In the late 1970s I adjusted my name. In Australia it had always been ‘Geoff’. ‘Geoffrey’ seemed to add an unnecessary syllable (Kathy jokes that in Australia it’s too hot to say words of more than one). It was as ‘Geoff Robertson’ that I wrote articles in The Guardian and authored my first book, Reluctant Judas. My second, however, was a lengthy treatise on censorship law, published in 1979 by Messrs Weidenfeld & Nicolson under what the editor described as a ‘cool’ title, Obscenity. For some reason this venture into serious legal publishing drove me to consult my mother: under which version of her son’s name would she like to see him make his academic debut? Her short answer left me in no doubt: ‘Well, we named you Geoffrey.’ As I have explained, I could never go against my mother’s wishes, even when I thought them mistaken, so I wimpishly reverted to the name on my birth certificate. A few years later came the Australian television series Geoffrey Robertson’s Hypotheticals.
The programmes came about, initially, through an attachment to university life. Sometimes I rather fancied becoming a professor, with a large office overlooking a leafy quadrangle, where my textbooks could be researched and footnoted by a squad of eager postgraduate students. Instead they were written by a one-man band, toiling over footnotes that have sometimes betrayed a need for researchers. My career as a barrister did not permit acceptance of full-time lecturing offers, but in 1981 I did manage a six-month visiting professorship at Warwick University, with a lecture schedule occasionally disrupted by recalls to the Old Bailey. My main innovation there was to adopt the case-study technique developed at Harvard, in the hope that my role-playing classes were amusing and challenging as well as didactic, and so would live in student memory longer than the classroom dictation I had endured at Sydney and Oxford Universities. While at Warwick, a talent scout from Granada Television found me. He had come looking for an English academic to join a trio of Harvard law professors to ringmaster hypothetical case studies for a US (CBS) and UK television series.
Our US producer, whose idea it had been to lift the Socratic method from the classroom and adapt it for television, was the legendary Fred Friendly. He had been Ed Murrow’s producer for his wartime broadcasts and his CBS programme which destroyed red-baiting Senator McCarthy (in the film Good Night, and Good Luck, Friendly is played by George Clooney). He was a big, amiable American carrying the weight of history lightly on his shoulders and was happy enough to let me take the action in the shows wherever I liked. But there were limits – we were recording for a US audience as well. I did one programme about the media in war, with CBS journalist Morley Safer, New York Times correspondent Johnny Apple, Alexander Haig and James Schlesinger from America, and British politicians and journalists, including Harold Evans and Jonathan Dimbleby. Fred made a visit to my hotel room late on the evening before the show was to be recorded. He settled down with a whisky and asked, ‘How are you going to end it?’ I said that I would probably have Safer or Apple taken hostage and killed after a botched rescue mission. He shook his large, owlish head. ‘That won’t work on CBS – killing an American. Think of another ending.’ It was late, but I tried. ‘OK, I’ll kill a Brit. Jonathan Dimbleby, perhaps?’ Fred smiled: ‘That would be entirely appropriate.’ In all the shows that I made for CBS/Granada, this was his only editorial interference.
Under the guidance of Fred and the brilliant English producer, Brian Lapping, I spent excitable hours in Granada TV studios during the ’80s offering bribes to businessman, dispatching policemen into massage parlours to arrest judges, encouraging American generals to invade Caribbean islands (they actually invaded Grenada a few months later), arranging deals between journalists and terrorists, and becoming the world’s first pregnant man, all in the service of imaginary stories which might – and sometimes did – come true before the programme went to air.
One show caused an international stir – and still does, decades later. It was about the consequences of the fatwa imposed on Salman Rushdie in 1989 by the Ayatollah Khomeini – the first notable example of Islamic extremism. Among the panellists was the singer Cat Stevens, in his born-again persona of Yusuf Islam. He found himself dining in a restaurant and, on noticing Salman at a nearby table, evinced a willingness in some circumstances to execute him. It was a frighteningly real moment, but it does show how the format can elicit honest responses which would not be ventured on any other kind of programme.
