I had become a fully-fledged barrister in wig, wing collar, bands and gown, purchased from the tailor to the Bar, Messrs Ede & Ravenscroft in Chancery Lane. I made the mistake of being measured for my wig just after a haircut, and it is still forever slipping down my cranium; as Clive James said, ‘You don’t need a wig; you should just powder your hair.’ I recently appeared with Amal Clooney in the European Court of Human Rights in Strasbourg. It was a serious case about genocide, and the British papers all sent their correspondents – their fashion correspondents, that is – who asked her, ‘What are you wearing?’ ‘Ede & Ravenscroft,’ she replied drolly – a couturier unknown on the catwalks of Paris.
The robes and wing collars that barristers must wear in Britain are constant irritants, especially the stud that must be attached to fix the starched wing collar to the white shirt. Indeed, it may be said that the only danger to a barrister’s life comes in the robing room, when too-vigorous pressing of the collar stud may touch that gland in the neck, just below the carotid artery, which if pressed too hard will cut off the blood supply to the brain and cause unconsciousness and possibly death. (This knowledge comes in handy when you defend a strangler – ‘He did not realise, members of the jury, that he was pressing just a little too hard.’) I have always been in favour of abolishing the pantomime flummery of wigs and gowns, but the Bar Council took a consumer survey of the consumers of our services – i.e. of criminals – and they all said they wanted us to keep them: ‘I like my brief dressed proper.’
There was only one occasion in my forensic life when I have been glad to have worn a gown. It was when I defended the movie Deep Throat the first time it was prosecuted at the Old Bailey. In those days in England they still had all-male juries for sex cases. The prosecutor opened the case very moderately: ‘You are about to see a film, gentlemen of the jury. It will be for you to say whether it is an indecent importation.’ The courtroom lights went down, and Ms Lovelace came on the makeshift screen. Ninety minutes later, the lights came up. Nobody moved. The judge then announced it was lunchtime and made his exit, in a crouching position. The all-male jury remained stock-still in the jury box. ‘Come on,’ said the elderly lady usher. ‘It’s lunchtime.’ Still they did not move. ‘Come on,’ she said, ‘I’ve got to get me lunch.’ Still they did not move, those red-faced and sweaty twelve good men and true. We barristers left court, our gowns wrapped loosely around us, thinking that on occasions like this there was some point in being robed. Incidentally, you probably won’t believe this but I swear it’s true – the jury could not agree. It was what we call a ‘well-hung jury’.
For all of the professionals – judges, QCs and barristers, solicitors, policemen and clerks – who inhabit the large court complex of the Old Bailey (four of the austere original courtrooms, and fourteen modern additions), it is the jurors who make the vital decision. It is a curious, somewhat irrational system, but it’s been with us for 800 years – the notion that what lawyers condescendingly call ‘ordinary people’ (by which they mean people who are not lawyers) should hold the sword and scales, and substitute, in the flesh, for the goddess. No one in Britain can be sent to prison for more than a year without the opportunity to obtain the judgment of his or her peers. It is a clumsy and costly system, abolished in some countries (Lee Kuan Yew’s Singapore, for example) in the interests of efficiency – and of verdicts in the government’s favour by compliant judges. The Europeans simply cannot understand our affection for it – surely a defendant has a right to a reasoned verdict before they lose their liberty, rather than an inscrutable grunt of ‘guilty’ from the jury foreman? Yes, and no – I am in favour of defendants having the right to waive their entitlement to trial by jury and elect trial by (preferably three) judges if, for example, they fear a jury may be infected by racial prejudice or media prejudice. But for all the inconvenience and expense, the faith invested in this group of citizens chosen by lot is in my experience generally justified, and the right to an independent and impartial adjudication is the most fundamental of our ‘fair trial’ rights.
As if to illustrate this point, in the high-domed hall of the old building there are statues of William Penn and William Mead, two Quakers who were tried in 1670 for preaching sedition. Their jury refused to follow the judge’s direction to convict, so he had them locked up for two nights without food or water or even a chamber pot. When they still insisted upon returning a verdict of ‘not guilty’, the judge sentenced them to prison. Their foreman, Edward Bushell, challenged the legality of their punishment by the great writ of habeas corpus (which requires the state to prove that imprisonment is lawful), and the Chief Justice ruled that it was not: every English jury was entitled to act according to its own conscience and appreciation of the evidence, irrespective of judicial direction or expectation. Bushell’s case is the most important decision for Anglo-American criminal law, because it is the foundation of the constitutional independence of the jury: it can do justice, whatever the law may be. I have often told juries about Penn and Mead and invited them to contemplate the statues of the two Quakers, and to remember the astonishing courage of Bushell. Thanks to him, they will suffer no inconvenience or reprisal when they acquit my client.
* * *
There is something special about jury advocacy: I have in the course of a long professional life been privileged to address many appeal judges in many countries – benches of seven in the Privy Council, House of Lords and the High Court of Australia, not to mention judges in the Supreme Courts of Malaysia and Mauritius and Florida, Courts of Appeal in Hong Kong and Mozambique and Singapore, and a large semicircle of seventeen or so judges in the European Court of Human Rights. These are intellectual exercises, defining principles and gathering precedents in order to persuade judges who have probably already made up their own minds. (My judicial nemesis, Lord Diplock, boasted that only on two occasions had he been influenced by advocacy, and on one of them he had convinced himself.)
It is an altogether different experience to address an Old Bailey jury, arguing for the liberty of a person in peril in the dock. You feel, as you stand before them to deliver your final speech, a portentous rush of power – the power of persuasion. You grab the sides of your green-baized stand and talk to them without interruption and for as long as you like on the subject of how they should go about finding your client ‘not guilty’. You have to shred the case presented by the prosecutor who has spoken before you, and booby-trap the judge, who will have the last word in his summing up. But for most of the time – and these speeches can last for days, although my preference is for two to three hours, with a short break – you must interpret the evidence they have heard and weave it into a scenario in which your client was, for example, absent when the fatal blow was struck, or else struck it in self-defence. Factual situations are infinite: what matters is that the advocate must leave the jury with a credible version of events as they might (not must) have happened, in such a way that the defendant would bear no criminal liability for his or her part in them.
Styles of advocacy vary, and have changed with developments in courtroom architecture and jury composition. Addressing all-male juries in murder trials in the sombre and intimidating pre-war courtrooms with death sentences always in prospect, advocates such as Sir Edward Marshall Hall KC could get away with emotional appeals that would not work in modern strip-lit courtrooms with young male and female jurors. Marshall Hall secured the sympathetic acquittal of a wretched woman who had killed her abusive lover by ending his final speech: ‘Look at her, gentlemen. God never gave her a chance. Won’t you?’ They did – but such cheapjack appeals would be laughed out of a modern court. My own preference, in the all-important last minutes of a final speech, is to play upon the rule (which the judge is obliged to lay down to the jury) that the prosecution must prove its case ‘beyond reasonable doubt’. ‘How many “reasonable doubts” hang over the prosecution case, ladies and gentlemen?’ I list them (observing meanwhile the jurors who are taking notes) and try to find at least ten. Some may depend upon forensic fallacies; others may be of the kind ‘Well, suppose he had committed the crime, he certainly would not have acted like that afterwards.’ (Although, in fact, criminals frequently act stupidly or illogically after their crime.) As the jury members retire to their room with ten or fifteen ‘reasonable doubts’ listed in their notepads, there is a good chance that they will think that one or two might be true. Finally, I give a quick reminder that ‘This verdict will be yours and yours alone’ (i.e. don’t listen to the views of that prejudiced old judge) and ‘Don’t make it something that will trouble your conscience afterwards’ (i.e. remember Penn and Mead). ‘I invite you to acquit.’ And, quite often, they do.
