The Temple is a part of London, between Fleet Street and the Thames, where legal and literary ghosts float into focus. Across from the gas lamps outside my rooms in Dr Johnson’s Buildings, where tourist guides would imagine the good doctor at verbal play with Boswell, stands the Temple Church, built by the crusading order of monks, the Knights Templar. They lie there, with their effigies over their graves and broadswords resting on their chests of chain mail, featuring most recently in a scene in the movie The Da Vinci Code. The Pope closed down their order in the fourteenth century, partly because of allegations that they were abusing small boys – plus ça change.
In 1998 I was made a Master of the Middle Temple, which has its own by-laws – for example, it is an offence within its precincts not to address me as ‘Master’, a rule which upset my wife. I have a flat which overlooks the courtyard where Twelfth Night was first performed before Queen Elizabeth I in 1602. This apartment once belonged in Charles Dickens’s imagination to Pip, the hero of Great Expectations: in Chapter 39, he hears clumping on the stairs and to his horror meets his real benefactor – the convict Magwitch, returned from Botany Bay. The bells of St Paul’s ring in the distance, and just opposite is Middle Temple Hall (familiar from many movies), where the armour of barristers who went to war against King Charles I in the 1640s, arranged around its circumference, looks down on a large portrait of their royal enemy painted by Van Dyck. After grace, masters may dine on a table that served Sir Francis Drake aboard the Golden Hinde, and at the doors stand the two giant globes on which Sir Walter Raleigh planned his voyages. Cartographers in the time of Elizabeth I had no inkling of the Great South Land – I dine looking at a world without Australia.
It was here that I came across one important ghost that historians had overlooked, and I wrote a book about him. John Cooke was a brave and brilliant barrister. He was a plebeian from a poor share-cropping family, but he managed through Puritan connections to win a scholarship to Oxford, and later defended radicals. When Oliver Cromwell’s weak-kneed lawyers refused to commit treason by arraigning Charles I – despite his responsibility for starting the civil war – Cooke took the brief and prosecuted him on the charge of tyranny, accusing him of torturing prisoners, burning civilian towns and ordering other actions which today would be described as crimes against humanity. He drafted Parliament’s declaration of a republic and then its statute abolishing the House of Lords, and later served as a judge until the return of Charles II, who had him convicted at a rigged trial and disembowelled (‘hanged, drawn and quartered’) in front of a crowd of jeering royalists.
Cooke was a great visionary, whose writings first envisaged a national health service and a system for legal aid, as well as the abolition of Latin in courtrooms. He upset his profession by insisting that barristers should do at least 10 per cent of their work for free – an ethic I had in mind when I set up Doughty Street Chambers. He was first to work out a way to hold a head of state accountable for crimes against his own people – a way which was not explored again for centuries, until international criminal law began at Nuremberg and later came to grips with the likes of General Pinochet, Slobodan Milošević, Charles Taylor and Saddam Hussein. He was, some reviewers surmised, the barrister I would most like to have been.
I discovered John Cooke by happenstance, when my old monarchist friend Michael Kirby, elevated to Australia’s High Court, was invited to the Inns of Court to lecture, on the 350th anniversary of the King’s trial, about how unfair it all was. I was asked to deliver a response, and thinking that the occasion would be full of irreverent law students, I prepared to entertain them with ribald republican jests. I was unaware how far Michael’s fame had spread: his lecture was graced by most of Her Majesty’s judges, who were shocked by my efforts to celebrate her ancestor’s beheading with antipodean lèse-majesté. But I had blown the dust off enough law books to realise that historians – and Michael – were wrong about the trial and negligent in ignoring John Cooke, and in The Tyrannicide Brief I tried to put the record straight.59 David Williamson later turned it into a play, which had a much better reception from Her Majesty’s judges when it was performed at Gray’s Inn in 2012.
* * *
English barristers work from ‘chambers’ – a set of rooms and clerks servicing a collection of individual advocates operating in the same area of the law, who pool resources and have a somewhat feudal connection with the ‘head’, who gives the chambers its character and stature. Dr Johnson’s Buildings earned its repute when it was home to Clifford Mortimer, who was blind and was immortalised for his forensic cunning in his son’s play A Voyage Round My Father. During my tenancy, as I have described in Chapter Six, it was led by Emlyn Hooson QC, the Welsh Liberal MP who always gave me encouragement and support. He attracted others of his tribe, who were very congenial but somewhat infatuated with the pretensions of the Bar – our clerks would have to walk behind them, carrying their robes, up and down the Wales and Chester circuit.
It was not so much the Welsh Liberals as the mice in the skirting boards, woodworm in the walls and the erratic heating system, which seemed to have spluttered for several centuries, that inclined me to look elsewhere and to set up a chambers that would be different to the self-satisfied coteries of the English Bar, notorious for denying access to women and minorities. They were run by venal clerks on commission, who discriminated on grounds of sex, race and politics in allotting work. Male barristers, mostly from private schools and Oxbridge, tended to offer ‘seats’ to young men of similar pedigree, and the result of this cloning affected not only the profession but the judiciary recruited from it: upper-middle-class, white, male and complacent. Barristers had complete immunity from ever being sued for negligence: they were the incarnation of the Ogden Nash couplet:
Professional men, they have no cares,
Whatever happens, they get theirs.
