It had been my boyhood dream to appear, wigged and gowned, addressing a jury beneath the Old Bailey dome, on which stands its iconic golden statue of Lady Justice. Her right arm brandishes a sword to punish the wrongdoers found wanting in the scales held in her left hand. All other representations show the goddess wearing a blindfold, giving rise to aphorisms about justice being blind. What few notice about the goddess atop the Old Bailey is that her eyes are wide open – as if to see through all the perjury that goes on in the courts beneath her skirts.
Working as a solicitor during the Oz trial had given me an insight into the production of perjury over the greasy Formica tables of the Rex Café, opposite the court. There, each morning, I watched the bottle-blondes being coached by solicitor’s clerks over fried bacon and eggs to recite their alibis about being in bed with the defendant at the precise time the bank was robbed or the mansion was burgled. They were amateurs – at the other tables, police constables were rehearsing the lines they had made up in the police canteen, after they had arrested a suspect. This was where he was ‘verballed’ – a confession he had never made (usually ‘It’s a fair cop, Guv’, or ‘You’ve got me bang to rights’) would be attributed to him and written down retrospectively in their police notebooks. Many coppers were bent (and so were some solicitor’s clerks) but the conviction rates were reasonable, white-collar criminals were rarely troubled, and the public was happy watching Dixon of Dock Green on television and believing this impeccable constable was every-cop. I thought of ways to expose what a Royal Commission, ten years later, called ‘the Vaudeville routine of the police verbal’, but first, I had to finish that tedious professional qualification course in London, and complete my pupillage (an apprenticeship to a practising barrister). I did both at the same time: you were not meant to, but I was impatient and saw no reason why not (there is now, of course, a rule against it).
Then there was the nagging question of money. My Rhodes stipend saw me through my first year in London, and my Oxford bank then extended a large line of credit in the belief that Oxford chaps came good in the end. I had hopes of discharging it when my play about the Oz trial was acquired by a Broadway producer, Van Wolf, who had been involved in a notorious film about the Rolling Stones, Gimme Shelter. He was dying of cancer and wanted to leave my play to posterity. I was regularly summoned from the side of my pupil-master at Stoke Newington Crown Court to Van Wolf’s bedside at Mount Sinai Hospital in New York, where text changes were discussed while his friend Allen Ginsberg, in lotus position, said mantras and played a Peruvian flute to keep his cancer at bay until opening night.
At Van Wolf’s request, the play was turned into a musical, and songs were donated by John and Yoko (‘God Save Oz’) and Mick Jagger (‘Cocksucker Blues’). It had Jim Sharman’s inspired direction and Brian Thomson’s creative sets, and when it opened on Broadway every review was favourable, except for the only one that counted, in the New York Times. A surly Englishman named Clive Barnes, whose reviews at the time made or unmade shows in the city, hated Oz and it closed after six weeks, leaving me without royalties and with only one of those free Broadway show programmes, to impress visitors to my toilet, where it remains on framed display.
Jim Sharman, in town for his next musical, Jesus Christ Superstar, generously allowed me to share his Robert Stigwood-owned apartment in Swiss Cottage and I was joined there by an insanely attractive twenty-year-old, whom I’d last seen in a thong diving into a tank on a tabloid television show in Australia. When I came back the day after her arrival in London from Melbourne to find Dudley Moore edging towards her on the sofa, it occurred to me that Lyndall Hobbs would never have much trouble finding accommodation. We chummed up and enjoyed free accommodation at a number of salubrious addresses in Kensington and Chelsea provided by her boyfriend Michael White, the film and theatre producer (of Oh! Calcutta! and other ground-breaking shows). Lyndall went from strength to strength: she was hired by ITV as an on-camera news reporter, and as a fashion and arts presenter (Hobb’s Choice). She introduce me to her friend Gael McKay, a Melbourne model, who later, as Gael Boglione, became a family friend.
Our frequent changes of address caused a traffic offence notice to go astray – I had incurred a ticket for parking outside a court. A particularly malevolent magistrate named MacDermott (a former deputy DPP) issued a warrant for my arrest, which was fine, but did not back it for bail, which was outrageous. This meant that when this first offender turned up one evening at Chelsea police station, I was greeted by a semi-apologetic policeman who pointed out that since the courts were closed they would have to keep me in custody overnight. I was escorted, in a state of some shock, to a dingy cell. Left in it for over an hour, the white walls and filthy mattress and smell of urine and boiled cabbage began to work their magic: I was prepared to confess to the Ripper murders, the Lindbergh kidnap, whatever, just to get out. ‘Don’t I get one free phone call?’ I had the nerve to ask – I didn’t (I had been watching too many American movies) but the coppers let me use the payphone to contact my astonished pupil-master. Jonah Walker-Smith, scion of a fine old Tory family, was scandalised that police would dare to arrest his pupil. ‘Hold on, I’ll be right there,’ he promised, not that there was any prospect of my going anywhere. I was led back to the cells and so did not witness his superhuman effort of borrowing the arrest warrant from the police station sergeant and taking it late that night to the home of another magistrate, Eric Crowther, whom he persuaded to give me unconditional bail. ‘I am not sure I should be doing this,’ the beak is reported to have said over his dinner table. ‘It should be a requirement for every young barrister to spend a night in the police cells.’
He was right, of course, and had this been a qualification for the Bar it might not have been so hard for judges to realise how the oppressive atmosphere of custody can conduce to false confessions. A few hours inside was quite enough for me, although when I came as a defendant to court next morning I was hailed as Houdini and my traffic violations were dismissed by a fine of £1. I could pay little more: my money problems had become increasingly severe.
