Rather His Own Man

by Geoffrey Robertson

  I log more air miles in a month than my father managed throughout the war. My favourite airline has always been Qantas – for reasons of patriotism, and its safety record – although carriers are now much of a muchness. (That said, there are still some airlines I prefer to avoid: Aeroflot, Turkish and Garuda.) I have only been in one emergency, en route to Trinidad on the government airline BWIA. It stood for British West Indian Airlines, although the local interpretation of the acronym was ‘But Will It Arrive?’ It didn’t when I flew on one of its planes with Lord Mackay, Mrs Thatcher’s Lord Chancellor, whose counsel I was for a royal commission into the legal system of Trinidad and Tobago. The good lord was famously religious – a member of the Free Presbyterian Church of Scotland (sometimes known as the Wee Wee Frees), the last outpost of sixteenth-century Calvinism. He sat across the aisle, submerged in the latest John Grisham. The old three-engined TriStar shook a bit when one engine shut down halfway across the Atlantic, but he did not look up from his novel. Then the second engine seemed to explode and the pilot told us that he would have to make an emergency landing in the Azores. This was when I noticed the royal commissioner had replaced his John Grisham with a copy of the Bible. I wished his prayers well – Kathy and the kids were on board – as we bumped and ground our way through the clouds to a clump of rock in the middle of the ocean. We landed with a thump and I made a dash to hire the island’s only taxi to get my family and Lord Mackay to the island’s only hotel. I called the attorney-general of Trinidad to assure him that we were safe – the plane had just been listed as missing. The Times ran the story the next day, mentioning that Kathy and Lord Mackay were on board, and it produced some speculation at the Bar about how they would survive if marooned together on a desert island.

  In all these cases, and many more, I have been privileged, by dint of being an English QC, to promote the values of free speech and fair trial in Commonwealth courts that have one thing in common – they are bound by constitutions that direct them to respect the rule of law. It often strikes me as regrettable that these fifty-three or so cricket-playing nations (well, leave out Canada) cannot set up a human rights court that encourages compliance with the basic rules of justice. But what the Commonwealth really needs, if it is to have any traction in the world, is an inspirational and charismatic leader. The Queen is not up to it and will soon go, so the British government is frantically lobbying for Charles to succeed her as Head of the Commonwealth. (The palace even sent out a flunkey to persuade Julia Gillard to support him, although Malcolm may have other ideas.) But the office is not hereditary – the head is elected by member states and the only qualification is to have a parent born in a Commonwealth country. One top candidate, Aung San Suu Kyi, has blotted her copybook by failing to stop the persecution of the Rohingya. Another, the Mozambican humanitarian (and widow of Nelson Mandela) Graça Machel, is a fine president of SOAS. But, as luck would have it, there is now available the perfect candidate. He is charismatic and competent, and needs a job: his would be a formidable voice to raise on the world stage against the stupidities of Donald Trump. His father was born in Kenya. The Commonwealth should crown Barack Obama as its next head.

  15

  Doughty Street Chambers

  The Temple is a part of London, between Fleet Street and the Thames, where legal and literary ghosts float into focus. Across from the gas lamps outside my first chambers in Dr Johnson’s Buildings, where tourist guides would imagine the good doctor at verbal play with Boswell, stands the Temple Church, built by the crusading order of monks, the Knights Templar. They lie there, with their effigies over their graves and their broadswords resting on chests of chain mail, as seen in The Da Vinci Code. The Pope closed down their order in the fourteenth century, partly because of allegations they were abusing small boys – plus ça change.