Some years ago the government, in the hope of increasing the conviction rate, decided that judges should be eligible to be called for jury service. I was by this time a Recorder – a part-time judge – and shared the concern that a judge-juror might have an undue influence on fellow jurors. The Lord Chief Justice sent all judges a letter advising that if you were called for jury service, you should not let on that you were a judge. I was one of the first judges to be called up, and of course as soon as we sat down in our jury room some bright spark said, ‘Let’s go round the room and tell each other what we do for a living.’ I described myself as a ‘grievance counsellor’. Nonetheless, the truth quickly slipped out, and I was elected jury foreman. The defendant was obviously guilty, although our number included two anarchists who did not think anyone was guilty – society itself bore the responsibility for crime. After fruitless argument, with only ten minutes to go until lunchtime, I am afraid I did use a little undue influence by reminding my two recalcitrant colleagues that unless we reached a unanimous verdict we would be locked up for lunch without access to alcohol or cigarettes. This had not occurred to them and they agreed immediately. We returned to court and I loudly announced our unanimous verdict of ‘guilty’.
* * *
My wife had a very strange experience when she was called to be a juror for a trial in which the defendant was charged with a particularly vicious, Trump-like grab of the genitals of a young woman. It had been in a narrow laneway – the plaintiff had screamed and the defendant had run, straight into the arms of a policeman. The victim gave her evidence in a way that my wife thought was truthful – why would she accuse a random stranger of such a crime? – although the judge, who was a recently appointed upper-class commercial solicitor, told the jury in sexist language that this was a ‘tuppenny-ha’penny’ assault and the defendant could be acquitted because he had no previous convictions and because there really wasn’t any evidence (ignoring, of course, the best evidence – that of the victim).
Back in the jury room, it was a case of ‘one angry woman’ as my wife battled unavailingly for a ‘guilty’ verdict. They returned to court to acquit, and my wife watched the victim, who collapsed when she heard the verdict. Kathy was really upset by her failure to deliver justice, and worried about the accuser’s mental health – she was obviously gutted by the thought that the jury had disbelieved her. After she had suffered several sleepless nights, I decided to take a very unusual action. I was sitting, at the time, as a judge in another court. I told Kathy to write a letter to the victim, which I had to edit carefully (it’s a crime to reveal the secrets of the jury room) but still getting across to her that she had not been condemned as a liar – the jurors had just felt that they must follow the judge’s direction. I then arranged to deliver the letter to the police officer who’d worked on the case, who agreed to pass it on to the victim.
Kathy received a long letter from this young woman a few days later, saying that she had felt suicidal after the verdict and the letter had helped her pull herself together. We forgot about the case for a few years, until flowers and a large cheque advance came from the managing director of Kathy’s new publisher, with a note from the director’s personal assistant saying how happy she was to be sending it – she was the crime victim who had recovered with the help of Kathy’s letter.
So far, so good. But the tentacles of this case continued to spread. The judge – a commercial conveyancer elevated to the bench to placate the solicitors’ profession, which had been moaning that only barristers were made judges – was arrested for having committed a massive mortgage fraud. His trial at the Old Bailey lasted a year and the jury could not reach a verdict. He claimed to be too ill to face a retrial, but that did not prevent him from decamping to Florida, where he married an American heiress, to the indignation of the Daily Mail, which pictured him walking with her on the beach, quite miraculously recovered.
But wait – there’s more. Fifteen years after the indecent assault trial on which my wife had sat as a juror, a criminal was sentenced to life imprisonment for having committed over 100 rapes and sexual assaults – a British record. At his first trial fifteen years before, he had been acquitted of indecent assault: a conviction might have stopped his sex-crime spree in its tracks. A smart reporter obtained the jury list at the original trial and spotted the name of my by then well-known novelist wife. If only she had convinced her fellow jurors! She has been writing about this extraordinary chain of events ever since.26 I guess the moral is that you should always do jury service if you are lucky enough to be called – it could be an experience you may never forget.
* * *
In jury trials, the final speech is the defence advocate’s most powerful weapon, and requires the skill of marshalling complex facts and weaving the evidence into a picture consistent with innocence. There is also skill in cross-examination. John Mortimer taught me that the art of cross-examination is never to examine crossly, especially when dealing with prosecution experts. He would read up on their publications, congratulate them, cosset them and soon enough have them eating out of his hand, changing their evidence – about bloodstains, for instance – by that fraction which could make all the difference for his client between freedom and a life sentence.
It is in dealing with expert evidence that barristers show their real ability, which is to absorb and master in a few weeks the relevant discipline or science and go head-to-head with experts who have studied it all their working life. I once had to learn how to make a nuclear bomb in order to defend a man accused of selling ‘nuclear triggers’ to Saddam Hussein. It was information I had forgotten within a week of the trial’s end: the barrister’s mind simply empties of hastily absorbed information, and moves on to the science called for in the next case. It’s like wiping clean a computer disc stored in the brain and saving the next case over it.
You often read in books or see on television examples of dramatic, devastating cross-examination. This rarely happens – the worst (i.e. best) liars are charming conmen who readily convince jurors with the confidence of their answers. The witness who hesitates is often the witness who is most concerned to remember the truth. Judges, even, do not understand how hesitation in a witness can indicate an effort to remember truthfully. My favourite example comes from the obscenity trial of a book called The Mouth and Oral Sex, as writer Margaret Drabble was testifying to its merits before an aggressively puritanical judge:
JUDGE KING-HAMILTON: We’ve got along without oral sex for over 2,000 years. Why do we have to read about it now?
DRABBLE: (hesitates)
KING-HAMILTON: (pounces) Witness, why do you hesitate?
DRABBLE: I am sorry, my Lord, I was just trying to remember the passage from Ovid.
I did once – but only once – cross-examine a witness so effectively that he fainted in the witness box. He was manager of a once-fashionable band, whose roadie (my client) was accused of importing drugs. This manager had been rewarded with immunity for giving prosecution evidence, and I was able to demonstrate from his own diary that he was the prime offender, a man who had incriminated even his own younger brother. He struggled to explain the morality of his conduct, and when the accusations mounted, he collapsed – fell backwards out of the witness box – from (or so it seemed) horror at being confronted with his own depravity. It was a climax to a cross-examination that can be balanced by the disasters which come from breaking the golden rule – never ask a question to which you do not know (or strongly suspect) the answer. I was defending a London bookshop, Gay’s the Word, on charges of importing indecent literature, after a massive operation by British customs officers, who seemed to think that homosexuality was an alien custom. They called this homophobic exercise ‘Operation Tiger’, and I went for the customs officer in charge of it: ‘You called it Operation Tiger, I suggest, because the name is redolent of swaggering machismo.’