The English editions were classed as ‘educational’ – copies were sent to universities – but they were not screened in prime time and they were performed before small, selected audiences who were not encouraged to laugh. I always felt these programmes had the potential to be less earnest and more entertaining, as I mentioned over a tennis game with the producer of Channel 9’s Sunday programme, who became enthused at the prospect of an Australian Hypothetical. It was the beginning of a television career that I had not anticipated, which required me to boomerang back to my native land every few months.
I called myself a ‘moderator’, although moderation is probably not the characteristic I mainly displayed, as a Keystone traffic cop with ants in my pinstripe pants, directing intellectual pile-ups between sixteen opinionated participants on subjects that are deathly serious (child abuse, the right to die, race relations) or in most contexts deathly boring (multiculturalism, the Australian constitution). Always at the back of my mind was a challenging statistic: viewers cannot absorb more than three minutes of a ‘talking head’. And I had to make sixteen talking heads, positioned around a horseshoe table, interesting television for sixty to ninety minutes.
Historically, the first hypothetical moderator was Socrates, who walked around the ancient agora postulating imaginary situations and asking Athenians how – and more importantly, why – they would react. His imagination was mischievous, his dilemmas disturbing to a small society – so much so that it decreed his death because he asked too many unsettling questions. The Socratic method aims to tease out the rationale behind a decision, and then examine whether that rationale can serve as a general principle by applying it to other, similar cases. If not, the original decision is exposed as opportunistic or wrong. The Socratic method, properly applied, uses the hypothetical to draw out ethical rules and test their value by seeing how they apply to hard cases.
That’s the theory. My practice is to choose a subject which on closer examination comes bristling with unforeseen ethical dilemmas – medicine, the law, politics and business are all grist to the mill. Then comes the selection of sixteen participants. All are allotted roles they play or have played or might well play, and they comprise men and women in public life as well as journalists, police officers, accountants and actors. There has to be a political and ideological balance (some do not understand this and want me to choose exclusively panellists with nice progressive views, but many of the highlights of the show occur when the logic of the storyline induces a reactionary to act like a liberal, or vice versa). The event itself must be unscripted and unrehearsed: the show’s secret is its spontaneity. I meet the sixteen panellists briefly after make-up, to try to memorise any faces I don’t already know, and tell them not to make long speeches. I give no inkling of the questions they will be asked. I am never sure of them myself, because it is through the responses, which can be unpredictable, that the storyline has to be developed. I ask the participants to imagine themselves in a movie in which they are playing themselves.
On the set, of course, we have the cast. But every good story needs some bad people to advance the plot. I keep up my sleeve some colourful characters: General Buldoza, the all-purpose dictator, and Colonel Bazooka, the aggressive military chief; Amanda Autocue, a not over-bright journalist; Senator Gladhand, a corrupt politician; Inspector Scarpia (a police chief); Phil Fickle (an informer); Katie Bombshell (an actress); Judge Knott and Dr Jekyll (a mad scientist from the University of Wollongong) and so on. I play these people, to tempt and cajole the panellists and to advance whatever plot will throw up ethical dilemmas, in imaginary states such as ‘Amnesia’ or ‘Uforia’.
As we know, conventional wisdom holds that talking heads make boring television. ‘If it’s not visual, it’s not a story’ is a common adage among television folk. But the important decisions that are made in the real world are seldom set against glorious sunsets. They are made by people (usually men in grey suits) sitting around a table in a nondescript room. There may be a few notepads, a potted plant and a picture of the incumbent President, but the momentousness of the decision generally bears an inverse relationship to the splendour of the surroundings. Hence the bare Hypothetical stage, and the object of showing how important decisions are actually made, something more than can be revealed amid the pleasantries of a studio chat show or the rituals of a press conference or a television interview, where development of ideas can be diffused by ego-driven presenters and rehearsed responses from cagey politicians.
