Rather His Own Man

by Geoffrey Robertson

  The Old Bailey trial that always intrigued me was that of Stephen Ward, prosecuted in 1963 for ‘living off the immoral earnings’ of Mandy Rice-Davies and Christine Keeler. The newspaper reports of the case were avidly read in Australia – indeed, all around the world – and provided my generation with an education in sex (including whips and two-way mirrors) far more illuminating than those evenings with the Father and Son Movement. We would sing in the playground, ‘Mandy Rice, Mandy Rice, twice as nice at half the price,’ and other ditties based on the guilt of an apparently perverted osteopath – a profession we had never heard of before with a name which its practitioners hastened to change to avoid the jokes.

  My closer study of the case showed it to have been a massive stitch-up: Ward was not guilty (the women had actually lived off his professional earnings), but he was driven to despair at the unfairness of the judge and committed suicide at the end of his biased summing-up. The behaviour of the government of the day was outrageous. Its defence minister, John Profumo, was forced to resign after lying to Parliament about his affair with Keeler, to whom he had been introduced by Ward. The evangelical home secretary determined to make Ward a scapegoat, and ordered the head of Scotland Yard to find some – any – grounds upon which to prosecute. Police pressured vulnerable street-walkers to make false allegations, the chief justice suppressed evidence that would have exonerated Ward, and at the Old Bailey the trial judge artfully persuaded the jury to convict Ward as he lay dying in hospital.

  Forty years later I wrote Stephen Ward Was Innocent, OK to expose the manipulation of legal processes that could happen again if the stakes are high enough. It was launched by Mandy herself, who by 2015 had made ‘a long descent into respectability’ but was still as witty as ever: when she’d been asked during the case by a bullying barrister whether she knew that a particular celebrity had denied her claim they’d had sex, she gave the withering reply, ‘He would, wouldn’t he?’ Jeremy Hutchinson, who had defended Christine Keeler and had now reached his century, made a rumbustious speech decrying the unfairness of the trial, and Andrew Lloyd Webber joined in – he had just written a fine musical, Stephen Ward, to illustrate the injustice. My book was placed on sale in the Aldwych Theatre foyer, along with whips and masks and other impedimenta from upper-class British orgies in the sixties.

  The book stirred the embers of a case the legal and political establishment still wishes to hide: incredibly, the government has banned release of some case files until 2046. The reason, I have been told on good authority, is that one of the embargoed witness statements suggested that Ward had allowed his apartment to be used for an illegal abortion of a woman who’d been made pregnant by none other than the Duke of Edinburgh. In the course of my research I concluded that this was an entirely false allegation against Prince Philip, and did not even mention it in my book. So in 2046, when Philip is long dead, the files will be released and the lurid allegation will be published in newspapers and will doubtless feature in a mini-series about the royals. Another example of the absurdity of censorship: had the file been released at a time when memories were still alive, the story would have been refuted. In 2046 it will emerge to embarrass King William, or perhaps by that time King George.

  So there I was, reading about famous trials in the barristers’ library in the Old Bailey in the mid-seventies: I had made it to the epicentre of criminal practice. I had reached a position from which I could fight the English vice of hypocrisy: censorship, secrecy, police corruption, discrimination and so on. Now was the time to test my theory that justice could be achieved through due process. Courtroom practices and procedures might be the rules of the justice game, but the game, I thought, could be played in ways productive of liberty, where liberty was the just result.

  In criminal cases, this game was against the state, represented too often by corrupt police and overbearing prosecutors and biased judges. But the advocate could stand between his client and these powerful forces and appeal to the jury. At the Old Bailey, a lone David could sometimes slay Goliath. Jury trial and due process provided the possibility of victory against the state leviathan, and from victory in an important case might come political and social consequences which would enhance the liberty of the subject.

