He was now obliged to discharge the jury in fairness to the defendants, since Hitchens had revealed that the defence objected to them. There would have to be a new trial. And there was another surprise in store. John Leonard asked for an adjournment ‘in order to take instructions to see whether I can present the prosecution case more economically’. With this most delicate phrasing, he signalled that the Section 1 collection charge would not be pursued. A jury might – who knows – have convicted, but an independent prosecutor, pursuaded of his innocence, was not prepared to take that risk.

  A few days later, Mr Justice Willis was rushed to hospital, and doctors declared him too ill to preside over the second trial. The ABC campaign sent him a ‘get well soon’ card and a large bunch of red roses, which he acknowledged in a note to Jeremy both charming and chilling. ‘I am glad I shall not be doing the retrial as I was not looking forward to passing the sentences.’ Jeremy fretted about the eventual fate of our clients. ‘They will send us the toughest judge they can find,’ he predicted. Quite who ‘they’ were has never been very clear to me: there is no known procedure for appointing a judge for a particular trial. It is all meant to happen by happenstance – the luck of the High Court calendar, a question of who is available on the day. Was it mere coincidence that we first drew the extremely severe Mr Justice Thesiger, followed by Mr Justice Willis who had spent the war in the Royal Signals Regiment? We speculated about which red judge was most likely to put this derailed trial back on its tracks without further damage to the State. ‘It’s Mars-Jones.’ I phoned Jeremy with the news, when the name finally emerged from the Old Bailey list office. ‘What did I tell you!’ he exclaimed. ‘He’s the worst possible choice. Juries do exactly what he tells them. He has total contempt for barristers. And his sentences are over the top. Can we object to him?’

  I had never encountered Mr Justice Mars-Jones, although I rather liked what I had heard of him: he had conducted the inquiry into Harry Challoner and the bent police officers at West End Central in the sixties and had jailed most of Scotland Yard’s Obscene Publications Squad for corruption a few years after the Oz trial. He had a son – Adam – who was beginning to make his name as a writer, which seemed a good sign. He had another son, too, who had once gone out with the daughter of Chris Price, a Labour MP who was to be a defence witness in the trial. Clutching this slim reed, we sent the judge a note inviting him to disqualify himself over this family connection, and he sent a message back telling us not to be ridiculous. Jeremy sighed, and prepared himself for the advocate’s hardest task – to reach out to a jury which is under the sway of a judicial master. In all the cases I was privileged to work with Jeremy Hutchinson, his instincts were only ever wrong on one occasion. This one.

  The second trial began with what was becoming almost a traditional procession to the Old Bailey, led by the ‘silly secrets’ dragon and the larger-than-life Buzby. Jeremy once again made his attack on the unconstitutionality of jury-vetting, which the judge rebuffed by pointing out that the defence could obtain the names and addresses of jurors and do its own vetting – which would have been fine had we the intelligence services and the Special Branch at our command. That afte
rnoon Duncan bicycled around to the addresses of potential jurors, but the information he obtained was ambivalent. One juror had a beard – was this a sign of unconventionality, or inadequacy? Some of their homes had double locks on the front doors – did that mean they would be too security-conscious? Mars-Jones, gravelled in voice and commanding in presence, seemed determined to live up to Jeremy’s fears: with unnecessary ferocity he ordered that nothing should be published about jury-vetting. The media – even Time Out – meekly obeyed, but the following week Sam Silkin issued a press statement on the subject. Jeremy, with a show of outrage, demanded that the Attorney General be reported to himself for contempt of court. The Law Officer made a grovelling apology to the judge, and the trial continued.

  It was, as John Leonard had promised, a much more modest prosecution. He began it by paying a previously unheard tribute to the role of the press in a democracy. He dropped the ‘collection’ charge and focused on Section 2, but did not abandon the Section 1 charge relating to the interview with Berry. We noticed, however, that when referring to the contents of the tape, he described them as containing ‘matters which I’m told are secret’. Early witnesses testified to Berry’s indoctrination about the importance of keeping secret the identity of his unit and its location. The prosecution insisted that in open court they be referred to only as ‘Unit A’ at ‘Location 1’. Cross-examination soon showed this secrecy to be bogus: the name and location of Unit A had been mentioned in press and in Parliament, and was well known in Cyprus. Indeed, it was known to any tourist who passed the noticeboard in front of the cluster of aerials outside Ayios Nikolaos, because it read ‘9th Signals Regiment, British Army’. We asked the judge’s permission to identify Unit A and Location 1 in open court, and he readily and sensibly gave it. That was when the DPP personally descended on the court, which went into secret session so the prosecution could beseech the judge not to embarrass Britain by revealing that electronic intelligence was being gathered from Cyprus. The judge grumpily gave in to what he was told was diplomatic necessity, and the upshot was that witnesses were shown the photograph of the sign outside the base, and asked the following:

  Q: Is that the name of your unit?

  A: I cannot answer that question, that is a secret.

  Q: Is that the board which passers-by on the main road see outside your unit’s base?

  A: Yes.

  Q: Read it out to the jury, please.

  A: I cannot do that, it is a secret.

  And so matters continued for some days, until, on the morning of 24 October 1978, we arrived at court to find it had been cleared on the judge’s order. We suspected some new excess by Buzby and the ABC dragon whose out-of-court activities had been a regular subject of complaint, but this time the prosecutors were mystified too. It was towards them the judge turned when he came into court. He had been reviewing their case, and he could not understand why they were proceeding on charges under Section 1 of the Official Secrets Act. This, he declared, was an extremely oppressive piece of legislation, suitable only for dealing with saboteurs or spies in the service of a foreign power. It permitted guilt by association, it reversed the burden of proof – why was it being used against these young journalists? He had read all the evidence, and he was ‘extremely unhappy’ about this ‘oppressive prosecution’. John Leonard replied that the prosecution had been authorised by the Attorney General. ‘If the Attorney General can authorise the prosecution, then he can unauthorise it,’ snapped Mr Justice Mars-Jones in a voice which at once exemplified and justified the independence of the judiciary.

