There was another court which I had as a teenager dreamed of one day addressing – the Privy Council. On the staircase of its building in Downing Street, a few doors from the home of the Prime Minister, hung portraits of long-dead Law Lords who had once decided the meaning of constitutions of all fifty-two Commonwealth countries. Their successors, still with quite a few of these constitutions in their keeping, sat at a horse-shoe-shaped table facing counsel, who stood to address them from a big polished lectern. Through the high windows on your right you could see Big Ben and Whitehall – the parade of black taxis and red double-decker buses reminding you that this was once at the epicentre of the British Empire, a court that jurisprudentially orbited in space, landing one day in Antigua, another in Brunei, another in Mauritius. The concentrated legal minds in the chamber had to imagine they were in the slums of Kingston or the tenements of Hong Kong or the sheep-filled meadows of New Zealand, depending on the nature of the case and the country from which it arose.
The proceedings were sedate – there was none of the bustle and drama of the Old Bailey – but they could be of great political importance to member states of the Commonwealth. The high walls of the main chamber were lined with law reports, and nearby was a library with laws of every country within the Privy Council’s jurisdiction. I loved the atmosphere of this place and its ghosts from colonial history. When the Privy Council was moved, in 2009, to the Supreme Court building down the road in Parliament Square, I begged various High Commissions to purchase the building and turn it into a museum of Empire legal history. None was interested; the Commonwealth is not now a force to be reckoned with in the world.
It was as a death row lawyer that I first climbed those stairs, to what I hoped would be justice for men in the Caribbean who were facing execution. Their petitions were heard every Tuesday morning, when the Law Lords who sat ‘on the Privy’ would interrupt their hearings of cases they thought were much more important – about gas pipelines in Brunei or bridge collapses in New Zealand – and listen to my last-ditch appeals.
The real problem for death row lawyers is that you can never abolish the death penalty; you can only make it harder to carry out. If people in a democracy vote to support it, there is nothing the courts can do to strike it down, because that would be to defy the will of Parliament. It’s no use calling evidence to prove that death is no deterrent to crime. (Though, since 1990, states in the US without the death penalty have had consistently lower murder rates.)47 Rational argument gets you nowhere – the courts simply have no power to stop hangings, or lethal injections, or the operatic barbarity of death by firing squads, or Stalin’s favourite procedure (and actually the least agonising of all): an unexpected bullet in the back of the head while being walked down a dark corridor.
We can, of course, find errors in the legal process, and I would spend weeks scouring dog-eared trial transcripts for such errors. But the death penalty itself was untouchable. The most ironic thing was to see black politicians in the Caribbean following their colonial masters and keeping all the sadistic rituals of the gallows: reading the death warrant outside the cell of the condemned man; weighing and measuring him for the drop; the execution always at dawn, witnessed by an official party who would sit down to a cooked breakfast while the body twisted in front of them for the regulation sixty minutes. The body was never returned to the relatives, so that they did not see the ‘giraffe effect’ – hanging elongates the neck. In Jamaica’s prison, they buried the corpses in the kitchen garden – and produced the best vegetables in the country.
I would visit these death rows, in Trinidad and Jamaica, where men waited years to be executed – governments changed, appeals took a long time, nobody was hanged until the public demanded vengeance after a nasty murder. And of course, ten years later the state is not killing the same man who has committed the crime. Some of the men I defended were reformed individuals. Some had become mentally ill. And some had always been innocent – the very fallibility of criminal justice is another strong objection to the death penalty.
The argument that has now virtually stopped executions in the Caribbean and East Africa came to me when I visited Michael X. His real name was Michael de Freitas, and he had been a black power leader in Britain in the ’60s and a friend of John Lennon. His name arose from a mistake by a hotel receptionist in Birmingham, when Michael was escorting the American black power figure Malcolm X, who had asked for ‘a bed for the night, and another for my brother, Michael’. The receptionist simply assumed (well, you would, wouldn’t you) that the name of Malcolm X’s brother Michael was Michael X. When he saw it in the hotel register, De Freitas liked it so much he adopted it.
In the early 1970s, Michael X left London and went home to Trinidad, where he founded a commune. A double murder (of Gale Benson, daughter of a Tory MP, and Joseph Skerritt, a local barber, both followers of Michael X) was committed there, and in due course he was convicted of Skerritt’s murder and sentenced to death.48 I met him when he was one of the living dead, on death row at the Royal Gaol in Port of Spain, with thirty other men, each in monkey cages that measured 8 by 6 feet, with a mattress and a slop bucket, kept there twenty-three hours a day in sweltering heat, subjected to a cacophony of screeching and screaming from other inmates.
As I sat with Michael, for several hours on several days, I began to appreciate what I later termed ‘the death row phenomenon’, a form of mental torture caused by alternating hope and despair. Listening to the reading of the other men’s death warrants and the sound of the trapdoor opening in the execution room next door induces mental derangement in doomed men who do not have a kill-by date, but it gave me an idea. I said to him, ‘Michael, this is actually a place of mental torture – maybe we should argue that a long stay on death row amounts to torture, which is banned by the constitution.’
I’ll never forget – Michael smiled, for the only time during my visits, and put his finger to his lips. ‘Shhh,’ he said. ‘Listen. This place is always full of noise.’ Now, there was total silence. Every man on that block was pressing against the bars of his cage, leaning towards us and straining to hear. ‘You must realise that for them, you represent hope,’ he said. ‘Their only hope. Promise me that one day you will make this argument, for their sake, not mine. They will hang me, no matter what.’
And they did. We took the argument – that a protracted period on death row amounted to torture – to the Privy Council, but Lord Diplock derided it; he said the delay was Michael’s own fault for appealing. I was about to file for an injunction to argue another point when the Trinidadian government rushed Michael to the gallows, at midnight, without telling us, so we could not get a judge to stay his execution.
I had made a promise to him that day on death row, when silence fell, and twenty years later I was able to fulfil it when my argument finally succeeded. A prolonged stay on death row, the Privy Council ruled in 1993, amounts to torture, and means the death sentence has to be commuted. This case, Pratt & Morgan v the Attorney General of Jamaica, has by now led to the commutation of death sentences in over 1,000 cases in the Caribbean and throughout East Africa. It is the case I look back on with most pride – it took six months to prepare, pro bono, and I led a team of barristers from my newly established chambers in Doughty Street. It reversed the ruling in Michael’s case and demonstrated the importance of upholding international humanitarian standards for prisoners, even for convicted murderers.49
Another case that illustrated the danger of the death penalty – and the difficulty of oral advocacy in America – was that of Krishna Maharaj, whom I met on death row in Florida and represented before the state’s Supreme Court. He had been convicted of a brutal double murder, of a father and his son, and was sentenced to die in ‘Old Sparky’ – the electric chair in Florida State Prison. I was not surprised that the jury had convicted him: although he had seemingly credible alibi witnesses, the prosecution had evidence of a grudge against the victims, his fingerprint in the hotel room where they were murdered, and even an eyewitness – flaky, but the jury believed him. The task was to have his death sentence commuted; because he was British, several hundred MPs had jointly instructed me to make the argument on his behalf, and I was specially admitted to the Florida Bar to do so. It was an unnerving experience addressing its state Supreme Court: I was allocated only twenty minutes to distil my written submissions (even in the US federal Supreme Court, advocates are allowed only half an hour). There was a green light on the lectern which flashed red when you had two minutes left and stayed red when your time was up – take any extra time and you can be punished for contempt of court.