  This had been the case with the Oz trial, where victory – ultimately on appeal – had changed the law, so no writer or publisher henceforth could go to prison just for shocking or offending others. Of course the repressive instinct of British authority continued for a while, for example by making use of local indecency prohibitions to confiscate art. This ended with the most ridiculous case I ever did, which was to defend Richard Branson, when Virgin Records released the album Never Mind the Bollocks, Here’s the Sex Pistols. Richard was prosecuted on the grounds that ‘bollocks’ was an indecent word, although it was obviously being used in its modern meaning of ‘nonsense’ or ‘rubbish’. We called a professor of English language to explain to the court the etymology of the word ‘bollocks’ – he traced it back to one of the earliest English-printed Bibles, Wycliffe’s Bible, where it had been used with the meaning of ‘testicles’. But then, he explained, in the King James edition, it had been replaced by the word ‘stones’. At this point Johnny Rotten passed me a note that said, ‘Don’t worry. If we lose the case, we’ll retitle the album Never Mind the Stones, Here’s the Sex Pistols.’

  Inevitably, we won: I have never seen a defendant vault out of the dock as quickly as Richard, who led the press to the nearest record-shop window to photograph him grinning in front of a display of the cover, which featured on numerous front pages and greatly propelled the album’s sales. That was how the authorities were taught the lesson I had intuited from my teenage searches for the books banned by Arthur Rylah: prosecute a book or a record, and the results will be counterproductive – the publicity will serve only to increase sales. This was also the result of the most significant censorship case I conducted at the Old Bailey, defending a publisher prosecuted for obscenity for bringing out a grubby little paperback, Inside Linda Lovelace. It had sold a few hundred copies until the trial: after the publisher’s acquittal it sold a million. I had called, in the book’s defence, some leading feminists and the Oxford professor of Jurisprudence to testify that it had ‘sociological merit’ – if only the merit of describing the US porn industry, which was by then grossing (literally) more than Hollywood. The judge made the mistake of asking the jury – a young jury – ‘If this book is not obscene, ladies and gentlemen of the jury, you may ask yourself, “What is?”’ Taking his cue from their acquittal, the Director of Public Prosecutions announced that the written word would no longer be prosecuted in the UK. From such seedy acorns do great oaks of freedom grow.

  There is a maxim of Equity – ‘The law should not concern itself with trifles’ – that should have been applied to all the attempts in the seventies to censor and suppress sexual explicitness. The Old Bailey at times resembled a porno cinema palace, with Deep Throat and other early examples of the genre playing before bewildered juries in various courtrooms. It really is no business of the law to impose moral standards, certainly where there is no popular consensus (as there is, of course, in relation to child pornography and jihadi incitements to violence). As a defence barrister, I was forever quoting John Stuart Mill (‘The only purpose of the criminal law is to prevent harm to others’); Voltaire (‘I don’t like what you say but will defend to my death your right to say it’); and Mrs Patrick Campbell (‘I don’t mind what they do, so long as they don’t do it in the street and frighten the horses’). My final speeches sounded like seminars taught by Gordon Hawkins and Duncan Chappell, my lecturers in Criminology at Sydney University – and juries agreed often enough for the state to abandon, after the Inside Linda Lovelace acquittal, the imposition of moral censorship by the forces of law. There were no more obscenity trials; sexually explicit films and publications were regulated and licensed (i.e. confined to the top shelves of newsagents, licensed sex shops and cinema clubs) rather t
han prosecuted. John Mortimer and I had ended an era of attempts to use the criminal law to ban discussion of sex, an era which had begun with Gerald Gardiner and Jeremy Hutchinson successfully defending Lady Chatterley in 1960. When Ken Tynan called to congratulate us over the Linda Lovelace result, I thought my youthful ambition to end censorship by criminal law might finally have been fulfilled.