By the end of 1973 I had a massive overdraft and even my Oxford bank was becoming worried. I began a second string in journalism, becoming a commentator on legal matters for the New Statesman. The Statesman did not pay much, and The Guardian, for which I also began to write, not much more, although the payments kept my overdraft from ballooning further. I needed, for example, a dark suit – my wardrobe of brown and velvet could not, by the rules of the Bar, be worn under a black gown. Lyndall took me down the King’s Road on the day before my first court appearance and selected a charcoal-striped three-piece suit for which I paid £33 – the exact payment for my first Guardian article on the flaws in the government’s draft Indecent Displays Bill, which threatened art gallery nudes (‘How to Catch Rubens in a Draft’ was how The Guardian headlined it).
At last, I could begin my chosen career. Not, at first, at the Old Bailey: I had to grub around magistrates’ courts, taking whatever briefs a kindly solicitor might put my way, to help me ‘get on my feet’. David Offenbach sent me off to Watford Magistrates’ Court for a four-week committal proceeding concerning a conspiracy to make blue movies in divers fields, barns and houses in the suburbs of Rickmansworth. I was representing two of the actors, a spray-painter and his girlfriend: he appeared with some thirty partners in the course of the making of dozens of short films, but she refused to have sex with any partner but him. Their pièce de non-resistance was entitled Santa’s Coming, in which he emerged in Father Christmas attire from the chimney to kiss and copulate beneath the mistletoe. They married shortly before the committal, and held hands every day in court. I could not resist asking the police officer in charge of the case, ‘Would you accept that my clients are very much in love?’ He accepted, just before the deadline for the final edition of the Evening Standard, where I made my first reported appearance as counsel under the headline ‘Porn Couple “Very Much In Love”’. In court the next day, a man in a grubby raincoat sidled up to me and pressed a calling card into my hand. ‘I’m from the News of the World,’ he explained. ‘We’ll be hearing more of you.’
The fact that they did, as well as all other newspapers, was the result of acquiring an ex-Cabinet minister as my next client – John Stonehouse, the former Postmaster General in Harold Wilson’s government. The MP had disappeared after walking into the water off Miami Beach, leaving clothes, money and passport in a locker to help the five insurance companies, with which he had recently taken out policies in favour of his wife, to deduce that he had drowned. Six weeks later he was discovered washed up in Melbourne, opening bank accounts and planning a long stay there with his secretary, Sheila Buckley – to the bewilderment of his wife, and his constituents in Walsall North. His had been a dramatic arrest by the Melbourne vice squad, who hoped the mysterious but imperious Englishman would turn out to be Britain’s other famous fugitive, Lord Lucan. Scotland Yard had wired them that Lucan had a large mole on his upper right thigh: the arrest at gunpoint began with the order ‘Pull yer trousers down!’
Stonehouse came back to face criminal charges and, having formed the view that he was being persecuted by the establishment of which he once had been part, asked his solicitor to instruct the young ‘anti-establishment’ lawyer who had defended Oz and Peter Hain. Summoned to meet him at Wandsworth prison, my task initially was to obtain bail so he could return to the Commons. ‘But this is the face that launched a thousand headlines,’ I exclaimed when the sour-faced magistrate expressed fears that he might slip out of the country unnoticed. After lengthy committal proceedings, we prepared for what the media were describing (they often do) as the ‘trial of the century’ at the Old Bailey. I would be led by Richard Du Cann, one of the finest and most professional silks then in practice. The day before the trial opened, as we were engaged in last-minute preparations, the news came through (on a BBC news bulletin) that we had been sacked – Mr Stonehouse had decided to represent himself. This may have been simply a politician’s refusal to share the limelight, although he later told me that it was because Du Cann had never evinced any belief in his innocence. Given the evidence, this was hardly surprising, but what John did not understand was that Dick belonged to that old school of advocacy that suspended judgement, never descended to first-name terms with a client and insisted upon a personal distance that gave a false impression of disdain. Dick’s early death from cancer was attributable to the cartons of cigarettes (I called him ‘the Silk Cut silk’) that he burned in his all-consuming anxiety over the cases of his clients. John was convicted: I had told him that he might receive three years if he pleaded guilty and showed some contrition, or five years if convicted after Dick and I had fought every point, but if he defended himself and got up the nose of the judge, he might get seven. He got seven.
He called me back to argue the appeal and then (with Louis Blom-Cooper QC) to take his case to the House of Lords, where we had some success but not enough to reduce his sentence.23 It was a case which raised (and settled) some important points of law, and was my first experience of appearing in the highest court in the land – the House of Lords Judicial Committee. It was just that – an ordinary committee room in the House of Lords, into which would shuffle in lounge suits five very old Law Lords, to take their place at a green-baize horseshoe table. Appearances were deceptive – some of them could be quite ferocious. Louis ‘blooded’ me by allowing me to make a difficult legal argument, and to be torn to pieces by Lord Diplock. Still, it was a thrill later to see my name for the first time in the printed law reports and to scale the appellate heights – most counsel never reach them – in my first years of practice. At this rate, I might attain silk quite early and even be in line for a High Court judgeship – if that was what I really wanted.