  In 1998 I was made a Master of the Middle Temple, which has its own by-laws – for example, it is an offence within its precincts not to address me as ‘Master’, a rule which irritated Kathy. I have a flat overlooking the courtyard where Twelfth Night was first performed before Queen Elizabeth I in 1602. This apartment once belonged in Charles Dickens’ imagination to Pip, the hero of Great Expectations: in chapter 39, he hears clumping on the stairs and to his horror meets his real benefactor – the convict Magwitch, returned from Botany Bay. The bells of St Paul’s ring in the distance, and just opposite is Middle Temple Hall, a familiar location for many films, where the armour of barristers who went to war against King Charles I in the 1640s, arranged around its circumference, looks down on a portrait of their royal enemy painted by Van Dyck. After grace, masters may dine on a table that served Sir Francis Drake, and at the doors to the library stand the two Molyneux globes once belonging to Sir Walter Raleigh. Cartographers of the time had no inkling of the Great South Land – I dine looking at a world without Australia.

  It was here that I came across one important ghost that historians had overlooked, and I wrote a book about him. John Cooke was a brave and brilliant barrister. He was a plebeian from a poor share-cropping family, who managed through Puritan connections to win a scholarship to Oxford, and later defended radicals. When Oliver Cromwell’s weak-kneed lawyers refused to commit treason by arraigning Charles I – despite his responsibility for starting the civil war – Cooke took the brief and prosecuted him on the charge of tyranny, accusing him of torturing prisoners, burning civilian towns and ordering other actions which today would be described as crimes against humanity. He drafted Parliament’s declaration of a republic and then its statute abolishing the House of Lords, and later served as a judge until the return of Charles II, who had him convicted at a rigged trial, and disembowelled (‘hung, drawn and quartered’) in front of a crowd of jeering royalists.

  Cooke was a visionary, whose writings first envisaged a national health service and a system for legal aid, as well as the abolition of Latin in courtrooms. He upset his profession by insisting that barristers should do at least ten per cent of their work for free – an ethic I had in mind when I set up Doughty Street Chambers. He was first to work out a way to hold a head of state accountable for crimes against his own people – a way which was not explored again for centuries, until international criminal law began at Nuremberg and later came to grips with the likes of General Pinochet, Slobodan Milosevic, Charles Taylor and Saddam Hussein. He was, some reviewers have surmised, the barrister I would most like to have been.

  I discovered John Cooke by happenstance, when my old monarchist friend Michael Kirby, by then elevated to the Australian High Court, was invited to the Inns of Court to lecture, on the 350th anniversary of the king’s trial, about how unfair it all was. I was asked to deliver a response, and thinking that the occasion would be full of irreverent law students, I prepared to entertain them with ribald republican jests. I was unaware how far Michael’s fame had spread: his lecture was graced by most of Her Majesty’s judges, who were shocked by my efforts to celebrate her ancestor’s beheading with antipodean lèse-majesté. But I had blown the dust off enough law books to realise that historians – and Michael – were wrong about the trial and wrong to ignore John Cooke, and in The Tyrannicide Brief I tried to put the record straight.1 David Williamson later turned it into a play, which had a much better reception from Her Majesty’s judges when it was performed at the Inns of Court, directed by Gale Edwards, who had directed a previous performance by the Sydney Theatre Company. Before Australia becomes a republic, its people should have some understanding of the courage and the belief in equality and freedom that inspired our intellectual forebears to take the risk of having their bowels burnt in front of their goggling eyes.

  English barristers work from a ‘chambers’ – a set of rooms and clerks servicing a collection of individual advocates operating in the same area of the law. The advocates pool resources and have a somewhat feudal connection with the ‘head’, who gives the chambers its character and stature. Dr Johnson’s Buildings earned its repute when it was run by the blind Clifford Mortime
r, who was immortalised for his forensic cunning in his son’s play A Voyage Round My Father. During my tenancy it was led by Emlyn Hooson QC MP, a Welsh Liberal who always gave me strong encouragement and support. He attracted others of his tribe, who were very congenial but somewhat addicted to the pretensions of the Bar – our clerks would have to walk behind them, carrying their robes, up and down the Wales and Chester circuit.