‘Well, no, sir,’ he meekly replied. ‘Actually, I named it after my cat.’
* * *
One question barristers are always asked is: ‘How can you defend someone you know is guilty?’ It’s very simple – you can’t. If a defendant is honest enough to admit guilt, I tell him or her I will take any available legal points on their behalf but I will not defend them on the merits. I will do a great mitigation speech, if they’re willing to plead guilty; otherwise, goodbye.
A follow-up answer for all other cases is that you never really know. That can best be illustrated by the arms-to-Iraq affair. In 1992 I was briefed to defend the managing director of Matrix Churchill, a company accused of supplying bomb-making equipment to Saddam Hussein which had been used against British soldiers in the first Gulf War. I read the prosecution papers, and the evidence of arms smuggling by making false customs declarations was overwhelming. ‘How can you possibly plead “not guilty”?’ I asked my client, Paul Henderson, at our first meeting. ‘Well, I was shown how to make the false entries by Alan Clark [Mrs Thatcher’s trade minister],’ Paul said. ‘And every time I went to Iraq I reported back to MI6.’
This story seemed ridiculous – there was not a skerrick of support for it in the prosecution papers, and Alan Clark signed a witness statement denying that he had ever given such advice. I embarked on a massive disclosure exercise, which the government strongly opposed, with four Cabinet ministers signing certificates claiming that disclosure of the documents would imperil national security, but in the end I obtained the release of some documents suggesting my client’s story might be true. But to succeed, I had to break Clark, or at least show him to be a liar. It was a difficult exercise (described in The Justice Game)27 but after fifty minutes of intense but friendly questioning, he eventually admitted that his statements were false. An erudite and fastidious historian, Clark could not admit that he had done anything as crude as telling a lie, and he disdained to confess, as the Cabinet Secretary had to Malcolm Turnbull at the Spycatcher trial, that he had even been ‘economical with the truth’. This had to be perjury on an elevated plane – Clark had, he confessed, been ‘economical with the actualité ’.
The prosecution was immediately dropped, the Conservative government (which had secretly sold arms to Saddam and tried to send an innocent man – my client – to jail as a scapegoat) survived by one vote and the case mired it in ‘Tory sleaze’ from which it had not recovered by the time of Tony Blair’s Labour election triumph a few years later. It is my best-known cross-examination, one which not only saved my client from jail but which had vast political repercussions, yet it had been conducted civilly enough for Alan Clark and I (and especially my wife) to become friends and later to enjoy picnic lunches at Saltwood Castle, his stately home, from which in 1170 the knights had set out to rid Henry II of Thomas à Becket, the turbulent priest. I tell this story to make the point that the most effective examinations are not angry or bullying: they can be quite amicable. I paid Clark the compliment of treating him as an intelligent historian who did not really wish to be as dishonest as his government required: after fifty minutes, he returned the compliment. My advice to young barristers is to try being nice to hostile witnesses, rather than to browbeat them as seen on television. Insults and sarcasm can be counterproductive: they put the witness’s back up – he or she becomes more hostile, and perhaps more convincing.
The Matrix Churchill trial and the subsequent exposure of ‘arms-to-Iraq’ had another consequence which led to a reform in the law, although a reform which did not go far enough to protect against a class of wrongful convictions which continues to this day. It concerns the most important strategic weapon in the hands of the defence – the right to disclosure of potentially supportive evidence from police and prosecutors. This right had not been acknowledged before the mid-1990s: requests to judges to order disclosure of relevant files would be met by prosecutors chorusing that ‘Mr Robertson is going on a fishing expedition’. I never saw this as a sensible objection – as a fisherman, I always went on any expedition in order to catch fish. But judges often upheld it.
Then came some IRA convictions – the Guildford Four, Judith Ward – which were undermined by evidence that the police had not handed over. And then came Matrix Churchill, with the spectacle of the Attorney General (Nick Lyell QC), the Home Secretary (Ken Clarke QC) and the Defence Secretary (Malcolm Rifkind QC) all signing Public Interest Immunity certificates to stop disclosure to me of evidence embarrassing to the government, but which they should have realised would help to prove the innocence of my client. Piquantly, the only minister who did realise it and refused to sign was Michael Heseltine, who was not a lawyer. If QCs could not be trusted to hand over vital evidence, neither could police or prosecutors, and an inquiry held by Lord Justice Scott recommended a change in the rules. There was much public debate on what form it should take – the authorities wanted merely a duty on police to disclose information if they thought it would help the defence. This was ridiculous, I would always say. How would police know? They had no motive to look, and were psychologically wedded to the guilt of the defendant they had investigated and charged. How would prosecution lawyers even know what to look for? They were not privy to the defence, and would rely on police assurances that there was no exonerating evidence to hand over. My contribution to these debates, at public and law profession meetings, was a heart-felt mantra: only the defence knows what can help the defence. The reform should therefore be constructed as a right in the defence to inspect all evidence gathered by police. Regrettably, thanks to self-interested opposition from police and prosecutors, who had the ear of weak-willed Tory law officers, the 1996 reform was framed in terms of a duty to disclose only evidence which ‘in the prosecutor’s opinion might undermine the case for the prosecution against the accused’.
This became increasingly unrealistic: given the storage capacity of smartphones and CCTV cameras, policeman did not bother to look at all the evidence, and even when they did they could not always recognise evidence which might support the other side. The Crown Prosecution Service (CPS), understaffed and underfunded, did not make the necessary checks, and prosecution counsel, often instructed only a few days before trial, did not see it as their job to go through all the unused material in the possession of the police. The only solution to avoid injustice is to allow defence lawyers to inspect all prosecution material. Especially the social media material in rape cases, where amid voluminous texts on the accuser’s iPhone, some messages might tell a different story – consistent only with innocence. That was the case with several rape prosecutions which collapsed in 2017, exposing a scandal in which hundreds of innocent people were estimated to have gone to prison since 1996 because the police and prosecutors had failed to disclose (in fact, had failed to find, or else to analyse or to understand, rather than deliberately to hide) evidence which would undermine their case.28 It is incumbent on every defender to demand to see all the evidence in the possession of police and to challenge in court any denial of access. Colleagues point out that this is a counsel of perfection where legal aid does not pay properly – or at all – for your time spent doing the police’s job, in which case I can only reply that this is what we have to be: counsel of perfection.