Twenty colleagues from Dr Johnson’s Buildings joined me with the aim of changing all this. We wanted to maintain the independence of the individual practitioner – which is the true glory of the Bar – but to work in a more consumer-friendly environment, using our intellectual strengths and pooled resources to run campaigns on behalf of our clients; to lobby for progressive law reform; to set up human rights charities; hold lectures and seminars; support the legal aid system; and generally to harness collegiate force to defend clients against the power of the state. Striking out from the protective traditions of the Temple was a gamble, but Lord Mackay, as Lord Chancellor, was urging deregulation and I had confidence in my colleagues – well justified in due course, when three were made High Court judges, one became the Chief Coroner and several more were appointed to judicial positions.
In 1990 we found some houses in Doughty Street, Bloomsbury, within walking distance of the High Court. The street came with its own history – it had been listed in the eleventh-century Domesday Book as ‘a vineyard surrounding a wood for 100 pigs’, which seemed an appropriate place for grubbing lawyers. Charles Dickens was still in evidence – he had lived next door, in a house that was now a museum with a pleasant coffee shop in its gardens, to which clients could repair and read Bleak House, a sobering story of how madness comes from the law’s delays and complexities. Opposite was the former home of the essayist Sydney Smith, who had famously called the Society for the Suppression of Vice ‘a Society for suppressing the vices of persons whose income does not exceed £500 per annum’. As many of my early battles were against Mary Whitehouse, I felt in good company.
We decided that for our post-modern Bar practice, in a dramatically changing society, we would need someone we called a ‘practice manager’ to promote our ethos that law should be for the many and not for the few, and foster our practices so that we made enough money to pay the rent – at home, and of chambers. There were no ‘practice managers’ at the Bar in those days, but we drafted an advert and interviewed the applicants. The best had a Master’s degree in Chinese and experience as a press officer at CND, so we took her – Christine Kings – on spec, as it were. She turned out to be just the ticket, terrific to work with and deserving of much of the credit for keeping us on an onward and upward trajectory in our first eighteen years (most Chambers now have a practice manager, and Christine is among the most respected). We also hired a female senior clerk – virtually unheard of in the Temple – and committed to diversity in hiring new members. I was the only QC when we started; a quarter of a century later, we have thirty-four silks, eleven of whom are women, as are fifty-one of our 110 junior counsel, and we keep winning awards for our dedication to diversity and gender equality.
I drafted a founding philosophy which stated our imperishable commitment to the legal aid system, always under attack from governments looking to make budget cuts (so much so that in 2014 barristers in England actually went on strike, protesting colourfully – they wore their wigs and gowns – while I made speeches from the back of a truck, like a trade union leader). Those cuts in legal aid put some rival chambers out of business, but the funding model I had established at the start saw us through. Our barristers divide 50/50 into criminal and civil practitioners. Half of our work is done at full commercial rate, while the other half is made up of legal aid (paid by the state at about one-third or less of the commercial rate) and cases done ‘pro bono’ – these, my wife said, are the Latin words she most wishes never to hear again, unless they mean I am acting for a wealthy Irish rock star.
Our founding philosophy also stated our dedication to the taxi-rank rule, whereby barristers undertake, subject to availability, to accept any client whose case comes within their field of practice. This is to ensure that access to justice is afforded to all, however obnoxious. We have acted for some obnoxious clients, ranging from Myra Hindley and Abu Hamza to Silvio Berlusconi and the UK Home Office, but have always given it our best – for a barrister, I think there is no point giving any less. We did make one exception: ‘The only work we will refuse on principle involves the upholding of death sentences.’ I did not think at the time that we were likely to be asked to uphold any, but of course times change and my solicitor friend from Trinidad, Ramesh Maharaj, once so keen to instruct me to save his clients on death row, became the Attorney General in a government pledged to bring back the death penalty. It came under great pressure from the US to rid the region of a gangster named Dole Chadee, allegedly the Caribbean’s leading drug trafficker. Ramesh sent me the brief to prosecute Chadee and his gang for murder, which carried a mandatory death sentence. For that reason, I declined. Ramesh begged me to find a lawyer less bothered about the principle, so I nominated my friend Tim Cassel QC, insouciant about the consequence of his cases, and a rather good prosecutor. A week later came a call from Chadee’s solicitor in Trinidad – would I accept a brief to save his client’s neck? I agonised – not because the fee offered was astronomical, although it was (he was a very big drug trafficker), but I had opened the prosecution brief, and felt ethically conflicted about accepting instructions from the defence. Chadee and his gang were convicted, and Ramesh (well versed, as my one-time junior in the Privy, in death penalty jurisprudence) rushed them to the gallows before the rule in Pratt & Morgan could operate to commute their sentences.