The advocate’s art in these circumstances is to concentrate on the best point and to answer questions from the judges as quickly and crisply as possible. We succeeded, to a degree: the death sentence was vacated, but not the double murder conviction. Kris would spend the rest of his life in jail. He was stoic when I saw him later, in one of those orange boiler suits now familiar from Guantanamo Bay, determined to fight on to prove his innocence. Notwithstanding the strength of the prosecution evidence, I really could not believe he had gunned down the victims. And fifteen years later a brilliant death row lawyer, Clive Stafford Smith, proved that he hadn’t: Clive collected compelling evidence that the assassination had been ordered by Medellín cartel boss Pablo Escobar, and carried out by one of his hitmen. The victims were drug couriers who had sold his cocaine but failed to hand over the proceeds. In 2017, a federal judge ordered a full rehearing of his case, which we hope will be the cue for Kris’s release after thirty years of wrongful imprisonment – the first ten of them on death row.50
But you cannot count on ending capital punishment in the US, where those who are most pro-life when it comes to depriving women of their right to an elective abortion are most pro-death when it comes to killing convicts. In 1976 I was part of the defence team for the boxer Rubin ‘Hurricane’ Carter, who had already spent nine years on death row, having been convicted in 1966 for a triple murder which it was, by the time of his retrial, fairly clear he had not committed. Bob Dylan’s song ‘Hurricane’ tells it like it was – the man who could’ve been middleweight champion of the world, had it not been for perjury and race hate. Norman Jewison’s movie, starring Denzel Washington, was pretty accurate as well.
The case took me to the mean streets of Paterson, New Jersey, where I encountered vicious looks from white passers-by because I was with ‘The Hurricane’ while he was briefly on bail. It was obvious he would be re-convicted by a local jury. Rubin himself knew he had no chance, even though – in fact, because – he had become a national celebrity. ‘See how they hate me? They’re gonna convict me.’ With sadness, I had to agree. Eventually, in November 1985, he was released, and set up an organisation that uncovered more than seventy wrongful convictions of men on death rows in the United States.
It was the Privy Council which finally decided my most dramatic and difficult death penalty case, defending 114 Islamic militants who had attempted a coup in Trinidad in 1990. The government had been trying to close their mosque, but that did not excuse their response – an armed overthrow of the government. Led by their imam, Yasin Abu Bakr, these members of the Jamaat al Muslimeen took control of the country’s only television station, from which Abu Bakr made some incoherent broadcasts while his followers, armed to the teeth, took over the Parliament building (the ‘Red House’) with the Prime Minister, Cabinet and a number of MPs (including two opposition MPs) still inside it. They killed eight policemen and caused millions of dollars’ worth of damage in the process. There followed the kind of scenario that can normally only occur in a Hypothetical: the Prime Minister and his entire government held hostage in Parliament, and the head of state – the President – safe under the protection of the army, some distance away.
What happened then was later subjected to minute analysis in the courts. The President was at his crisis centre with the army chiefs, who advised that they could not storm the Red House to release the hostages because they would be killed by the time the soldiers managed to overcome the terrorists. The Muslimeen could possibly be starved out, but that had problems, notably for the Prime Minister, who was a sick man and without his medicines.
Then arose what seemed to be a brilliant idea. I described it in court as having come from a ‘bush lawyer’, for which Australian phrase I had to apologise when it transpired that it had come from the next Chief Justice. It was this: the President had the constitutional power to pardon, so why not offer the insurgents a way out? They would be offered a presidential pardon if they released the hostages and surrendered. The seeming brilliance of the idea was that the pardon, the President was assured, would actually be legally invalid because it would have been granted under duress. It seemed the perfect trick: after the pardon had induced their surrender, all 114 terrorists would be prosecuted for treason, and hanged. What was so wrong about this advice was that the President himself was under no duress at all – he was safe in the arms of the army. No one was holding a gun at his head – the guns were being held at the head of the Prime Minister and Cabinet some distance away in Parliament. A pardon granted by the President, by his own deliberate act, would in these circumstances in fact be valid. However, having been assured by his lawyers that it would not be worth the paper on which it was written, the President wrote it. The only problem now was how to bait the trap by getting the document to the terrorists. All telephone communication with the Red House had been cut, it was before the era of emails and mobiles, there was no Trojan horse, and carrier pigeons were unavailable.
The solution took the form of an Anglican priest – and priests really are useful in this kind of situation. He was a man of some courage, and was known to the Muslimeen through ecumenical connections. Under a white flag he ventured into the Red House to deliver the document. The terrorists were tempted, but were concerned that they’d had no legal advice, until they realised the Attorney General himself was their captive. He consulted the constitution and showed them the section vesting the power of amnesty in the President – this pardon document, he was happy to advise them, would save everyone’s life. One of the hostages – an opposition MP – asked to see it and then did something that would save 114 lives: he photocopied it, and kept the photocopy.
Meanwhile, the terrorists sent the priest back and forth for three days to seek more conditions and assurances concerning the Muslimeen mosque (as an indication of good faith, they had allowed the ailing Prime Minister to leave), until they were satisfied. Then the hostages were released and the 114 hostage-takers came out smiling, handed over their weapons to the police and took their seats in the army buses that they had been told would deliver them to their mosque. Instead, it took them to the Royal Gaol, where their belongings were confiscated and they were charged with treason, a hanging offence.
‘What about our pardon?’ they asked.
‘What pardon?’ was the response. The original document had been taken from their leader and was never seen again. There was no pardon, the government assured the court, which denied the men bail. Even if there had been a pardon, the government lawyer added, it would have been invalid for duress.
The government had to come clean once the photocopy was produced, but it was determined to hang the Muslimeen nonetheless and an English QC was hired to tighten the noose. I had been retained to save the necks of the insurgents; indeed, to have them set free on the strength of the pardon, so I made an application for habeas corpus, requiring the state to prove that their detention was lawful. The government claimed that I could not derail its treason trial with this tactic, and we fought it all the way to the Privy Council. There, we examined every pardon ever proffered, most notably those given by President Lincoln to Confederate forces after the civil war. To dishonour them, he had said, would be ‘a cruel and astounding breach of faith’. The Privy Council agreed with my argument that habeas corpus before trial was the correct way to test the issue of whether the pardon was valid.51 So back to Trinidad we went, having won this first skirmish, to test it.