I did feel a little sorry for John: he was a socialist MP who had come to disbelieve in socialism (a condition provided for a few years later by the foundation of the Social Democratic Party) and he became caught up in the middle-aged Moon and Sixpence dream of abandoning the pretence of power in favour of an invisible life playing chess, listening to jazz (his pursuits during his secret sojourn in Melbourne) and being looked after by Sheila, having done what he saw as the decent thing by his wife – of leaving her the insurance money. It was, of course, an appalling and selfish dream, and he paid heavily for the six weeks he enjoyed it. He sent me, every year, a Christmas card – it was, rather pathetically, a House of Commons Christmas card.
* * *
My career at the Bar had commenced in 1974, when I was admitted to practise as a member of the Middle Temple, one of the four Inns of Court spiralling down to the Thames from High Holborn, to which all who practise must belong. Their halls and gardens and the stately buildings (mostly rebuilt after the Blitz) offer a quiet, Oxbridge-like retreat from the noise of Fleet Street and Chancery Lane. Barristers work from ‘chambers’ (but independently of colleagues, who share rent and resources but are not allowed to be partners). They took their tone from the barrister who was ‘head’ of chambers although the real power was wielded by the head clerk, usually a venal character from the East End who negotiated (or extorted) very high fees from solicitors and decided (often on grounds of sex, race or politics) which of his barristers should receive the briefs sent to chambers by solicitors, unless they were marked for a particular recipient. There was one absurd qualification: to become a barrister you had to eat no fewer than thirty-six dinners at your Inn, to ensure that you ‘dined well’ and knew to pass the port in the correct direction. I survived the ordeal thanks to Arthur Scargill – his miner’s strike in 1974 forced the Heath government to call a three-day week, and our dinner load was reduced to twenty-four.
The next step was to obtain a ‘seat’ in chambers, impossible for most women (‘We don’t have the toilet facilities,’ said the clerks) and for almost all black counsel, although a few formed their own set – ‘ghetto chambers’ snarked the pin-striped Old Etonians (or at least Oxbridgeans), from which privileged pool 90 per cent of judges and barristers were drawn. They would select new members of their chambers by a cloning process that held out a hand to those applicants who most resembled themselves. Many graduates – from redbrick universities, or who had no family connections with the law – simply failed to find a ‘seat’ from which they could set up their shingle (the names of members had to be fancily sign-written, in order of seniority, on an outside door). I had to find a chambers which did the sort of work I wanted to do, and would want me to do it with them.
I had done my pupillage with Jo at Garden Court, but Arthur, its clerk, disliked all the calls I was taking from what he termed ‘the National fucking Council for Civil fucking Liberties’. I had to look elsewhere if I wanted its work. My Lady Chatterley idol Gerald Gardiner had retired (he had become chancellor of his own idea – the Open University – and was enjoying himself doing one of its undergraduate arts courses). Jeremy Hutchinson, my other hero, was in practice with Richard Du Cann at Queen Elizabeth Building, but their chambers only did crime and I wanted to spread my wings and practise constitutional and media law. Cloisters was the most left-wing choice, but its reputation had been earned in the ’30s when it was the fiefdom of D. N. Pritt QC – a counsel who was a communist (to which I did not object) but one who whitewashed Stalin’s show trials (to which I did). I made it my third choice. My first was to join the chambers of a man whose brain and courage I already admired – Louis Blom-Cooper QC. He had been Gardiner’s junior in the Exodus case, had edited books on law and literature, and was always available to do death penalty cases – unlike Pritt, free of charge. His large, ground-floor room opposite the Temple Church was always open to young barristers wanting help on how to make creative arguments for civil liberties – it became more fashionable, many years later, to call them by a less aggressive title, ‘human rights’. Louis’s enthusiasm for novel points of law was infectious, at least until you put them before a judge. The first case we did together was at the instance of Amnesty International, which had discovered that one of Ian Smith’s lickspittle Rhodesian judges, notorious for passing death sentences on black opponents of the Unilateral Declaration of Independence (UDI), was taking a holiday in Britain. We applied for a warrant for his arrest for incitement to murder, on the basis that his death sentences were void under UK laws passed to deprive Smith’s regime of legitimacy, and so operated as an incitement to prison officers and the hangman to kill unlawfully. The Chief Justice granted the arrest warrant, and the judge quickly ended his holiday and scarpered back to Bulawayo.
Louis was delighted that I applied and promised his full support, despite – or perhaps because of – which (chambers politics are obscure) I was rejected. His clerk had heard from Arthur that I was ‘too radical’. So I had to obtain my second choice of ‘seat’ in the traditional way, through connections. I called John Mortimer, who insisted I join him at Dr Johnson’s Buildings, and introduced me to the head, Emlyn Hooson QC MP. He was a delightful man (somewhat unfairly caricatured in Rumpole as Guthrie Featherstone QC MP), a Welsh Liberal steeped in the taxi-rank tradition of the Bar (he had defended Ian Brady, the Moors murderer) and encouraged my defence of controversial clients. I had my name hand-painted on the noticeboard, and took up residence in a small room with a view of the Temple Church, lit eerily at night by gas lamps. I stayed at Dr Johnson’s (taking silk in 1988) until I left to found Doughty Street Chambers in 1990.