A record survives of the Doughty Street launch party. We hired a jukebox and I stood on a packing crate to announce that we had moved out of a museum and into the real world: ‘We want Doughty Street to become an engine room where barristers are stoked by solicitors instead of being stroked by solicitors; where law fuels fact in a spontaneous combustion of ideas and tactics; where the fire in the belly is tempered by the iron in the soul’ and so on, through many mixed metaphors. I promised we would strive to abolish the ‘pantomime flummery’ of wigs and wing collars, and the unfair rule of barristers’ immunity from actions for negligence. My most revolutionary promise was that we would have a crèche, in which our own and our solicitors’ children and even our clients’ children would be welcome. This is the only promise upon which we have not yet delivered.
We immediately initiated the Doughty Street lecture series, bringing over from New York the impassioned Professor Nadine Strossen, president of the American Civil Liberties Union, to explain just what a full-blooded commitment to civil liberties could mean. The most moving and influential Doughty Street lecture was given to a packed audience in St Martin-in-the-Fields on World Aids Day in 1995 by Michael Kirby. He unveiled a charter for compassionate reform of anti-LGBT laws, which was taken up by lawyers throughout the Commonwealth and is now a full-time project run by one of our outstanding gay barristers, Jonathan Cooper. We also began, at an early stage, to donate some of our earnings to causes and campaigns that promoted our beliefs about justice – one of the first was the Arthur Koestler Trust, to teach art to prisoners, while more recently we have expended considerable resources on campaigning against the UK government’s inadequate response to the refugee crisis. We acquired more members – notably Kirsty Brimelow, chair of the Bar Human Rights Committee, and James Wood, an expert on righting wrongful convictions – of the Bridgewater Four and other victims of police mistakes.
As head of chambers, I became a member of that charmed circle of the legal establishment ‘sounded’ by the Lord Chancellor about judicial and silk appointments, and responsible for disciplining any of my members who got up a judicial nose. Helena Kennedy was the first ‘Doughty Street irregular’ to take silk, in 1991 (to the delight of her compatriot, Lord Mackay, who granted it). After a murder trial in which her clients were acquitted, I received a long, hand-written complaint from an elderly High Court judge, who wanted me to discipline her for speaking in a language he could not understand (she had a strong Glaswegian accent) and for wearing a collection of silver bangles which, he complained, had distracted – if not bewitched – the jury into a wrongful acquittal. I suggested that he make his complaint to Helena herself, but he lacked the gumption to do so. Helena – now a baroness advancing law reform as Chair of Justice and principal of Mansfield College, Oxford, where she has founded a new human rights institute – escaped any ‘discipline’; I really think the old judge wanted me to put her over my knee. He was an example of that dying generation who could not cope with women at the Bar, and certainly not in silk.
I made some law on the subject of professional kissing when a difficult client, upset to be told she had no case, complained to the Bar Council that I had greeted her solicitor, Ruth Bundey, with a kiss. Indeed I had – Ruthie was an old friend whom I had not seen for a while, and the complaint was dismissed without a hearing. There was an appeal, to which I was not even asked to respond. The verdict in my favour established the rule (it was not found in Boulton on Ethics) that barristers may kiss their solicitor. I would not rely on it too much in these #MeToo days, except in the case of old friends. At Doughty Street we have a strict code of conduct which precludes inappropriate behaviour towards employees or pupils or juniors. The Bar’s code of conduct is rather vague on the subject of advances to or from clients. I encountered the question only once, very early in my career, when propositioned by a glamorous porn star after a final speech that secured her acquittal. I asked around: would it be ethical, after the trial, to accept? ‘Of course not,’ my colleagues said. ‘She’s only attracted to you because of the power exerted by your professional persona.’ ‘She wants to repay you for your professional services – and you’ve already been paid by legal aid.’ John Mortimer, however, saw no ethical difficulty. I did not accept the invitation, although more as a matter of prudence than ethics. These days you can telephone the Bar Council’s Ethics Hotline to find out the answer before you disrobe.
Doughty Street’s first major case was Pratt & Morgan v Jamaica (described in Chapter Eleven), which led to mass commutations of death penalties in the Caribbean, and my colleagues in chambers had it accepted by courts in East Africa and even Zimbabwe (where, as a result, you cannot be hanged after death row delays). Another early case produced a change in English law – recognition of ‘battered woman syndrome’, which induces women to react to longstanding violent abuse by eventually lashing out and even killing the abusive partner. English common law, fashioned by men down the centuries, had never allowed for post-traumatic stress disorder, or for the slow burn of anger that can finally erupt in furious retribution. Women who killed brutal lovers were guilty of murder and jailed for life – one of them, Ruth Ellis, was the last to be executed in Britain.
The woman in my case was Kiranjit Ahluwalia, whom I had met first in prison in 1991, two years into her life sentence. She was a small and frail Indian mother with the saddest eyes I have ever seen. Her early hopes of a career after university had been shattered when her family insisted on an arranged marriage with a man named Deepak, whom she had never met. He beat her almost every day and, despite court orders intended to put an end to his violence, threatened to kill her with a knife and on one occasion tried to run her over. The only reason she could give for staying with him was her two young children, but another reason, given by our psychiatric experts, was that he had reduced her to a state of learnt helplessness – she was totally in his power. I read to the court an abject letter she had written to Deepak after he had gone off for a few days with another woman:
Deepak, if you come back I promise you – I won’t touch black coffee again, I won’t go town every week, I won’t eat green chilli, I am ready to leave Chandigarh and all my friends, I won’t go near Goodie Mohan’s house again. Even I am not going to attend Bully’s wedding, I eat too much or all the time so I can get fat, I won’t laugh if you don’t like, I won’t dye my hair even, I don’t go to my neighbour’s house, I won’t ask you for any help.