The case was heard in a large hall with a vast dock specially built to house my 114 clients, below a gallery which accommodated several hundred of their relatives. They were understandably anxious and on the first day pandemonium broke out – I found myself standing on the Bar table, my back to the softly spoken judge, making a loud speech beseeching everyone to keep quiet and have faith in justice. The judge possessed that wonderful quality of independence, not always found in the Caribbean judiciary, and he ruled that the pardon was valid.
Before my clients could be released, the government appealed. It lost 2–1 in the Court of Appeal, whereupon it immediately appealed again to the Privy Council. The Court of Appeal had not only granted habeas corpus but had awarded substantial damages to the Muslimeen for wrongful detention – by now they had been in prison for two years. Understandably, this had incensed the public: why should their taxes compensate terrorists who had killed eight policemen in cold blood and whose rampage had cost millions to repair? It was obviously an unjust result, although it logically followed from the validity of the pardon that they should not have been put in prison and should now be compensated for that loss of freedom.
All eyes turned to the Privy Council: we argued the case for many weeks and awaited the judgment. The Law Lords ruled that the pardon had been valid when granted – it had not been vitiated by duress. If the Muslimeen had surrendered their hostages when it was first delivered, it would have entitled them to liberty. But they kept negotiating for better terms over the following three days, and that invalidated the offer – the pardon, the Law Lords decided, carried an implicit condition that it should be accepted forthwith. By this clever, if somewhat specious, reasoning, the court concluded that the pardon had become invalid by the time they were arrested, so they could not get damages for wrongful imprisonment. But this did not mean they must hang: by offering the pardon in the first place, the government had given them a ‘legitimate expectation’ to believe that they would not be put on trial for their crimes, and it would be an abuse of process for the prosecution to continue to their conviction and execution.52 This was truly a Solomonic solution – neither strictly legal nor strictly logical – but as fair as possible in the circumstances. It spared the Muslims their lives, but they would not receive a dollar in damages. The public were overjoyed, and as a result of the case Trinidadians still demonstrate in favour of keeping the Privy Council whenever any patriotic politician suggests that this colonial relic should be abolished.
Why, my wife frequently asked, did you devote so much of your time and energy to saving the lives of worthless murderers? It was a fair question, given the absence from family and from remuneration that my death penalty practice entailed, not to mention that most of my clients were probably guilty. I met a few who were not – Kris Maharaj, for example – but even Michael X, in the murky circumstances of the killings in Trinidad, probably deserved a lengthy sentence for manslaughter. The Trinidad Muslimeen had behaved like terrorists, and most of the men I defended, or who benefited from the success of my argument in the Pratt & Morgan case, were serious criminals. So why spend months – years, in fact – cudgelling my brains to find ways to outwit states that wanted to string them up? I have no religious or philosophical belief in the sanctity of life – there are clear cases when taking it is in the public good. Intellectually, of course, I believe the arguments against capital punishment, but my wife’s point was ‘Why not leave them, sometimes, for others to make?’ That was not an option when I made my promise to Michael X or when I accepted instructions to try to save the lives of the Muslimeen. But why summon up passion – and I was and still am passionate – to stop the executions of murderers and drug traffickers? I guess because I believe quite simply that law is there to protect life, not to take it, for the reason given by the prison reformer John Bright as long ago as 1850, when the gallows in England were in full swing: ‘If you wish to teach the people to reverence human life, you must first show that you reverence it yourself.’
* * *
The Privy Council is indeed a colonial relic, and it has presented the not entirely satisfactory spectacle of white male judges (sometimes joined by a Caribbean colleague) striking down the decisions of local courts in small but independent Commonwealth nations. My justification for its continued existence is twofold. First, it is no bad thing for any country, no matter how advanced, to have an independent arbiter, especially on human rights issues. The forty-seven countries of Europe – including such proud nations as Germany, France and the UK, and even (most of the time) Russia, accept the rulings of the European Court of Human Rights, while others such as Canada and Australia defer to decisions by the UN’s Human Rights Committee. Their laws are in consequence improved and moved in a more humane direction. The Privy Council, itself increasingly influenced by international human rights law, has performed that function well in recent times, and there is no longer any whiff of colonialism in its rulings. Its operations – which are not inexpensive – are free to applicants and their states and the cost should be paid from the UK’s overseas aid budget.
Secondly, in small communities, judges come under local pressure and expectations, especially in cases against the government, and are frequently conflicted if not ‘got at’ by the island’s political masters. The most preposterous decision I have ever received was in Antigua, where a judge held, by distorting the law, that our Royal Commission into gun-running could not obtain evidence outside the island’s twelve-mile limit. This was nonsense, since we had been set up to investigate arms trafficking, via Antigua, from Israel to Colombia.53 But the evidence sought was against the son of the Prime Minister, who had been corruptly dealing with the Medellín cartel. I assumed this judge had been bribed, but was later told that he was at the end of his tenure and needed to win the Prime Minister’s favour in order to be appointed to lucrative post-retirement positions.
For an example of how the Privy Council can work to correct legal errors, a more recent case from Antigua is instructive. It concerned a local power company, awarded a contract to build a power station to secure the island’s electricity. Halfway through its performance of the agreement, the government suddenly ordered it to stop and awarded the remainder of the contract to the Chinese. Any first-year law student could recognise this volte-face as a breach of contract, and probably much else besides. Yet when I brought the case in Antigua with Kim Franklin (once a student of mine and now a very good contract lawyer), the judge at first instance held for the government, for no good legal reason. The Court of Appeal for the Eastern Caribbean seemed, at the appeal hearing, to recognise the mistake, but its judgment was mysteriously delayed for twenty-two months, until the Chinese power station had been built. When finally delivered, turning down our appeal, it was plainly wrong in law, as the Privy Council immediately detected and put right, decreeing that damages and costs must be awarded to the plaintiff. For good measure, it held the Prime Minister guilty of abuse of power for ordering the police to enforce the breach of contract. Antigua Power v Baldwin Spencer & Others should be studied by anyone who thinks that justice can always be done without resort to the Privy Council.54 Of course it would be better if the Privy were re-constituted as a Commonwealth human rights court, with judges selected from a range of member nations, but this is not likely in the foreseeable future, and the Privy Council arrangements do at present serve to rectify injustices in its dozen remaining client countries and to limit the use of the death penalty.
* * *
The Privy Council was permitted by Lee Kuan Yew to rule in Singapore – he found it helpful in reassuring English investors – until it condemned the injustice he and his loyal judges had visited upon his opponent, Workers’ Party leader Joshua Benjamin Jeyaretnam. Ben was the most congenial of politicians, with his mutton-chop whiskers and belief in democracy, and his party only ever won one seat – his own – in the national Parliament. But that was enough for Lee, a malicious man, to humiliate and destroy him. Heavy libel damages were awarded against Ben for mild criticisms of Prime Minister Lee, and the compliant judges humiliated Ben further by removing him from membership of the legal profession. The Privy Council declared that Ben was innocent, and condemned the judges. For that reason, Lee decided to abolish any further appeals from Singapore to the Privy Council.
