The plaintiff in this 2006 case was Mohammed Jameel, a man in the motor trade in Saudi Arabia, where he owned most of the Toyota dealerships and was a highly respected multi-billionaire businessman. In the aftermath of 9/11 it became an anxious international question as to whether Saudi Arabia – whence bin Laden and most of the hijackers had come – would co-operate with the US in efforts to clamp down on terrorists. The Wall Street Journal was first to report that the country was co-operating, to the extent of monitoring, at the CIA’s request, some of its leading businessmen. Among the names included on its list, published in the Journal, was that of Mohammed Jameel. He sued, and was awarded damages for the implied defamation that he had come under suspicion – the lower courts said the Journal’s story would have been the same if the names had been left out. That just showed how little the judges knew about news-gathering: the very fact that the names were of important public figures close to the regime gave verisimilitude to the story and confirmed that Saudi Arabia really was co-operating with the US. We had to go to the House of Lords to establish that the public interest in news could override an incidental defamation, so long as the journalist had acted responsibly in checking facts as far as they could be checked. This new defence was a great leap forward for reporting in Britain.11
Although my reputation is mainly as a defender of free speech, I had no difficulty accepting briefs to act against foul speech by suing reckless or negligent newspapers. Large damages were won for Helen Mirren, for example, over a piece that claimed she was impossible to work with – a story invented by a malicious journalist to whom she had refused an interview. A libel action is generally to be avoided, but becomes a necessity if a lie strikes at your integrity – the reason I threatened to sue Alex Downer when he repeated the false suggestion that I had rigged a Hypothetical. My friend Michael Foot, former leader of the Labour Party and himself a renowned journalist, always advised MPs not to sue, but in 1995 the Sunday Times published a front page he could not ignore. Its headline screamed ‘KGB: Michael Foot Was Our Agent’. At one level, this was ridiculous and regarded as such: Foot was the epitome of a patriotic Englishman, notwithstanding (actually, because of) his left-wing views, which drew him to the Levellers and Chartists and other proudly English socialist movements. Private Eye aroused laughter throughout the land with its front cover picture of Michael and his dog (‘Disraeli’) hunting for dead letter boxes on Hampstead Heath. But as being a KGB agent is an act of treason, Michael had to sue.
The allegation was a beat-up from a book the Sunday Times had bought for serialisation, and there was no evidence to back it other than that KGB agents would sometimes attend fundraising parties for Tribune, Michael’s left-wing newspaper, and leave a contribution. If I wanted to find the person really responsible for the publication of this falsehood, I did not have far to look. But in libel law, hardly ever do you sue proprietors personally. That is because you have to prove they are the ‘moving spirit’ of the paper and that they caused the words to be published. In this case, I happened to know from my own sources – my journalist friends – that Rupert Murdoch would call the editors of his British Sunday papers every Thursday. He would ask what they intended to publish on the front page and he would question them intensively about whether they were getting value for the money paid for any serialisation rights. He would therefore have known of, and implicitly approved, ‘KGB: Michael Foot Was Our Agent’.
So we did sue Rupert Murdoch personally. His lawyers tried to deflect the writ, claiming that the story was the responsibility of the editor, but we replied that, at the Sunday Times, front page ‘splash’ stories like this were subject to approval by a proprietor who was its ‘moving spirit’. I was looking forward to cross-examining Rupert, but it was not to be. Like Princess Diana, he settled at the door of the court – in this case, by agreeing to pay a six-figure sum in damages. I had another bad case of ‘courtus interruptus’ – the British press had been looking forward to the prospect of an all-Australian scrap. Instead, we trooped off with Michael to celebrate at the Soho haunt of London’s old left intelligentsia, the Gay Hussar.
I had tried to stop Murdoch from buying the Sunday Times to begin with. He was anxious to purchase Times Newspapers –The Times itself was losing money but its sister paper, the Sunday Times, was not, and the law required his purchase of that paper to be referred to the Monopolies and Mergers Commission. Rupert did not want this, and Mrs Thatcher’s government bent the law to accommodate him. He went privately to see her and afterwards her trade secretary announced that the deal would go through without referral.