  I reckoned without Mary Whitehouse and her abiding hostility to homosexuality. In and before the seventies there was still a nasty stigma attached to this sexual orientation: nobody ‘came out’ and there were no openly gay MPs. (There was one gay MP, who kept her private affairs private, but she was ‘outed’ by the Daily Mail, and in consequence outed from Parliament.) Mary Whitehouse was the self-appointed champion of the anti-gay brigade. She pretended to be ‘just a Colchester housewife’, but she was in fact a front for the well-funded Moral Re-Armament movement, and she pounced in 1977 when Gay News published a poem, ‘The Love That Dares to Speak Its Name’, which suggested that Christ’s love for humankind had extended to a gay centurion. She brought a private prosecution for the arcane crime of blasphemy. Christianity, her counsel argued, was part of the law of England, and since its tenets held that homosexuality was a sin and Christ was without sin, imputing any gay attraction to him was, ergo, the crime of blasphemy, punishable by imprisonment for life. Mary’s counsel, a red-faced, tub-thumping barrister named John Smyth, described the decorous metaphors of the author (a member of the Royal Society of Literature) as ‘so vile it would be hard for the most perverted imagination to conjure up anything worse’. Mark Twain had noted the phenomenon: ‘To the pure, all things are impure.’

  It was the craziest trial the Old Bailey had ever seen. The judge ruled that Christianity was part of the law of England, and later admitted in his autobiography that he had been biased against us and that his summing-up (a direction to convict) had been dictated by God (if it had, it would have been fairer to the defence).4 He allowed Mary and her followers to hold prayer meetings outside the court to pray for a conviction, and refused us permission to call evidence from the defendant editor. The intention of the poet and of the editor who published the verse was, ruled the judge, utterly irrelevant.

  I had taken the Bible away on holiday before the trial, rereading it as if studying for those Sunday school exams, and had no difficulty reinterpreting it inclusively. After all, the only way to beat Mary Whitehouse was to be holier than her. In two of her autobiographies (she wrote four) she praises with not-so-faint damns my efforts to become the angel’s advocate: ‘I shall never forget the dreadful sense of despair which overwhelmed me after hearing Geoffrey Robertson sum up for the defence. It was a truly remarkable performance … After [his] address to the jury, the phrase “the devil’s advocate” took on a whole new meaning.’

  The judge (or his divine instructor) ended his summing-up by reminding the jury that they had all taken oaths on the New Testament, so they might feel obliged to convict. John Mortimer and I were amazed that they took a long time and that two of their number dissented. We believed we should succeed on appeal because of the ruling that the publisher’s intention was irrelevant. But a vice of laws like blasphemy is that judges have difficulty putting their own moral and religious views aside. When it came to the five Law Lords, one was a reactionary Tory ex-Lord Chancellor, whose judgments were usually guided by prejudice, and another was a committed Catholic who ostentatiously refused to read the poem. That was 2–0 against us. Another judge was my nemesis Lord Diplock, and another was religious (Welsh Chapel) and conservative, but the best criminal lawyer in the country. Both men must have hated the poem, but they had true fidelity to law, sticking scrupulously to its principles, and refusing to bend them in order to uphold a conviction the merits of which they would otherwise have approved.

  With the game at 2–2, my favourite judge, Lord Scarman, shot an own goal. He was the leading advocate for a bill of rights and a supporter of free speech, but he was at this time particularly anxious to have minority races protected from insult and offence. He wanted laws that would protect all religions, otherwise attacks on Islam would become a veiled form of race-hate. His case is similar to the argument that supports the retention of section 18C of the Racial Discrimination Act in Australia. It is well intentioned but in my view mistaken, and certainly it was a mistake for Scarman to use it to uphold the Gay News conviction – on the basis that blasphemy should be a strict liability offence covering insults to all religions. As a matter of law, this was not the position, because English law confined its protection to the Christian religion – as a group of Muslims discovered some years later when the High Court threw out their attempt to bring a private prosecution against Salman Rushdie for blasphemy for writing The Satanic Verses. This ridiculous remnant of the days of religious persecution protected only Anglicans, and in due course Parliament got around to abolishing it. Christianity was no longer a part of the law of England.5

  The law and the legal profession still discriminated against homosexuality – it may be lawful, the Law Lords had said, but it is in no way to be encouraged – and this mindset took longer to dispel. The forensic fight-back against Mary Whitehouse began when she privately prosecuted the National Theatre for staging The Romans in Britain, a play by Howard Brenton, which in one scene depicted the rape of a young druid by a Roman soldier. Mary and her legal adviser, John Smyth, were determined to fight any depiction of the ‘evil’ practice of homosexuality, despite the fact that the play was a jeremiad against the brutality of war. Theatres were protected from prosecution under the obscenity laws, but Smyth (who mysteriously disappeared shortly before the trial) found an obscure law against acts of gross indecency in public places, hitherto used only against people accused of masturbating in public lavatories.

