The Justice Game

by Geoffrey Robertson

  The chief interest of the appeal was to see how higher courts would cope with our one overwhelming argument. The ruling that the defendant’s intention in publishing the poem was irrelevant flew in the face of most judicial and academic authority, and was contrary to the first principle of criminal law – that the prosecution must prove that the defendant has mens rea, a guilty mind. The Court of Appeal solved this difficulty by saying that the law of blasphemy had been invented before mens rea became essential. John Taylor in a moment of lucidity had argued that his shout ‘Christ is a whoremaster’ was not intended literally, but Lord Hale (a judge much given, in his time, to burning witches, but renowned for the legal knowledge with which he did so) had rejected this defence. Since Lord Hale saw blasphemy as a crime of strict liability in 1676, whatever other judges may have said in subsequent centuries it remained a crime of strict liability in 1977. Between the ravings of a lunatic from Bedlam and the metaphors of a modern Professor of Poetry, the literal-minded law would make no distinction.

  The television monitors in the Westminster corridor announced ‘Prayers’ as the five Law Lords shuffled along the lush carpet to their committee room for our final appeal. Lord Diplock presided, and began by complaining that nobody had supplied them with a copy of the poem. It was handed up, and with the main house at prayer the Law Lords read the blasphemy – except for the devoutly Catholic Lord Russell, who ostentatiously averted his eyes. So much for his vote: could our advocacy persuade three of the other four judges? Louis Blom-Cooper had replaced John Mortimer (who was in Singapore doing battle with the local deity, Lee Kuan Yew) and opened the appeal. Lord Diplock made it clear immediately that he was in our favour. He was given to boast that in his long life as a judge he had only ever changed his mind twice in the course of counsel’s argument, and on one of those occasions he had persuaded himself he was wrong. So after five minutes, the score was one-all. It became two-one against a few moments after Diplock’s declaration, with a predictable goal by Viscount Dilhorne, the former Conservative Attorney General (Reginald Manningham-Buller) who had opposed all attempts to decriminalise homosexuality, and was wholly in favour of imposing strict liability on scribblers.

  To win this particular justice game would depend on winning the minds, if not the hearts, of both remaining judges. One was Lord Scarman, who had little criminal law experience but was nonetheless the most towering humane presence in modern British jurisprudence. The other was Lord Edmund-Davies, a devout and conservative man who would loathe the poem to his bones, although they were bones in which the principles of criminal law were embedded more deeply than in any other judge of the time. The betting at Temple Dinners was that we would win over Scarman (‘liberal on gays’) but lose Edmund-Davies (‘Welsh chapel, you know’).

  The most remarkable thing about a disciplined system of law – its own small miracle in a way – is a judgment that holds fast to principle, even though this produces a result in the particular case which is privately deplored by the judge who gives it. This is what ‘fidelity to law’ means: it can be observed in appeal courts which set free obviously guilty men because of an error in proceedings which the court refuses on principle to overlook or explain away. The rules of the justice game are supple enough in the hands of judges, especially in the House of Lords (where there is a special rule which allows them to change, up to a point, the existing rules). But Edmund-Davies stuck to them scrupulously, producing a magisterial sweep of authority in favour of quashing a conviction of whose merits he undoubtedly approved. The score was two-all.

  This was a hard case. It made bad law because we lost Leslie Scarman. It was an own-goal: he was the only judge who understood the poem (or was prepared to say so), but he had a wider jurisprudential agenda. He recognised, with his law reformer’s instinct, that blasphemy should not be a crime at all unless it protected all religions equally. His grand scheme was that Parliament should unchain it from the shackles of history and extend it to cover abusive attacks on all religions, and not merely the tenets of the Anglican Church. On this basis, for the sake of restraining bigots rather than poets, he opted for strict liability for those who ‘cause grave offence to religious feeling’. This was his idea of ‘the way forward for a successful plural society’. The appeal was rejected, by three votes to two.