I was brought in to act for Sunday Times journalists, who did not want Murdoch as their boss. I was led by Lennie Hoffmann, in the days when he was a top Chancery silk, and we were pretty certain of success – our expert accountants all verified that the Sunday Times was a viable going concern. We could not guarantee victory, of course, and our solicitor said something to the journalists about a danger of losing in the final appeal court and having to mortgage their houses. The majority took fright and voted to accept Murdoch as their proprietor in return for his promise to set up an ‘independent’ board to protect editorial integrity – a laughable ruse for which all but nineteen of them fell.
Thereafter Murdoch got rid of two editors he thought too independent, and published sensational lies such as the ‘Hitler Diaries’ and the Foot–KGB story. It was at that point I coined an aphorism that became my only entry in the Australian Dictionary of Quotations: ‘Rupert Murdoch is a great Australian, in the sense that Attila was a great Hun.’
That said, some years later I was pleased to introduce Rupert to twenty-year-old Georgie, at the after-show party for the Sydney premiere of the film of Les Misérables. ‘Were you moved by the movie, Mr Murdoch?’ she asked sweetly.
‘Oh yes, I was very moved,’ he beamed.
‘Those poor radical students killed on the barricades – didn’t it make you want to cry?’ (Georgie was a student leader at London University.)
‘It did. I dropped a few tears before the happy ending.’
Then, a steely rising voice: ‘And how, Mr Murdoch, do you think Fox News would have covered that protest? On the side of the police repression, of course, as it always is. Fox News is …’
Rupert turned his deaf ear to her diatribe (a tactic he deploys when berated by parliamentary committees). He moved away, in the direction of Hugh Jackman and Russell Crowe, muttering ‘I love Fox News …’
17
Struggling for Global Justice
By the time the millennium approached, my schoolboy career goal of addressing Old Bailey juries had been achieved. I even had my own locker in that holy of holies, the QCs’ dressing room, where each morning I inserted the studs into my wing-collar – carefully, to avoid that vulnerable gland in the neck – before sashaying down the spiral staircase, silk gown flapping, to the appointed court. It was a sign of my age that the judges were politer and the policemen younger. But it remained a self-contained world, in which you could pass pleasantries with your opponent while standing at the robing room urinals, before dumping on his arguments in a court below. There were frequent visits to the law courts in the Strand for libel cases or actions against the government – as the Human Rights Act took hold after 1998, these became more likely to succeed.
There were also my visits to the Privy Council in Downing Street and to the countries for which it was the final appeal; and missions for Amnesty International to places as varied as apartheid South Africa, post-conflict Vietnam and Stalinist Czechoslovakia. Grave violations of human rights were occurring in each country, far graver than those I was fighting in Britain, and they began to draw me away more and more from my locker at London’s central criminal court.
The rights themselves needed no new definition. They had been settled long before, when Eleanor Roosevelt had handed the Universal Declaration of Human Rights (the ‘Magna Carta for mankind’) to the president of the UN General Assembly, our own Doc Eva
tt, in 1948. At the same time came the Genocide Convention and then the Geneva Conventions, requiring humane treatment for prisoners of war. Yet what this great human rights triptych did not have was an enforcement procedure – a system to bring violators to trial and punishment. As a result, global justice was just smoke in the pipe dreams of professors. I am what academics call a ‘moderate positivist’ in jurisprudence: I hold that a rule is one of law not because it can be found in a treaty or a textbook but because there is at least a slim prospect that somewhere someday someone will be arrested for its breach. Amnesty missions were a good education about the need for enforceability, and I was inspired by victims I met in each country.
There was the sad-eyed old ‘student’ in a Vietnamese ‘re-education’ camp, who had been a civil servant in South Vietnam. Re-education was a euphemism for indefinite detention, in a prison where the library had books by only one author – V. I. Lenin. The prisoner was routinely tortured, to make sure he had read them, but his main concern was for his children who, as the offspring of a ‘disloyal citizen’, were themselves denied education, food and work (reprisals against the family members of dissidents is a particularly nasty feature of authoritarian regimes, as they had been of the Nazis’).