That said, I must point out that the legal aid system in Britain today is in deep crisis, thanks to underfunding and under-appreciation. It should stand as a proud achievement – access to justice, like access to health care, effectuates a fundamental human right. But the cry ‘What about the nurses?’ will always have more political traction than ‘What about the lawyers?’ and successive governments have downgraded and diminished legal aid’s claim on the public purse, so much so that a continuing refusal to index-link payments for legal aid has reduced them almost by half over the past twenty years, and now means that many young barristers are required to take cases for a remuneration that does not even cover their expenses. By 2018, a third of them were thinking of quitting the independent Bar, and working in government service or in some other trade entirely. One consequence will be to end the progress we have made in diversity, as many will be financially unable to contemplate a career, and those who can will be culled from the privileged classes who once monopolised the profession. The solution is not just more money, but a means of distributing it so that legal aid lawyers are fairly paid for their work, including their work of investigating ‘unused material’ in the possession of the police to prevent the wrongful conviction of their clients. I picketed the Ministry of Justice to endorse the Bar strike in 2014: it is very likely that I will have to do it again.
* * *
The most nerve-racking time, at least for defendants, is when the slightly bewildered citizens who will ultimately decide their fate are first brought into court. For most of my time in practice in England, defendants could challenge jurors, but unlike the practice in US courts, barristers could not ask questions to probe their prejudices. You could take a close look at them, but, as Shakespeare pointed out, ‘There’s no art to find the mind’s construction in the face.’ My only art was to find its construction in the reading matter under their arm. In a case with reasonable doubts, I really believe that intelligent jurors are more likely to find them than those who, for example, read tabloid newspapers. I would bump them off with a quick ‘I challenge this juror, m’Lord,’ while any with The Guardian or the Financial Times or, better still, a non-fiction book, were welcomed. So were those who asked to ‘affirm’ rather than to take the oath: people just assume that they should swear on the Bible, and I like free-thinkers who are sceptical about the deity – they might also be sceptical about the prosecution case.
Jury-rigging was common in England in the days of George III when the government wanted convictions for sedition, and they secretly brought back ‘jury-vetting’ in the 1970s in cases involving the IRA and some concerning national security. Led by Jeremy Hutchinson QC, we exposed this malpractice in a trial, known as the ABC case, of journalists accused of discovering an ‘official secret’: the eavesdropping role of GCHQ.29 It was one of the many liberties that governments thought they could take with the law at a time of terrorism, but it undermined the principle of random selection of juries if the state could investigate and challenge any juror it discovered – through its surveillance apparatus – to have anti-establishment views. In my next ‘political’ case, I prevailed upon a fair-minded judge to extend legal aid to permit the defence to vet the jury as well. We obtained their names and addresses, but did not have the powers of the security service – all we could do was hire private detectives, who reported on, for example, the length of their hair and the number of locks on their front doors. The information was useless: the only answer was to demand an end to vetting by the state.
* * *
There is an unsettling and strange period in every criminal trial. It begins when the jury is sent out to consider its verdict. Until then you are on professional autopilot, scoring points that come instinctively to a mind immured in the law of evidence. It still falls so suddenly, that solemn moment when the talking has to stop, the summing up ends, and the palpable silence is broken by a Bible-bearing usher, as it has been broken at every criminal trial in Britain for centuries: ‘I swear to take this jury to some private and convenient place, and to suffer none to speak to them this day, nor speak to them myself touching upon this case, except only to ask them whether they are agreed upon their verdict.’ The courtroom soon empties, and so does the advocate’s mind. There is nothing to do but wait. Sometimes, for a sign: a friendly usher will come up and whisper, ‘The jury have ordered lunch,’ and you feel free to leave the building for an hour and do likewise. (Although a friendly usher once had to pursue me with an update: ‘The jury have just seen their lunch, and have decided to bring in a verdict immediately.’)
Courts offer few retreats for barristers during this limbo in their practising lives. Passive smoking in the cells with a keyed-up client would soon pall for both parties, and cups of weak tea in the court canteen, with the police officers you have so recently accused of perjury joking at the next table, has limited attraction. The Old Bailey has a barristers’ common room where copies of the morning’s tabloids offer mindless diversion, but all too briefly: what you really crave is a pinball machine. I was always drawn to the library at the end of the common room, where the shelves groaned under the weight of ‘Famous Trials’, a series that chronicled the proceedings against the spies and poisoners and murderers of yesteryear, the people whose effigies were found in Madame Tussauds’ Chamber of Horrors.
It took the tannoy to bring me out of my reveries and back to court for the final act – the delivery of the verdict. The courtroom is tense as the jurors file in: if they do not look at the prisoner, it generally means a ‘guilty’ verdict, but you never can tell. Reactions depend on the case – an acquittal may be met with applause from family or political supporters in the gallery, and I have seen defendants cry more often when they are found ‘not guilty’ than when they are convicted. The atmosphere is not conducive to displays of great emotion, and lawyers are trained never to show it when the verdict is delivered. One memorable exception was at the Persons Unknown trial back in the ’70s, when defendants (including the author Ronan Bennett) were accused – on the strength of their possession of weedkiller (for their garden), sugar (for their tea) and a copy of The Anarchist Cookbook (for their jokes) – of planning to make a bomb. They faced twenty-seven charges, a prosecutor who vetted their jury and a biased judge (King-Hamilton again) who more or less ordered the jury to convict: after a trial lasting three months I can remember a sense of dawning wonderment as the foreman said ‘not guilty’ twenty-seven times. Even more amazing was the reaction of my solicitor, who leapt up and kissed me – in front of a press gallery which reported the incident as if it were without precedent, which it probably was. For all the unusual cases – official secrets, blasphemy, anarchist conspiracies and censorship – coming my way at the criminal Bar in the 1970s, there were also conventional defences for people accused of drug dealing and fraud and, occasionally, of murder.
* * *
The most sought-after client of a criminal barrister in his early years of practice was a professional criminal – an East End villain who would loyally call on your services throughout his and your career, generating legally aided work until you both retired (or until his children, following in his footsteps, would continue his trade). It was not long before I acquired one – Steve Jory. It was in an antiques fraud that I ‘got him off’ – as barristers like to say, although as Patrick Hastings pointed out, in nine out of ten cases the result is all to do with the evidence – counsel’s ability makes a difference in only 10 per cent of trials. Soon, and for many years afterwards, briefs to defend in R v Jory were marked for my attention. Steve was a gentle, wryly amusing pirate – he could counterfeit anything, especially expensive perfume. In Mexico he produced hundreds of thousands of bottles of Chanel No. 5, indistinguishable in aroma and in the printed cartons that he also counterfeited, and then brought them back to the UK and sold them in pubs for £5–£10, to men whose girlfriends were temporarily delighted (the perfume went off after a while) by a gift that retailed in the shops for £45.
A lengthy trial took place: in those days there was no specific law against counterfeiting – the police had to charge conspiracy to defraud, which carried a maximum sentence of life imprisonment and required the CEO and the directors of Chanel to be called into the witness box to establish that Steve’s operations had defrauded the company, i.e. that his operations had reduced its earnings. I quickly established that the net cost to Chanel of producing a bottle of No. 5 was merely £1, so its profits (even taking advertising and wholesaling into account) were immense. The jury was not impressed. Then it turned out that all the profits went to a company in a Caribbean tax haven – the Netherlands Antilles, as I recall – and that company’s ownership was secret and undisclosable.
