Rather His Own Man

by Geoffrey Robertson

  I was installed in a solicitor’s office in Bond Street (which featured, in that era of the miniskirt, more flesh than I had seen since leaving Bondi Beach) and offered a ‘crash pad’ (Richard’s basement in Notting Hill Gate). In a fast Fiat I would thrash up the motorway in the early hours of the morning, to make a 9 am tax lecture or play inter-college tennis or edit my sections in Cherwell, before thrashing back down at night to London. I ran up, I am told, more parking tickets than any Rhodes scholar in history.

  The Oz trial, held at the Old Bailey over the summer of 1971, was a trial like no other. The editors of a little underground magazine, the edition in question composed mainly by school-kid journalists, had been chosen as scapegoats to punish the permissive society of the sixties. There was no other apparent explanation for the ferocity of the charges – conspiracy to corrupt morals carried a maximum sentence of life imprisonment – or the behaviour of a brutal and reactionary judge who jailed Richard for eighteen months for obscenity, despite his acquittal on the main conspiracy charge. We finally freed him on appeal, after identifying no fewer than seventy-eight mistakes in the judge’s summing-up.

  In due course, another explanation emerged for why Scotland Yard had chosen to prosecute. The police force at the time was riddled with corruption: its drug squad dealt in confiscated drugs; its serious crimes squad arranged serious crimes; and the ‘dirty squad’ – eighteen constables charged with policing Soho – ran what the judge who later jailed them described as ‘a vast protection racket’, taking bribes to facilitate the sale of pornography of the hardest core. As a pretence that the police really were concerned with the nation’s morals, the much-publicised raids on the underground press served as a decoy. Our defence evidence was directed to show that porn did not deprave and corrupt its readers, but it certainly did corrupt those charged with enforcing the laws against it.

  To understand the Oz trial, you have to understand Rupert Bear’s beloved place in the British nursery, and the horror when one of Richard Neville’s youthful guest editors gave him an erection. To my surprise – and anger – several of Britain’s leading barristers were so shocked they refused to defend him, breaching their ethical duty. There was no ‘Je suis Rupert’ in those days. The only QC who thought the cartoon even mildly amusing was John Mortimer, our leading counsel, and we clung to him like a plank in a shipwreck, as for six weeks of the summer the majestic engine of British criminal law was rolled over these rude Australians. The trial became surreal, as an extract from the examination of one of our witnesses, the lateral-thinking Professor Edward de Bono, attests:

  Prosecutor: What do you suppose the effect is intended to be of equipping Rupert Bear with such a large-sized organ?

  De Bono: I don’t know enough about bears to know their exact proportions; I imagine their organs are hidden in their fur. But if you had a realistic drawing I think you would miss the point of the drawing entirely.

  Prosecutor (angrily): Mr de Bono, why is Rupert Bear equipped with a large organ?

  De Bono: What size do you think would be natural?

  Judge: Well, forgive me, but you mustn’t ask counsel questions.

  Prosecutor (new tack): A success, do you think, this lavatory drawing?

  De Bono: If one considers it a success to have it published in Oz then I dare say it would be a certain measure of success.

  Prosecutor: The success being this. That the lavatory wall is only available to those people who use the lavatory for the purposes of nature and this particular magazine has, as we are told, a circulation of up to 40,000.

  De Bono: I find that question difficult to answer, Mr Leary, unless I knew the turnover of a normal lavatory wall, which I would expect to be in the region of 30,000.

  Judge: What, one lavatory, 30,000?

  De Bono: If you stop to calculate it, I expect so.

  You may not believe it, but while this was going on, the judge was taking out his magnifying glass to stare at the small bear with the big erection. It was difficult – sometimes impossible – to keep a straight face, despite the awesome and oppressive surroundings of the Old Bailey’s oldest courtroom. There had been some mention of oral sex in Oz – a taboo subject, before the movie Deep Throat – and to explain it I had to call a great British character, formerly an able seaman, then a jazz singer, then a sociologist. His name was George Melly, and he started to talk about the harmlessness of cunnilingus. The judge was genuinely puzzled. ‘For those of us without a classical education, what do you mean by this word “cunnilinctus”?’ (pronouncing it as though it were a cough medicine). Melly beamed at the judge: ‘Oh, I’m sorry, my Lord. I’ve been a bit inhibited by the architecture. “Sucking” or “blowing”, your Lordship. Or “going down” or “gobbling”. Another expression used in my naval days, your Lordship, was “yodelling in the canyon”.’