It was a strange experience to cross swords with Lee in court. During libel actions he would bring against my American newspaper clients for any mild criticism of his governance, Singaporeans would queue every morning for seats in the gallery to hear his cross-examination, because it was the only place where they could safely laugh at their authoritarian Prime Minister. In one case the judge announced that he was awarding additional damages because my questions had ‘hurt Mr Lee’s feelings’. The Malaysian Bar Council put out a press statement: ‘This is the first evidence that Mr Lee has any feelings.’
In Singapore, I came across people of great principle, people it was a joy to defend. They comprised the young Catholic social workers who had been inspired by liberation theology and had begun to be critical of the government. For this, they were detained in prison for several years, where they were subjected to the secret police speciality – the torture that leaves no marks because it takes the form of being required to sit naked and suffer sub-zero blasts from souped-up air conditioners. There were two female playwrights as well, accused of writing plays that ‘exaggerated the problems of the poor’. And I won a great victory – the first victory ever, and the last – against Lee Kuan Yew’s government, in courts where judges were instinctively biased in his favour. The Court of Appeal was forced to grant habeas corpus, because the detention orders had not been signed by the Minister of National Security, as the law explicitly required, but by his head of department. On such legal technicalities does liberty often hang.
There was great excitement the morning this judgment was handed down. The prisoners’ relatives were overjoyed: they could not believe we had won, and rushed from court straight to the gates of the prison and waited outside for their children to be released. The detainees were given suitcases in which to pack their clothes and told to take their pictures down from the walls of their cells. They were ushered onto a bus, which drove through the gates towards their relatives, who were laughing and cheering, onto the main road. Then it turned and drove back through the gates to the prison. There, they were presented with fresh detention warrants – signed by the Minister for National Security. In Lee Kuan Yew’s Singapore, you always lost. Even when you won, you lost. And just to make sure you never won again, Lee passed a law – the Internal Security (Amendment) Act – which provided that ‘there should be no judicial review in any court of any act done or decision made by a minister’. Goodbye, habeas corpus. Goodbye, Privy Council.
Hong Kong, too, suffered from the loss of the Privy Council when it reverted to China. Before then, I appeared in cases where the Privy required Hong Kong to accept persecuted Chinese fleeing from Vietnam as refugees. But its successor – the ‘Court of Final Appeal’ – had its judgments subjected to the approval of the Chinese government. It was a good enough court, with a Commonwealth member – for a time, Sir Anthony Mason, the former Australian Chief Justice – sitting as one of its judges. When a case about these refugees came up, the Court of Final Appeal decided they could stay in China. No, they could not, said the Communist Party in Beijing, and negated the decision. I tried again, arguing that the first decision had created a ‘legitimate expectation’ that the refugees could stay. ‘Otherwise,’ I said, looking straight at Sir Anthony, ‘you are not the Court of Final Appeal, you are the Court of Penultimate Appeal.’ He winced, but had to turn us down. It was a hard case, made harder by the refugees themselves, who turned up at the court door every morning to present their advocate with bunches of flowers. The case did arouse a lot of anger, however, so much so that the local police did not have the heart to arrest settled families. Beijing has not used its constitutional blackball since, although there are signs that the newly emboldened Xi Jinping regime will do so, should the Court of Penultimate Appeal ever decide to acquit pro-democracy demonstrators.
In Commonwealth countries in Africa, subverting democracy was often done more openly once the ‘Big Men’ emerged. Independence leaders like Jomo Kenyatta in Kenya and Dr Hastings Banda in Malawi wanted themselves and their parties to lead for ever, just like Lee Kuan Yew. They abolished the Privy Council and imported some Marxist lawyers to rewrite their constitutions and turn their countries into one-party states. You could vote in elections, certainly, but only for candidates presented by the official party led by the Big Man. I was happy to play a part in trying to dismantle these anti-democratic constitutions, which ensconced one party (in Kenya, one tribe) and led to massive corruption. My friend Paul Muite, when head of the Law Society of Kenya, publicly asserted that the constitution could be interpreted as permitting the formation of opposition political parties so long as they did not put candidates up for election. The government prosecuted him for sedition for uttering this opinion, and Paul asked me to defend him. I was about to leave for Nairobi when the news came through that I had been banned from entering the country. It is strange – for all the inconveniences I have caused to governments, whether in communist states, in apartheid South Africa or in various mini-dictatorships, Kenya has been the only nation formally to forbid my presence.
It could not, however, forbid me from bringing a case against Kenya in the World Bank’s arbitral tribunal, which sat in Paris. It arose at a time when corruption in Kenya was endemic: it started with the Big Man at the top, Daniel arap Moi (Kenyatta’s successor), and the poison trickled down into every public official and most local judges. Abolition of the Privy Council made its exposure less likely, but the World Bank tribunal (ICSID) had independent adjudicators, available for investors to access if contracting with governments that were unreliable or whose judges were amenable to government pressure. My client was the proprietor of Kenya’s duty-free stores, who complained to ICSID when they were expropriated by Arap Moi. He explained to the tribunal that to obtain the contract he had followed the normal procedure: he turned up at the presidential palace with half a million US dollars in cash in his briefcase. He was told to leave it in the waiting room while he met the Prime Minister. Arap Moi made small talk until he received a telephone message, whereupon he took his gold – solid gold – pen and signed the contract. My client picked up his bag as he left and was puzzled that it was much heavier than before. When he returned to his hotel, he opened it to find it full of corn – maize that was the local staple. This is how every contract with the Kenyan government was sealed during the Arap Moi years, and only because of ICSID’s international arbitration could the corruption be exposed – an exposure that helped to end his rule.55
The Big Man I encountered face to face was Dr Hastings Banda, ‘President for Life’ of Malawi. He was in fact quite small, with a leathery visage that made him look like the movie alien E.T. He had been an independence leader in the 1960s – I have friends who remember, and regret, protesting on his behalf when he was detained by the British colonial authorities. After independence, he quickly dispensed with democracy and used the emergency law under which he had been detained to imprison anyone who criticised him. Television was banned and he controlled the only radio station and newspaper in this one-man, one-party state of nine million people, rated by the World Bank as one of the poorest countries in the world, despite its agricultural wealth. That was being harvested by an amoral corporation, Lonrho, which shared its tax-free profits with the President for Life.
By the time I met Banda he was over ninety, not that his age stopped him from pawing the female member of my delegation from the British Bar and Law Society (we were there to discuss prison conditions, which we would have experienced first-hand had she slapped his face). He had a chief mistress, styled the ‘official hostess’ of the nation, Cecilia Kadzamira. Banda had made it a crime to possess any Simon & Garfunkel album featuring their song ‘Cecilia’ – ‘Cecilia, I’m down on my knees, I’m begging you please…’ were not words the President for Life wanted to be heard openly in his country.
