The Justice Game

by Geoffrey Robertson

  The Third Soldier holds Marban’s thighs and attempts to bugger him.

  Third Soldier: This isn’t no – isn’t no – at all –

  Second Soldier: In trouble, comrade?

  The Third Soldier rolls away.

  Marban begins to struggle.

  The Second Soldier hits Marban on the top of the head with the butt of his sword. Marban is knocked unconscious. His left leg twitches twice and then is still.

  A silence.

  Third Soldier: Arseful of piles . . . I mean, what do they do in this island, sit with their bums in puddles of mud all year long?

  Brenton allows, finally, a moment of humanity from the Second Soldier, who cradles Marban and, recalling a similar kindness once done to a Roman, brings the boy round, thus saving his life.

  That is the scene which the Whitehouse lawyers insisted must be removed from the play before Bogdanov could be granted bail. ‘The meaning of the play would be enhanced if it was not there,’ Smythe editorialised. I objected that the meaning of The Romans would be completely obscure without Scene Three, the dramatic epicentre at which the two worlds collide with the force of the shields which crushed Viridio: the imperial culture of Rome impressing a conquered race with a brutality more calculated than their own. In scene four, Julius Caesar arrives to view the carnage and to reprimand the prefect of the soldiers’ legion ‘for having lost control of your command, during a minor mopping-up exercise, against a wretched bunch of wog farmers, women and children, in a filthy backwater of humanity, somewhere near the edge of the world’. Caesar speaks the language of military politics, from Thermopylae to Dien Ben Phu. His method of humiliation is more subtle and more devastating than that of his soldiers: around Marban’s neck he ties a pendant to a Roman Goddess, and sets him free. Tortured by this spiritual defilement, Marban in the next scene commits suicide: the play is fiercely moral in a way that Mary’s courtroom crusaders cannot understand, although perhaps it was the political parable they could not stomach. The fugitive Irish rascal, Conlag, reaches the river Thames with the slave he has by now raped: as he slips, she brains him with a stone. Suddenly the sound of an approaching helicopter wrenches the audience two thousand years forward to the present. By a miracle of stagecraft, it lands and disgorges the Roman soldiers, now dressed in the uniform of the British Army in Ulster tonight. The slave throws her stone at them and is shot. A soldier radios to base as their commanding officer – Julius Caesar in combat fatigues – arrives in an army jeep to justify the killing in the sound-bites of Henry Kissinger:

  Caesar: That everyday life will begin again. That violence will be reduced to an acceptable level. That Civilisation may not sink, its great battle lost.

  Caesar and the staff turn away.

  Corporal: Anything on her?

  First Soldier: Just stones.

  The helicopter roaring.

  This is the interval, so we claw our way to the nearest Olivier bar, the solicitors and counsel who must somehow re-enact this extraordinary play in Court 1 of the Old Bailey. Lenny Bruce always protested at the way policemen did his act in court, reading his allegedly obscene patter from the notes in their pocket books. ‘That’s not my act,’ he objected. Now it was our task to produce some kind of performance which might bring home to the audience (the jury) something of the panoramic power and moral force of Brenton’s work. If this prosecution had been brought under the Theatres Act, we could at least ask the jury to read the script. But Section 13 of the Sexual Offences Act makes no provision for the reading of scripts, or for anything else beside eyewitness recall of the actual act alleged to constitute the crime. The prosecution intended the jury to know nothing about this play other than one stage direction: ‘The Third Soldier holds Marban’s thighs and attempts to bugger him.’

  The best result would be a victory on a point of law which would leave Mrs Whitehouse to pay the costs, thereby deterring other would-be private prosecutors. The cost of defending the play was prohibitive: before long the National had incurred legal fees high enough to fund two new productions. Jeremy – now Lord – Hutchinson was brought in to lead the defence and hit upon a noble solution: we should all defend Michael Bogdanov on legal aid. This would mean less money for lawyers and more for worthier theatrical performers. It would also require the taxpayer to fund the whims of Mary Whitehouse – a potent argument against indulging her urge to prosecute. It was an irrational urge, as National Theatre director Peter Hall pointed out in his evidence at the committal proceedings: ‘The scene is meant to horrify in what is a highly moral play; had it been done in half light behind a convenient tree, it would in my view have titillated.’