In this pathetic state, she awaited his return. She put her child to bed (the other was with friends) and made her husband’s dinner. Deepak threatened to beat her if she did not give him money, and held a hot iron next to her face before he fell into a drunken sleep. Several hours later she took a bucketful of petrol and a lit candle, and threw them onto his bed. Rushing to her child’s bedroom, she picked him up and stood at his window in a daze, shouting to neighbours, ‘I am waiting for my husband.’
Deepak died of his burns, and by the end of the year Kiranjit had been convicted of his murder. (I was not acting for her at this stage.) The court heard little of her mental state, other than from a prosecution expert who said she suffered from ‘endogenous depression’. I wonder whether anyone looked up the meaning of ‘endogenous’ (‘very deep’).
At the appeal, where I appeared with my (very) learned junior, Andy (now Sir Andrew) Nicol, our six experts verified the existence of the state of learnt helplessness. The Chief Justice agreed that this could amount to a defence of diminished responsibility, which would reduce murder to manslaughter, thereby enabling Kiranjit’s immediate release – to the cheers of the women’s groups who had supported us.60
It was a precedent that would help other women in her predicament avoid a soul-destroying life sentence. I was not exactly Billy Flynn (the flamboyant death row lawyer in Chicago who gets Roxie Hart off her murder charge by manipulating the media), but Kiranjit’s case was made into a movie, Provoked, with Miranda Richardson and various other stars. To my children’s amusement, my character was played by Robbie Coltrane – for ever, to their minds, Hagrid in the Harry Potter movies.
* * *
Now that I was a head of chambers, I was deemed sufficiently respectable to be considered for the judiciary. Not as a High Court judge (I was too young, at forty-five, and doubted whether I wanted a full-time judicial career), but as a Recorder, a part-time judge who for four to six weeks each year conducts trials and passes sentence on the guilty. I went before a selection committee and was asked whether I had ever done anything which might be made a subject of scandal in the media. I told them I had never done and could never do anything of which my mother would disapprove. This seemed to satisfy them, but then I had to attend ‘judge school’, held in a hotel in the English countryside, where would-be judges are taught how to send people to prison. It was a little like Lawyer’s Got Talent – you would be given the facts and then required to produce a sentence and a sentencing homily which was marked by three judges from the Court of Appeal, who failed you if you were over-merciful. The hotel was used for other training courses, and one of the waitresses confided, ‘We like the judges best. They’ve all been to private schools so they know how to eat up their pud.’
I passed the course, and was soon presiding over my first trial. I was determined not to be the kind of judicial fuddy-duddy who would ask, ‘Who are the Beatles?’ My first case was about a fight between sex workers – the defendant, the prosecution alleged, had pulled out her rival’s hair extensions. ‘Er … What are hair extensions?’ the new judge had to ask. It was little comfort that the prosecutor did not know either: he had to call a women police officer to explain. I straightened my wig – my own hair extensions – to hide my embarrassment.
When my usher came in with the papers for my next case, I sniffed red meat. It was a computer thief, pleading guilty to nicking a large number of computers. I had recently had my own computer stolen in a burglary at my chambers, and I came into court fully determined to send this miscreant to prison.
‘I am sorry, Your Honour,’ said the prosecutor, ‘I will have to ask you to stand down from this case.’
‘Why on earth?’ I was certainly not going to let this one be moved to a merciful colleague.
‘The defendant has returned several of the stolen computers, and one of them is yours.’
I gave in – you cannot be a judge in your own cause or your own case. The Guardian ran the story under the headline ‘BURGLAR MEETS VICTIM:
HIS JUDGE’.
In the mid-1990s, Doughty Street came to political prominence, not only in the Commonwealth, where our Privy Council cases had stopped executions in many countries, but also in the United Kingdom itself, where my defence in the Matrix Churchill trial had exposed the arms-to-Iraq affair. As the plot unravelled in court, Doughty Street on occasion hosted the Labour Party front bench, who came for briefings. When the trial collapsed after Alan Clark admitted to being ‘economical with the actualité’, the Conservative government (now led by John Major) survived a censure motion by one vote. This was the era of ‘Tory sleaze’, which deepened when Neil Hamilton, then a junior government minister, sued The Guardian for alleging, in what was called the cash-for-questions scandal, that he had been paid to ask questions in Parliament by Mohamed Al Fayed, the proprietor of Harrods. I went to see Al Fayed and persuaded him to come up with evidence, not only against the minister but against six other Tory MPs. The libel action was withdrawn at the door of the court and ‘Tory sleaze’ helped to ensure Tony Blair’s landslide victory in 1997.