Other actions were less comical. There were stories that he fed people he hated to crocodiles in the dark southern reaches of Lake Malawi. I was certain that he had ordered his chief inspector of police to arrange the deaths of four MPs who had criticised him in Parliament. A secret police unit had bashed their brains out and placed their bodies in a car, which they pushed over a cliff. The government announced that they had suffered a road accident while trying to flee the country.
After thirty years of despotic rule, aid donors and foreign governments (notably, the European Union) finally insisted on multi-party elections in Malawi, which Banda (financed massively by Lonrho) agreed to call only because he expected to win. The people, however, decided to be rid of him, and the new government set up an inquiry into the deaths of the four MPs. It decided that Banda had been responsible. He was put under house arrest and I was asked to return to assist his prosecution. We obtained gruesome confessions from the secret policemen who had committed the murders: they were all practising members of the Church of Scotland (the main religious group in the country, thanks to Scottish missionaries) and were happy to confess in return for a light sentence. They testified to being ordered to kill by the chief inspector of police. But he was dead (I suspect that Banda had him killed in order to shut him up). He had not left any document incriminating Banda, but he had left a wife, who vividly recalled how he had agonised with her for two days about carrying out the order to kill he had received personally from Banda, in fear that the tyrant would have him murdered if he disobeyed.
This was highly credible evidence: the only problem was that it was not admissible in court. It was what lawyers call ‘hearsay’ for the wife to describe what her husband had told her, and hearsay upon hearsay for the jury to hear what he had told her about what Banda had told him – i.e. to kill the MPs. I tried to find a way around this problem by charging Banda with conspiracy to murder, but the judge did not agree that the devastating evidence could be admitted through this device and Banda was eventually acquitted. He was dying, in any event, and at least a tyrant had fallen far enough to be put on trial for multiple murder – a trial that, unlike any conducted during his rule, had been open and fair.
Robert Mugabe was another Big Man who went bad in the absence of any restraint by the Privy Council. In 2002, I was summoned by The Guardian to help defend their correspondent, Andy Meldrum, who was facing prosecution for the novel crime of ‘abusing journalistic privilege’.56 It carried two years’ imprisonment and was used exclusively to punish those who criticised Mugabe in print. For this reason, The Guardian had ceased to distribute copies in Zimbabwe; Andy’s reports could be read by Zimbabweans only online. The keenest readers of The Guardian’s website were secret policemen working in an underground room in the main police station in Harare, intercepting all internet stories they could find that were critical of Mugabe. This gave us (I was working with the courageous Zimbabwean lawyer Beatrice Mtetwa) a defence that the local court had no jurisdiction because the ‘crime’ had been committed on a website based in London.
But where was the evidence? We all trooped from court to the business centre of the Sheraton, where a police officer tried for hours to find it on the Guardian Online. The paper had, of course, taken it off after Andy was arrested, and the police had not worked out how to preserve it. The magistrate, correctly and courageously, acquitted. Reprisals soon came – his car was burned. Beatrice was assaulted; the bravery of lawyers in these places at these times is both heart-warming and heart-rending. As for Andy, when he walked from court a free man he was stopped by a cop and presented with an order for his deportation. As in Lee Kuan Yew’s Singapore, so it was in Robert Mugabe’s Zimbabwe – when you win, they make sure you lose.
* * *
The Seychelles, a collection of 115 island jewels set in the coral waters of the Indian Ocean, may well be the most beautiful place left in the world. Its people – 94,000 ‘Seychellois’ – are descendants of African women slaves and tars of the British Navy, which freed them from slave ships in the early nineteenth century and brought them to the largest island, Mahé, for education and, as inevitably happened, copulation. The island received its independence from Britain in 1976, led by an exuberant barrister from Middle Temple, James Mancham, who invited dozens of bikini-clad Hollywood starlets to grace his inauguration. He made the mistake of going off to be photographed with the Queen at her Silver Jubilee celebrations and in his absence was deposed by the opposition leader, France-Albert René, a dour Marxist barrister from Lincoln’s Inn.
René was clever and compromising: he realised that his undemocratic reign depended on the tolerance of the US, so he allowed it to keep its CIA monitoring station on the island, while at the same time permitting Russian ‘fishing trawlers’ to enter his territorial waters and monitor the monitors. Come glasnost, however, the trawlers withdrew and the US ambassador told him the game was up: America no longer needed the monitoring station (they had a better one at Diego Garcia, where they could waterboard as well) and the State Department wanted the Seychelles to become a real democracy. René knew when he was beaten, and in 1990 asked the Commonwealth secretariat to provide a lawyer to advise how to deconstruct and democratise the constitution. I was the fortunate recipient of the brief.
It was the most pleasant of jobs, drafting constitutional clauses between swims and snorkelling. René, like most Marxist leaders, had abolished appeals to the Privy Council (I could not persuade him to revive them) and confiscated the property of foreigners and opponents, and my new constitution had not only a Bill of Rights but a section which would enable those who had been expropriated to claim back their property, or else receive compensation. It was duly passed, and I left the Seychelles to its enjoyment of multi-party democracy.
Shortly afterwards, back in London at a birthday dinner for Billy Connolly, I found myself sitting next to George Harrison. He told me of his own love for the Seychelles – he had bought a property there, years before, with Peter Sellers, but it had been seized by the government. I looked at my watch. ‘Well, George, you have eighteen hours to get it back’ – that was when the time for claims to the new compensation tribunal ran out. George rushed through a claim and we returned together to a country delighted to have a Beatle back as a property owner. He met René, and there was some talk of making ‘Here Comes the Sun’ the country’s national anthem. George is often depicted as curmudgeonly, but he was wickedly funny in private and his wife, Olivia, is always a delight. He would sit on the beach in the late afternoon, strumming a guitar, while elegantly dressed passers-by muttered disdainfully about allowing ‘some old hippy’ on their private beach. My wife had one moment of doubt, when she received a message from George’s office asking her to take an unopened package to the Seychelles for him on her next trip: passing customs officials with a secret substance for a Beatle did give her pause, so she took a peek. It was hair dye.
Back in Britain, we would visit George and Olivia at their garden-fringed mansion, Friar Park, in Oxfordshire. It was an amazing museum of modern music, often with live exhibits. The elderly Indian gentleman nursing a sitar turned out to be Ravi Shankar; the small bald American inspecting the guitar collection was Paul Simon, and so on. George and Olivia were the kindest of hosts. George was particularly kind to Jules, teaching him how to pluck a guitar and putting up with his obsessive questions about the history of the band. Jules loved running around the amazing house – which is where tragedy soon struck.
The price of fame, sadly, is eternal vigilance, but George, an intensely private person, hated security – even after John Lennon’s assassination. Inevitably, I suppose, there came a man – a very big man – who suffered from paranoid schizophrenia and whose voices had ordered him to save the world by killing a Beatle. He went to Liverpool to look for Paul (who had long since migrated to St John’s Wood) and then heard that George lived somewhere near Marlow. He caught a train to this small, picturesque town on the Thames and made for the church to ask the vicar for directions. Although he must have looked wild and distracted, the vicar helpfully pointed him towards Friar Park. He broke in that night and savagely attacked George, causing serious injuries. Olivia, with a supreme strength endowed by love and courage, hit the intruder with a lamp and then a poker, rendering him unconscious. He was prosecuted, of course, and placed in a secure hospital, to be released only when Parole Board experts told the Home Secretary that he was no longer dangerous.