  Everyone in court was stunned. But the judge had not finished. He turned to the defendants. They had no defence to the Section 2 charges that he could think of, and they could save everyone’s time by pleading guilty. But whether they did or not, he had formed the very firm view that none of them deserved a custodial sentence. So while the prosecution was taking instructions about dropping Section 1, would they consider whether to plead ‘guilty’ to Section 2, so we could all go home? The court rose, and the defendants – who had spent the last year reconciling themselves to Christmas in jail – stumbled from the dock into the arms of their equally amazed lawyers. Bill Mars-Jones was an avenging angel, usually, if you were a bank robber or a bent copper. But to these journalists, who had faced for the past eighteen months the prospect of a long prison stretch for talking over a bottle of wine with a peeved ex-soldier, he appeared a red-robed angel of mercy. How MI5 perceived him I do not know, and he plainly did not care.

  Much has been said and written, especially from a jejune left-wing perspective, about the unfitness of judges as guardians of civil liberties and as protectors of the citizen against the State. Self-important ‘old Labour’ politicians and cynical academics have derided the demand for a Bill of Rights, for example, on the grounds that it will be implemented by judges who cannot be trusted with a power which should belong exclusively to Parliament. On 24 October 1978, Mr Justice Mars-Jones proved them wrong. Democracy had done nothing to stop the wrongful prosecution of the ‘Time Out Two’: a weak Labour administration, overawed by the intelligence service, had abused human rights by invoking Section 1 and only a handful of its back-benchers had bothered to protest. The press had stayed silent, except for the New Statesman and (up to a point) the Guardian. A, B and C were free, not as a result of their own courage (which was a precondition) or of their campaign (which gave them courage, but did not help the courtroom battle): they owed their release to a judge robustly indifferent to the State. Other judges, it is true, might not have recognised the oppressiveness of the indictment, or have called a halt to the case in the same way or at all. But for an era which is remembered for wrongful convictions and the liberties taken by the security services, the action of Mars-Jones is worth remembering, and worth celebrating. It says something for a system when the State, with all its power bent on conviction, cannot intimidate the courts or make prosecutors flinch from their duties of fairness. The Attorney General accepted defeat with good grace, and may privately have been glad to find in the judge’s words the power he was lacking as a politician to stand up to the security services. The next day, he instructed the prosecution to withdraw the Section 1 charges.

  The defendants, promised their freedom in any event, were not prepared to give up the chance of a sympathy acquittal. So, anti-climactically, the trial limped on for another fortnight under the remaining Section 2 charge. Much of this time was taken in cross-examining Colonel B about the merits of the policy of blanket secrecy over anything related to SIGINT. The Colonel’s position was still that SIGINT was an official secret and any mention of GCHQ, no matter how anodyne or how unimportant to the public, was extremely damaging to national security. It did not matter that the 9th Signals Regiment’s intercept role in Cyprus had been widely published and was well known on the island. It did not matter that the Soviets had been told by defectors all the details of the base, or that they had spy-satellites taking pictures of it. All that mattered was that HMG had not, for diplomatic reasons, admitted its role, and therefore it did not have one. The secret world has no existence, other than in rumour or as speculation, until it is acknowledged by an official source. ‘It only becomes a fact after some official says it is,’ Jeremy commented acidly, and Colonel B wholeheartedly agreed.

  The trial ended with a whimper, not a bang. Campbell and Aubrey were given conditional discharges, and a helpful judicial reference (‘I am sure you are both good journalists with bright futures in front of you’), while Berry received a suspended sentence. They almost escaped conviction: the jury spent three nights in a hotel before reluctantly bringing back the verdict required by the catch-all nature of Section 2. The newspapers, which had been so notably silent about the case, published the front-page stories and editorials they should have written eighteen months before, condemning the prosecution and calling for Sam Silkin to resign, or at least to explain why he had authorised an oppressive prosecution. He did so, in a telling self-defence:r />
  I personally and critically questioned those who made the damage assessment . . . How could any responsible Attorney General ignore the unanimous views presented to me that evidence of both the material collected by Campbell and the information imparted by Berry could do damage ranging from serious to exceptionally grave to the national security?

  Sam Silkin, like other liberal-minded lawyer-politicians, had a psychological need to be perceived as ‘responsible’ – by the security services, the Americans, the opposition. This is not only a British phenomenon: it was Ramsey Clark, the ‘liberal’ US attorney, who obeyed J Edgar Hoover’s orders to prosecute Dr Spock; it was John Kerr, the ‘liberal’ QC who became Governor General of Australia and sacked the Whitlam Labour government for reasons associated with CIA concern that it might close down SIGINT bases. Richard Kliendienst, Nixon’s crooked Attorney General, claimed on this evidence that civil liberties are safer in the hands of conservatives, who do not need to prove that they are ‘responsible’, than entrusted to people whose past support for radical causes makes them more vulnerable to police and security service pressure. I once asked Gerald Gardiner why it was that as Lord Chancellor in the first Wilson government he refused to hold sensitive conversations in his office or his house. ‘I believed they would be bugged by the security services.’ But how could you believe that? ‘Because, you see, I’d been a pacifist during the war, I was on the Board of the New Statesman . . .’ For this reason, Gardiner and Elwyn Jones, the Attorney General, were in the habit of discussing sensitive subjects in a car going round and round Trafalgar Square. (‘We trusted the driver.’) I do not believe that power tends to corrupt liberals, but it makes them extremely nervous.