That said, a Hypothetical is just another television programme – an insubstantial pageant that fades after the last repeat. It is not designed to reach a particular conclusion or to solve an intractable problem or to convey a subliminal message. All that can be claimed for the format is that it sometimes makes viewers sit up and think, and distinguish in their own minds between good arguments and better arguments.
The format can elicit uncomfortable truths from practised equivocators. The very atmosphere conduces to candour, as a decision-maker is surrounded by experts who know how he or she has acted in similar situations. They cannot dodge a difficult question by saying, ‘I’d call my lawyer’ or ‘I’d need to consult my advisers’ – the lawyer or adviser is on the panel, to be called or consulted immediately, after which the decision must still be taken. The viewer is invited to become a fly on the wall, a witness to scenes that television cameras normally cannot capture because they do not penetrate the closed doors of boardrooms or lawyers’ offices or doctors’ surgeries. The fact that the scenarios are imaginary makes the Hypothetical a libel-free zone – truths may be told without the constraints of betraying confidences or embarrassing colleagues or creating a political kerfuffle.
At least, that is the theory. But one show I did on media ethics for Kerry Packer’s Channel 9 in Australia in 1984 became a major censorship scandal.40 Packer, together with Murdoch and Fairfax, controlled the Australian media, and you couldn’t do a show about media ethics without a media mogul. I confided to the producer that I thought my choice of name – Sir Rupert Fairpacker – was too long. ‘Why don’t you call him “Kerry Murfax”,’ he said brightly. Great idea, and Kerry Murfax was born. Had I stuck with Sir Rupert, the proprietor of Channel 9 may not have assumed the moniker referred to him.
My opening was short:
Welcome, ladies and gentlemen, to a land where press is free, trial is fair and news is plentiful. Much of that news is provided by you, employees of the Murfax organisation – a media octopus whose newspapers, radio and television stations are dedicated, at the insistence of your proprietor Kerry Murfax, to the proposition that the public have a right to know.
The first question was easy – would they expose Mr Justice Benchmark if they learnt he was an occasional cocaine sniffer? Trevor Kennedy, editor of the Packer-owned Bulletin, a news magazine, spoke for them all.
KENNEDY: I think it’s a very important story. Cocaine is a drug that supports a rather unpleasant infrastructure of organised crime and all other sorts of things. By using cocaine the judge supports that.
MODERATOR: You’re part of the law enforcement network? You’re going to enforce the law of cocaine against this judge?
KENNEDY: We’re part of the information network, which simply exposes the truth about as many things as we’re able to.
MODERATOR: But what’s the public interest in this particular truth?
KENNEDY: Well, the public interest is simply in knowing what big and important people do.
More difficult was whether to expose Australia’s top fast bowler for the same offence, in the middle of a finely balanced Test against England. ‘If we look like winning, I think probably not,’ decided the editor of The Age. Otherwise, they all nodded sagely at the philosophy offered by a Packer editor: ‘I know that journalism can create a lot of harm, but I also think in the long run it does more good by publishing the truth.’
That is, until the next client of my cocaine dealer was brought to their attention – none other than Kerry Murfax, heard in a tapped telephone call ordering several grams of the drug. I asked the question of Kennedy, who went ashen and seemed to slide under the table, as did the Channel 9 lawyer. Politicians around the table particularly enjoyed watching the journalists squirm, but we had to move on, to issues about publishing secret government documents, protecting sources and invading privacy. One editor even said, ‘I have to live with my conscience,’ which I thought was the best line in the show.
After a few more murders and privacy invasions, it was back to the case against Kerry Murfax. Trevor Kennedy finally summoned up the courage to confront him with the wire-tap evidence that he had ordered cocaine. Kerry, as played by me, gave a long and loud proprietorial laugh and explained that he was acting as a decoy, pretending to buy it at the request of the police. The cocaine dealer had contacted him earlier and, like the good citizen he was, Kerry had reported the offer and helped to trap the criminal. ‘I wouldn’t break the law, because I would lose my television licence and you would all be out of work.’ The laughter – somewhat relieved – at the last line gave me a moment to face the audience as Geoffrey Robertson and deliver a message that I had often tried to convey to Old Bailey juries: ‘Where there’s smoke, ladies and gentlemen, there’s usually fire. But sometimes, there’s only a smoke machine.’