  The magistrate’s decision on whether to commit Michael for trial would turn on the strictly legal issue of whether the theatre was immune to prosecution under the Sexual Offences Act. Mr Harrington, who had dealt so fairly with John Stonehouse, was a man of good sense but it was far from clear that the law allowed him any scope to exercise it. At the time the Theatres Act was passed in 1968, Parliament believed that it barred any prosecution of a play for alleged indecency without the consent of the Attorney General. But this intention had not been fully effected by the draftsman, who had specifically excluded prosecutions for most offences of taste and morals but had forgotten all about the crime of ‘gross indecency between males’. The loophole was there, so long as the actors were men and not women. After a two-day hearing, Mr Harrington reached this apologetic conclusion: ‘It appears illogical, but I must interpret the law as it stands and not as it might have been. I think it absurd that had Mr Bogdanov been a woman director he would have no case to answer, but as it stands that appears to be the law, and I must interpret it as it stands.’

  The law was an ass, and that was that. Had The Romans been directed by Michelle Bogdanov, or had the druid been a priestess, there would be no case to answer because Section 13, designed to catch sexual behaviour in the gents, applies only to males. Mary Whitehouse would have the opportunity to reapply the Lord Chamberlain’s 1958 edict to the British stage: ‘Embraces or practical demonstrations of love between homosexuals will not be allowed’. She had produced a situation where a distinguished director was at risk of conviction for a nasty little crime, and the judgment of the National Theatre would be second-guessed by jurors who may never have attended it, or any other theatre.

  Shortly after the committal we received a message from the Garrick Club, via a theatrical friend of the Attorney General. Sir Michael Havers wanted us to know that he ‘does not lack courage where Mrs Whitehouse is concerned’. If true, this made him unique among Tory politicians. He was certainly taking a long time to display it. But the message persuaded me to write a long letter requesting him to issue a nolle prosequi, i.e. to take the prosecution out of Mary’s hands and into his own, and then to drop it, under his power as Attorney General to stop any prosecution if that is what he thinks the public interest requires. There were plenty of public interest reasons to stop this particular show. It was a breach of assurances repeatedly given to Parliament in 1968 that no prosecution would be launched against a play except under the Theatres Act, with its special ‘public good’ defence for drama. Brenton was a dramatist of world standing, and Bogdanov director who had won numerous awards: ‘To deny him the opportunity to explain and to justify his work, in proceedings which carry a maximum sentence of two years’ imprisonment, would be such a denial of simple justice that it would damage internationally our reputation both for great theatre and for fair trial’.

  Sir Michael Havers did lack courage where Mary Whitehouse was concerned. He wrote back refusing to enter a nolle prosequi. So we had to prepare for trial. It was wonderful to be working again with Jeremy Hutchinson, with his infectious, sardonic humour, endlessly questioning mind, forensic courage and disdain for judges, opposing counsel and Mrs Mary Whitehouse. He knew all about theatre – he had been married, for many years, to Dame Peggy Ashcroft. The regular Old Bailey judges respected him, but we were told that we were bei
ng allotted a visiting High Court judge. This news made Jeremy groan. ‘Typical. They’ll give us some newly elevated tax lawyer who has never been in a criminal court.’ Then the name came through: Mr Justice Staughton. ‘Never heard of him,’ wailed Jeremy, ‘and I’ve been at the criminal Bar for forty years.’ I looked him up in Who’s Who to discover he had enjoyed a practice in shipping law and was the acknowledged expert on a subject of importance to mercantile lawyers, the law of bottomry. Jeremy exploded: ‘That’s it! The idiots! They’ve given him this case because he knows about bottomry. They think it’s got something to do with buggery!’