  The Gay News trial lives on in Alan King-Hamilton’s memoirs, written on his retirement in 1979. These came after a public uproar over his last trial, in which four anarchists he believed guilty were acquitted. The judge treated the jury like naughty schoolchildren, berating them for being taken in by my final speech and for not understanding ‘evidence which would not have confused a child of ten’. He was roundly condemned in the press for this, but replied logically enough that since it is common for judges to express agreement with jury verdicts, he did not see why they should not express disagreement. The reason, I might respectfully suggest, is that they should not express agreement either; as he had so fulsomely with the verdict on Gay News. This point of view has gained greater acceptance since, and as a result of, Alan’s last innings at the Bailey.

  Mary Whitehouse relished her triumph in several autobiographies, although the Church never quite forgave her for embarrassing its Archbishops and promoting the idea that practising homosexuals were excluded from the faith. The Law Commission later noted that a number of practising Christians had become so disgusted with the prosecution of Gay News that ‘they ceased to be communicant members of the Church of England’. Mary called me after the trial, to ask my religion for a book she was writing about it. ‘I’m told you are an atheist. Is that true?’ I confessed to sometimes questioning the justice of a God who doles out eternal life not to those who deserve it but to those who pray for it, so she called me a ‘Protestant sceptic’. It was as ever a cheery conversation. Mary was a feisty and funny and foxy lady, and I wish I had said, ‘We’ll meet at Philippi’ – the next bisexual Roman soldier she was to engage in courtroom conflict would prove her undoing.

  The Sunday after the Court of Appeal judgment in Gay News I had found myself, unsceptically, visiting the harvest festival at a church in Dedham, just outside Colchester. Driving back along a narrow country lane, I came very close to killing a woman standing recklessly on the road picking blackberries. The back of her head was dimly recognisable as one I had last seen bowed in prayer in the Old Bailey corridor. Mary (for it was she) was unmoved by her lucky escape – she really did trust in God. The trouble with her faith was that everyone else had to swerve to avoid colliding with her, because she was always in the right. She was genuinely pleased to infer, from the sex of my companion, that I had not undergone any conversion by reading Gay News. We took tea together and wondered what a coroner’s jury would make of the incident had it ended less happily.

  Gay News flourished after and as a result of the trial. It was stocked by W H Smith, its circulation rose to 40,000, and literature for and about homosexuals became commonplace.

  The last significant prosecution was in 1985 when the directors of Gay’s the Word bookshop were charged with conspiracy to import sixty-eight ‘indecent’ books. ‘Operation Tiger’ was an eighteen-month exercise involving a force of thirty-six customs officers who seized any book which bore the word ‘gay’ in its title – including the works of Gay Talese, a notoriously heterosexual American author. (In the fifties, a similar policy of judging books by their covers had caused customs to impound Rape Around Our Coasts, a story of soil-erosion, and Fun in Bed, a book of games for sick children.) The growing confidence of London’s gay community was reflected by the defendants: they were articulate, educated and proud of their collective management of Europe’s largest homosexual bookshop. They were supported by public figures (from whom we had heard nothing during the Gay News battle eight years before) and their defence campaign was led by an able and openly gay MP, Chris Smith. They opted for public committal proceedings, in order to expose the warped priorities of a customs service which devoted more of its resources to
impounding literature than to seizing cocaine. The hearing was fixed, appropriately, for ‘Gay Pride’ week, by which time fund-raising activities familiar from Gay News days had already produced £50,000 for ‘legal costs’. (I knew better this time than to offer to waive my fees.)