So Kerry came up roses in the end. But perhaps Kerry Packer and his lawyer Malcolm Turnbull did not watch until the end. The tapes of the show mysteriously disappeared – possibly deep-sixed in the ocean off the Packer residence at Palm Beach. The producer waited and waited – the tapes had simply evaporated. Of course, the editors and journalists on the panel, and their guests in the audience, became curious: when would the ‘media Hypothetical’, titled ‘We Name the Guilty Men’, be put to air? The Channel 9 press office provided a stock answer, for over a year, that it was ‘still being edited’. One of the participants then blew the story in his column in the Herald, acidly remarking that this would be the most exquisitely edited programme ever to grace Australian television. Given that I had battled against censorship since a schoolboy, it was ironic to be caught up in a controversy over a ban on my own show.
It was nervousness over a drugs trafficking inquiry into Kerry Packer that caused him to destroy the show about the proprietor he thought was his namesake, but Kerry Murfax’s innocence was also prophetic. A Royal Commission was following some claims about drugs secreted in stumps brought from Pakistan by the Packer cricket team, but this and other allegations turned out to be smoke without fire – another smoke machine. Banning the show was entirely unnecessary, but it did have one good result – a telegram from the chairman of the national broadcaster, saying that Hypotheticals were obviously too difficult for commercial television – could I do them for the ABC? I could, and looked forward to having them screened without commercials. But it was not the last I heard from Mr Packer.
A year or so later, in London, I received a brief from Malcolm Turnbull to advise a ‘Mr Bullmore’, an Australian media mogul in trouble with the tax department over investment in a questionable film scheme. I duly provided an opinion, as did several silks. I had pronounced Mr Bullmore innocent, at least on the evidence the department had collected, and was invited to meet the man himself at the Packer hospitality tent at Wimbledon.
Let me make clear that I would accept an invitation to Saddam Hussein’s hospitality tent at Wimbledon, if it came with good tickets to Centre Court in the final week. In the case of Kerry Packer, it became a fixture. On one occasion I was there when Alan Bond was negotiating to buy Channel 9 for $1 billion. (‘You only get one Alan Bond in a lifetime,’ said Kerry later.) Bond emerged from the meeting looking depleted, as well he might, so I took him off to watch the girls’ doubles final in an attempt to cheer him up.
Kerry was famously generous to friends and advisers. His generosity was distributed by his secretary, at the door to his suite at the Savoy: she asked as you went in (with piles of cash in front of her) how much you would like. Despite the temptation, I really did have to be prim and proper with my tax and said I would be sending a fee note. At a social meeting at the Savoy, after he’d returned from an extremely painful kidney dialysis, Kerry presented me with a dilemma worthy of Hypotheticals. He asked me to join him in a quiet bedroom, and – in obvious pain – vented his fury at the delay in the decision on whether to prosecute him over the film scheme. The decision would be made by the Australian DPP Ian Temby QC, whom I knew. Kerry worked himself up to a lather of anger, saying – twice – ‘If that Temby decides to prosecute me, I will have him killed.’ ‘Oh no, you won’t,’ I replied, and did my best over the next half-hour to reason him into a less murderous state of mind (I thought, successfully). Still, the threat had been made. Should I report it to the federal police, to the Attorney General, to Temby himself?
If this had been a professional engagement, it would have been covered by legal confidentiality, which can only be broken to reveal what is quaintly termed ‘iniquity’ – though iniquity would, of course, include a threat to murder. Some guidance at the time came from a famous case in California (Tarasoff v Regents of the University of California), where a psychologist, Dr Lawrence Moore, was sued by the parents of Tatiana Tarasoff, who was murdered by Moore’s client, after this man had threatened to kill her in the course of a confidential conversation with Moore. The court held that Moore had a public interest duty to tell the victim and her family of the threat. That case turned on the credibility of the threat: in my situation, Packer was sick, and lashing out at his demons; I did not judge his threat to be credible – he would never, when he calmed down, arrange to implement it. But the dilemma was disturbing, and I was relieved a few days later when the Attorney General announced that on Temby’s advice Mr Packer would not be prosecuted.