* * *
Now that I had the makings of a career, I needed to position myself – politically and intellectually. I was elected to the executive board of the NCCL, which fought against the illiberalism of James Callaghan’s Labour government, forever trying to cut back on the right to trial by jury, increase police powers in response to IRA terrorism, and censor books (it actually prosecuted Inside Linda Lovelace and tried to stop publication of Richard Crossman’s diaries). The government rejected our campaign for a Freedom of Information Act – ‘Only two or three of your constituents would be interested,’ sneered its Home Secretary Merlyn Rees. The NCCL’s executive board was a diaspora of political views, ranging from young Tory Clive Landa (who later married into the Thatcher ministry) to old Trotskyite Paul Foot. Our monthly meetings did little more than approve the decisions of our General Secretary Patricia Hewitt (daughter of the Australian government’s Cabinet Secretary) and her legal officer Harriet Harman, a bold and skilful solicitor who was niece to Lord Longford. MI5 was for no good reason tapping our telephones, as we discovered some years later from one of the MI5 phone-tappers, Cathy Massiter. (She had also been tasked to intercept calls to the Campaign for Nuclear Disarmament, and through listening to its conversations became so convinced of the dangers of nuclear weapons that she resigned from MI5 and joined them.) I took an action for breach of Pat and Hattie’s privacy to the European Court of Human Rights – it was an easy victory, since the government at this point was pretending that MI5 did not exist. It paid compensation and more importantly passed a law that put MI5 (and later MI6) on a statutory footing. One of many examples of how the European Convention on Human Rights has enhanced the rule of law in Britain.
My journalistic efforts were beginning to flourish – The Guardian gave me a regular weekly column, ‘Out of Court’, which ran for some years, with either my fulminations or those I could persuade other lawyers to write. One newly qualified barrister who did produce some columns was David Pannick, brilliant even at that age (he had already been elected a fellow of All Souls). He came to me ashen-faced after one of his articles was published: he had just been carpeted by the chairman of the Bar for writing it. He was bewildered, as was I, at a profession that could not cope with well-intentioned criticism by its own members. (David’s fortnightly columns are now the ornament of the legal pages of The Times, enjoyed by the nation’s judges, whom they sensibly instruct.)
Nonetheless, the profession and the practice of law in the ’70s, with its suffocating complacency, its sexism and racism and classism and denial of entry to minorities, its monopoly of advocacy and lack of interest in human rights, could not much longer be tolerated by a generation that had done its share of protesting as students in the ’60s. A group of us met conspiratorially in various flats in north London, pondering how it might be changed – by setting up chambers outside the Temple, for example, which seemed then the most radical step possible (it had never been done before). One member was Tony Gifford, who was through ancient descent actually a member of the House of Lords – much to his embarrassment, although it provided him with a platform to urge the support of the Law Centre movement (he had started the first one, in north Kensington). Another member was Helena Kennedy, later author of Eve Was Framed and a doughty baroness who was to contribute much to law reform; another was Mike Mansfield, developing a talent for cross-examining perjurous policemen. Our intellectual leader was Stephen Sedley, who was older and had already established a reputation in public law. The most determined was Robert Hazell, a young Etonian who was so appalled at the Bar that he decided to leave it, but not before editing the book that in 1978 provided our manifesto – The Bar on Trial. It had a chapter by Helena on discrimination against women in the legal profession – the first time, incredibly, that this issue had been raised.
One result of our meetings was a proposal to set up barrister’s chambers outside the Temple. Was this even ethically possible? Tony and I went to consult the General Secretary of the Bar Council, the legendary Mr Boulton of Boulton on Ethics (full title, Conduct and Etiquette at the Bar), the slim volume of biblical stature presented to every student on their call to the Bar. With the trepidation of ancient messengers approaching the shrine at Delphi, we asked the oracle – a kindly, owlish man, who had the volume at his fingertips. He slowly thumbed through its pages, and then pronounced, ‘I find nothing in Boulton on Ethics against a set of chambers located outside the Temple.’ We made another revolutionary request. Clerks were always employed on a percentage, which emboldened them to demand excessive fees from solicitors – could we employ our clerks on a salary instead? Again, the sage consulted his own book: ‘I find nothing in Boulton on Ethics against a barrister employing a clerk on a salary.’ Finally, a truly radical proposal: could we share our fees equally? Mr Boulton raised his eyebrows at this idea, but followed the same procedure before at length declaring, ‘There is nothing to be found in Boulton on Ethics which precludes fee-sharing.’ We left his office feeling as excited as Lenin on leaving the Finland station: permission had been given for the revolution to begin. Had we asked Mr Boulton’s permission to make bombs in the basement, he would doubtless have gone through the same procedure before declaring, ‘There is nothing in Boulton on Ethics against the making of explosive substances in barrister’s chambers.’
This was heady stuff in 1976: it seems absurd now, when many chambers have moved out, together with the Bar Council itself, and most clerks are on fees rather than percentages. But fee-sharing for barristers never worked, and I am not sure that it should – we must be scrupulously independent, free of pressures from partners or from fee-sharing collectives. Tony went ahead, with Mr Boulton’s permission, to set up the first ‘outside’ chambers, in Covent Garden – several of its members joined me when I set up Doughty Street Chambers, outside the Temple, in 1990.
The legal profession that my generation joined in the 1970s was a secretive, class-calcified body of men who exercised power without accountability – law-power – when sentencing convicts at circuit courts and when interpreting statutes and developing common-law doctrines in the High Court, Court of Appeal or, finally, the judicial committee of the House of Lords. Not only did the privileges of private schooling and Oxbridge speed you to a ‘seat’ in chambers: thereafter, any career promotion – appointment to silk, or to the judiciary – was swathed in utter secrecy. It was in the hands of the Lord Chancellor, who took ‘soundings’ (which never reverberated) from senior judges to ensure that ‘radicals’ or ‘socialists’ were not recruited to dine with the legal establishment at Temple dinners. As Lord Jowitt, the post-war Labour Lord Chancellor, explained to an American academic who wondered why British judges were all so conservative, including his own appointments, ‘How do you think I would have felt, from all the cold looks I would have received when next I dined at the Inn?’
