Rather His Own Man

by Geoffrey Robertson

  After becoming head of Doughty Street Chambers, I was deemed sufficiently respectable to be considered for the judiciary. Not as a full-time judge – a position I did not want – but a Recorder, a part-time judge who for four to six weeks each year conducts trials and passes sentence on the guilty. I went before a selection committee and was asked whether I had ever done anything which might be made a subject of scandal in the media. I told them I had never done, and could never do, anything of which my mother would disapprove. This seemed to satisfy them, but then I had to attend ‘judge school’, held in a hotel in the English countryside, where would-be judges are taught how to send people to prison. It was a little like Lawyer’s Got Talent – you would be given the facts and then required to produce a sentencing homily which was marked by three judges from the Court of Appeal, who failed you if you were over-merciful. The hotel was used for other training courses, and one of the waitresses confided, ‘We like the judges best. They’ve all been to private schools so they know how to eat up their pudding.’

  I passed, and was soon presiding over my first trial. I was determined not to be the kind of judicial fuddy-duddy who would ask ‘Who are the Beatles?’ My first case was about a fight in the street between sex workers – the defendant, the prosecution alleged, had pulled out her victim’s hair extensions. ‘Er … what are hair extensions?’ the new judge asked. It was little comfort that the prosecutor did not know either: he had to call a woman police officer to explain. I straightened my wig – my own hair extensions – to hide my embarrassment.

  When my usher came in with the papers for my next case, I sniffed red meat. It concerned a computer thief, pleading guilty to nicking a large number of personal computers. I had recently had my own computer stolen in a burglary at my chambers, and I came into court fully determined to send this miscreant to prison.

  ‘I am sorry, Your Honour,’ said the prosecutor, ‘I will have to ask you to stand down from this case.’

  ‘Why on earth?’ I was certainly not going to let this one be moved to a merciful colleague.

  ‘The defendant has returned several of the stolen computers, and one of them is yours.’

  I gave in – you cannot be a judge in your own cause or your own case. The Guardian ran the story under the headline ‘Burglar Meets Victim: His Judge’.

  In the mid-nineties, Doughty Street came to political prominence, not only in the Commonwealth, where our Privy Council cases had stopped executions in many countries, but also in the United Kingdom itself, where my defence in the Matrix Churchill trial had exposed the Arms-to-Iraq affair. As the plot unravelled in court, Doughty Street on occasion hosted the Labour Party front bench, who came for briefings. When the trial collapsed after Alan Clark admitted to being ‘economical with the actualité’, the Conservative government (then led by John Major) survived a censure motion by one vote. This era of ‘Tory sleaze’ deepened when a junior government minister sued the Guardian for alleging, in what was called the ‘Cash-for-Questions’ scandal, that he had been paid to ask questions in Parliament by Mohamed Al-Fayed, the proprietor of Harrods. I went to see Al-Fayed and persuaded him to come up with proof, not only against the minister but against six other Tory MPs. The libel action was withdrawn at the door of the court and ‘Tory sleaze’ helped to ensure Tony Blair’s landslide victory in 1997.

  The most bizarre – and most publicised – of my cases came in 1995, after a ‘world exclusive’ in the Sunday Mirror two years earlier, which was also a front-page story in Australia and everywhere else: ‘Di Spy Sensation – The Most Amazing Pictures You’ll Ever See’. The photographs were spread over seven pages, of Princess Diana exercising on a contraption called a leg press, taken by a camera sneakily hidden in the ceiling by the gym owner, Bryce Taylor, an impecunious New Zealander. The princess, out to prove herself after her separation from Prince Charles, was advised (badly, as it turned out) to go down in British history by issuing a novel action which would create a hitherto unrecognised civil wrong – invasion of privacy.

  The High Court judge who first heard her claim thought that such a dramatic change in the law should at least be contested – he extended legal aid to Bryce and asked me to represent him, which would mean cross-examining the people’s princess.