‘So you don’t know who actually owns you?’ I asked the CEO.
‘No, it’s a holding company, I am not allowed to know the identity of the beneficial owner.’
‘You do not know who receives your profits?’
‘No.’
‘You know that Coco Chanel was a Nazi sympathiser, in love with a German general?’
‘I have heard something of that, yes.’
‘And for all you know, these profits that you say Mr Jory has reduced could be going to an organisation that looks after old Nazis in Latin America?’
‘Well, I wouldn’t know if that was the case.’
The long-suffering prosecution QC could see the way the jury was scowling at the Chanel executives (and grinning at Steve), so I offered a deal: the defendants would plead guilty to a charge under the Trade Descriptions Act, with a limited term of two years in prison, if he dropped the conspiracy charge. He agreed, with the judge’s approval: Steve and his co-defendants pleaded and were given short prison terms, and everyone was happy. But a week later, my client was even happier, and the prosecutor distraught – we had overlooked a sub-sub-section in the Act, which said that these new charges could only be dealt with in a lower court. The defendants were all released, and we had to present ourselves to the Lord Chief Justice to explain why the case had ended in this mess. It was the fault of the judge and the prosecutor, who were responsible for failing to check the statute carefully, but I felt a bit embarrassed because the deal was my suggestion. I was busy excusing myself when the Chief Justice, Geoffrey Lane, interrupted with some advice: ‘Don’t go on, Mr Robertson, or we will begin to think you have something to apologise for.’ It was advice – ‘the less said, the better’ – that long-winded barristers find hard to swallow, but not when it comes from the Lord Chief Justice.
Steve was of course overjoyed and went back to counterfeiting expensive perfumes and other luxury goods. He called me to many a Crown Court (his operations moved about), usually to mitigate (he was an honest villain, confessing whenever arrested by police). I would sit with him in cells around the country, imploring him to use his talents for lawful ends, but he got a kick out of ‘taking a rise’ from the rich and helping the poor – at least, to think they were exuding the aroma of expensive perfume – and he had been born and bred in the criminal culture of the East End.
Our final meeting was at the Court of Appeal, after I had won a reduction of his latest sentence and met his wistful teenage daughter – for her sake, he promised to go straight. He did, and wrote a book about his exploits (self-published, by Pirate Publications) but died of a heart attack shortly afterwards. I missed him, but so had his wife and child during his years in and out of prison. He was an old-fashioned villain, never into violence, whose East End haunts are now trendy residences and restaurants for City bankers. Movies and books still romanticise the East End of the Krays and the Richardsons, but they were not romantic: they were stupid and vicious and, ultimately, pretty pathetic.
Briefs to handle drug cases were common in my early years at the criminal Bar, usually mitigation pleas for kids caught possessing or supplying drugs for which they had acquired a habit – often, in prisons that were full of drugs. In such cases, the barrister was a glorified social worker, who had to understand the human dimension and then bring advocacy to bear on unsympathetic judges who might – if moved – pass a non-custodial sentence. This could be a matter of life or death – prison sentences could destroy addicts who might otherwise be rehabilitated. Most judges were decent enough to allow themselves to be persuaded, but I recall one case of a heroin addict who in the year between his arrest and trial had pulled himself together, and all his reports were optimistic. He should have been put on probation or given at most a suspended sentence, but bad luck brought us before the Old Bailey’s most heartless sentencer – Michael Argyle – who gave him five years and destroyed a life that might otherwise have flourished. I could forgive Argyle for the Oz trial – his stupidities were comic and his ignorance of the law was remedied on appeal. In run-of-the-mill cases, however, his inhumanity did damage that could not be rectified.
When I became a Recorder in 1992, youngsters were still being prosecuted when found with small amounts of cannabis for personal use. I would fine them £25 and tell them that the worst damage done by the drug was the risk of being caught with it and acquiring a criminal record. I did manage to do something to change this – not in court, but in a television studio, by conducting a Hypothetical for Granada Television which examined policing policies. In a scenario involving a black youth with a budding career, caught with a tiny amount of cannabis, three hardline chief constables were prevailed upon to caution rather than prosecute him. This became a news story, and the new policy was supported by other chief constables and welcomed by the Home Office. One strike, and you were not out.
I had been a counsel in the two most notorious drug busts of the 1980s. ‘Operation Julie’, subsequently the subject of books and a television movie, involved several clever young chemists who went over to the dark side and used their talents to manufacture many gallons of LSD. My client was Dr David Solomon – an older American author and academic who was said to have been their ‘guru’ – a Cambridge version of Timothy Leary. The story is always told as a police triumph – how clever detectives outwitted brilliant scientists – but in reality it showed how the young chemists became more interested in making money, and for all their academic abilities left their finger-marks all over the manufacturing process and the distribution arrangements – it took little detective work to put them behind bars.
Of more sociological interest, even today, was the case I called ‘Drugshead Revisited’ – the fallout from the tragic death from a heroin overdose, at Christ Church College, Oxford, of Olivia Channon, daughter of Mrs Thatcher’s Trade Secretary. She was celebrating her finals with Sebastian Guinness (an heir to the brewing dynasty) and Count Gottfried von Bismarck, descendent of the Chancellor who had made Prince Wilhelm the King of Germany. Guinness and von Bismarck were charged along with my client Rosie Johnston, Olivia’s best friend, sent to London with the money to purchase the drug from Olivia’s dealer. They were all jailed, by a judge who declared that prison sentences were necessary to refute ‘a notion in our society that it is acceptable for the rich and privileged to dabble in hard drugs’. Rosie was neither rich nor privileged – just best friends with a girl whose parents had given her access too soon to too much money, and who did something fatally foolish to celebrate the end of her studies. They had tried their best to revive Olivia and were anguished by her death, but there was no mercy on offer from the courts – policy required that Rosie must go to prison. It was full of drugs, of course, and drove her to alcohol on her release, but she always struck me as a good person with two attributes important to survival: a sense of humour and a loving family. She wrote an insightful book about her life behind bars and became involved in prison reform – after a period as an opera producer and a businesswoman, she married a churchwarden and now, a feisty grandmother, lectures children and prisoners on the dangers of drugs that are so much easier to obtain than in her days at Oxford.30 I wish all my clients had Rosie’s resilience.