The over-powerful Lord Chancellor I had to endure for most of the ’80s, when I was breasting the junior Bar, was no liberal, although Lord Hailsham could be quite engaging (as I discovered after his retirement, when we had some enjoyable jousts on breakfast television). I was critical of the fact that he sat as a Law Lord while a member of the government (Gardiner never did so) and detected ways in which his political beliefs had influenced his interpretation of the law, especially in a judgment which had turned trespass – a civil wrong recompensed by damages – into a serious conspiracy crime when committed by two or more persons. This was in order to jail protesters and flying pickets and (potentially) Peter Hain. I accused Hailsham of playing politics with the law in an article for the New Statesman, which had to be written under a pseudonym. ‘I’ve called you John Paine,’ said the editor, Tony Howard. ‘I imagine you as Tom’s brother.’ It became less amusing when my article elicited an explosive response from Hailsham – letters written in furious fountain pen strokes on his headed notepaper, threatening to sue for defamation. Tony cleverly mollified the great man by offering to publish a sympathetic portrait of him by Paul Johnson, entitled ‘The Old Steam Kettle’. Hailsham was delighted, and the letters threatening action against Tom’s brother ceased.
Incredibly, judicial appointments were never advertised until 2005, nor discussed by the media: US Supreme Court candidates were invigilated in public hearings by Senators, reported on the front page of the New York Times, whereas appointments to the English equivalent received a small entry in the ‘Court circular’ page of The Times. John Paine, in the New Statesman, did demand that Anthony Lester and Louis Blom-Cooper be appointed to the High Court (which was doubtless the kiss of death to their chances). Prospects were blighted by personal or political animosities from existing Law Lords, and by poison pen letters sent in secret to the Lord Chancellor’s department by other judges and barristers, detailing malicious scuttlebutt. This was quite an industry – I was once shown a nasty note by a circuit judge about something I had said. Instead of facing me in court when I said it, like a school sneak he sent his complaint privately to the Lord Chancellor. It was a false allegation and I wondered why he would even bother to make it. He was gay and hence insecure about his position (even in the 1990s), which may be why he sought to show he was a sound chap by tittle-tattling (I only discovered he was gay in the way you did in those days – by reading his obituary in The Times, which mentioned his partner).
There were lots of examples, used to pressure young barristers to conform. My head of chambers at Garden Court, Lewis Hawser, was a brilliant and dedicated criminal silk who deserved to be appointed to the High Court, but never made it. According to Arthur, ‘This was because he took telephone calls from the National fucking Council of Civil fucking Liberties.’ Hawser himself was mystified and shortly before his death asked me if I knew why – I did not, although I had heard a rumour that a powerful judge had disliked the vigour with which he had secured the acquittal of a client – which is, of course, the role of defence counsel, although some senior judges, mostly recruited from the commercial Bar, did not seem to understand it. ‘The Old Bailey is hardly the SW3 of the legal profession,’ one eminent Law Lord snarkily remarked. It betrayed the mentality of the judiciary of the time, brought home to me in 1976 when I appeared before a High Court judge en route to becoming a Law Lord who had recently served as head of the Bar Council. In the middle of the trial, he summoned me into his chambers. ‘I’ve taken rather a shine to you,’ he said (to my surprise – his interventions all seemed intended to take any shine off my arguments to the jury). ‘Let me give you some advice. You must stop doing this class of case.’ (I was defending a reputable bookseller, on an obscenity charge that could have cost him his liberty.) ‘If you are not careful, you could end up doing bomb cases.’ Bomb cases were what I very much wanted to end up doing and I could not believe the contempt in which the upper echelons of the English Bar and bench held barristers who defended Irish men and women accused – often wrongly – of planting bombs. Eventually, of course, the dreadful miscarriages that had innocent people jailed for many years – the Birmingham Six, the Guildford Four, Judith Ward – took the shine off the reputation of British justice.
It was a mentality that had to be changed, but not until after the Human Rights Act in 1988 did it really diminish. Typical of the time was the case of Home Office v Harriet Harman.24 The Home Office decided to introduce a cruel and unlawful regime for ‘difficult’ prisoners, involving lengthy and solitary confinement in a ‘control unit’. A prisoner subjected to the treatment sought help from the NCCL, whose solicitor (Harriet Harman) brought a case against the government forcing it to disclose the policy documents that had led to the unit’s establishment. Her counsel was Stephen Sedley, by now leader of the junior public law Bar, who read out most of the documents in the course of his opening, to which they were obviously relevant. Hattie therefore saw no reason not to give the bundle to David Leigh, a reporter from The Guardian, which published several to illustrate how the Home Office had turned its back on human rights. The government, in a fit of pique, turned on Hattie and prosecuted her for contempt of court for disclosing its documents to the media. I acted as one of her counsel, and our case came before Lord Denning, who decided against us. We lost 3–2 in the House of Lords, but with a splendid dissent from Lord Scarman, who pointed out that if freedom of information meant anything, it meant that a document read out in public must be a public document. Off we went to Strasbourg, where the government was again held in breach of freedom of expression and had to amend the rules of the Supreme Court to allow documents to be publically disseminated once they had been read in open court.