  I would need to explore under cross-examination Diana’s two-faced attitude to privacy – she had told the tawdry secrets of her marriage to the journalist Andrew Morton for a book (Diana: Her True Story), which blackened Charles’s name. A mock-up courtroom was constructed at Kensington Palace so she could prepare for my cross-examination, and 940 journalists applied for the seventy-five press seats in Court 36 of the Royal Courts of Justice. The courtroom artists, who produced what were meant to be accurate portraits of court proceedings, but who were banned from sketching in court, had already painted our encounter: I was depicted, all jowls and splutter, pitted against the Queen of Hearts, radiant in the witness box.

  I prepared for this case by doing something I had avoided throughout my life: joining a gym. I even learnt to ‘cardio-funk’, a type of exercise Diana had also been doing at the gym, which ‘combines funky dance steps with aerobic moves set to hip-hop music’. I avoided her choreographed colonics, but learnt the art of toning my buttock muscles on instruments of torture called the life-cycle, the rotary torso, the lateral pull-down machine and the Concept2 rowing ergometer. The tabloids rejoiced – salivated, in fact – over the upcoming courtroom clash, and The Times described me as ‘anti-establishment, republican and Australian’, presumably in ascending order of horror. Journalists door-stopped my parents at our Sydney home – what advice would they give the princess? ‘I would settle out of court,’ said my father. And so she did – on the evening before ‘the trial of the century’. There was a deal, and her lawyers withdrew her claim, reportedly after depositing a million dollars in Bryce’s Swiss bank account. This was all swathed in secrecy, of course, so the princess could claim to have ‘won’, although it would be an odd sort of victory if the loser were to be rewarded with a sum greater than that the ‘winner’ had claimed in damages. I cancelled my gym membership, forgot about cardio-funk and moved on, somewhat deflated, as always when a big case settles at the door of the court. It’s a condition my wife called ‘courtus interruptus’.3

  I published my memoir The Justice Game in 1998 – unusually, in mid-career, but that was the point. I wanted to look back on my profession while I was still part of it, with enough fire in my belly to argue for a Human Rights Act to put right some of the injustices I had encountered in my early days at the Bar. The Act was placed on the statute book by the Blair government, and British law gradually became much the better for it. After my role in exposing Tory MPs in the Arms-to-Iraq trial and the Cash for Questions case, many assumed I would be made an attack dog for the new government: Private Eye pictured me in the new cabinet as ‘Persecutor General’. The call of course did not come – Sir Humphrey would have disapproved and so would his political bosses. I was thrown one small crumb – the minister for Culture and Sport nominated me for a position on the Royal Opera House board, although a fuss about the lack of diversity caused them to prefer Trevor McDonald, a journalist and newsreader originally from Trinidad.

  Not a single brief came to Doughty Street from the Labour government (if it had, they might have lost fewer cases), until Tony Blair himself was subjected to a police investigation alleging that he had hawked honours in return for large financial donations to the party (the ‘Cash-for-Peerages’ scandal). At the party’s request I analysed the defective law – which had hardly been reformed since Lloyd George got away with it in the twenties – and the defective police investigation, and pronounced the prime minister innocent. My other contribution to his character was in respect of his invasion of Iraq: I had to point out to the media that he was not guilty, as his ill-informed enemies would have it, of the crime of aggression. That, however, was because such a crime did not exist in English law, and the international crime of aggression,
potentially within the jurisdiction of the International Criminal Court, had not been brought into force. I added that it should be, with an urgency that is now manifest with the advent of Donald Trump.

  Meanwhile, our children were growing up and going to school – there was a cubby and trampoline for them in the garden of our house at Swiss Cottage and the hamsters died unnatural deaths somewhere beneath the flooring boards. We never had time for that normal prerequisite of the middle-class metropolitan Londoner – a country cottage – although we took up John and Penny Mortimer’s standing invitation to weekends in the Chilterns and rented places in the summer when our parents came to visit. Kathy had by this time been accepted, after a rough start, as part of the London literati, and was overwhelmed at being accorded an honorary degree from Southampton Solent University – a Companion of Literature, which Private Eye, reporting her citation in cod Latin, abbreviated to a C.Lit. We took advantage of my quiet flat in the Temple for writing retreats, and I had a third home in the business-class compartments of long-haul jets, where I would mug up on the arguments I would have to present on landing. As my parents became too old to travel, I was impelled to find reasons – lectures, Hypotheticals, even a stage show of Dreaming Too Loud – to visit them at Longueville. I acquired a second office in my brother’s chambers in Martin Place – Tim was an ‘SC’ or ‘Senior Counsel’, as Sydney barristers prefer to say in preference to ‘Queen’s Counsel’. It’s one change that the English Bar will never make, until its leaders become (for at least the next century) KCs (for ‘King’s Counsel’). We love our sealed vellum parchment in its morocco-leather pouch, signed (allegedly) by the Queen and describing us as her ‘trusty and well-beloved’ servants.