There was Robert Ratshitanga, a poet and a prisoner of Venda, a Bantustan puppet state invented by the government of South Africa to pretend that black people had some degree of independence. His crime had been to give a plate of porridge to starving ANC guerrillas, and he was facing a mandatory five-year sentence in a malaria-ridden prison. But – and probably because an Amnesty observer was present – the prosecution offered him a deal which would have had him released in a few months if he pleaded guilty to acting ‘with an intention to impair the sovereignty of the state of Venda’. He refused, despite suffering from a serious illness which could see him dead before his sentence was finished. ‘There is absolutely no way,’ he told me, ‘that I can bring myself to acknowledge the existence of the state of Venda.’ He had extraordinary presence and dignity, and it was a true act of conscience. (Indeed, on my nomination, Amnesty made him a prisoner of conscience.)
Then there was Václav Havel, whom I visited regularly in the run-up to the 1989 ‘Velvet Revolution’, which brought him to the presidency in Czechoslovakia. In this period, as the leader of the dissident group Charter 77, this great philosopher–playwright– politician was under constant surveillance from the government, and regularly sent back to prison. Czechoslovakia was sometimes a truly Kafka-esque experience in those dog-days of Warsaw Pact communism.1 The government actually prosecuted the Jazz Society for raising money to honour John Lennon’s memory; I attended with Havel the trial of its president to experience what we called ‘telephone justice’: the judge, a party worker, was telephoned by the party boss the night before the trial and told how long to make the sentence. It was what everyone calls a ‘kangaroo court’ (everyone except me, because as an Australian I cannot bring myself to use the phrase – what has our beloved marsupial done to become a symbol for injustice?). The Jazz Society trial ended with a prison sentence for the leader, although it was less than it would have been if we had not fomented an international fuss. As we came out of the court building in Prague’s Charles Square we were seen by several hundred young protestors, who struck up a ragged chorus of ‘We shall overcome.’ ‘That’s impressive,’ I said to Havel. ‘Yes,’ he replied. ‘And on these occasions you can always recognise the secret police – they are the ones who know all the words.’
In Europe a ray of hope had already started to shine by the time of Havel’s Velvet Revolution. The European Convention of Human Rights, drafted by British lawyers back in 1950, aimed to be a bulwark against the encroachment of communism. It had a court in Strasbourg where individuals could petition, and any government found in breach of the convention had to change its law in order to comply. My first appearance in this court was in 1988, in a case I brought against Denmark on behalf of Mogens Hauschildt. He was a dealer in silver bullion – ‘the silver king’ of Denmark, notorious there for an alleged fraud. He had been arrested and denied bail by a judge who had looked at the evidence and decided that he might flee because he was likely to be found guilty. A few months later the very same judge presided at his trial and – surprise, surprise – found him guilty. Obviously this judge had prejudged the case at the bail application and gone on to fulfil his own prophecy. The Human Rights Convention guarantees everyone an ‘independent and impartial judge’ and this judge was patently not impartial.
For a barrister there is nothing more important than securing an impartial judge. I warmed to the subject with some passion at the hearing, and logic too was on my side – my forensic radar told me that the Danish case, based on its traditional way of working and the difficulty of changing it, was coming apart at the seams.
In due course the court held that a judge who makes findings in the investigative stage against a defendant cannot preside at his trial. Hauschildt v Denmark is now a leading authority, from a court which gained in authority a couple of years later when the Soviet Union collapsed and all its client states – led by Czechoslovakia under President Havel – signed up to its convention.2 It now has jurisdiction over forty-seven countries (including Turkey and Russia) and lays down basic standards for due process and fair trial in Europe.
