Rather His Own Man

by Geoffrey Robertson

  By the time I met Banda he was over ninety, not that his age stopped him from pawing the female member of my delegation from the British Bar and Law Society. (We were there to discuss prison conditions, which we would have experienced first-hand had she slapped his wizened face.) He had a chief mistress, styled the ‘official hostess’ of the nation, Cecilia Kadzimira. Banda had made it a crime to possess any Simon & Garfunkel album featuring their song ‘Cecilia’ – ‘Cecilia, I’m down on my knees, I’m begging you please …’ were not words the President for Life wanted to be heard in his country.

  Other actions were less comical. There were stories that he fed people he hated to crocodiles in the dark southern reaches of Lake Malawi. I was certain that he had ordered his chief inspector of police to arrange the deaths of four MPs who had criticised him in Parliament. A secret police unit had bashed their brains out and placed their bodies in a car, which they pushed over a cliff. The government announced that they had met with a road accident while trying to flee the country.

  After thirty years of despotic rule, aid donors and foreign governments finally insisted on multi-party elections in Malawi, which Banda agreed to call only because he expected to win. The people, however, decided to be rid of him, and the new government set up an inquiry into the deaths of the four MPs. It decided that Banda had been responsible. He was put under house arrest and I was asked to return to assist his prosecution. We obtained gruesome confessions from the secret policemen who had committed the murders: they were all practising members of the Church of Scotland (the main religious group in the country, thanks to Scottish missionaries) and happy to confess in return for a light sentence. They testified to being ordered to kill by the chief inspector of police. But he was dead – I suspect that Banda had him killed in order to shut him up. He had not left any document incriminating Banda, but he had left a wife, who vividly recalled how he had agonised with her for two days about whether he should carry out the order he had received personally from Banda, fearful that the tyrant would have him killed if he disobeyed. This was overwhelming and credible evidence – the only problem being that it was not admissible in court. It was what lawyers call ‘hearsay’ for the wife to describe what her husband had told her, and hearsay upon hearsay for the jury to hear what he had told her about what Banda had told him – i.e. to kill the MPs. I tried to find a way around this problem by charging Banda with conspiracy to murder, but the judge did not agree that the devastating evidence could be admitted through this device and Banda was acquitted. He was dying, in any event, and at least a tyrant had fallen far enough to be put on trial for multiple murders – a trial that, unlike any conducted during his rule, had been open and fair.7

  Robert Mugabe was another Big Man who, after abolishing the Privy Council, went bad. In 2002 I was summoned by the Guardian to help defend their correspondent, Andy Meldrum, who was facing prosecution for the novel crime of ‘abusing journalistic privilege’. It carried two years’ imprisonment and was used exclusively to punish those who criticised Mugabe in print. For this reason, the Guardian had ceased to distribute copies in Zimbabwe; Andy’s reports could be read only online by Zimbabweans. The keenest readers of the Guardian website in the country were secret policemen working in an underground room in the main police station in Harare, intercepting all internet stories they could find that were rude about Mugabe. This gave us (I was working with the courageous Zimbabwean lawyer Beatrice Mtetwa) a defence that the local court had no jurisdiction because the ‘crime’ had been committed on a website based in London.

  But where was the evidence? We all trooped from court to the business centre of the Sheraton, where a police officer tried for hours to find it on the Guardian online. The paper had, of course, taken it off after Andy was arrested, and the police had not worked out how to preserve it. The magistrate, correctly but courageously, acquitted Andy. Reprisals soon followed – his car was destroyed by fire. Beatrice was assaulted; the bravery of lawyers in these places at these times is both heart-warming and heart-rending. Andy, when he walked from court a free man, was stopped by a cop and presented with an order for his deportation. As in Lee Kuan Yew’s Singapore, so it was in Robert Mugabe’s Zimbabwe (and may still be under his successor) – when you win, they make sure you lose.