  It is one of the more arcane duties of a Queen’s Counsel to advise the monarch, when called upon, free of charge. This may be a quid pro quo for a royal monopoly which allows us to double the fees we charge the common people. Nonetheless, becoming a ‘silk’ is an important rite of passage – the effective bestowal of a ‘Good Housekeeping Seal of Approval’ by your profession upon your character and ability to argue the law. The decision as to when in your career to make the application is crucial, and most wait until they have notched up twenty years of trials and appeals; ever ambitious, I applied after twelve and was knocked back by Lord Chancellor Hailsham, a Tory grandee I had unwisely criticised in print. The following year, 1987, saw the appointment of the even-handed Lord Mackay, who in 1988 granted my letters patent. Then came a grand ceremony in the House of Lords for which we dressed in full-length wigs and new silk robes, wearing beneath them silk stockings and suspender belts. (I kid you not – this is a ceremony beloved by centuries of upper-class Englishmen.) We took our clerks, dressed in morning suits and proud smiles, partners (Nigella accompanied me) and relatives (Tim came over for the occasion). The Lord Chancellor warned us not to get our names in the News of the World and invited us to order, for a modest fee, a videotape of the ceremony. It then became a bit silly, as we were required to parade in our robes through courts in which we practised, bowing three times to each presiding judge. It was exhausting – I went home for a sleep and almost missed my own party at the Wig and Pen Club, an ancient hostelry in Fleet Street where Henry VIII once disported himself.

  I have yet to be called on to counsel Her Majesty free of charge, although I did advise her daughter-in-law’s lover, James Hewitt, about the consequences of breaching the 1351 Treason Act, which still punished with death any party to adultery with the wife of the monarch’s eldest son and heir. Princess Diana would have been guilty as an accomplice, although I had to doubt whether she would suffer the same fate as Anne Boleyn.

  I managed to rattle some royal ghosts – or, at least, their executors – in a curious case about royal wills. It is a longstanding tradition – almost a constitutional principle – that a will, once probated, is a public document: everyone is entitled to know, once we have shuffled off this mortal coil, how much we are worth and to whom we have left it. There has long been a law more or less to that effect, but the royals, since 1913, have been treated as exempt, although the law itself does not exempt them and until this particular case, nobody knew why, or how, the exemption had originated.

  The case was brought by a respectable and undoubtedly sane citizen – an accountant, indeed – who entertained the firm and fervent belief that he was the love-child of Princess Margaret. He thought that his putative mother might have left him a legacy in her will, as might her mum, the good-hearted Queen Mother, and for this reason he sought to inspect these documents. He was acting in good faith, the courts said, but his belief was illusory – to this I did not demur. But what right did the royal executors have to deny him a look?

  My researches uncovered a very English cover-up. Back in the early years of the twentieth century, Prince Francis of Teck made a will in which he left a favoured mistress some jewellery belonging to the Crown. Afraid of scandal, his sister, Queen Mary, arranged for the senior probate judge to order that the will be ‘sealed’ – kept secret from all but the executors, who were the royal family’s solicitors. This convenient arrangement became a precedent, applied in the case of royal wills thereafter, without public discussion or even knowledge. Just a royal nod and wink to a senior judge, and an order made behind closed doors. I commenced a case – which still continues – arguing the public interest in unsealing royal wills, and the legitimate concerns of historians, journalists and especially the tax office to inspect them.4 The royals have plenty of privileges in life and there is no good reason why they should claim a special privilege in death.