  It was not so much the Welsh Liberals as the mice in the skirting boards, woodworm in the walls and the erratic heating system, which seemed to have spluttered for several centuries, that inclined me to look elsewhere and to take the decision to set up a chambers that would be different from the self-satisfied coteries of the English Bar, whose rooms were notorious for denying access to women (‘We don’t have the toilet facilities’) and minorities. They were run by venal clerks on commission, who discriminated on grounds of sex and race and politics in allotting work. Male barristers, mostly from private schools and Oxbridge, tended to offer ‘seats’ to young men of similar pedigree, and the result of this cloning affected not only the profession but the judiciary recruited from it: upper middle-class, white, male and complacent. Barristers had complete immunity from ever being sued for negligence: they were the incarnation of the Ogden Nash couplet:

  Professional men, they have no cares,

  Whatever happens, they get theirs.

  Twenty colleagues from Dr Johnson’s Buildings joined me with the aim of changing all this. We wanted to maintain the independence of the individual practitioner – which is the true glory of the Bar – but to work in a more client-friendly environment, using our intellectual strengths and pooled resources to run campaigns on behalf of our clients; to lobby for progressive law reform; to set up human rights charities; hold lectures and seminars; support the legal aid system; and generally to harness collegiate force to defend clients against the power of the state. Striking out from the protective traditions of the Temple was a gamble, but Lord Mackay, as Lord Chancellor, was urging deregulation and I had confidence in my colleagues – well justified, as in due course three were made High Court judges, one became the Chief Coroner and several more were appointed to judicial positions.

  In 1990 we found some houses in Doughty Street, Bloomsbury, within walking distance of the High Court. The street came with its own history – it was listed in the eleventh-century Domesday Book as ‘a vineyard surrounding a wood for 100 pigs’, which seemed an appropriate place for grubbing lawyers. Charles Dickens was still in evidence – he had lived next door, in a house that was now a museum with a pleasant coffee shop in its gardens, to which clients could repair and read Bleak House, a sobering story of how madness comes from the law’s delays and complexities. Opposite was the former home of the essayist Sydney Smith, who had famously called the Society for the Suppression of Vice ‘a Society for suppressing the vices of those whose income does not exceed £500 per annum’. As many of my early battles were against Mary Whitehouse, I felt in good company. We hired female senior clerks – virtually unheard of in the Temple – and committed to diversity in hiring new members. I was the only QC when we started – a quarter of a century later we have thirty-three QCs (or ‘silks’), ten of whom are women, as are forty-nine of our 106 junior counsel, and we keep winning awards for our dedication to gender and race equality.

  I drafted a founding philosophy which stated our imperishable commitment to the legal aid system, always under attack from governments looking to make budget cuts (so much so that in 2014 barristers in England went on strike, protesting colourfully – they wore their wigs and gowns – while I made speeches from the back of a truck, like a trade union leader). Those cuts in legal aid put some rival chambers out of business, but the funding model I had established at the start saw us through. Half of our work is done at full commercial rate, while the other half is made up of legal aid (paid by the state at about one-third of the commercial rate) and cases done pro bono, i.e. free of charge. ‘Pro bono’ my wife said, is the Latin phrase she most wishes never to hear again, unless it means I am acting for a wealthy Irish rock star.

  A tape survives of the Doughty Street launch party. We hired a jukebox and I stood on a packing crate to announce that we had moved out of a museum and into the real world: ‘We want Doughty Street to become an engine room where barristers are stoked by solicitors instead of being stroked by solicitors; where law fuels fact in a spontaneous combustion of ideas and tactics; where the fire in the belly is tempered by the iron in the soul’ and so on, through many mixed metaphors. I promised we would strive to abolish the ‘pantomime flummery’ of wigs and wing-collars, and the unfair rule of barristers’ immunity from actions for negligence. My most revolutionary promise was that we would have a crèche, in which our own and our solicitors’ children and even our clients’ children would be welcome. This is the only promise upon which we have not yet delivered.