Another European court to which I occasionally travel is the European Court of Justice (ECJ) in Luxembourg. In 2011 I did a case there concerning the dreadful conditions being experienced in Greece, where many Middle Eastern refugees first land – at a time when the bankrupt nation could not afford to feed them or process their claims. European law seemed to require their being processed in the country of first arrival, but did the European Charter of Fundamental Rights, with its ‘right to human dignity’, change this position? There was some discussion of the literary and philosophical origins of the right to dignity – I suggested the biblical parable of the Good Samaritan, Portia’s speech on the quality of mercy and Immanuel Kant’s categorical imperative. It occurred to me, as I was addressing these judges, that half came from nations that in World War II had been Nazi, or had sided with the Nazis – Germany, Austria and Italy, and many of the Eastern European nations. Their parents and grandparents would have witnessed, perhaps participated in, the atrocities inflicted, as I told them, ‘within living memory’. As I sat down, I reflected how far we had come in a little more than a half-century from the trial at Nuremberg to a case in this spacious and civilised courtroom, in which descendants of Hitler’s minions could join us in unravelling and applying a rule requiring human dignity (which they did, by ruling that the refugees were being treated inhumanely).3 On any view this was progress, and it is a thousand pities that after Brexit the UK will no longer be a part of it.
The Hauschildt case, the European Court of Human Rights’ decision that trial judges should not be involved in pre-trial investigations of the defendant, was perhaps the most quoted of all my cases. The English principle that justice must be seen to be done, and therefore the trial judge must have made no pre-judgment on the suspect, has come to be internationally accepted: every human rights convention, and most constitutions, guarantee the right to an impartial judge.
The importance of this principle was brought home to me in 2016, when I was summoned to Brazil to assist the defence of the former president, Luiz Inácio Lula da Silva, known to his people, and throughout the world, as ‘Lula’. He is something of a phenomenon: a man who has inspired the working classes all over the Third World. He was born in 1945 in the north-east of Brazil, and went to work at the age of eight to support his family by selling peanuts on the street. At fourteen he became a lathe operator, and he worked at that trade until his charisma and concern for fellow workers led to an invitation to become an official of his trade union, and, in 1975, its leader. His lack of schooling was an advantage, as he had imbibed none of the revolutionary agendas fashionable at universities in the sixties – he was interested only in im
proving the terrible condition of workers and reducing poverty. He decided, to that end, that the trade unions should have their own political force and in 1980 founded the Workers’ Party. Twenty-two years later he was elected president of Brazil with fifty-two million votes, and again in 2006 with fifty-eight million, and was hailed by Obama as the most popular politician on Earth.
His presidency was a fine time for Brazil: aided by a favourable economic climate more than twenty million people were helped out of poverty when he increased the minimum wage and adopted policies that are recommended today by the UN, such as giving a family allowance to mothers if their children are schooled and inoculated. After stepping down from the presidency after two terms in 2010 as the constitution required, he continued to live a modest life dedicated to workers, and the Workers’ Party, and preparing to stand again for the presidency in 2018, so long as he could survive corruption charges brought by an antipathetic judge.
Before petitioning the UN’s Human Rights Committee in Geneva on Lula’s behalf, I determined to satisfy myself of the justice of his case. It was set against the longstanding endemic corruption of parts of Brazil’s public life – in particular bribes allegedly given by construction and engineering companies to win contracts with Petrobras (the state-run Brazilian oil company): some of this money had supposedly been funnelled to political parties, including the Workers’ Party. I could not find evidence that Lula personally had instigated or benefited directly from this corruption, and nor could Sérgio Moro, the judge who was determined to convict him. Moro was running ‘Operation Car Wash’, an investigation he brought to focus on certain prominent politicians, notably Lula. Its taskforce of scores of police and prosecutors found no money in Lula’s accounts (none of them overseas) or any receipts that had not been declared and taxed; nonetheless, Moro charged Lula with receiving benefits for contracts obtained by civil engineering company OAS. Even if Lula had benefited (and there is little evidence that he had) there is no evidence that he had done anything, or offered to do anything, in return – there was no quid pro quo necessary to prove bribery.
Rather His Own Man Page 42