  Sir Peter Hall, the National’s director, instructed Jeremy Hutchinson and myself to defend, but the prosecution was a cock-up. Mary’s solicitor, the only prosecution witness, testified that he saw an actor dressed as a Roman soldier take off his tunic, hold his penis in his hand with the tip protruding, walk across the Olivier stage at the National and place that tip against the buttocks of the actor playing a young but ancient druid. In the course of a remarkable cross-examination, which I describe in The Justice Game, Mary’s solicitor admitted he had sat in the back row of the theatre and could not be sure that what he had seen was the tip of the actor’s penis – it might have been the tip of the actor’s thumb.6 To great public merriment, the case collapsed (the ‘thumbs up’ defence was used by gay men thereafter caught by police in public toilets) and Mary Whitehouse was ordered to pay substantial costs. (‘God will have to provide,’ she muttered as she left court.) We heard no more of her courtroom crusades against the permissive society.

  My last defence of homosexuality against state prejudice came from a UK customs operation which attempted to close down Gay’s the Word on the grounds that the homosexual-themed novels it was bringing into Britain from Europe infringed the ban on indecent imports. By this time we had openly gay MPs who led demonstrations against this homophobic prosecution, which collapsed. The bookshop became the launching pad for the gay and lesbian campaign to support the striking miners, and it stars in the delightful movie Pride (with Dominic West, Bill Nighy and Imelda Staunton), which exemplifies how, towards the end of the twentieth century, Britons came not just to tolerate but to appreciate those of their number with a different sexual orientation.

  The cases that fought prejudice against homosexuals were led in court by this heterosexual. I had no help from any of the hundreds of gay barristers – they were afraid to come out in support, including two members of my own chambers. Now several senior judges are proud to be homosexual – Michael Kirby deserves acknowledgement for giving a lead to his English counterparts – and same-sex marriage has increased human happiness and strengthened the institution of marriage (or at least made it more widely popular).

  The Gay News trial was disinterred by the media in 2017, forty yea
rs on, because of allegations they reported about Mary’s lawyer, the evangelical John Smyth. They shed light on why he had pulled out of the Romans in Britain trial. Mary’s solicitor had told me that Smyth had a religious conversion (he hardly needed one) and had been called by God to be a missionary in darkest Africa. But it emerged that after Gay News, he had offered his services to a boys’ school near his country home. The media now reported claims that he would select the most attractive boys, take them to his potting shed and convince them that God wanted them punished for masturbating. His victims alleged he would take out a cane and beat them until their buttocks bled, causing them extreme pain in the short term and long-term psychological damage. Incredibly, it seems that when the headmaster was informed, he called Smyth in and agreed not to report him to the police if he never entered the school grounds or associated with its pupils again. Smyth eventually left the country for Africa.7 Mary Whitehouse must have known, but she took him on a barnstorming tour of Australia in 1984 linking with Fred Nile to campaign for the banning of films with an X-rating. I was in Canberra at the time as an adviser to Attorney-General Gareth Evans. When Smyth and Whitehouse asked to see Evans, to urge stricter censorship laws, I advised him to have nothing to do with them. Nonetheless, their role in gay liberation was significant: by using the law, they provoked more and more of the LGBTI community to come out of the closet and fight back – to get themselves elected to Parliament, appointed to the judiciary and to remind business and politics that they were a force to be reckoned with. I am proud to have been part of their struggle for pride in the love that now can dare to speak its name – loud enough in Australia in 2017 to win the postal survey on same-sex marriage.