  The trial was set to commence on 15 March 1982 – nine months after The Romans had received its final performance. I had suggested that it be restored to the repertoire to take advantage of the trial publicity, but the National was nervous: it was not sure we would win. Nor, frankly, was I, because Brenton’s sprawling canvas about imperialism through the ages would be reduced to a young actor’s bare bottom and the alleged tip of another actor’s penis, moving stage right and making momentary contact. Having been through it before with Gay News, I knew how horrific any depictions of youth and homosexual activities could be made to sound in the Old Bailey, and how powerless considerations of poetry or drama were to defuse the impact. By this stage we had a distinguished chorus of witnesses waiting in the wings: Felicity Kendal, Janet Suzman, Peter Brook, Lord Goodman, Trevor Nunn, John Mortimer. I even planned also to call Lord Olivier himself to give his blessing to what had gone on in his own theatre. But the judge might not allow this evidence: he would want the trial to run like any other public indecency case, depending entirely on whether the eyewitness saw what he said he saw.

  There had been a read-through of The Romans with the original cast, at the Old Vic Theatre on the Sunday night before the trial opened. It was well attended, although the absence of colour and costume and motion underlined the extent to which Michael Bogdanov’s direction had given dramatic life to Brenton’s sombre poetry. The Old Vic is in a high-crime area (I am not referring to the artistic crimes committed at the Young Unknowns gallery opposite), and my car was broken into and burgled while I was attending the reading. The thieves extracted the radio and the brief in Whitehouse v Bogdanov. I had visions of it being delivered to the News of the World but early the next morning it was returned by a smiling policewoman, who had obviously read through it. ‘This time, sir, we’re on your side.’

  The trial took place in Court i, the Old Bailey’s equivalent of the Olivier auditorium. The judge, a tall man with beetling eyebrows, was resplendent in his red robes; his entrance was accompanied by the traditional extras, gowned aldermen carrying the traditional props, of sword and mace. They sat a polite distance from him on the Bench, their wives occupying the best seats, the raised ‘stalls circle’ behind counsel which offers a direct view across to the jury and the witness box. The public gallery, a ‘restricted view’ perch in the amphitheatre, was full of ‘resting’ actors. The director, Michael Bogdanov, was in the well of the dock on centre-stage. We had toyed with the idea of asking permission for him to sit behind counsel, but we could better play on jury sympathy if they saw him in obvious peril of a jail sentence. Mrs Whitehouse was not immediately apparent – no doubt she was praying in the corridor. (In fact, her new QC had advised her to stay and pray at home.) There were a lot of journalists in the stalls – theatre critics in seats less comfortable than those to which they were accustomed, court reporters lured by the promise of druidic buggery, and ‘resting’ barristers curious to observe a celebrated trial. The audience which mattered – the jury – seemed nondescript. We challenged a few jurors with tabloids under their arms: although as Shakespeare said, there’s no art to tell the mind’s construction from the face, you do get some idea of the mind if the nose is in The Sun.

  The trial began with a prologue from the judge, directed at the media. He had read a preview of the case in The Sunday Times, and was outraged. ‘Welcome to the criminal law,’ muttered Jeremy, Rumpole-fashion, under his breath. ‘They don’t have journalists, down in the Admiralty Division.’ Jeremy’s sotto voce monologues were a great joy, and they continued unabated into the prosecution’s opening speech. John Smythe was sick, and had been replaced by Ian Kennedy, whose presentation was less evangelical and more intellectual. His opening speech however, served to shock the judge: Jeremy had to turn on a major piece of advocacy to obtain bail for Bogdanov over the lunchtime adjournment.

  The next day the prosecution called its star witness: Mary Whitehouse’s solicitor, Mr Graham Ross-Cornes. He took the oath as if he meant it, which he undoubtedly did. He told of booking seats for the performance, and of witnessing an actor with his penis hand-held and erect, its tip protruding, advancing across the stage to place it on or against the naked buttocks of a trembling druid. It all sounded grossly indecent. Mr Ross-Cornes was plainly a truthful witness, and our problem was how to shake his recollection. The obvious first question was to discover where he was sitting, so I had brought from the box office a seating plan of the Olivier auditorium. Jeremy was reluctant to enquire: counsel hate asking questions to which they do not know (or at least strongly suspect) the answer, and it stood to reason that anyone bent on collecting eyewitness evidence against a play would sit in the front row. My argument was that the prosecution must know the answer and since they had not elicited it from Ross-Cornes in his examination-in-chief, it could not be helpful to their case. ‘It may be a trap,’ countered Jeremy. ‘They’ve left it for us to walk in, have the jury learn that Ross-Cornes was sitting in Row A of the stalls, and ram this home in re-examination.’ Maybe, but I did not think our prosecution devious. It was worth the risk. I shoved the box-office plan on top of Jeremy’s pride and joy – the collapsible wooden lectern covered with faded green baize on which he had rested his cases for the past forty years – and he nervously beckoned the usher to take the plan over to the witness.