I’m glad to say that the case did Harriet no harm – she was applying to be a Labour candidate, and Denning was so disliked by the trade unions (he always ruled against them) that when he convicted her for contempt it served as a badge of honour, and ensured her selection for a safe Labour seat.
There did come a point, quite early in those dispiriting first days at the Bar, when I seriously considered giving up the fight. I was contributing a lot to the New Statesman, with cover stories on miscarriages of justice and police corruption, and the atmosphere when I visited its offices in Great Turnstile were a good deal more congenial than the Temple. I would meet Chris Hitchens, James Fenton, Claire Tomalin and Bel Mooney and I confided my doubt about the Bar to Tony Howard, the editor. He urged me to stay where I was: ‘Your articles have authenticity that comes from first-hand knowledge – you would be less use as a journalist or academic.’ He was not going to offer me a full-time job, so I consoled myself with the thought that the long-term advantage of the Bar was that the older you get, the more distinguished you are assumed to be: with journalists, the opposite seemed to be the case. Tony was never quite sure about me – he confided to Bel (not realising that clandestinely we were ‘an item’) that this young whistle-blowing Australian was a bit too goody-goody to be true: maybe he was a ‘sleeper’ (a communist spy sent to infiltrate the British establishment). Bel suppressed her giggles and expressed some doubt over whether I was a ‘sleeper’ (or so she told me in bed that night).
Peter Preston, the Guardian editor, had no doubts about my allegiances and it was he who gave me the ‘Out of Court’ column in The Guardian. He was a shy workaholic, always serious but always genuine. One of the saddest of my memories is of rushing from the Old Bailey to tell him that Sarah Tisdall – the source the judges had forced him to expose by threatening to put the paper into liquidation if he didn’t – had been jailed for six months for breaking the Official Secrets Act. He winced and almost collapsed in mental agony when I brought him the news – I sat with him for an hour as we talked through the case, and the bad legal advice that he had received from a City solicitor which stopped him shredding the incriminating document before the court injunction arrived.
Having renounced the attractions of a louche life as a journalist, I determined to make Dr Johnson’s Buildings at least a home for like-minded civil libertarians. It already had some home-grown experts like Chris Sallon and Stephen Irwin. My most endearing recruit was Helena Kennedy. We had lots of friends in common and co-defended in some of the terrorist trials of the era. She was my heavily pregnant junior when we defended an art gallery charged with public indecency for displaying earrings made from freeze-dried foetuses – I hoped that the sight of her cross-examining with hands over her big baby belly would persuade the jury that we were on the side of fecundity. In this case we had a serious obstacle (apart from the evidence), namely a drunken and incoherent QC who was appearing for the artist – he was actually a head of chambers, and his junior, as was a common practice in those days, had brought in his head to lead him despite his unfitness for that or any other trial. It was a practice which I would never countenance when I became head at Doughty Street. We held some planning meetings for this new chambers at Helena’s home, which had featured in one of my first successful cases when it was owned by the celebrated psychologist Ronald (R. D.) Laing. He had been licensed to prescribe LSD to patients and when the drug was banned he desisted, but absentmindedly left some capsules in the back of his fridge, where they were discovered by a very thorough burglar. He called the police, who made a quick arrest – but then prosecuted Ronnie for having possessed the LSD found in the burglar’s possession. It was a ridiculous case, which the Hampstead justices threw out. With Helena now in residence at Laing’s former home, with her husband Ian, it’s always a pleasant pleasure to return to the scene of this non-crime.
I also managed to recruit Peter Thornton and Michael Grieve (Peter became the Chief Coroner; Michael a judge), but my persuasive powers failed in the case of Clive Anderson, a friend I had met when he was doing barrister imitations at the Edinburgh Comedy Festival. Despite my glowing assessment of his potential, my colleagues turned him down: ‘No one has ever heard of him,’ they said. I had more luck with Andrew Nicol, my first pupil (now Sir Andrew, a High Court judge) who was a great boon to have at my side, once he got over the embarrassment of being reported by Treasury Counsel for wearing brown shoes – banned by Bar etiquette and never to be seen below a black gown. He remained a part-time lecturer at LSE, from which vantage point he was able to talent-spot my next pupils – Heather Rogers and Heather Williams, who both went on to be successful silks. Pupils have no job security, and live in perpetual dread of not being ‘taken on’ after they finish. Neither Heather need have worried.
One afternoon I had a call from a friend at Cloisters: ‘My pupil has just been turned down for a tenancy,’ he wailed. ‘Let me send him round to you now – I think you’ll like him.’ I opened my door to Edward Fitzgerald, whom I did like, so much that I prevailed on Emlyn to take him. ‘He’ll have to smarten up a bit first,’ said Emlyn after meeting this wild and woolly youngster who had just finished a Master’s degree in criminology. ‘He’ll have to do a pupillage with one of our prosecutors.’ Ed duly read up on the powers and duties of prosecutors – never to pursue a case they thought without merit – and, when left alone with the prosecution brief while his pupil-master was in another court, frequently made the decision that it was indeed without merit, and withdrew it. ‘I have decided, my Lord, that it is my duty in the public interest to offer no evidence.’ His pupil-master would return to an empty court, and the Metropolitan Police solicitors became concerned. So it was decided that Ed was cut out to be a defender, and he was sent off to Snaresbrook Crown Court to plead for a burglar with a long string of convictions who had been caught red-handed. To our surprise, we heard that he was pleading not guilty, and that Ed was running the defence, little-known outside criminology texts, of automatism – the defendant was sleep-walking at the time he was pocketing the loot. The judge is said to have told the jury, ‘This is the most ridiculous defence I have ever heard in my life,’ but they acquitted and Ed’s fame among criminals and their solicitors quickly spread. He went on to act for Myra Hindley, Abu Hamza, one of James Bulger’s killers, Abu Qatada and Silvio Berlusconi, as well as for many virtuous clients, and is now reckoned the best public lawyer in the land (and in other lands where he is pressed to defend the demonised). He remains a dear friend and is now my co-head of Doughty Street Chambers.