  The Seychelles, a collection of 115 island jewels set in the coral waters of the Indian Ocean, could be the most beautiful place left in the world, and certainly in the Commonwealth. Its people – 98,000 ‘Seychellois’ – are descendants of African women slaves and tars of the British navy, which freed them from slave ships in the early nineteenth century and brought them to the largest island, Mahé, for education and, as inevitably happened, copulation. The island received its independence from Britain in 1976, led by an exuberant barrister from London, James Mancham, who invited dozens of bikini-clad Hollywood starlets to grace his inauguration. He made the mistake of going off to London for the Queen’s Silver Jubilee celebrations, and in his absence was deposed by the opposition leader, France-Albert René, a dour Marxist barrister from Lincoln’s Inn.

  René was clever and compromising: he realised that his undemocratic reign depended on the tolerance of the US, so he allowed it to keep its CIA monitoring station on the island, while at the same time permitting Russian ‘fishing trawlers’ to enter his territorial waters and monitor the monitors. Come Glasnost, however, the trawlers withdrew, and the US ambassador told René the game was up: America no longer needed the monitoring station (they had a better one at Diego Garcia, where they could water-board as well) and the State Department wanted the Seychelles to become a real democracy. René knew when he was beaten, and in 1990 asked the Commonwealth secretariat to provide a lawyer to advise on the deconstruction and democratisation of the constitution. I was the fortunate recipient of the brief.

  It was the most pleasant of jobs, drafting constitutional clauses between swims and snorkelling. René had confiscated the land of foreigners and opponents, and my new constitution had a section which would enable those who had been expropriated to claim back their property, or else receive compensation. It was duly passed, and I left the Seychelles to its enjoyment of multi-party democracy.

  Shortly afterwards, back in London at a birthday dinner for Billy Connolly, I found myself sitting next to George Harrison. He told me of his own love for the Seychelles – he had bought a property there, years before, with Peter Sellers, but it had been seized by the government. I looked at my watch. ‘Well, George, you have eighteen hours to get it back’ – that was when the time for claims to the new compensation tribunal ran out. George rushed through a claim and some time later we returned together to a country delighted to have a Beatle back as a potential resident. George met René, and there was talk of making ‘Here Comes the Sun’ the country’s national anthem. George is often depicted as curmudgeonly, but he was wickedly funny in private and his wife, Olivia, is always a delight. George would sit on the beach in the late afternoon, strumming a guitar, while elegantly dressed passers-by muttered disdainfully about allowing ‘some old hippy’ on their private beach. My wife had one moment of doubt, when she received a message from George’s office asking her to take an unopened package to him in the Seychelles: passing customs officials with a secret substance for a Beatle did give her pause, so she took a peek. It was hair dye.

  Back in England, we would visit George and Olivia at their garden-fringed mansion, Friar Park, in Oxfordshire. It was an amazing museum of modern music, often with live exhibits. The elderly Indian gentleman nursing a sitar would turn out to be Ravi Shankar; the small balding American inspecting the guitar collection was Paul Simon, and so on. George and Olivia were the kindest of hosts. George was particularly kind to Jules, teaching him how to pluck a guitar and putting up with his obsessive questions about the history of the band. Jules loved running around the amazing house – which is where tragedy soon struck.

  The price of fame, sadly, is eternal vigilance, but George, an intensely private person, h
ated security – even after John Lennon’s assassination. Inevitably, I suppose, there came a man – a very big man – who suffered from paranoid schizophrenia and whose voices had ordered him to save the world by killing a Beatle. He went to Liverpool to look for Paul (who had long since migrated to St John’s Wood) and then heard that George lived somewhere near Marlow. He caught a train to this small, picturesque town on the Thames and made for the church to ask the vicar for directions. Although he must have looked wild and distracted, the vicar helpfully pointed him towards Friar Park. He broke in that night and savagely attacked George, causing serious injuries. Olivia, with a supreme strength endowed by love and courage, hit the intruder with a lamp and poker, rendering him unconscious. The man was prosecuted and placed in a secure hospital, to be released only when experts told the Home Secretary that he was no longer dangerous.