  We immediately initiated the Doughty Street Lecture Series, bringing over from New York the impassioned Professor Nadine Strossen, then president of the American Civil Liberties Union, to explain just what a full-blooded commitment to civil liberties could mean. The most moving and influential Doughty Street lecture was given to a packed audience in St Martin-in-the-Fields, on World AIDS Day in 1993 by Michael Kirby. He unveiled a charter for compassionate reform of anti-LGBTI laws, which was taken up by lawyers throughout the Commonwealth. We also began, at an early stage, to donate some of our earnings to causes and campaigns that promoted our beliefs about justice – one of the first was the Koestler Trust, to teach art to prisoners, while more recently we have expended considerable resources on campaigning against the UK government’s inadequate response to the refugee crisis.

  Our first major case was the aforementioned Pratt & Morgan, which led to mass commutations of death penalties in the Caribbean; my QC colleagues had it accepted by courts in East Africa and even Zimbabwe (where you cannot be hanged after death row delays). Another early case produced a change in English law – recognition of ‘battered woman’s syndrome’, which induces women to react to longstanding violent abuse by eventually lashing out and even killing the abusive partner. English common law, fashioned by men down the centuries, had never allowed for post-traumatic stress disorder, or for the slow burn of anger that can finally erupt in furious retribution. Women who killed brutal lovers were guilty of murder and jailed for life – one of them, Ruth Ellis, was the last to be executed in Britain.

  The woman in my case was Kiranjit Ahluwalia, whom I had met first in prison in 1991, two years into her life sentence. She was a small and frail Indian mother with the saddest eyes I have ever seen. Her early hopes of a career after university had been shattered when her family insisted on an arranged marriage with a man named Deepak, whom she had never met. He beat her almost every day and, despite court orders based on medical evidence, threatened to kill her with a knife and on one occasion tried to run her over. The only reason she could give for staying with him was her two young children, but another reason, given by our psychiatric experts, was that he had reduced her to a state of learnt helplessness – she was totally in his power. I read to the court an abject letter she had written to Deepak after he had gone off for a few days with another woman:

  Deepak, if you come back I promise you – I won’t touch black coffee again, I won’t go to town every week, I won’t eat green chilli, I am ready to leave Chandikah and all my friends, I won’t go near Goodie Mohan’s house again. Even I am not going to attend Bully’s wedding, I eat too much or all the time so I can get fat, I won’t laugh if you don’t like, I won’t dye my hair even, I don’t go to my neighbour’s house, I won’t ask you for any help.

  In this pathetic state, she awaited his return. She put her child to bed (the other was with friends) and made his dinner. Deepak threatened to beat her if she did not give him money, and held a hot iron next to her face before he fell into a drunken sleep. Several hours later she took a bucketful of petrol and a lit candle, and threw them onto
his bed. Rushing to her child’s bedroom, she picked him up and stood at his window in a daze, shouting to neighbours, ‘I am waiting for my husband.’

  Deepak died of his burns, and by the end of the year Kiranjit had been convicted of his murder. (I was not acting for her at this stage.) The court heard little of her mental state, other than from a prosecution expert, who said she suffered from ‘endogenous depression’. His report was overlooked, and I doubted whether anyone looked up the meaning of ‘endogenous’ (very deep).

  At the appeal, where I appeared with my favourite junior, Andy (now Sir Andrew) Nicol, our six experts verified the existence of the state of learnt helplessness. The chief justice agreed that this could amount to a defence of diminished responsibility, which would reduce murder to manslaughter, thereby enabling Kiranjit’s immediate release – to the cheers of the women’s groups who had supported us.2

  It was a precedent that would help other women in her predicament avoid a soul-destroying life sentence. I was not exactly Billy Flynn (the flamboyant death row lawyer in Chicago who gets Roxie Hart off her murder charge by manipulating the media), but Kiranjit’s case was made into a movie, Provoked, with Miranda Richardson and various other stars. To my children’s amusement, I was played by Robbie Coltrane – forever, to their minds, Hagrid in the Harry Potter movies.