  That brought the house down, and there were shouts of ‘Silence!’ ‘This is a courtroom, not a theatre,’ bellowed the judge for the umpteenth time.

  To my great relief, after six weeks of the longest obscenity trial in British legal history, the jury acquitted Neville, Dennis and Anderson of conspiring to corrupt public morals, but convicted them – on the judge’s misdirections – of obscenity. He remanded them in prison for psychiatric reports, which was an outrage – they were stark-staring sane. This misuse of psychiatry to demonise dissidents was what was happening in Russia. And as soon as they entered the prison gates, they were given a haircut. The atavistic revenge of the state, the short back and sides. This shearing of their long locks was front-page news – mothers and fathers throughout the land may have exulted, but the sons and daughters were furious. There were more letters to The Times about the Oz trial than there had been about the Suez Crisis.

  The judge sentenced Dennis and Anderson to jail and Richard to deportation. To prevent Richard’s dispatch to Botany Bay, the young Anna Wintour (when she wore Primark, not Prada) offered to marry him. Fortunately for Vogue, the conviction and the deportation order were quashed on appeal. It was such an astonishing case that I wrote a play about it (The Oz Trial), which was performed by the Royal Shakespeare Company (Ben Kingsley played Richard) and later remade for television as a BBC/ABC co-production, The Trials of Oz. The ABC wanted Jason Donovan to play Richard, but the BBC insisted on using an unknown English actor named Hugh Grant. My stage direction called for the judge to bring out his magnifying glass and peer at Rupert’s erection, as he had in the courtroom. The RSC director wouldn’t have it. ‘But he did – I was there,’ I insisted. ‘Of course it happened,’ said the director, ‘in court. In a theatre, however, the audience won’t believe it happened in court.’

  The Lady Chatterley trial in 1960 won freedom for great literature and the Oz appeal in 1971 won freedom for bad literature, or at least for writing and cartooning that were amateurish and provocative. The very least of the trial’s consequences was to provide me with a career path, by confirming my earlier ambition to practise law as a barrister at the Old Bailey. Although much about criminal justice in London had appalled me – the bent coppers and savage judges, for a start – this could be challenged and exposed, and there was always a jury to appeal to, whose verdict was final. It was not exactly ‘the world’s fight’, but jury verdicts at the Old Bailey could have an impact around the common-law world – they could reject political prosecutions, official censorship, discriminatory persecutions of minorities. And the ‘justice game’ itself was full of stratagems and tactics based on rules of evidence which, thanks to Trevor Martin, I knew pretty well. I wanted to expose dishonesty by cross-examination, to stand up to judges and appeal to jurors to follow their consciences and acquit. Or even, were I to prosecute corporate criminals, to convict. I wanted a career in which my success or failure would hinge on my own ability, and no one else’s – the independence of the Bar was its greatest attraction.

  There was just one problem: money. The British Bar was so insular that it did not accept Australian qualifications: I would have t
o do a year’s study of the same subjects I had passed with honours at Law School in Sydney. The Rhodes Trust would extend its stipend to pay for a third year if you were doing a doctorate, but not, hitherto, if you wanted to do a law course in London. I had to blaze a trail, and it took me to the office of the Warden of Rhodes House. Bill Williams was no fool, at least in his own estimation (he was forever boasting that, as Montgomery’s intelligence officer, he had won the battle of El Alamein), but he was kindness itself. He did not seem to mind that I had been a publicity officer for the Rhodes revolt, or had upset the establishment by staging the Oz trial. ‘Your destiny is obviously to be a consigliere for causes that may or may not succeed: I think the Founder would not object to you obtaining a professional qualification at his expense.’