A few years later, I was to create some English law on this difficult subject, acting for a prisoner who had been convicted of three murders while suffering mental illness. He had been placed in a secure hospital indefinitely. He wanted to apply for parole on the grounds that he was no longer a danger to the public, and his solicitors retained a psychiatrist to report on his current mental state. To their surprise, he reported that the man was, in his opinion, still very dangerous. Understandably, they withdrew the application. The psychiatrist, on being told that his opinion would not be needed, sent a copy to the Home Office, in a blatant breach of his duty of confidentiality – or so I argued in the courts. The judges agreed, but found a public interest justification for the breach. They did not impose a duty on the psychiatrist to inform on his client, but allowed him a discretion to do so if, as a professional, he sincerely believed that lives were at stake.41
The problem is that professionals can have inflated opinions of their own ability to detect ‘dangerousness’. In Kerry’s case, I did not think there was any danger he would carry out his threat. If I had, my conscience – and, I reckon, my ethics – would have bound me to inform.
Back in Australia, in the ’80s and ’90s, my programme enjoyed high ratings, in large part because it had no difficulty attracting ministers – even Prime Ministers – and leading public figures. That had been Brian Lapping’s difficulty with the UK shows: British politicians are reluctant to take the risk, except behind closed doors, that their American and Australian equivalents saw as a public duty, to expose their thinking to the public without the presence of their aides and advisers. It was enjoyable for me to find little-known people destined to go far; on one show, ‘Send in the Clones’, about the dawning wonders of in vitro fertilisation, I had Ian Temby QC (alive and well) and two brilliant Australians, of whom much more would be heard. One was Alan Trounson, a reproductive scientist who realised that anything he could do to an Australian sheep he could do to an Australian woman (although, on this show, he pioneered male pregnancy). The other was an unknown Melbourne ethicist named Peter Singer. It was obvious he would go far after his first exchange with the Anglican Dean of Sydney, Lance Shilton:
SHILTON: The Bible says there is a certain role for men and a certain role for women. Its teaching is very clear about that. There is no biblical evidence for confusing the roles.
SINGER: So far as what’s not in the Bible, you could point out that the pop-up toaster is also not mentioned, but that doesn’t mean we shouldn’t have them.
And so we debated those unthinkable ideas that bioethics was beginning to throw up: the pregnant male has not quite eventuated, but most of the others have, protected by the impeccable logic of Peter Singer, now a Princeton philosopher, and those who think like him.
‘What’s Your Poison?’ was a programme about drugs, with politicians, customs officers, federal police, psychologists and popstars. It attracted the attention of educators, and was the first Hypothetical to become part of a kit distributed to schools and universities. The storyline was prophetic, in that it envisaged almost exactly what was to happen, years later, to Australian drug mules when information which could have them executed was passed by the federal police to their opposite numbers in countries with the death penalty, like Indonesia and Malaysia. There were still calls for the reintroduction of capital punishment in Australia, most loudly from Gerry Peacocke, the MP for Dubbo:
MODERATOR: Xanadu, ladies and gentlemen, is a land of tinkling temple bells and genuflecting elephants, a romantic Qantas stopover where the heroin is pure and the massages are not. In Xanadu at midday today, President Kubla Khan has decreed that three drug traffickers will be tied to lampposts in the city square and shot. Gerry Peacocke, you’re in Xanadu on a parliamentary study tour. Here’s a chance to see something they don’t do down in Dubbo. Perhaps they should. Are you in favour of executing drug pedlars?
GERRY PEACOCKE: Indeed I am.
MODERATOR: So you approve of the execution. Will you go and see it?
PEACOCKE: Absolutely. If you believe in the death penalty, I don’t think you ought to be afraid to see it.