George and Olivia were concerned to be notified if that happened and I could understand George’s worry – of course he should be warned when a man who had almost killed him through some mental compulsion would be back on the streets. They were not concerned necessarily to block the release, but wanted to be satisfied that his would-be killer was no longer a danger. But one defect in English law in 1999 was that it gave absolutely no rights to victims of crime – no right even to be represented in court when the assailant was being sentenced – so the release would be secret. That should change, I thought, and I stood up at the Bar table to address the judge before he passed sentence. Defending counsel tried to restrain me. ‘Mr Robertson QC cannot be heard,’ he shouted. ‘It is immemorial tradition that victims have no role in sentencing.’
‘Well, traditions are made to be broken, my Lord,’ I countered, and the sentencing judge patiently listened to me break them – perhaps the first time that a lawyer for a victim has been allowed an address such as this. I did not want to influence the appropriate sentence; I merely wanted the judge to add a recommendation that George and Olivia should be notified before the Parole Board released the defendant. He was sympathetic but decided he had no power to make the recommendation. But journalists were there, in their dozens, and the argument was widely enough reported for the Home Secretary to state that he was minded to agree with it and to allow victims or their families to have their say in court and to be given warning of an assailant’s release. Soon they were permitted to make ‘victim impact statements’, which would be read to the judge before sentence.
I suppose had ‘victim impact statements’ been on the cards when I was a young defence barrister at the Old Bailey, I would have vigorously opposed them. But now I really can’t see any harm; in fact some good has come of them. So long as the statement is not too mawkish, or too vengeful, it helps the victim (if alive) and murder victims’ family members to achieve some closure and to come to terms with their loss. And if it does serve to illuminate the harm and increase the sentence, so what? Those who kill or injure fellow humans cannot complain if their victims also receive justice.
The law’s lack of concern for victims was a reflection of the inward-turning ‘professionalisation’ of penology: once the public phase of sentencing was over, all decisions about a prisoner would be made by experts, in utter secrecy, untroubled by emotional victims who might take angry feelings to tabloid newspapers, which would oppose the release of murderers or paedophiles. I had been instinctively approving of a system that allowed humane decisions to be taken in secret and which might not be taken at all if made in public, but I had never been friendly with a victim of serious crime until it happened to George – I could understand and sympathise with his concern to be told about the release of a man who had tried to kill him. In America, he pointed out, Yoko Ono had not only been told about plans to release John’s killer but had been entitled to be represented at the parole hearing to cast doubt upon so-called expert prognosis as to his ‘un-dangerousness’. In Britain, contrastingly, victims were treated by lawyers and officials as an embarrassment. In due course some changes were made, and victims were at least told about release dates, but Parole Board hearings remained secret and (quite absurdly) the reasons for its decisions could not be reported. It took legal action in 2018 by victims of the ‘black cab rapist’ John Worboys to uncover the secret reasons for the decision to release him – like so many decisions taken in secret, it turned out to be seriously flawed. When there is a case for humane treatment of serious offenders by returning them to society early, it must be good enough to withstand public scrutiny – those guilty of horrific crimes should have no automatic entitlement to secret absolution.
* * *
It always amuses me when friends are awarded their CBEs and OBEs: as a ‘Commander of the British Empire’, you command no more than half a dozen tax havens. That is, today, the main purpose of parts of the remaining Empire – Anguilla, Bermuda, Montserrat, the Cayman Islands and so on: to enable multinationals, and wealthy family trusts, to avoid tax. I once was taught that there was a difference between tax evasion and tax avoidance, but now I am less sure – they both enable the rich to shirk their duty to provide for the poor. It is a disgrace that this is how the UK operates on behalf of the wealthy of the world – in particular, American alcohol and pharmaceutical companies, who set up headquarters on coral-fringed ‘treasure island’ cays with low tax rates in order to defeat the US tax authorities. The only downside for them of such locations is that when disputes arise they must be fought in the local courts, virtually under a palm tree, and then on appeal to the Privy Council. Part of that downside, since American lawyers are not admitted to practise in UK dependencies, is that they must rely on English QCs to fight their legal battles.
It’s a very scenic circuit, from Anguilla to Bermuda – the beaches are beautiful, the rum is the stuff of pirate legend and the judges can be dilatory. I travelled upon it to do a particularly exotic-sounding case – Bacardi v Tequila. It concerned the will of Martin Crowley, a Californian who had one great idea in his life. He realised that many American boomers would have had their first youthful bout of drunken sex after drinking cheap Mexican tequila. Now that they were getting old and wealthy, nostalgia (and Viagra) might drive them back to that drink – provided it could be beautifully refined and presented. So in 1989 he and a fellow entrepreneur, John Paul DeJoria (co-founder of the Paul Mitchell range of hair products), produced an exquisite tequila, decanted in handmade, numbered bottles, and called it Patrón. Sales at first were slow, but they started to pick up. Then, in 2003, Crowley died – a heart attack at his villa in Anguilla, where his drinks company was based for tax reasons. He had fallen out with his ex-wife, and they had no children of their own, so he left his estate – it was not at the time worth very much – to set up a trust called Windsong, to ‘educate the poor children of the world’.
Soon the money from sales of Patrón started rolling in, and the share price rose high enough for his ex-wife to challenge the will. She failed, as did his father. DeJoria, however, had a contract which gave him the right to buy Crowley’s shares on the latter’s death. But for how much? Would the poor kids of the world get only US$5 million (the half value at the date of the contract) or US$150 million (the half value at the date of Crowley’s death)? To complicate matters, the trustees did not have the money to fight DeJoria, so they did a deal with Bacardi (also based in the Caribbean for tax reasons) to fund their fight against him, in return for giving Bacardi the right to buy the shares for $200 million.
To complicate matters even further, the value of the shares just kept rising as more people started drinking Patrón. Actions were brought against the executors in Anguilla, but the Windsong Trust was based in California, where courts took a generous attitude towards their local charitable trusts. To cut a long legal story short, the poor kids of the world would receive much more money were the case heard in Los Angeles rather than in Anguilla, because the Privy Council (the island’s final court of appeal) had judges who took a strict view of the English law of contracts and may well have decided to give only $5 million to educate the impoverished children.
So we embarked on that most aridly intellectual of all legal arguments – litigation over where to litigate. It is decided by applying rules described in Latin – forum non conveniens. I happened to be an expert on the subject, having appeared in many cases on behalf of American papers, which prefer to be sued for libel in New York (where they may win thanks to the First Amendment) rather than in London (where they will probably lose). It was for that arcane knowledge, rather than for my human rights experience, that the poor kids called me to Anguilla.