  Perhaps I had misjudged the warden – he did have that twinkle in his eye which can betray an inner anarchist beneath an ultra-conservative exterior. I did not need to boast of my pilgrimage to the Founder’s grave in the Matopo Hills; Williams awarded me a not inconsiderable sum of money to enjoy a year in London and obtain the requisite professional qualification. I did not have the heart to tell him that I had arranged to spend part of it defending Peter Hain, the anti-apartheid demo supremo.

  Peter had been charged with ‘conspiracy to trespass’ on sporting arenas, thus disrupting games against racially selected South African rugby and cricket teams. He was then leader of the headstrong Young Liberals and architect of their ‘direct action’ tactics – of running on to the field during play and being carried off without a struggle. Some sports-loving South Africans were so angry when ‘Hain stopped play’ that they invested in a private prosecution, brought by a company called ‘Freedom Under Law Limited’. Trespass was only a civil matter, but to punish Trade Union ‘sit-ins’ the judges had recently declared that it could be turned into a serious crime simply by agreeing to do it with others. QCs advised Peter he was guilty and so they could not defend him: he did not feel guilty, so he defended himself. I helped to write his speeches (‘It’s your parts that infuriate the judge,’ Peter complained) and rehearsed his witnesses, who said they were so outraged by apartheid that they’d acted on their own initiative. My best witness was our last – a Church of England bishop, no less, in velvet vestments and shiny cross. He stuck to his script:

  Hain: Did you conspire with me to stop the rugby tour?

  Bishop Winter: Yes, I must confess that I did. (Shock in the court)

  Hain: And how did you do that?

  Winter: I prayed to God, as a fellow conspirator and accomplice, to help you disrupt the tour.

  The judge ordered him out of the witness box, but divine providence left its impact on the jury, which acquitted Peter of the serious charges. Freedom Under Law Limited went into liquidation without achieving its objective of ‘Pain for Hain’, and a new Labour government abolished ‘conspiracy to trespass’ – a judge-made law used to chill political protest. It was a good result, which helped to prevent the rule of law being misinterpreted as the rule of lawyers.

  9

  Down at the Old Bailey

  It was my boyhood dream to appear, wigged and gowned, addressing a jury beneath the Old Bailey dome on which stands the iconic golden statue of Lady Justice. Her right arm brandishes a sword to punish the wrongdoers found wanting in the scales held in her left hand. All other representations show the goddess wearing a blindfold, giving rise to aphorisms about justice being blind. What few notice about the goddess atop the Old Bailey is that her eyes are wide open – as if to see through all the perjury that goes on in the courts beneath her skirts.

  I began practising there in 1974, and spent many dramatic days directing her gaze to weaknesses in the prosecution evidence. I set a record (now eclipsed) for the longest jury speech (four days) and the fastest jury acquittal – the jurors decided to acquit while walking to their room, so they turned around before they reached it and marched back into court to deliver the verdict (on an artist, charged with the heinous offence of drawing British pound notes).1

  My determination to get to the Old Bailey required overcoming many obstacles – in The Justice Game I explain how, eventually, I did so. (They included thirty-six compulsory and indigestible dinners at the Middle Temple.) There was also the problem for new barristers of obtaining a ‘seat’ in chambers. This was solved for me by John Mortimer, who insisted that I join him at No. 1 Dr Johnson’s Buildings, a venerable location opposite the Temple Church and a five-minute walk from the Old Bailey. It was on the tourist trail, with its gas lamps (lit every evening by an elderly lamp-lighter) and its memories of the sage Dr Johnson, to which the guides would soon add their recollections of Rumpole. And so in 1974 I became a fully-fledged barrister in wig, wing-collar, bands and gown. These were purchased from the tailor to the Bar, Messrs Ede & Ravenscroft, opposite us in Chancery Lane. I made the mistake of being measured for my wig after a short haircut, and it is still forever slipping down my cranium; as Clive James said of my usual more bouffant appearance, ‘You don’t need a wig; you should just powder your hair.’ I recently appeared with Amal Clooney in the European Court of Human Rights in Strasbourg. It was a deadly serious case about genocide and most British newspapers sent their correspondents – their fashion correspondents – who asked her, ‘What are you wearing?’ ‘Ede & Ravenscroft,’ she replied drolly – a couturier unknown on the catwalks of Paris.