  My contribution to making Britain safe for republicanism (in some unforeseeable future) came in 2002, when the Guardian decided to mount a full-blooded campaign to abolish the royal family. This was illegal under the Treason Felony Act of 1848, passed in panic after the anti-monarchy insurgencies in Europe that had caused the Dettmans to take ship to Sydney. It criminalised any attempt, by publishing, to ‘imagine, invent, devise or depose our most Gracious Lady the Queen … from her style, honour or royal name’ and it applied to advocacy even of peaceful political change. Several Irish newspaper editors were convicted and transported to Botany Bay. Alan Rusbridger, the Guardian’s editor, did not actually lie sleepless in bed at night fearing arrest from Scotland Yard’s Treason Squad, but he was concerned that this antiquated law was still retained by a number of Commonwealth countries and was being used in Zimbabwe, for example, to punish those who were imagining, inventing and devising the replacement of Robert Mugabe. We sought a declaration that it could no longer be used in Britain, and although the Law Lords did not see it as their function to keep the statute book up to date, they all said that any future prosecution would be irrational – the letter of the law was pronounced dead, if not yet departed.5

  In the year 2000 the Human Rights Act came into force in the United Kingdom, and to national astonishment its first beneficiary was the American boxer Mike Tyson. He was the youngest heavyweight champion of the world ever, at the age of twenty, and a convicted rapist a few years later. In 1995, aged thirty-four, having served three of his six-year sentence, he was released. Five years later, out to regain his heavyweight title from Lennox Lewis, Tyson fought a bout in Glasgow with American Lou Savarese on a freezing night in a hall packed with Scots baying for blood. It was not long in flowing – after twelve seconds Tyson floored Savarese, who went down for a count of eight. ‘Fight on,’ said the ref, unwisely – Savarese could barely stand. Tyson landed a left hook that shook him and then (‘As every good boxer would be trained to do in these circumstances,’ I found myself later telling a tribunal) went in for the knockout.

  At this point the ref interposed himself and claimed to have said ‘Stop boxing,’ but then, as a result of what I later described as ‘inadvertent contact with Tyson’s upper arm’ the ref himself went down and Tyson kept hitting his opponent onto the ropes. After just thirty-eight seconds the fight ended, and the shaken referee declared Tyson the winn
er. As microphones were pushed in his face, the victor made some comments which were alleged to be ‘detrimental to boxing and to the public interest’. Tyson was hauled before the British Boxing Board of Control, and the media had no doubt (the board’s intention had been leaked) that his licence to fight would be cancelled, or at least suspended.

  The case required a delicate examination of the role of ‘hype’ which had come to infect this particular sport – an expectation by promoters that boxers would sledge their future opponents to whet the bloodthirsty appetites of a potential audience and thus swell the ‘gate’ – their profit from the event. It had, in a way, started with Cassius Clay (a.k.a. Muhammad Ali) but his promises were poetic – ‘float like a butterfly, sting like a bee’. After the match Tyson’s declaration to Lennox Lewis was, ‘I’m coming for you, Lennox Lewis. God, I am mad … I’m gonna rip your heart out and eat your children.’

  My first defence was that ‘Since Lennox Lewis has no children and boxing gloves do not rip through flesh, this comment is ludicrous and fantasised. Not even the law’s measure of naïvety, the moron in a hurry, would take it seriously or imagine for a moment that it was intended as a threat.’

  This argument did not seem to convince the board, so I rolled out the new Human Rights Act, which now had to be applied to all public bodies – including the British Board of Boxing Control. The Act gave particular importance to freedom of speech, which could be curbed only in the interests of public safety or preventing crime – not in the interests of boxing. To take away Tyson’s livelihood – punishing him for exercising his free-speech right to make tasteless but ridiculous remarks about a future opponent – would not only be unlawful but could open the board to a suit for damages. Besides which, Tyson’s remarks were ‘an ironic response to racist stereotyping – “You treat me as if I were a jungle savage, so I’ll play along with your stereotype.”’ Here, I may have misattributed a degree of sophistication to my client – the truth is that he was so pumped up with adrenalin that in the few minutes after being declared victor he could have said anything. That is why there is a rule: radio and television interviews with boxers are not permitted in the ring following a contest – a rule that the steward on the night had blatantly breached by allowing the interview.