The most bizarre – and most publicised – of my cases came in 1995, after a ‘world exclusive’ in the Sunday Mirror two years earlier: ‘Di Spy Sensation – The Most Amazing Pictures You’ll Ever See’. The photographs, spread over seven pages, were of Princess Diana exercising on a contraption called a leg press, taken by a camera sneakily hidden in the ceiling by the gym owner, Bryce Taylor, an impecunious New Zealander. The princess, out to prove herself after separation from Charles, was advised (badly, as it turned out) to go down in British history by issuing a novel action which would create a hitherto unrecognised civil wrong – invasion of privacy.61
The High Court judge who first heard her claim thought that such a dramatic change in the law should at least be contested – he extended legal aid to Bryce and asked me to represent him, which would mean cross-examining the people’s princess. I would need to explore under cross-examination Diana’s two-faced attitude to privacy – she had told the tawdry secrets of her marriage to journalist Andrew Morton for a book (Diana: Her True Story) which blackened Charles’s name. A mock-up courtroom was constructed at Kensington Palace so she could prepare for my cross-examination, and 940 journalists applied for the seventy-five press seats in Court 36 of the Royal Courts of Justice. The courtroom artists, who produced what were meant to be accurate portraits of court proceedings but who were banned from sketching in court, had already painted our encounter: I was depicted, all jowls and splutter, pitted against the Queen of Hearts, radiant in the witness box.
I prepared for this case by doing something I had avoided throughout my life: joining a gym. I even learnt to ‘cardio-funk’, an exercise that Diana had been doing at Taylor’s gym, which ‘combines funky dance steps with aerobic moves set to hip-hop music’. I avoided her choreographed colonics, but learnt the art of toning my buttock muscles on instruments of torture called the life-cycle, the rotary torso, the lateral pull-down machine and the Concept2 rowing ergometer. As the tabloids rejoiced – salivated, in fact – over the upcoming courtroom clash, the establishment was wary: The Times described me as ‘anti-establishment, republican and Australian’, presumably in ascending order of horror. Journalists door-stepped my parents at our Sydney home – what advice would they give the princess? ‘I would settle out of court,’ said my father. And so she did – on the evening before ‘the trial of the century’. There was a deal, and her lawyers withdrew her claim, reportedly after depositing a million dollars in Bryce’s Swiss bank account. This was all swathed in secrecy, of course, so the princess could claim to have ‘won’, although it would be an odd sort of victory if the loser were to be rewarded with a sum greater than the ‘winner’ had claimed in damages. I cancelled my gym membership, forgot about cardio-funk and moved on, somewhat deflated, as always when a big case settles at the door of the court. It’s a condition my wife called ‘courtus interruptus’.
* * *
I published my memoir The Justice Game in 1998 – unusually, in mid-career, but that was the point. I wanted to look back on my profession while I was still part of it, with enough fire in my belly to argue for a Human Rights Act to put right some of the injustices I had encountered in my early days at the Bar. The Act was placed on the statute book by the Blair government later that year, and British law gradually became much the better for it. After my role in exposing Tory MPs in the arms-to-Iraq scandal and the cash-for-questions case, many assumed I would be made an attack dog for the new government: Private Eye pictured me in the new Cabinet as ‘Persecutor General’. The call did not come, of course – Sir Humphrey would have disapproved and so would his political bosses. I was thrown one small crumb – the Minister for Culture and Sport nominated me for a position on the Royal Opera House board, although a fuss about the lack of diversity caused it to prefer Trevor McDonald, a newsreader born in Trinidad.
Not a single brief came to Doughty Street from the Labour government (if it had, they might have lost fewer cases) until Tony Blair himself was subjected to a police investigation alleging that he had hawked honours in return for large financial donations to the party (the cash-for-peerages scandal). At the party’s request, I analysed the defective law – which had hardly been reformed since Lloyd George got away with it – and the defective police investigation, and pronounced the Prime Minister entirely innocent, as the law stood. My other contribution to his character was in respect of his invasion of Iraq (to which I was personally and legally opposed): I had to point out to the media that he was not guilty, as his ill-informed enemies would have it, of the crime of aggression. That, however, was because such a crime did not exist in English law, and because the international crime of aggression had not been brought into force. I added that it should be, with an urgency that is now manifest with the advent of Donald Trump.
Meanwhile, our children were growing up and going to school – there was a cubby and trampoline for them in the garden of our house at Swiss Cottage and the hamsters died unnatural deaths somewhere beneath the floorboards. We never had time for that normal perquisite of the middleclass metropolitan Londoner, a country cottage, although we took up John and Penny Mortimer’s standing invitation to weekends in the Chilterns and we rented places in summer when our parents came to call. Kathy had by now been accepted, after a rough start, as part of the London literati, and was overwhelmed at being accorded an honorary degree from a university in Southampton – a Companion of Literature, which Private Eye, reporting her citation in cod Latin, abbreviated to a C. Lit. We did take advantage of my quiet flat in the Middle Temple for writing retreats, and I had a third home in the business-class compartments of long-haul jets, where I would mug up on the arguments I would have to present on landing. As my parents became too old to travel, I was impelled to find reasons – lectures, Hypotheticals, in 2014 even a stage show, Dreaming Too Loud – to visit them in Sydney. I acquired a second office in my brother’s chambers – Tim was by now an SC, or Senior Counsel, as barristers in other countries prefer to say in preference to ‘Queen’s Counsel’, which can give the wrong impression. It’s one change that the English Bar will never make: how we love our sealed vellum parchment in its morocco-coloured pouch, signed (allegedly) by the Queen and describing us as her ‘trusty and well-beloved’ servants. We will all be KCs – King’s Counsel – before too long, and for at least (given all the male heirs) another century.