  The customs witnesses admitted that they had seized novels by Tennessee Williams and Gore Vidal ‘because they had the name of a homosexual author on the cover’. This was a lame excuse for taking liberties: the ‘dutymen’ had closed down the bookshop for a day and held the defendants in custody, seizing their stock and their personal belongings before going on to raid their homes. We obtained a top-secret blacklist of homosexual publishers, the very existence of which seemed to contradict assurances given to Parliament by a minister whose name was suitably slapstick, Barney Hayhoe. In an atmosphere where everyone was enjoying the prosecution discomfort, I made three mistakes in the course of asking one question in cross-examination. I played to the gallery; I deployed sarcasm, the lowest form of wit; and I asked a question to which I did not know the answer. Pointing an accusing finger at the young customs officer who had code-named the operation, I declaimed, ‘You called this operation “Tiger”, did you not, because that name was redolent of swaggering machismo?’ The officer replied, ‘Well, no sir. Actually, I named it after my cat.’

  Collapse of stout cross-examiner. The case against Gay’s the Word collapsed, more bizarrely, through the agency of a life-size love-doll. I have never been able to conceive of the extremity of sexual desperation which would drive a man to mate with an inflatable rubber woman, but the demand for these companions has been constant and sex-shops imported them in bulk from Germany. One such consignment, to a firm called Conegate, was declared by magistrates to be an ‘indecent’ import because ‘the dolls when inflated show nearly life-size images of the developed female form with orifices with a vibrator (being some sort of electrical device) and with simulated pubic hair’. I was introduced to one such lady by her prosecutor, a distinguished silk and later a High Court judge, who had hung her up, fully inflated, in the robe closet of his chambers to surprise his clients. No doubt such jollity was the main purpose of these surrogate Fräuleins but the smell of their burning rubber soon reached the European Court of Justice in Luxembourg. The destruction of German love-dolls, it decided, was a breach of the Treaty of Rome: it constituted an unlawful ‘quantitative restriction’ on imports between member states, and an arbitrary discrimination on trade. The effect of this landmark ruling was that customs had to drop its prosecution of importers of ‘indecent’ articles: they had to be ‘obscene’ (in the sense of being likely to deprave and corrupt) and no one could contend that the books stocked by Gay’s the Word fell into this class. So gay literature was saved by a rubber doll, and investigating customs officers turned to more important matters – in due course, to the export of weapon-making machine tools to Iraq at the instance of a firm called Matrix Churchill.

  So what became of the law of blasphemy, raised from the dead in 1977? To Mary’s regret it fell back into a coma when the Law Commission, in 1979 and again in 1985, recommended abolition of the entire offence. The Commissioners considered Lord Scarman’s plea to extend it to other religions, but they despaired of drawing any sensible distinction between the religions which would have to be protected, including those of Moonies, Rastas and Scientologists, and they pointed out that some religious doctrines deserve to be attacked. They deplored the crippling uncertainty of an offence which depends on a subjective finding by a particular jury that material is ‘scurrilous’, ‘abusive’ or ‘offensive’ to Christianity, and pointed out that existing public order offences were sufficiently wide to protect any religion from disturbance by conduct or pamphlets likely to cause a breach of the peace. So when The Life of Brian came out, only a handful of local councils – several without cinemas in their area – bothered to ban it. There matters rested for a decade until the proposed release of The Last Temptation of Christ – a Hollywood film in which Christ was pictured making love to Mary Magdalene. Alan King-Hamilton emerged from retirement to write to The Times, reminding the nation of his Gay News ruling (‘I have not of course seen the film in question, but if my information about it is accurate, there can be no doubt there are grounds on which to charge criminal libel’). This intervention caused the distributors to retain me for a second opinion: the film’s most scurrilous feature, I thought, was that Christ and his disciples were played by Americans, while Judas and the Devil and all other baddies spoke with English accents.