It is always a temptation for law enforcers to try to punish conduct they do not like, but against which Parliament has not legislated. They try to stretch any vague or ambiguous statute to cover the situation. An example from the ’90s was the challenge to the right of potheads (and anyone else) to read colourful manuals bearing titles like How to Grow Cannabis Indoors Under Lights. The law of obscenity, punishing publishers of material ‘with a tendency to deprave and corrupt’, was by now a dead letter regarding sex, which after the Inside Linda Lovelace acquittal (see later) was no longer viewed as corrupting. However, it occurred to some bright spark in the Home Office that the definition might cover encouragements to cultivate cannabis, if ingestion of the weed ‘tended to deprave and corrupt’. That was the view of their distinguished, if somewhat old-fashioned, adviser, Dr Griffith Edwards. In consequence, a major operation was mounted by Scotland Yard, raiding the publisher (a ’60s survivor, Knockabout Comics) and hauling its directors into the Old Bailey on charges of distributing obscenity. They were fortunate in their solicitor, Anthony Burton, perhaps the best practitioner in crime, whose experience went back to the early ‘drug bust’ days: he amassed the defence evidence from experts explaining that smoking marijuana did not, by itself, corrupt anyone’s moral values. The trial lasted a month at the Old Bailey: I cross-examined Dr Griffith Edwards pleasantly enough, having read all his publications and found in them no support for his theory that ingestion of the substance could rot one’s moral backbone. The judge, as usual, was on the side of the prosecution, but the jury (I imagine there were a few pot-smokers among them) did not take long to acquit, another blow for the non-conformists.
* * *
The Old Bailey trial that always intrigued me was that of Stephen Ward, prosecuted in 1963 for ‘living off the immoral earnings’ of Mandy Rice-Davies and Christine Keeler. The newspaper reports of the case were avidly read in Sydney – indeed, all around the world – and provided my generation with an education in sex (with whips and two-way mirrors) far more interesting that those evenings with the Father and Son Movement. We would sing in the playground ‘Mandy Rice, Mandy Rice, twice as nice at half the price’ and other ditties based on the guilt of an apparently perverted osteopath – a profession we had never heard of before and a name which its practitioners hastened for a while to change to avoid the jokes.
My closer study of the case, many years afterwards, showed it to have been a massive stitch-up: Ward was not guilty (the women had actually lived off his professional earnings), but he had been driven to despair at the unfairness of the judge and committed suicide at the end of a poisonously prejudicial summing up. The behaviour of the government of the day had been outrageous. Its Secretary of State for War, John Profumo, had been forced to resign after lying to Parliament about his relationship with Keeler, to whom he had been introduced by Ward. The evangelical Home Secretary determined to make Ward a scapegoat, and ordered the head of Scotland Yard to find some – any – grounds to prosecute. Police pressured vulnerable street-walkers to make false allegations, the Chief Justice suppressed evidence that would have exonerated Ward and at the Old Bailey the trial judge artfully persuaded the jury to convict Ward as he lay dying in hospital.
Fifty years later I wrote a book – Stephen Ward Was Innocent, OK – to expose the manipulation of legal processes that could happen again if the stakes are high enough.31 It was launched by Mandy herself, who by 2013 had made ‘a long descent into respectability’ but was still as witty as ever; she had contributed to English literature with the withering reply, when asked by a bullying barrister if she did not know that Lord Astor had denied her claim that they’d had sex, ‘Well, he would, wouldn’t he?’ Jeremy Hutchinson, who had defended Christine Keeler and had now reached his century, made a rumbustious speech decrying the unfairness of the trial, and Andrew Lloyd Webber joined in – he had just written a fine musical, Stephen Ward, to illustrate the injustice melodically. My book was placed on sale in the Aldwych theatre foyer, along with whips and masks and other impedimenta from upper-class orgies in the ’60s.
Published in 2013, this book stirred the embers of a case the legal and political establishment still wishes to hide: incredibly, the government has banned release of some case files until the year 2046. The reason is, I believe (having been told on excellent authority), that some of the embargoed witness statements suggested that Ward had allowed his apartment to be used for an illegal abortion performed on a woman who’d been made pregnant by none other than the Duke of Edinburgh. In the course of my research I concluded that this was an entirely false allegation against Prince Philip, and did not even mention it in my book. I regret not doing so. In 2046, when Philip is long dead, along with Mandy and Christine (both now recently deceased), the files will be released, and the lurid allegation will no doubt feature as fact in whatever newspapers still exist and in whatever version of The Crown is remade by Netflix. Another example of the absurdity of censorship: had the file been released at a time when memories were still alive, the story would have been refuted. In 2046, it will emerge from the official records to embarrass King William and Prince George.
* * *
So there I was, reading about these ‘Famous Trials’ in counsel’s library in the Old Bailey in the mid-1970s: I had made it to the epicentre of criminal practice. I had reached a position from which I could fight the English vices of hypocrisy, censorship and secrecy, not to mention police corruption, discrimination against women and people of colour and gay people and so on. Now was the time to test my theory that justice could be achieved through due process. Techniques and technicalities might be the rules of a game, but the game could be played in ways productive of liberty, where liberty was the just result.
In criminal cases, this game was against the state, represented too often by corrupt police and overbearing prosecutors and biased judges, but the advocate could stand between his client and these powerful forces and appeal to the jury. At the Old Bailey, David could sometimes slay Goliath. Jury trial and due process provided the possibility of victory against the state leviathan, and from victory in an important case might come political and social consequences which would enhance the liberty of the subject.
This had been the case with the Oz trial, where victory – ultimately on appeal – had done more than secure Rupert Murdoch’s liberty to put nudes on page 3 of his tabloids. It had changed the law so that henceforth nobody could go to prison just for shocking or offending others. Of course, the repressive instinct of British authority continued for a while, for example by making use of local indecency prohibitions to confiscate art. This ended with the most ridiculous case I ever did, which was to defend Richard Branson, when Virgin Records released the album Never Mind the Bollocks, Here’s the Sex Pistols. Richard was prosecuted on the grounds that ‘bollocks’ was an indecent word, although it was obviously being used in its modern meaning of ‘nonsense’ or ‘rubbish’. John Mortimer and I called a professor of English language to explain to the court the etymology of the word ‘bollocks’ – he traced it right back to one of the earliest English bibles in print, Caxton’s Bible, where it had been used with the meaning of ‘testicles’. But then, he explained, in the King James edition, it had been replaced by the word ‘stones’. At this point Johnny Rotten passed me a note that said, ‘Don’t worry. If we lose the case, we’ll retitle the album Never Mind the Stones, Here’s the Sex Pistols.’
Inevitably, we won: I have never seen a defendant vault out of court as quickly as Richard Branson, who led the press to the nearest record shop window to photograph him grinning in front of a display of the cover. The photo featured on every front page and greatly propelled the album’s sales. That was how the authorities had to be taught the lesson that they should have learnt from Lady Chatterley: prosecute a book or a record and the results will be counterproductive – the publicity will almost always serve only to increase sales. This was also the result of the most significant censorship case I conducted at the Old Bailey, in 1979, defending a publisher prosecuted for obscenity for bringing out a grubby little paperback, Inside Linda Lovelace. It had sold a handful of copies at station bookstalls until the trial: after the publisher’s acquittal, it sold a million. I had called, in the book’s defence, some leading feminists and the Oxford Professor of Jurisprudence to testify that it had ‘sociological merit’ – if only the merit of describing the US porn industry, which was by then grossing (literally) more than Hollywood. The jury was young and half were female – the property qualification for jury service, which had meant that British jurors were usually male and middle-aged, had recently been abolished. The judge made the mistake of asking the jury, ‘If this book is not obscene, ladies and gentlemen of the jury, you may ask yourself, “What is?”’ After the verdict of ‘not guilty’, the Director of Public Prosecutions immediately announced that the written word would no longer be prosecuted in the UK. From such seedy acorns do great oaks of freedom grow.