* * *
It is one of the more arcane duties of a Queen’s Counsel to advise the monarch, when called upon, free of charge. This may be a quid pro quo for a royal monopoly which allows us to double the fees we charge the common people. Nonetheless, becoming a silk is an important rite of passage – the effective bestowal of a ‘Good Housekeeping Seal of Approval’ by your profession upon your character and ability to argue the law. The decision as to when in your career to make the application is crucial, and most wait until they have notched up twenty years of trials and appeals; ever ambitious, I applied after twelve and was knocked back by Lord Chancellor Hailsham, a Tory grandee I had unwisely criticised in print. The following year, 1987, saw the appointment of the even-handed Lord Mackay, who in 1988 granted my letters patent. Then came a grand ceremony in the House of Lords for which we dressed in full-length wigs and new silk robes, wearing beneath them silk stockings and suspender belts. (I kid you not – this is a ceremony beloved by centuries of upper-class Englishmen.) We took our clerks, dressed in morning suits and proud smiles, our partners (Nigella accompanied me) and relatives (Tim came over for the occasion). The Lord Chancellor warned us not to get our names in the News of the World and invited us to order, for a modest fee, a videotape of the ceremony. It then became a bit silly, as we were required to parade in our robes through courts in which we practised, bowing three times to each presiding judge. It was exhausting (I practised in a lot of courts) and I went home for a sleep, almost missing my own party at the Wig and Pen Club, an ancient hostelry in Fleet Street where Henry VIII once disported himself.
I have yet to be called on to counsel Her Majesty free of charge, although I did advise her daughter-in-law’s lover, James Hewitt. The press was in full pursuit after the story broke of his royal romance, so he hid in a converted pigsty in the south of France and then prevailed on an army pilot to helicopter him to north London, where he hid in our attic for a few days while I mulled over the 1351 Treason Act, which still punished with death any party to adultery with the wife of the monarch’s eldest son and heir. James was bang to rights and Diana would have been guilty as an accomplice, although I had to doubt whether she would suffer the same fate as Anne Boleyn.
I have managed to rattle some royal ghosts – or, at least, their executors – in a curious case about royal wills. It is a longstanding tradition – almost a constitutional principle – that a will, once probated, is a public document: everyone is entitled to know, once we have shuffled off this mortal coil, how much we are worth and to whom we have left it. There has long been a law more or less to that effect, but the royals, since 1913, have been treated as exempt, although the law itself does not exempt them and until this particular case, nobody knew why, or how, the exemption had originated. The case was brought by a respectable and undoubtedly sane citizen – an accountant, indeed – who entertained the firm and fervent belief that he was the love child of Princess Margaret. He thought that his putative mother might have left him a legacy in her will, as might her mum, the good-hearted Queen Mother, and for this reason he sought to inspect these documents. He was acting in good faith, the courts said, but his belief was illusory – to this I did not demur. But what right did the royal executors have to deny him a look?
My researches uncovered a very English cover-up. Back in the early years of the twentieth century, Prince Francis of Teck made a will in which he left a favoured mistress some jewellery belonging to the Crown. Afraid of scandal, his sister, Queen Mary, arranged for the senior probate judge to order that the will be ‘sealed’ – kept secret from all but the executors, who were the royal family’s solicitors. This convenient arrangement became a precedent, applied in the case of royal wills thereafter, without public discussion or even knowledge. Just a royal nod and wink to a senior judge, and an order made behind closed doors. I commenced a case – which still continues – arguing the public interest in unsealing royal wills, and the legitimate concerns of historians, journalists and especially the tax office to inspect them.62 The royals have plenty of privileges in life and there is no good reason why they should claim a special privilege in death.
My contribution to making Britain safe for republicanism came in 2002, when The Guardian decided to mount a full-blooded campaign to abolish the royal family. This was illegal under the Treason Felony Act of 1848, passed in panic after the anti-monarchy insurgencies in Europe that had caused my own royal relatives to take ship to Sydney. It criminalised any attempt, by publishing, to ‘imagine, invent, devise or depose our most Gracious Lady the Queen … from her style, honour or royal name’ and it applied to advocacy even of peaceful political change. Back in 1848, several Irish newspaper editors were convicted and transported to Botany Bay. Alan Rusbridger, The Guardian’s editor, did not actually lie sleepless in bed at night fearing arrest from Scotland Yard’s Treason Squad, but he was concerned that this antiquated law was still retained by a number of Commonwealth countries and was being used in Zimbabwe, for example, to punish those who were imagining, inventing and devising the overthrow of Robert Mugabe. We sought a declaration that after the passing of the Human Rights Act it could no longer be used in Britain, and although the Law Lords did not see it as their function to keep the statute book up to date, they all said that any future prosecution would be irrational – the letter of the law of treason was pronounced dead, if not yet departed.63
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In the year 2000 the Human Rights Act came into force in the United Kingdom, and to national astonishment its first beneficiary was the American boxer Mike Tyson. He was the youngest ever heavyweight champion of the world, at the age of twenty, and a convicted rapist a few years later. In 1995, aged twenty-eight, having served three years of his six-year sentence, he was released. Five years later, out to regain his heavyweight title from Lennox Lewis, Tyson fought a bout in Glasgow with American Lou Savarese on a freezing night in a hall packed with Scots baying for blood. It was not long in flowing – after twelve seconds Tyson floored Savarese, who went down for a count of eight. ‘Fight on,’ said the ref, unwisely – Savarese could barely stand. Tyson landed a left hook that shook him and then (‘As every good boxer would be trained to do in these circumstances,’ I found myself later telling the tribunal) went in for the knockout.