MODERATOR: It will be a fairly harrowing occasion. You might need a stiff drink or two before you go.
PEACOCKE: Before and after, probably.
MODERATOR: That’s a pity. Xanadu is a Muslim country. The penalty for drinking is being stoned to death, like adultery. Xanadu is a dangerous place for Australian politicians.
‘What’s Your Poison?’ was conducted in a brick hall in Sutherland Shire (the location for Sylvania Waters, one of the first reality TV shows) before an audience of 900 people who turned up on a weekday afternoon in response to a small announcement in the local paper, to sit through a long and circuitous interplay between the panellists on the problem of drug addiction. The ABC’s response was to suggest that henceforth we should charge for admission! I thought it showed that ‘people out there’ wanted television to extend knowledge, to educate and inform as well as to entertain – which was the ABC’s charter purpose, after all.
I make no great claims for Hypotheticals – I wonder if in some ways I did the show as a reason to come back and see Mum and Dad as they were growing older, to show them that the child they had nurtured at Eastwood had grown up to rule the world for a few hours in a spot-lit semicircle. I was the small boy who couldn’t ride a bike, and this was his way of saying, ‘Look, Mum, no hands.’
* * *
In Britain, Hypotheticals are remembered, if at all, as an emanation of the early ’80s, a time when commercial television had to earn ‘brownie points’ from its regulator, the Independent Broadcasting Authority, by providing the public with what it was deemed to want – in this case, a ‘high-quality’ current affairs programme ring-mastered by authority figures – American professors and British barristers – from outside the familiar media milieu. As Thatcherism loosened regulation, the public was increasingly allowed what it really wanted, by way of ‘reality television’ – Big Brother, I’m a Celebrity, Get Me Out of Here! and, inevitably, Love Island. I am not complaining, so long as the BBC is left to cater for different, if less popular, tastes. For that purpose, it retained me some years later for the most bizarre Hypothetical I have ever conducted, in the middle of a game park in Zimbabwe, with a few panellists who were more ferocious than the lions patrolling outside our perimeter fence. There was General Gowon, author of Nigeria’s genocide against the Igbo people; Valentine Strasser, who had led a bloody coup in Sierra Leone; and the President of Zimbabwe, the Reverend Dr Canaan Banana, before he was jailed for sexually abusing small boys.
The thesis, which I had to work into a storyline, was the artificiality of Africa’s colonial borders, fixed at places where, for example, an English missionary met a German explorer (or vice versa). It was a long afternoon, and as the sun was setting we had gone through war and plagues and army coups to an ending that was happy enough, although I cannot now remember it. The programme was visually stunning, and not only because of the wildlife – the panellists dressed ceremonially and I wore an Elton John cast-off jacket. It went out on BBC2, and for years afterwards people of African descent would come up to me to express their amazement that it had ever been made.
The media is always trying to find ways of making worthy subjects interesting for general audiences (they call it ‘infotainment’), and courtroom formats – with live barristers – come in useful. For some years I chaired a Radio 4 programme called You the Jury, in which public figures would propose and oppose a motion (three minutes), call two witnesses each (two minutes, three for cross-examination), make a closing speech (three minutes) and then be told what the audience voted at the end, with the revelation of how it voted before the debate started. With my opening remarks, interventions and conclusions, we managed to bring the programme in at forty-five minutes. It was fast-paced and furious and we had some excellent performers – the powerful Methodist preacher Lord Soper and miner’s leader Arthur Scargill were audience favourites – and the results were sometimes quoted in public discussion. But the attention-grabber, namely how the original vote had been changed as a result of the debate – always struck me as a bit of a con: those of strong views will vote against them at the outset, to help the pretence that the debate has caused a ‘swing’ in their favour. The BBC did its best to find a fairly honest panel of about 100 regular ‘jurors’, but the danger is always there, whenever the format is used (as it is in Intelligence Squared debates and the like). Years later I would occasionally join in a successor programme called The Moral Maze, with a similar format but without the expense of a jury or the spontaneity that comes from a ‘live’ audience. I could never master the art of a two-minute cross-examination and was always outclassed in rudeness by David Starkey.