There is a maxim of Equity – ‘The law should not concern itself with trifles’ – that should have been applied to all the attempts in the ’70s to censor and suppress sexual explicitness. The Old Bailey at times resembled a porno cinema palace, with Deep Throat and other early examples of the genre playing before bewildered juries in various courtrooms. It really is no business of the law to impose moral standards, certainly where there is no popular consensus (as there is, of course, in relation to child pornography and jihadi incitements to violence). As a defence barrister, I was forever quoting John Stuart Mill (‘The only purpose of the criminal law is to prevent harm to others’); Voltaire (‘I don’t like what you say but I will defend to my death your right to say it’); and Mrs Patrick Campbell (‘I don’t mind what they do, so long as they don’t do it in the street and frighten the horses’). The Inside Linda Lovelace acquittal was the last straw for the DPP. There were no more obscenity trials, and sexually explicit films and publications were regulated and licensed (i.e. confined to the top shelves of newsagents, and to licensed sex shops and cinema clubs) rather than prosecuted. John Mortimer and I had ended an era of attempts to use the criminal law to ban discussion of sex, an era which had begun with Gerald Gardiner and Jeremy Hutchinson successfully defending Lady Chatterley in 1960. When Ken Tynan called to congratulate us on the Inside Linda Lovelace acquittal, I thought my youthful ambition to end censorship by criminal law might finally have been fulfilled.
I reckoned without Mary Whitehouse and her abiding hostility to homosexuality, shared by many judges at the time. It may be lawful, said the Law Lords, but it is in no way to be encouraged. In the ’70s there was still a nasty stigma attached to this sexual orientation: nobody ‘came out’ (not even Liberace, who collected large libel damages from the dreadful suggestion that he was ‘effeminate’) and there were no openly gay MPs. (One gay MP was ‘outed’ by the Daily Mail and in consequence ‘outed’ from Parliament.) Mary Whitehouse pretended to be ‘just a Colchester housewife’ but she was in fact a front for the well-funded Moral Re-Armament movement, and she pounced in 1977 when Gay News published a poem ‘The Love That Dares to Speak Its Name’, which suggested that Christ’s love for humankind had extended to a gay centurion. She brought a private prosecution for the arcane crime of blasphemy. Christianity, her counsel argued, was part of the law of England, and since its tenets held that homosexuality was a sin and Christ was without sin, imputing any gay attraction to him was, ergo, the crime of blasphemy, punishable by imprisonment for life. Mary’s counsel was a red-faced, tub-thumping, gay-bashing barrister named John Smyth, who described the decorous metaphors of the poet (a fellow of the Royal Society of Literature) as ‘so vile it would be hard for the most perverted imagination to conjure up anything worse’. Mark Twain had noted the phenomenon: ‘To the pure, all things are impure.’
It was the craziest trial the Old Bailey had ever seen. The judge (King-Hamilton once again) ruled that Christianity was part of the law of England, and later admitted that he had been biased against us and that his summing up (a direction to convict) had been dictated by God (if it had, it would have been fairer to the defence). He allowed Mary and her followers to hold prayer meetings outside the court to pray for a conviction, and refused us permission to call any evidence from the defendant – the intention of the poet and of the editor who published the verse was, ruled the judge, utterly irrelevant.
I had taken the Bible away on holiday before the trial, rereading it as if studying for those Sunday school exams, and actually had no difficulty interpreting it inclusively. After all, the only way to beat Mary Whitehouse was to be holier than her. In two of her autobiographies (she wrote four) she praises with not-so-faint damns my efforts to become the angel’s advocate:
I shall never forget the dreadful sense of despair which overwhelmed me after hearing Geoffrey Robertson sum up for the defence. It was a truly remarkable performance. His manner was gentle and persuasive. In the silence that fell upon the court Robertson talked about God’s love for sinners and for homosexuals, who, like everybody else, must have the hope of salvation and redemption … After Geoffrey Robertson’s address to the jury, the phrase ‘the devil’s advocate’ took on a whole new meaning.
This was not meant as a compliment. The judge (or his divine amanuensis) ended his summing up by reminding the jury that they had all taken their oaths on the New Testament, so they might (‘It’s a matter for you, of course’) feel obliged to convict. John Mortimer and I were amazed that they took a long time and that two of their number dissented. We believed we should succeed on appeal because of the mistaken ruling that the publisher’s intention was irrelevant. But one of the vices of laws like blasphemy is that judges have difficulty putting their own moral and religious views aside. When it came to the five Law Lords, one was a reactionary Tory ex-Lord Chancellor whose judgments were guided by prejudice, and another was a committed Catholic who ostentatiously refused to read the poem. That was 2–0 against us. Another judge was my nemesis Lord Diplock, and another was religious (Welsh Chapel) and conservative. But the latter, Lord Edmund-Davies, was the best criminal lawyer in the country. Both men must have hated the poem, but they had true fidelity to law, sticking scrupulously to its principles, and refusing to bend them in order to uphold a conviction the merits of which they would otherwise have approved.
With the game at 2–2, my favourite judge, Lord Scarman, shot an own goal. He was the leading advocate for a Bill of Rights and a supporter of free speech, but he was at this time particularly anxious to have minority races protected from insult and offence. He wanted laws that would protect all religions, otherwise attacks on Islam would become a veiled form of race-hate. He was well intentioned, but mistaken, in using this argument to uphold the Gay News conviction on the basis that blasphemy should be a strict liability offence covering insults to all religions. As a matter of law, this was not the position, because English law confined its protection to the Christian religion – as a group of Muslims discovered some years later when the High Court threw out their attempt to bring a private prosecution against Salman Rushdie for blasphemy for writing The Satanic Verses.32 This ridiculous remnant of religious persecution protected only Anglicans, and in due course Parliament came around to abolishing it. Christianity was no longer a part of the law of England.
The law and the legal profession still discriminated against homosexuality, and this took longer to dispel. The forensic fight-back against Mary Whitehouse began when she privately prosecuted the National Theatre for staging The Romans in Britain, a play by Howard Brenton which in one scene depicted the rape of a young druid priest by a Roman soldier. Mary and her legal adviser, John Smyth, were determined to fight any depiction of the ‘evil’ practice of homosexuality, despite the fact that the play was a jeremiad against the brutality of war. Their motive may also have been political – at the initial hearing Smyth tried to injunct the whole play, no doubt because the Roman soldiers turned after the interval into British paratroopers and the druids into the Catholics they had recently been killing in Northern Ireland.