  George and Olivia were concerned to be notified if that happened and I could understand George’s worry – of course he should be warned when a man who had almost killed him through some mental compulsion would be back on the streets. Not necessarily to block the release, but to be satisfied that his would-be killer was no longer a danger. But one defect in English law in 1999 was that it gave absolutely no rights to victims of crime – no right even to be represented in court when the assailant was being sentenced – so the whole process would be secret. That should change, I thought, and I stood up at the Bar table to address the judge before he passed sentence on George’s assailant. Defending counsel tried to restrain me. ‘Mr Robertson cannot be heard,’ he said. ‘It is immemorial tradition that victims have no role in sentencing.’

  ‘Well, traditions are made to be broken, my Lord,’ I countered, and the sentencing judge patiently listened to me break them – perhaps the first time that a lawyer for a victim has been allowed an address such as this. I did not want to influence the appropriate sentence; I merely wanted the judge to add a recommendation that George and Olivia should be notified before the defendant was released. He was sympathetic but decided he had no power to make it. But journalists were there, in their dozens, and the argument was widely enough reported for the Home Secretary to say that he was minded to agree with it, and also to allow victims or their families to have their say in court. Soon they were permitted to make ‘victim impact statements’, which would be read to the judge before sentence was passed.

  I suppose had this development been on the cards when I was a young defence barrister at the Old Bailey, I would have vigorously opposed it. But now I really can’t see any harm in victim impact statements; in fact, some good has come of them. As long as the statement is not too mawkish, or too vengeful, it helps the victim (if alive) and members of the family of murder victims to achieve some closure and to come to terms with their loss. And if it does serve to illuminate the harm and increase the sentence, so what? Those who kill or injure fellow humans cannot complain if their victims also receive justice.

  It always amuses me when friends are awarded CBEs and OBEs: as a Commander of the British Empire you command no more than half a dozen tax havens. That is, today, the main purpose of parts of the remaining empire (Anguilla, Bermuda, Montserrat, Cayman Islands and so on): to enable multinationals, and wealthy family trusts, to avoid tax. I once was taught – it is a fundamental tenet of lawyers’ ethics – that there was a difference between tax evasion and tax avoidance, but now I am less sure – they both enable the rich to shirk their duty to provide for the poor. It is a disgrace that this is how the UK, via the remnants of its empire, operates on behalf of the wealthy of the world – in particular, American alcohol and pharmaceutical companies, which set up headquarters on coral-fringed ‘treasure islands’ with low tax rates in order to defeat the US tax authorities. The only downside of such locations is that when disputes arise they must be fought in the local courts, virtually under a palm tree, and then on appeal to the Privy Council. Part of that downside, as American lawyers are not admitted to practise in UK dependencies, is that they must rely on English QCs to fight their legal battles.

  It’s a very scenic circuit, from Anguilla to Bermuda – the beaches are beautiful, the rum is the stuff of pirate legend and the judges can be dilatory. I travelled upon it to do a particularly exotic-sounding case – Bacardi v Tequila. It concerned the will of Martin Crowley, a Californian who had one great idea in his life. He realised that many American boomers would have had youthful bouts of drunken sex after imbibing cheap Mexican tequila. Now that they were getting old and wealthy, nostalgia might drive them back to that drink – provided it could be beautifully refined and presented. So in 1989 he and a fellow entrepreneur, the celebrity hairdresser John Paul DeJoria, produced an exquisite tequila, decanted in handmade, numbered bottles, and called it Patrón. Sales at first were slow, but they had started to pick up by the time Crowley died, four years later, from a heart attack at his villa in Anguilla, where his drinks company was based for tax reasons. He had fallen out with his ex-wife, and they had no children of their own, so he left his estate – it was not at the time worth very much – to a trust he set up called Windsong, to ‘educate the poor children of the world’.