I can’t help thinking that these formats make complex issues simplistic rather than simple, and I do not greatly enjoy debate by sound bite. The only time I felt that it had an impact was in a You the Jury-style Newsnight debate in front of a live audience at the start of the controversy over the arrest of General Pinochet, when most people had not made up their minds about this surprising turn of events. I was all for it, of course, and was perhaps fortunate in my opponent, the ‘artificial silk’ David Mellor. It was a measure of his own realisation that he had lost the debate that he ended it by leering at me, ‘You’re very left-wing,’ which (a) I wasn’t and (b) was not relevant to the question of whether visiting torturers should be arrested.
The show that I most enjoyed chairing was a Sunday morning programme – The World This Weekend on the newly opened Channel 4. Under its dynamic management duo, Jeremy Isaacs and Liz Forgan, it was out to break the mould of news coverage, and vouchsafed me an hour – albeit an early hour – to probe international flashpoints, sitting around a table with two or three statespeople who had contributed to them. I prepared as for a cross-examination, and crossed swords with political friends – Benazir Bhutto, Bill Hayden, Abba Eban, Tariq Ali – and foes (the early neo-con Richard Pipes, and General Vernon Walters, Reagan’s ambassador at large, who defended US support for tyrannies because ‘only a third of the countries in the world are democracies’, as was in fact the case in the 1980s).
Working with Channel 4 led me to proffer Jeremy and Liz some advice about a new way of covering the courts. I had always been in favour of televising trials – the barristers would be better prepared, the judges better behaved and the public better informed. Leaders of the British legal profession at the time would not countenance it, but having recreated the Oz trial for the RSC, I saw no reason why the day’s play at the Old Bailey, in important trials, could not be replicated that evening on television by actors reading the transcript. There was a very important trial coming up – that of Clive Ponting, a civil servant in the Ministry of Defence, who was accused of breaching the Official Secrets Act by leaking documents which showed that Mrs Thatcher’s decision to sink the Argentinian battlecruiser Belgrano (‘Gotcha’, as The Sun had said) was in fact a war crime (the ship had been steaming at full speed away from the conflict) causing the deaths of 323 Argentinian sailors. Channel 4 agreed to hire actors to play the parts of the lawyers, judge and witnesses (not, of course, the jury) and stenographers would produce a running transcript to be quickly edited for a live broadcast at 10.30 every evening of the trial.
Of course, the government got wind of it, and the judge would not hear of it after he had hauled us into court to explain. Quite wrongly, in my view (there was no law against it), he injuncted Channel 4, using the excuse that if he and the witnesses were played by actors, they might over-act and give jurors who watched Channel 4 the wrong impression of what they had already heard that day in court. To underline his pettifogging point, he said that actors were not like newsreaders, trained to keep a straight face. This comment gave us a cue he had not intended: Channel 4 laid off the actors and hired retired newsreaders. They returned to the screen with relish and, of course, over-acted (the judge did not understand that professional actors, unlike newsreaders, can be directed to portray protagonists neutrally). In any event, the show went ahead, with remarkably high audience ratings (over half a million tuned in every evening). Its seasoned presenter, Godfrey Hodgson, showed a flicker of emotion only once – when announcing Ponting’s acquittal.