  It was, finally, the Ayatollah Khomeini who gave the crime of blasphemy its quietus, on St Valentine’s Day 1989, by launching the mother of all prosecutions against Salman Rushdie. Like the Red Queen from Alice in Wonderland, his fatwah was a case of sentence first and trial later. Salman disappeared from view – for several weeks to my house in Islington which was much favoured by Special Branch because its bedroom windows offered a clear view of any would-be assassins: it overlooked a church. Salman’s difficulties had this compensation: they brought many of his North London friends into a closer and warmer contact with officers of the Special Branch than they might ever have thought likely or even healthy. The goodwill flowed both ways: the police enjoyed the literary company rather more than that of the politicians they were normally detailed to protect, while left-wing writers came to see the sense in secret State surveillance of suspected terrorists. Women married to Guardian-reading male feminists could not help but notice that on weekends with Salman, it was the police who volunteered to wash up (on the other hand, one or two of them had a somewhat unreconstructed habit of showing a gun in the presence of an attractive nanny).

  It was not long before certain Muslims decided to flush Rushdie out from hiding, by using the one device to which he would have no option but to surrender: not a gun, but a summons. Taking a leaf from the book of Mary, they asked a Bow Street magistrate to issue an order against the author of The Satanic Verses to attend his private prosecution for blasphemous libel. The magistrate refused, because the crime of blasphemy only related to offences against the Christian religion. The private prosecutor (a Mr Chaudhury) appealed to the High Court, where I appeared for Salman Rushdie.

  Special Branch dutifully informed me that since millions of zealots, and not just Mrs Whitehouse, might soon perceive me as the ‘Devil’s Advocate’, I had been officially classified as ‘Potential target – Grade 3’. I was not potential enough to qualify for police protection, but sufficiently at risk to receive some security tips. One which did stick in my mind was that Grade 3-ers should in no circumstances draw attention to the fact that they were potential targets, because then they might become real ones. It might not occur to the Times-reading Iranian terrorist that the barrister representing Rushdie would be a satisfactory substitute for his client, unless some further news item put the idea into his head. The same advice was given to the judges: while this case lasts, don’t advertise yourselves as potential targets.

  We had drawn my favourite presiding judge, Lord Justice Tasker Watkins VC. Most colleagues found my affection for him strange because he was certainly not noted for liberal views. His Victoria Cross had been won (so the story went) when he picked up the machine gun of a wounded comrade and proceeded single-handedly to attack a trench of seventeen startled Germans, killing all of them as their laughter at this hot-headed young Welsh fusilier died on their lips. I always found him full of instinctive passion for justice and liked his sense of humour. That was not the cause of the glint in his eye as he took his seat on the second day of the hearing, to announce dramatically, ‘This court is in receipt of a communication. Let it be handed to counsel.’ It was an ill-written threat of vengeance against us all, should the case go against the Prophet. ‘Well,’ he snapped with ill-concealed impatience. ‘What do counsel suggest we do?’ The defence barristers held a whispered conversation at the Bar table, reminding ourselves of the Special Branch advice against saying anything which might turn us – or the judges – i
nto Grade 2 targets. ‘Nothing, my Lord,’ we murmured quietly. ‘We see no need to draw attention to the matter.’ ‘No need to draw attention to it!’ exploded Tasker. ‘This is a death threat to Her Majesty’s judges and counsel! We shall certainly draw attention to it and say in the strongest terms that it will not be countenanced!’ He had, for a moment, the look in his eye probably last seen by seventeen unfortunate German soldiers. The infidel hordes had been warned: let them descend upon the Royal Courts of Justice if they dared.

  The prosecution was represented in court by a record number of Muslim barristers, their names in consequence enrolled in the service of the Prophet in this forensic jihad (holy war) against Salman the Apostate. The object of their exercise was to ban the book, but their action had this advantage: it forced them to draft an indictment against Rushdie and his publishers specifying with legal precision the way in which The Satanic Verses had blasphemed. Might it not conceivably defuse this international flashpoint (already twenty-two lives had been lost in a riot against the book in Bombay, and deadly attacks on its translators were soon to come) by actually fighting the case on its merits and proving once and for all that the allegations against the book were false – that it did not amount to blasphemy against Islam? Salman was dubious but thought it worth a try.