  Soon the money from sales of Patrón started rolling in, and the share price rose high enough for Crowley’s ex-wife to challenge the will. She failed, as did his father. DeJoria, however, had a contract which gave him the right to buy Crowley’s share in the event of his death. But for how much? Would the poor kids of the world get only US$5 million (the half value at the date of the contract) or US$150 million (the half value at the date of Crowley’s death)? To complicate matters, the trustees did not have the money to fight DeJoria, so they did a deal with Bacardi (also based in the Caribbean for tax reasons) to fund their fight against him, in return for giving Bacardi the right to buy the shares for $200 million.

  To complicate matters even further, the value of the shares just kept rising as more people started drinking Patrón. Actions were brought against the executors of the trust in Anguilla, but Windsong was based in California, where courts took a generous attitude towards charitable trusts. To cut a long legal story short, the poor kids of the world were likely to receive much more money if the case was heard in Los Angeles rather than Anguilla, where the Privy Council (its final court of appeal) had judges who took a strict view of the English law of contracts and might well decide to give only $5 million to the impoverished children.

  So we embarked on that most aridly intellectual of all legal arguments – litigation over where to litigate. It is decided by applying rules described in Latin – forum non conveniens. I happened to be an expert in this area, having appeared in many cases on behalf of American newspapers, which prefer to be sued for libel in New York (where they can win thanks to the First Amendment) rather than in London (where they will lose). It was for that arcane knowledge, rather than for my human rights experience, that the poor kids called me to Anguilla.

  This lovely little island, named by Columbus because he thought it looked like an eel, is a footnote in British history. The UK did not want it, and tried to get rid of it by attaching it to another island, St Kitts, to which it was giving independence. But the Anguillans did not want independence and particularly did not want it with the St Kittians, whom they loathed. So they staged a kind of musical comedy revolution, confining the governor-general to his mansion and locking their British bobby in his police station. Harold Wilson, prime minister at the time, ordered an invasion – seventy SAS paratroopers were dropped on the beach, and to their bemusement greeted with hugs and flowers. The Anguillans all surrendered with great delight – now they could be dependent on Britain forever. The island lives off its luxury hotels and its lawyers, who serve all the tax-avoiding companies based there. I was admitted to the Anguillan Bar to ask that the case be heard in California, where the poor kids would receive at least $250 million, because by this time Patrón’s shares had doubled in value to $500 million.

  The three parties claiming a share in this pie skirmished
in Anguilla for a couple of years, as the pie grew meatier every month. Usually there was a judge on the island, although sometimes one had to be chased in a small plane around what stamp collectors know as the Leeward and Windward Islands. I would pack my wig and silk gown and take an eight-hour flight to Antigua, jump on a chartered single-engined Cessna for a dash across the sea to Anguilla, check in at a luxury beach hotel (there were no others) and prepare submissions for the next day. I never quite knew when the hearing would end: one sneaky opposing counsel found out the time of my flight back to London from Antigua and kept talking, hoping I would jettison my reply and run for the Cessna parked virtually outside. I certainly made my reply very quickly – it was probably all the better for concentrating on my best point – and then ran to the Cessna, its engines already idling. We broke an airspeed record for small planes on the flight to the airport in Antigua, taxiing up to the big 747 just as the ground staff were about to remove the gangway. It was certainly more exciting than life on the Wales and Chester circuit.

  In 2008 the value of the shares reached $1 billion. Patrón really had taken off and my team of Californian lawyers plus Mark Stephens, London’s best litigation solicitor, were drinking it prolific-ally. Finally, before the inevitable appeal to the Privy Council, all sides suddenly saw sense. Bacardi wanted to own the brand, DeJoria wanted money and the poor kids wanted to be educated. Why not try mediation? We did, and our opponents did not do things by halves – the top floor of the Bellagio Hotel in Las Vegas was the place where a New York mediator attempted to bash our heads together. It worked, and the poor children of the world came away with US$550 million. I promised to find some worthy kids to educate and suggested some schools in Palestine, which might possibly have been a little too controversial for Windsong. They did take up my suggestion to set up a tennis coaching club for Caribbean children in Anguilla, which is doing well despite the heat and the cyclones – roll on an Anguillan Davis Cup team.