This lovely little island, named by Columbus because he thought it looked like an eel, is a footnote in British history. The UK did not want it, and tried to get rid of it by attaching it to another island, St Kitts, to which it was giving independence. But the Anguillans did not want independence and particularly did not want it with the St Kittians, whom they loathed. So they staged a kind of musical comedy revolution, confining the Governor General to his mansion and locking their British bobby in his police station. Harold Wilson, Prime Minister at the time, ordered an invasion – seventy SAS paratroopers were dropped on the beach, and to their bemusement greeted with hugs and flowers. The Anguillans all surrendered with great delight – now they could be dependent on Britain for ever! The island lives off its luxury hotels and luxury lawyers, who serve all the tax-avoiding companies based there. I was admitted to the Anguillan Bar and tried to move the case to California to win more money for the poor kids of the world – at least $250 million, because by this time Patrón’s shares had doubled in value to $500 million.
The three parties claiming a share in this pie skirmished in Anguilla for a couple of years, as the pie grew meatier every month. Usually there was a judge on the island, although sometimes one had to be chased in a small plane around what stamp collectors know as the Leeward and Windward Islands. I would pack my wig and silk gown and take an eight-hour flight from London to Antigua, jump on a chartered single-engined Cessna for a dash across the sea to Anguilla, check in at a luxury beach hotel (there were no others) and prepare submissions for the next day. I never quite knew when the hearing would end: one sneaky opposing counsel found out the time of my flight back to London from Antigua and kept talking, hoping I would jettison my reply and run for the Cessna parked virtually outside. I certainly made my reply very quickly – it was probably all the better for concentrating on my best point – and then ran to the Cessna, its engines idling. We broke an airspeed record for small planes on the flight to the airport in Antigua, taxiing up to the big 747 just as they were about to remove the gangway. It was certainly more exciting than life on the Wales and Chester circuit.
In 2008, when the value of the shares reached $1 billion – Patrón really had taken off and my team (which included Californian lawyers and London’s best litigation solicitor, Mark Stephens) was drinking it prolifically – all sides suddenly saw sense. Bacardi wanted to own the brand, DeJoria wanted money and hypothetically the poor kids wanted to be educated. Why not try mediation? We did, and our opponents did not do things by halves – the top floor of the Bellagio Hotel in Las Vegas was chosen as the venue where a New York mediator would attempt to bash our heads together. It worked, and the poor children of the world came away with US$550 million.57 I promised to find some worthy kids to educate and suggested some schools in Palestine, although Windsong wants to work with the Prince’s Trust so their choices may be less controversial. They did take up my suggestion to set up a tennis coaching club for Caribbean children in Anguilla, which is doing well despite the heat – roll on an Anguillan Davis Cup team.
* * *
My last appearance in the Caribbean, if only by telephone, was in 2016, in a curious case that led to the fall of the government of St Lucia. It was the result of the divorce of a beautiful American model by a fabulously wealthy Saudi Arabian sheikh. Christina Estrada had been a Pirelli calendar girl who had given up her modelling career to marry Dr Juffali, one of the world’s wealthiest men (worth $20 billion, by some accounts). After eleven years he fell for a doe-eyed Lebanese television presenter and ended the marriage without telling his wife, simply by saying the Talaq (‘I divorce thee’) three times. The Talaq was recognised in the UK, but our family law, famously (or notoriously) favouring wives, applied to his assets – he had several homes in England, including a country estate, where he had lived for much of the time with Christina and their young daughter while amassing his fortune. He had a horror of English matrimonial law ever since he had divorced his first wife – a court in London had awarded her $10 million, a record at the time. Now, the tabloids predicted that the award to Christina was likely to be the highest in British history and he did not want to pay it.
Here’s a question. If you are one of the richest men in the world, how do you evade an obligation that binds everyone else – the law about division of matrimonial assets in the land where you are living? You take advice from a good lawyer, obviously, and it may give you the idea of buying a large yacht and cruising the Caribbean. You moor at a small island state you may never have heard of, and have lunch with local people of influence (easy to find in St Lucia, with a population of only 178,000). In due course, but unknown to St Lucians, the government appoints you as St Lucia’s ambassador to the Court of St James, a high diplomatic post which carries complete immunity to the law – including the divorce law – of the UK.
Thus it was that Dr Juffali became St Lucia’s plenipotentiary to a little-known United Nations body in London, the International Maritime Organisation, although he had no connection to St Lucia and no knowledge of merchant shipping laws, or mercantile safety, or any other topic that this obscure organisation exists to consider. Although he never bothered to turn up to any of its meetings, his very appointment to this esteemed position guaranteed him diplomatic immunity from any action in the UK courts which would require him to support his ex-wife and child. When Christina made her application to the family court, after he refused to enter into an agreement to support her, the sheikh’s solicitors pointed out, to her amazement, that he was a high diplomatic personage immune from any legal process. She seemed to be legally snookered.
That was when her wily solicitor, Negar Yazdani, sought my advice. I knew no matrimonial law, but I did know constitutions and I knew Sir Ivor Roberts, the editor of Satow’s Diplomatic Practice (the diplomat’s bible) and one of the UK’s most distinguished former ambassadors. He explained just why the sheikh’s acquisition of his immunity was unlawful, and would in any event bring the whole system of diplomatic immunity into disrepute.58 I prepared a forceful judicial review claim against the St Lucian government, and found a plucky local lawyer to file it (not an easy task on a small island where most lawyers were connected with – often, related to – the government). My appointment to the St Lucian Bar was accomplished by a pleasant telephone call to the court of the local judge and I prepared by packing my swimming trunks beneath my wig and gown.
Once the case was filed, the scandal became public. The government had kept very quiet about the appointment, and the people of St Lucia had no idea that their country had been represented for the past two years by a billionaire sheikh. The government played the patriot card, claiming that we were part of a Western plot to undermine the independence of small islands (this did not wash with cynical St Lucians) and it tried to postpone the impending elections until the scandal had blown over.
Cases like this, for all their interest to lawyers, are usually won or lost by less formal means of combat. My most significant contribution was to meet with the foreign editor of Britain’s Daily Telegraph – a paper that still cared about diplomatic niceties – to give him an exclusive on the story about our application in St Lucia to quash Juffali’s appointment. The report caused flutters in diplomatic dovecotes – it coincided with concerns about Caribbean islands selling their passports to international criminals, and the UK Foreign Office began to wonder whether it had been right to accept without question the dubious credentials of Dr Juffali as St Lucia’s ambassador to the Court of St James. The tabloids, of course, picked up the story of the ex-Pirelli calendar girl and her quest for what they described as the largest divorce settlement in history. The sheikh retained an expensive law firm and a big public relations agency in an attempt to fight Christina’s action in England, but his Achilles heel was St Lucia, where a new government could simply revoke his appointment or else waive his immunity. I turned to an old friend, Sir Nick Lloyd, chairman of the imaginative international PR firm BLJ, to get to work on the opposition in St Lucia, encouraging them to fight the election over the appointment. The more the opposition attacked the government over its secret deal with the sheikh, the more their electoral prospects improved: their main promise, if elected, was to end Dr Juffali’s immunity by revoking his appointment. They were elected.