Another potential recruit looked good to me on paper, probably because his qualifications were similar to mine at his age – a state school, a redbrick university, some published articles, topped off by a goodish BCL from Oxford. Given that cloning is an inevitable temptation for an interviewer, I was predisposed in his favour, although he looked about fourteen, was nervous and awkward in the interview and (worst of all, for my colleagues on the panel) was poorly dressed (‘We can’t take someone who wears a cardigan,’ said one, her nose crinkling). Well, we could, but it needed all my powers of persuasion to get Emlyn to accept him. I owed Emlyn a lot, and was only sorry that he did not live long enough to turn on the television today, almost every day, to see Sir Keir Starmer QC MP, shadow Brexit Secretary, make mincemeat of his government opponents. From the start, Keir was the finest of colleagues and an example of how interviews should never be relied on as a sole guide to ability.
Keir was really, I guess, the protégé that Emlyn wanted me to be. Emlyn was always urging me to stand for Parliament: he even approached his friend Bob Mellish, who was retiring from his Labour stronghold of Bermondsey, to promote my prospects of replacing him. I did not apply (to be perfectly honest, I could not bear to live south of the river) and an Australian friend, Peter Tatchell, was selected. The local party reckoned without the militantly anti-gay feeling in the dockyards, and after a disgusting homophobic campaign by the Liberals, their clean-cut and apparently heterosexual candidate, Simon Hughes, won the seat (it was some years before he could bring himself to admit that he was bisexual). My own political career never took off: when I congratulated Harriet Harman on her selection (I was defending her at the time) and wondered whether she would like me to join her on the green benches, she pulled a face: ‘Don’t be ridiculous. You could never suffer fools gladly.’ The prospect never again crossed my mind.
I had some success in building up Dr Johnson’s as a chambers specialising in civil liberties, but this was a limited objective. If we wanted to change the culture of the Bar (and of the bench), we had to start by educating lawyers of the future, in the universities. There, as Bryan Gould and I had discovered at Oxford, there was really not much interest: I met the occasional academic who was interested – like the brilliant Cedric Thornberry – but he and others quickly departed for greener fields in the US, leaving as his contribution to the left only a few insightful articles and a young daughter, Emily (now shadow Foreign Secretary). Go into a law library today and the shelves groan with textbooks on human rights (aka civil liberties), but in the 1980s there was only one – a slim Penguin paperback with the ungainly title Freedom, the Individual and the Law. When its author, Harry Street (a professor of commercial law), died, Penguin invited me to pick up his baton, so I rewrote the book (and tripled its size). I began with a quote from Animal Farm (which Orwell’s left-wing publishers had refused to include because it was critical of Stalin): ‘If liberty means anything at all, it means the right to tell people what they do not want to hear,’ and opened by pointing out that ‘Liberty in Britain is a state of mind rather than a set of legal rules’ (I had yet to learn that in many quarters it was not even a state of mind, and legal rules in a Human Rights Act were required to induce one). After a few hundred pages cataloguing the yawning gaps in British law’s protection of fair trial and free speech and the rights of minorities, I concluded with a heartfelt call for a Bill of Rights and a Freedom of Information Act. The book was prescribed at law schools for some courses on civil liberties and ‘law and society’ taught in the ’80s and ’90s, and may have made some small contribution (one never knows) to engaging future lawyers in the subject.
The Bill of Rights question (The European Convention? A British Bill? Or no Bill at all?) flares up from time to time. The Convention was drafted by British lawyers in 1950 and promoted by Churchill as a bulwark against fascism and encroaching communism in Europe, but it had no effect until Gerald Gardiner in 1966 allowed individuals to petition the court in Strasbourg, and no real impact until they started doing so in the ’80s (notably the Sunday Times, under Harold Evans, when the Euro court condemned British judges for banning his attempt to expose the thalidomide scandal). Meanwhile Leslie Scarman, at the Law Reform Commission, had been studying all those gaps in the British common law, and began a campaign to plug them with a Bill of Rights. Support briefly came from one curious quarter – Lord Hailsham, the once and future Tory Lord Chancellor. Out of office during the Wilson and Callaghan years, he acutely analysed how democratic governance tended towards ‘elective dictatorship’ as the Prime Minister and Cabinet could rule to their heart’s content over a tame civil service, a majority of docile MPs, and a powerless parliamentary opposition. A Bill of Rights was necessary, he said, to protect liberty against an extreme government – a view he ceased to promote as soon as he started to wield power again as part of Mrs Thatcher’s extreme government (‘elective dictatorship’ is always less objectionable when you have been elected to power and are doing the dictating).