We had, to this extent, circumvented government censorship, but I wanted to go further. Our argument for the original programme had been rejected by the judge – wrongly, I believed – but there was no right to appeal. This was a serious anomaly: idiosyncratic trial judges were stopping newspapers from reporting evidence, or names of defendants, and the press had no right to have their decisions reversed by a higher court. Britain’s lazy media (or its media’s lazy lawyers) had put up with this passively, despite the fact that as long ago as 1966, Gerald Gardiner had allowed individuals and companies to petition the European Court of Human Rights in Strasbourg to force the government to provide them with an effective remedy for any breach of their rights. Jeremy and Liz agreed that I should take the case to the European Court (the BBC would never have done so – its executives were reluctant to challenge the government in the interests of free speech), so I took what Barbara Castle called ‘the little Fokker’ to Strasbourg. The government struggled – it had to concede that UK law allowed the media no right to challenge gag orders imposed by judges – and Strasbourg ruled in our favour: we had no effective remedy and the government was bound to provide one.42 Not only did we receive our costs (Jeremy patriotically wondered whether he should accept them, but I think I convinced him to do so; for barristers, having their costs paid by the government is a sweet symbol of success), we also participated in the settlement negotiations which produced Section 159 of the Criminal Justice Act 1988, now regularly used by the media to appeal against gag orders to the Court of Appeal. It had been my first first-hand experience of advocacy in Strasbourg, and I was knocked out by the result – a new law to expand free speech, the terms of which the government had first to negotiate with you and then require Parliament to pass. My reaction? Give me more of it!
An Intelligence Squared exercise I did enjoy – especially because it partnered me with the legendary John Julius Norwich – was to prove that Pius XII was ‘Hitler’s Pope’ because of his silence during the Holocaust, even as Jewish people were being arrested under his own Vatican window. By the time a later Pope came to town, in 2009, the BBC disgracefully refused to give a platform to those of us who deplored the blind eye Benedict had turned to child abuse, and it covered his visit uncritically for four days. I had by then written a book to demonstrate that Vatican connivance at priestly paedophilia amounted to a crime against humanity, and was invited to the only contrarian platform available – to speak with Richard Dawkins and abuse survivors from the back of a lorry, to protesters massed opposite Downing Street. The BBC refused to cover it and I almost passed out from the carbon monoxide from the truck’s exhaust. I vowed not to rabble-rouse from the back of a truck again, but a crisis in legal aid funding and a fool (Chris Grayling) as Lord Chancellor brought me back to the top of a truck outside the Ministry of Justice to rally the troops. Some of the protesting barristers wore their wigs and gowns, so the police hesitated to arrest us for blocking the highway.
The last occasion on which I took the media role of advocate was for a Google Intelligence Squared debate on the legalisation of cannabis, genially opposed by Eliot Spitzer, the corruption-busting Attorney General of New York State, touted as a Democratic presidential candidate until he was exposed as a client of one of the escort agencies he had been trying to close down. I had a good team, ranging from Richard Branson to Russell Brand, with Bernard Kouchner (former French Foreign Minister) and former Presidents of Mexico and Colombia as supporting witnesses. The other side made the mistake of including Peter Hitchens, the Daily Mail columnist, who performed poorly (he was outwitted by Russell Brand). It was professionally chaired by Emily Maitlis, but that did not stop Hitchens from complaining in his next column.43
There was only one time when I was tempted to become an entertainer – or at least a version of Michael Parkinson. The BBC invited me to host several editions of Friday Night, Saturday Morning, the variety-cum-chat-show which went out in the late 1970s at 11.30 p.m. on Fridays. My shows introduced to television Rik Mayall and Ade Edmondson, and I interviewed Clive James, several actresses, the controversial human rights luminary Seán MacBride, and Jill Foot, known as Michael’s wife but forgotten as a writer of important movies. It was a pleasant experience, but when the BBC asked if I wanted to pursue the prospect of becoming a ‘celebrity’, I demurred: I lack charm, and the other qualities which make Graham Norton such a success. The crunch came shortly afterwards, in the Old Bailey lifts, when a juror complimented me on a television appearance and I had to ask, ‘Which one?’ It was time, I realised, for the cobbler to return to his last.
Notes
40 The full transcript is found in Geoffrey Robertson, Dreaming Too Loud, op. cit., Chapter 20.
41 W v Edgell (1989) EWCA Civ 13; (1990) 2 WLR 471.
42 Hodgson and Channel 4 v UK, Decision on Admissibility, 9 March 1987, 51 DR 136.
43 Intelligence Squared, ‘It’s Time to End the War on Drugs’ (13 March 2012). Available at: https://www.intelligencesquared.com/events/versus-drugs/