  Robes and wing-collars that barristers must wear in Britain are constant irritants, especially the stud that must be attached to fix the starched wing-collar to the white shirt. Indeed, it may be said that the only danger to a barrister’s life comes in the robing room, when overly vigorous pressing of the collar stud may touch that gland in the neck, just below the carotid artery, which if pressed too hard will cut off the blood supply to the brain and cause unconsciousness and possibly death. (This knowledge comes in handy when you defend a strangler – ‘He did not realise, members of the jury, that he was pressing just a little too hard.’) I have always been in favour of abolishing the pantomime flummery of wigs and gowns, but the Bar Council took a survey of our consumers – i.e. criminals – and they all said they wanted us to keep them: ‘I like my brief dressed proper.’

  There is only one occasion in my forensic life when I was glad to be wearing a gown. It was when I defended the movie Deep Throat the first time it was prosecuted at the Old Bailey. In those days in England they still had all-male juries for sex cases. The prosecutor opened the case very moderately: ‘You are about to see a film, gentlemen of the jury. It will be for you to say whether it is an indecent importation’. The courtroom lights went down, and Ms Lovelace came on the makeshift screen. Ninety minutes later, the lights came up. Nobody moved. The judge then announced it was lunchtime and made his exit, in a crouching position. The all-male jury remained stock still in the jury box. ‘Come on,’ said the elderly lady usher, ‘it’s lunch-time.’ Still they did not move. ‘Come on,’ she said, ‘I’ve got to get me lunch.’ Still they did not move, those red-faced and sweaty twelve good men and true. We barristers left court, our gowns wrapped loosely around us, thinking that on occasions like this there was some point in being robed. Incidentally, you probably won’t believe this but I swear it’s true – the jury could not agree. It was what we call a ‘well-hung jury’.

  For all of the professionals – judges, QCs and barristers, solicitors, policemen and clerks – who inhabit the large court complex of the Old Bailey (four of the austere original courtrooms, and fifteen modern additions) it is the jurors who make the vital decision. It is a curious, somewhat irrational system, but it’s been with us for eight hundred years – the notion that what lawyers condescendingly call ‘ordinary people’ (by which they mean people who are not lawyers) should hold the sword and scales and substitute, in the flesh, for Lady Justice. No one in Britain can be sent to prison for more than a year without the opportunity to obtain the judgment of his or her peers. It is a clumsy and costly system, abolished in some countries (Lee Ku
an Yew’s Singapore, for example) in the interests of efficiency – and of verdicts in the government’s favour by compliant judges. The Europeans simply cannot understand our affection for it – surely a defendant has a right to a reasoned verdict before they lose their liberty, rather than an inscrutable grunt of ‘guilty’ from the jury foreman? Yes, and no – I am in favour of defendants having the right to waive their entitlement to trial by jury and elect trial by judges if, for example, they fear a jury may be infected by racial prejudice or demonisation in the media. But for all the inconvenience and expense, the faith invested in this group of citizens chosen by lot is in my experience generally justified, and the right to an independent and impartial adjudication is the most fundamental of our ‘fair trial’ rights.

  As if to illustrate this, in the high-domed hall of the old building there are statues of William Penn and William Mead, two Quakers who were tried in 1670 for unlawful assembly. Their jury refused to follow the judge’s direction to convict, so he had them locked up for two nights without food or water or even a chamber pot. When they still insisted upon returning a verdict of ‘not guilty’, the judge sentenced them to prison. Their foreman, Edward Bushell, challenged the legality of their punishment, by seeking the great writ of habeas corpus (which requires the state to prove that imprisonment is lawful), and the chief justice ruled that it was not: every English jury was entitled to act according to its own conscience and appreciation of the evidence, irrespective of judicial direction or expectation. Bushell’s Case is the most important decision for Anglo-American and Australian criminal law, because it is the foundation of the constitutional independence of the jury: unlike judges who are bound by the law, a jury can do justice, whatever the law may be. I have often told juries about Penn and Mead and invited them to contemplate the statues of the two Quakers, and to remember the astonishing courage of Bushell. Thanks to him, I say, they will suffer no inconvenience or reprisal when they acquit my client.