You would think – I certainly did – that this was the time for progressive lawyers to embrace a Bill of Rights. But the Labour Party soon split over the issue. One faction (and in Labour, factions speak louder than words) had taken fright at the behaviour of the judges in Mrs Thatcher’s union-bashing National Industrial Relations Court. The other legal contributor to the New Statesman, LSE Professor John Griffith, wrote an influential book, The Politics of the Judiciary, tracing the right-wing views and decisions of English judges over the centuries, and arguing that they could not be trusted to interpret a Bill of Rights progressively – indeed, they would use it to strike down initiatives of a socialist government. By this stage I knew more judges than John, and did not find them (Denning and a few others excepted) to be dyed-in-the-wool reactionaries. Moreover, they were men who were ruled by law and conditioned to obey it. Put our liberties into a law and they would – with difficulty at first – come round to implementing it, and future judges – barristers and law students – could be trained to obey it. I dug out a quote from John’s LSE predecessor, the left-wing luminary Harold Laski, to confound him:
Bills of Rights serve to draw attention to the fact that vigilance is essential in the realm of what Cromwell called ‘fundamentals’. Bills of Rights are, quite undoubtedly, a check upon possible excess in the government of the day. They warn us that certain popular powers have had to be fought for, and may have to be fought for again. The solemnity they embody serves to set the people on their guard. It acts as a rallying point in the state for all who care deeply for the ideals of freedom.
Like Laski, I thought it was the educative potential of a Bill of Rights that would make it most effective – and not only for judges. My children, going through school, were learning that civil rights began in Alabama with Martin Luther King: they were given no appreciation of how the English were first to abolish torture and allow comparative religious tolerance and representative democracy and the independence of the judiciary – rights that were fought for in the muddy fields of Naseby, and by the Levellers and Chartists, whose struggles were not included in the school curriculum. A well-drafted Bill of Rights, referring to those won since Magna Carta, might be something our kids could recite with pride.
Nonetheless, the NCCL was split down the middle – with Stephen Sedley supportive of the Griffith line. The Haldane Society of Socialist Lawyers joined in the chorus of ‘You Can’t Trust the Judges’. The debate bubbled on during the Thatcher years, although it was noticed that the judges were her only real opposition, winning back some trust by ‘judicially reviewing’ and overturning some of her government’s more unreasonable decisions. The Society of Labour Lawyers, of which I had become a member, turned in favour and after Neil Kinnock’s strong showing in 1987 we pressed for a promise of a Bill of Rights and a Freedom of Information Act to go into the Labour manifesto. John Smith and his successor, Tony Blair, were not opposed, but left the decision to the shadow Home Secretary, Roy Hattersley. Figuring that the way to Roy’s heart was through his stomach (he was a notorious glutton), a small dinner party was organised for him at Rules, the upmarket Covent Garden restaurant. We berated him about the atrocious record of the last Labour government – prosecuting pacifists and journalists; vetting juries; even, I expostulated, trying to ban Richard Crossman’s diaries. Hattersley later said that his dinner with the Labour lawyers was the worst dining experience he had ever endured. And the food was excellent.
So a pledge to introduce a Bill of Rights went into the manifesto, and after the Labour triumph in 1997, we were quickly vouchsafed (with no opposition from disconsolate Tories) a Freedom of Information Act, which Tony Blair later said was his worst ever mistake (evidence of just how necessary it was) and a Bill of Rights. The judges, in some panic, asked for time to learn about it and were given eighteen months to be educated, under the guidance, ironically, of Mr Justice Sedley. Stephen had by now been elevated to the High Court, and did a fine job of ensuring that his dire predictions at NCCL meetings many years before did not come true.
Most lawyers would agree, twenty years on, that the Human Rights Act 1998 has measurably improved the state of civil liberties in Britain. The main problem has derived from the decision to ‘bring rights back home’ immediately, by adopting, off the peg as it were, the European Convention on Human Rights. Although drafted by British lawyers and embodying such rights as could be extrapolated from the English common law circa 1950, it was easy for Europhobic politicians and newspapers to present it as somehow alien to our traditions. It was a wonder of its time, but in fact its time had passed – it was a lowest common denominator declaration of freedoms that had consensus in Europe in 1950. Hence it did not have any provision for trial by jury (the most basic English right, but Napoleon had abolished juries on the Continent); it had a weasel-worded privacy provision that too often was allowed to trump free speech, and it had no provision for social or political or environmental rights, or for the protection e.g. of the disabled. These were not, of course, the reasons why the anti-Europe Tories came to oppose it (they wanted fewer rights for immigrants, or preferably none at all), but David Cameron responded to their Europhobia by promising a ‘British’ Bill of Rights.
Legal lobbies went into overdrive to preserve the European Convention, but the ‘British’ Bill would have to include all the rights in the Convention anyway (we were bound by treaty to include them) and would be an opportunity to expand free press and open justice and to add trial by jury, plus rights for the disabled, rights to education, to well-being, to work and to a healthy environment. I actually drafted a full-blooded British Bill to this effect, published in the High Tory magazine Standpoint, and wrote articles in support of David Cameron’s idea in the Daily Mail.25 When Shami Chakrabarti chided me for not toeing the line, I replied that the best way of protecting the Convention from the Tories was to scare them with the ‘full English’ alternative. At any event, their junior ministers and departmental lawyers wrestled for months to try to agree on a British Bill, and failed so abjectly that they have never dared to release their drafts. I was sorry to disappoint old friends from Liberty (the rebranded NCCL) by endorsing the idea of a ‘British’ Bill – perhaps they too now think of me, like Sir Humphrey, as ‘rather his own man’.