  ‘Now, Mr Ross-Cornes, will you please mark on this seating plan exactly where you were sitting when you think you saw the tip of the third soldier’s erect penis?’ The judge, suddenly interested, proffered his pen. ‘Mark it with an X,’ he said solemnly, as if it might be buried treasure for the prosecution. Ross-Cornes contemplated the plan. He knew exactly where he was sitting. We held our collective breath, as he silently marked the spot and the usher slowly carried this crucial evidence back to Jeremy. He choked back an exclamation of joy. Mrs Whitehouse had sat her solicitor in the gods.

  ‘The back row! You sat in the back row! The cheapest seats in the house – Mrs Whitehouse couldn’t afford the front stalls? You go to this theatre, knowing your task is to collect evidence for a very serious prosecution of my client, a man who has never committed a single offence in his life, on a very nasty charge, and you sit in the back row?’ Jeremy was wonderful, his high-pitched Bloomsbury voice rising in mock horror, detonating little explosions of ridicule. I passed him some ammunition, a note from Peter Hall – the back row of the Olivier is ninety yards from the stage. ‘Ninety yards from the stage! Did you know it was ninety yards from the stage? Do you – can you – swear on oath to his Lordship and to the jury that you are certain you saw the tip of a penis from a distance of ninety yards from the stage?’

  Mr Ross-Cornes was shaken, but not stirred. That was achieved by the most daring and devastating piece of impromptu cross-examination I have ever witnessed.

  ‘Do you go to the theatre much, Mr Ross-Cornes?’ Jeremy began sweetly. The witness confirmed that he did go to the theatre but not much. ‘I go to pantomimes and such like.’

  Q: You know that theatre is the art of illusion?

  A: If you say so, Lord Hutchinson.

  Q: And as part of that illusion, actors use physical gestures to convey impressions to the audience?

  A: Yes, I would accept that.

  Q: And from the back row, ninety yards from the stage, you can be certain that what you saw was the tip of the actor’s penis?

  A: Well, i
f you put it that way, I can’t be absolutely certain. But what else could it have been?

  There is a wise adage for witnesses: never ask counsel a question. Jeremy stood to his full height, six foot three inches in his wig, and pushing aside his lectern with his left hand, he held out towards the jury his clenched right fist.

  ‘What you saw, I suggest, was the tip of the actor’s thumb . . .’ (he slowly raised his right thumb, until it stood erect, protruding an inch from his first) ‘as he held his fist over his groin – like this.’ Jeremy flung open his silk gown with his left hand while placing his right fist, thumb erect, over his own groin. It was a coup de théâtre more dramatic than any our client had achieved in The Romans in Britain. The jurors stared transfixedly at the QC’s simulated erection. The witness opened and closed his mouth. At last he rallied: ‘I can’t see clearly, Lord Hutchinson. Your gown is in the way.’ Jeremy swivelled in his direction, holding the pose. The judge was speechless – they certainly do not go on like this in the Admiralty Division. Eventually, the crestfallen Mr Ross-Cornes had to admit that yes, he may have been mistaken. He could not rule out the possibility that it might indeed have been a thumb he had descried from the back row of the gods, and not the glans of the penis of Mr Peter Sproule.

  We had turned the corner and the prosecution knew it. Ian Kennedy approached us the next morning, and said he was minded not to pursue the case beyond half-time. He wanted the judge’s ruling on some legal submissions, after which he would withdraw the charges, if we had no objection. We discussed this turn of events with our client: did he want to insist on presenting his defence and hope for an acquittal, when we could all go home now? Michael was reluctant to miss the opportunity of jury acquittal but saw no sense in continuing. The judge would be likely to rule most of our witnesses inadmissible, and although we now fully expected to win we could not absolutely guarantee it – a hostile summing-up or the prayers of the prosecutrix might produce a hung jury. It would on balance be better to let the action be withdrawn. And it would have the inestimable advantage of making Mary Whitehouse look extremely silly.