This result was curtains for the sheikh and his immunity from the maintenance claim by his wife. His daring plan to evade British divorce law by donning the invisible cloak of immunity was shattered, and the English Court of Appeal found him a UK resident. Not long afterwards, sadly, he entered a clinic in Switzerland, where he died from cancer. I do not doubt that Dr Juffali was an ingenious and generous man, but after his divorce he could not divorce himself from a cultural mindset that insisted on keeping an ex-wife under his thumb, dependent on his handouts rather than receiving maintenance by right.
As for the law relating to diplomatic immunity, it certainly has its oddities (Julian Assange, on one view, has been a beneficiary) and it is open to serious abuse, as when guns and drugs are smuggled in the sacrosanct ‘diplomatic pouch’ and consular criminals are protected from prosecution for serious crimes. Its use should be limited as far as possible – the case of Dr Juffali has at least caused the Foreign Office to reconsider its automatic acceptance of diplomatic credentials (although not so far as to disqualify all the Sir Les Pattersons). The most common abuse in London is the refusal of embassies to pay parking fines – diplomatic vehicles cause congestion by parking wherever they like, and the Americans, who rack up over $1 million in fines every year, refuse to pay them. This is ironic, since it is the US which solved the problem of unpaid embassy fines in New York by deducting the amount from each country’s aid budget, and the worst offenders quickly stopped offending.
* * *
I log more air miles in a month than my father managed throughout the war. I have only been in one emergency. Mine was on the way to Trinidad on the government airline BWIA. It stood for British West Indian Airlines, although the local interpretation of the acronym was ‘But Will It Arrive?’ It didn’t when I flew on one of its planes with Lord Mackay, Mrs Thatcher’s Lord Chancellor, whose counsel I was for a Royal Commission into the legal system of Trinidad and Tobago. The good lord was famously religious – a member of the Free Presbyterian Church of Scotland (sometimes known as the Wee Wee Frees), the last outpost of sixteenth-century Calvinism. He sat across the aisle, submerged in the latest John Grisham. The old three-engined TriStar shook a bit when one engine shut down halfway across the Atlantic, but he did not look up from his novel. Then the second engine seemed to explode and the pilot told us that he would have to make an emergency landing in the Azores. This was when I noticed the royal commissioner had replaced his John Grisham with a copy of the Bible. I wished his prayers well (Kathy and Julius were on board) as we went bumping and grinding through the clouds to a clump of rock in the middle of the ocean. We crash-landed bumpily and I made a dash to hire the island’s only taxi to get my family and Lord Mackay to the island’s only hotel. I called the Attorney General of Trinidad to assure him that we were safe – the plane had been listed as missing. The Times ran the story the next day, of how Kathy Lette and Lord Mackay were on board, and it produced some speculation at the Bar about how they would survive if marooned together on a desert island.
In all these cases, and many more, I have been privileged – by dint of being an English QC – to promote the values of free speech and fair trial in courts of the Commonwealth that have one thing in common: they are bound by constitutions that direct them to respect the rule of law. It often strikes me as regrettable that these fifty-three cricket-playing nations (well, leave out Canada) cannot set up a human rights court that encourages compliance with the basic rules of the justice game. But what the Commonwealth really needs, if it is to have any traction in the world, is inspirational and charismatic leadership. For some years it had a virtually invisible Indian diplomat as its Secretary General, who would not have known a human right had he fallen over one. His recent replacement, Patricia Scotland, has done her best to reform the secretariat, but is hamstrung by a tiny budget and fifty-three ‘High Commissioners’ – often retired politicans – who dote on the royal family and treasure their invitations to the palace. They were a pushover when the Queen insisted in 2018 that her successor as head of the Commonwealth – a position which is not hereditary – should go to her eldest son. Charles is not independent (this is not the British Commonwealth any longer) and is hardly inspirational. They might have chosen someone who is – Graça Machel, for example, Nelson Mandela’s widow and a fine humanitarian. And since the only qualification for the job is to have a parent born in a Commonwealth country, they missed the opportunity to invite the perfect candidate, whose father was born in Kenya. A man both charismatic and competent, whose voice could combat the stupidities of Donald Trump; they lacked the imagination to crown Barack Obama as head of the Commonwealth.
Notes
47 https://deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistent-ly-lower-murder-rates, accessed 5 April 2018.
48 Michael X was also charged with the murder of Gale Benson but was never prosecuted on that count; two of his followers were later convicted. There was some evidence to suggest provocation (which would have reduced murder to manslaughter) but this was not explored at his trial.
49 Earl Pratt and Ivan Morgan v Attorney General of Jamaica (1993) UKPC 1; (1994) 2 AC 1.
50 Kris’s appeal has been delayed because US authorities – the FBI and CIA – are refusing to disclose information that the victims were killed on Escobar’s orders. Commendably (although after staying silent for so long), the UK government has filed an ‘amicus’ brief in the US Southern District Court supporting disclosure: see Jacqui Goddard, ‘UK demand US release documents that could free Kris Maharaj after 32 years in prison’ (The Times, 20 April 2018).
51 Phillip (Lennox) v Director of Public Prosecutions (1992) 1 AC 545 (PC).
52 AG of Trinidad and Tobago v Phillip (1995) 1 AC 396 (PC).
53 Louis Blom-Cooper, Guns for Antigua (London: Gerald Duckworth & Co Ltd, 1988).
54 Antigua Power v Baldwin Spencer & Others (2013) UKPC 23.
55 This was the purpose of bringing the case, which we did not win because the tribunal applied an English rule that you could not sue on a corruptly obtained contract, rather than the European rule that all circumstances relating to such a contract should be taken into account. The arbitrators imagined that this English rule would deter corruption – but on the contrary it only ensures that corruption will never be exposed – there would be no point in a plaintiff admitting it if they would thereby lose the case! See World Duty Free Company Ltd v The Republic of Kenya (ICSID Case No. ARB/00/7).
56 See Geoffrey Robertson, ‘Criminal Justice’ (The Spectator, 22 June 2002).
57 Patrón is now the top-selling luxury tequila brand and the third largest-selling tequila in the US – Wine Spectator, 30 November 2017, p.56. George Clooney tells me that his brand, Casamigos, is superior.
58 There is a presumption that those appointed to ambassadorial positions that carry immunity should be nationals of the sending state – unless, exceptionally, they have some connection or qualification which justifies their appointment. Dr Juffali had none. The government was later to claim that he had offered to set up a medical centre on the island. Philanthropy might justify his appointment as an envoy or honorary consul, posts which carry no immunity, but not an ambassadorship purchased by his wealth in order to evade his personal obligations to his wife and child. St Lucia had a duty to waive his immunity and allow matrimonial justice to take its course, rather than to place him above the law so he could avoid obligations to support his family.