At this point the ref interposed himself and claimed to have said, ‘Stop boxing,’ but then, as a result of what I later described as ‘inadvertent contact with Tyson’s upper arm’, the ref himself went down and Tyson kept hitting his opponent onto the ropes. After just thirty-eight seconds the fight ended, and the shaken referee declared Tyson the winner. As microphones were pushed in his face, the victor made some comments which were alleged to be ‘detrimental to boxing and to the public interest’. Tyson was hauled before the British Boxing Board of Control, and the media had no doubt (the board’s intention had been leaked) that his licence to fight would be cancelled, and he would be disqualified from title-fighting Lewis.
The case required a delicate examination of the role of ‘hype’, which had come to infect this particular sport – an expectation by promoters that boxers would sledge their future opponents to whet the bloodthirsty appetites of a potential audience and thus swell the ‘gate’ – their profit from the event. It had, in a way, started with Cassius Clay (aka Muhammad Ali) but his promises were poetic – to ‘float like a butterfly, sting like a bee’. Tyson’s declaration was, ‘I’m coming for you, Lennox Lewis … I’m gonna rip your heart out and eat your children.’
My first defence, as reported in the press, was: ‘Since Lennox Lewis has no children and boxing gloves do not rip through flesh, this comment is ludicrous and fantasised. Not even the law’s measure of naïvety, the moron in a hurry, would take it seriously or imagine for a moment that it was intended as a threat.’
This argument did not seem to be convincing the tribunal, so I rolled out the new Human Rights Act, which by now had to be applied to all public bodies – including the British Boxing Board of Control. The Act gave particular importance to freedom of speech, which could only be curbed in the interests of public safety or preventing crime – not in the interests of boxing. To take away Tyson’s livelihood and his chance to regain the title – punishing him for exercising his free-speech right to make tasteless but ridiculous remarks about a future opponent – would not only be unlawful but could open the board to a suit for damages. Besides which, Tyson’s remarks were ‘an ironic response to racist stereotyping – “You treat me as if I were a jungle savage, so I’ll play along with your stereotype.”’ Here, I may have misattributed a degree of sophistication to my client – the truth is that he was so pumped up with adrenalin that in the few minutes after being declared victor he could have said anything. That is why there is a rule: radio and television interviews with boxers are not permitted in the ring following a contest – a rule that the steward on the night had blatantly breached by allowing the interview.
The case went on into the evening, and the board came back with merely a reprimand. I could not tell which argument had convinced them not to cancel Tyson’s boxing licence, although the press reports of their decision were headlined ‘Tyson Lands Human Rights Uppercut to Boxing Board’.64 Thereafter, the Act would benefit many more worthy clients, but the case did make the point that human rights are for everyone – the good, the bad and the ugly.
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One day in 2009 at Doughty Street we had a visitor who was to talk to us about her work at the Lebanon Tribunal, a court about which I had my doubts because George W. Bush had dreamed it up in the bath, after Prime Minister Hariri (the elected leader of the country) was blown up in a terrorist outrage. Bush, hitherto an enemy of international justice, said the US would support the creation of a court to try the perpetrators. The problem, of course, was that no one knew who they were – Hariri had so many enemies. The suspects were safe in Syria or un-extraditable to Lebanon.
Curiosity about the court brought me to the lecture, given by a young woman whose clever analysis and powerful presentation – quite apart from her fashion sense – made a big enough impression for me to suggest to my colleagues that she join Doughty Street. And so we offered Amal Alamuddin a tenancy. The first case we worked on together showed her calibre – it was a petition to the European Court of Human Rights on behalf of Yulia Tymoshenko, who had been Prime Minister of Ukraine and had led the ‘Orange Revolution’ against the Stalinists. Her enemy, the corrupt President Viktor Yanukovych, used his control of the judiciary to have her jailed on trumped-up charges: she was ill and in a prison hospital, her privacy grotesquely invaded as every move she made was videotaped. When Ukraine’s human rights record was to be discussed at the Human Rights Committee in Geneva, Amal and I went off with Yulia’s daughter, Eugenia, to lobby some of the delegations to mention her mother’s case and deplore her unjust treatment. ‘Oh, we can’t possibly mention names,’ said the British diplomats. ‘It’s against the rules.’ But the next day, a number of the delegations did break the rules and condemn Yulia’s maltreatment – the British, of course, squibbed, but the Americans spelled out her case and the Australians named her twice, perhaps because we had reminded them that Australia also, at the time, had a Julia (Gillard) as Prime Minister. I chaired a meeting at the Geneva Press Club, where Eugenia gave a moving account of her mother’s sufferings and Amal provided an incisive analysis of Ukraine’s breaches of international law. The court in Strasbourg decided in Tymoshenko’s favour, and before long the mass demonstrations at Maidan Square saw Yanukovych flee to Moscow and Yulia freed from prison.