Theatres were protected from prosecution under the obscenity laws, but Smyth (who mysteriously disappeared shortly before the trial) found an obscure law against acts of gross indecency in public places, hitherto used only against people accused of masturbating in public lavatories. Sir Peter Hall, the National’s director, instructed Jeremy Hutchinson and myself to defend, but the prosecution was a cock-up. Mary’s solicitor, the only prosecution witness, testified that he saw an actor dressed as a Roman soldier take off his tunic, hold his penis in his hand with the tip protruding, walk across the Olivier stage at the National and place that tip against the buttocks of Greg Hicks, the actor playing a young (if ancient) druid.
The solicitor gave this evidence sincerely, and obviously believed that he had seen it with his own eyes. We were faced with the cross-examiner’s nightmare: how to make a jury disbelieve an obviously truthful witness. We conferred in agitated whispers, as I urged Jeremy to ask the solicitor where he had been sitting. But experienced counsel hate asking questions to which they do not know the answer – ‘He will tell us he was sitting in the front row, and all will be lost.’ ‘But, if he had been in the stalls, he would have told us in his evidence in chief. It’s worth the risk.’ ‘No, it’s a trap.’ As our whispers became louder, Sir Peter Hall, sitting behind us, flourished a box office plan of the Olivier Theatre.
‘All right,’ said Jeremy to me with resignation, ‘on your head be it.’ The plan was shown to the witness. The judge, biased in favour of the prosecution, became excited and proffered his pen – ‘Mark where you were sitting.’ Like everyone else, he assumed that if you go to a theatre to collect evidence against a play, you would sit in the front stalls. But this was an honest – and, as it turned out, frugal, solicitor (or, perhaps as a religious man, he just wanted to sit in the gods). Jeremy choked back an expression of delight: ‘The back row. You sat in the back row! You go to the theatre, knowing your task is to collect evidence for a very serious prosecution of my client, a man who has never committed a single offence in his life, on a very nasty charge, and you sit in the back row?’
Jeremy’s high-pitched Bloomsbury voice, rising in pretended horror, detonated little explosions of ridicule, but the witness still maintained that he had seen the penis tip from this distance.
Q: Do you know that theatre is the art of illusion?
A: If you say so, Lord Hutchinson.
Q: And as part of that illusion, actors use physical gestures to convey impressions to the audience?
A: Yes, I would accept that.
Q: And from the back row, 90 yards from the stage, can you be certain that what you saw was the tip of the actor’s penis?
A: Well, if you put it that way, I can’t be absolutely certain. But what else could it have been?
There is a wise adage for a witness – never ask counsel a question. The QC stood to his full height, 6ft 3in. in his wig, and held out his clenched fist. ‘What you saw, I suggest, was the tip of the actor’s thumb … [he slowly raised his right thumb, until it stood erect, protruding an inch from his fist] as he held his fist over his groin – like this.’
The QC flung open his gown with his left hand, while placing his right fist, thumb erect, over his own groin. The jury stared transfixedly at the QC’s simulated erection, the judge was struck dumb in horror, while the crestfallen witness opened and closed his mouth a few times before admitting that yes, he had a reasonable doubt about whether he had descried the glans of the actor’s penis or the tip of the actor’s thumb.
The case collapsed (the ‘thumbs up’ defence was used by gays thereafter caught by police in public toilets) and Mary was ordered to pay substantial costs. (‘God will have to provide,’ she said miserably as she slunk out of the Old Bailey.) We heard no more of her courtroom crusades against the permissive society.
My last defence of the gay community against state prejudice came from a UK customs operation which attempted to close down Gay’s the Word, a little bookshop in Bloomsbury, on the grounds that the homosexual-themed novels it was bringing into Britain from Europe infringed the ban on indecent imports. By this time (1984) we had openly gay MPs: Chris Smith led demonstrations against this homophobic prosecution. It collapsed, to some public merriment after it turned out that they had seized, on the strength of the author’s name, some books by that very heterosexual American author Gay Talese. The bookshop became the launching pad for the gay and lesbian campaign to support the striking miners, and it stars in the delightful movie Pride (with Dominic West, Bill Nighy and Imelda Staunton), which illustrates how, towards the end of the twentieth century, Britons came not just to tolerate but to appreciate those of their number with a different sexual orientation.
The cases that fought prejudice against homosexuals were led in court by this heterosexual. Back in the ’70s I had no help from any of the hundreds of gay barristers – they were afraid to come out in support, including two gay members of my own chambers. Now several senior judges are proud to be homosexual – Australian High Court judge Michael Kirby deserves acknowledgement for giving a lead to his English counterparts – and gay marriage has increased human happiness and actually strengthened the institution of marriage (or at least made it more widely popular).
The Gay News trial was disinterred by the media in 2017, forty years on, because of what they reportedly discovered about Mary’s lawyer, the evangelical John Smyth.33 It solved the question of why he had pulled out of the Romans in Britain trial at the last moment. Mary’s solicitor had told me that Smyth had a religious conversion (he hardly needed one) and had been called by God to be a missionary in darkest Africa. But now it was alleged that after Gay News, he had offered his services to a famous boys’ school near his country home. He would select the most attractive boys, take them to his potting shed and convince them that God wanted them punished for masturbating. They said he would take out a cane and beat them until their buttocks bled, causing them extreme pain in the short term and long-term psychological damage. There was a report which gave some credence to their complaints and the headmaster admitted he was informed of it. He said he called Smyth in and agreed not to report him to the police if he never came back to the school again. Smyth was advised to leave the country, and moved to Africa. Mary Whitehouse must have known, but she took him on a barnstorming tour of Australia in 1985 to present the case for ‘Muscular Christianity’. (Smyth has described the so widely published allegations as ‘nonsense’; a police report is, at time of writing, with the DPP.)
The role of Mary Whitehouse in gay liberation was significant: through her courtroom crusades against homosexuality, she actually provoked more and more of the LGBT community to come out of the closet and fight back, to get themselves elected to Parliament, appointed to the judiciary and to remind business and politics that they were a force to be reckoned with. I am proud to have been part of their struggle for pride in the love that now dares to speak its name.
Notes
26 And may continue – the rapist, Kirk Reid, is being considered for release by the Parole Board, according to newspapers in 2018.
27 Geoffrey Robertson, The Justice Game, op. cit., p. 313. See also David Leigh, Betrayed: The Real Story of the Matrix Churchill Trial (London: Bloomsbury, 1993).
28 See Frances Gibb, ‘Dozens jailed over evidence failures, warns watchdog’, The Times, 5 February 2018. Richard Foster, chairman of the Criminal Cases Review Commission, said that failures to disclosure ‘amounted to hundreds of cases over the years’.
29 The Justice Game, op. cit., Chapter 5.
30 Sian Griffiths, ‘Drugs are rife, says woman jailed over death of top Tory’s daughter’, Sunday Times, 11 February 2018, p. 5.
31 Geoffrey Robertson, Stephen Ward Was Innocent OK: The Case for Overturning His Conviction (London: Biteback Publishing, 2013).
32 R v Chief Stipendiary Magistrate ex p Choudhury (1991) 1 All ER 306.
33 See, for example, ‘British Barrister Accused of Child Abuse’ (The Guardian, 3 February 2017).