Amal is an exceptional lawyer and a loyal colleague, but the newspapers were more interested in another of her qualities, describing her as ‘London’s most beautiful barrister’. A mutual friend introduced her to George Clooney. After their much-publicised wedding in Venice, the paparazzi descended on Doughty Street – when we had lunch at Charles Dickens’s coffee shop they would wait behind cars in the street for us to emerge, and then illuminate us with a lightning strike of flash bulbs. A bomb threat was phoned through to my extension at the chambers, and I wondered which of my cases had provoked it until I realised that it was probably a photographer hoping to empty the building so he could get his shot of Mrs Clooney. Amal uses her celebrity wisely and well, as a role model for young people who aspire to a professional career working for human rights, and in propelling a slothful United Nations to set up a court to punish the genocide that has been inflicted upon the Yazidis.
We appeared together in the Grand Chamber at Strasbourg, representing Armenia in Perinçek v Switzerland. Doğu Perinçek was a racist provocateur and fascist politician from Turkey, who went around countries which had genocide-denial laws, trying to get prosecuted for declaring that the Armenian genocide was a lie. The Swiss fell for his provocation and convicted him for genocide denial, and three judges in Strasbourg’s lower court commented in passing that the reality of an Armenian genocide was an open question. I had recently pointed out in a book that, on the contrary, the Armenian genocide was proven beyond reasonable doubt, and Amal and I entered the fray on behalf of Armenia to have these ignorant comments in the lower court overridden by the appeal chamber. As far as Perinçek’s conviction was concerned, we argued that it was unnecessary because nobody would bother about his opinion – it had not stirred up racial hatred or incited violence, and we were conscious of the need for free speech to protect Armenians and others who were being threatened with prosecution in Turkey for ‘insulting Turkishness’ by asserting the truth of the genocide.
The Grand Chamber of seventeen judges decided the case much as we had argued.65 The paparazzi had been allowed into the chamber to photograph Amal and myself in our Ede & Ravenscroft outfits, and Amal’s speech, setting out the facts of the genocide, must have been watched by every Armenian in the world. George tells the story of his regular Armenian car-park attendants at Los Angeles Airport – when he next left his car, one shouted to another, ‘Hey. This guy is married to Amal. He gets to park for free!’ I became a ‘bonus point’ on the BBC’s Brainbox Challenge quiz show, hosted by my friend Clive Anderson. He showed a picture of us both, and asked, ‘For two points, what is Amal Clooney’s maiden name? And for a bonus point, what is the name of the old guy beside her?’
Another of my exercises with Amal was to examine whether international law regarding the right of nations to have their cultural property returned might develop far enough for the British Museum to be ordered to return to Athens its half of the Parthenon Marbles – sculptures of magnificent heritage illegally ripped from the walls of the Parthenon by British ambassador the Earl of Elgin at the beginning of the nineteenth century.
The Prime Minister of Greece invited us to come and inspect the new Acropolis Museum. It had been built beneath the Parthenon, and housed the other half of the marbles. They waited there, those dismembered gods and goddesses, to be reunited with the rest of their marbled bodies, stolen by Elgin. Our visit was much publicised and highly emotional – I found myself protecting Amal from all the old Greek ladies who wanted to hug her. We came away convinced of the case for reuniting the marbles, especially after seeing them in the British Museum at a secret visit, although by then it was difficult to do anything secret with Amal – she is always recognised and asked for selfies.
The marbles are an architectural wonder – an extraordinarily evocative picture of life in the first civilised society. Ordered by Pericles and sculptured by Phidias around 440 BC, they depict a procession of people walking and talking, playing sports and drinking wine. They are rightly regarded as a unique cultural treasure, not only for Greece but for Europe and the world. It was a crime to loot them: I studied the evidence carefully, and it is clear that their removal was contrary to Elgin’s licence (which allowed him to take only ‘stones’ lying on the ground). He lied to Parliament when he said he had saved them from Turks whom he had observed stealing them – he did not arrive in Athens to observe anything until the thefts he had ordered were almost completed by his workmen. Nor has the British Museum kept them responsibly. It allowed them to be cleaned destructively (with carborundum rubber and copper chisels!) and now displays them in a gallery dedicated to Joseph Duveen, an art fraudster.
Reuniting them with the other marbles in the Acropolis Museum seemed to us a cultural imperative, and we thought that the Greek government had a reasonable chance of success in an international court. We wrote a lengthy opinion to this effect, but the government had changed by the time we came to deliver it, and said it would instead rely on diplomacy – a device that has failed Greece for more than 180 years (its first diplomatic demand was in 1833) and will always fail. One of the great things about Great Britain is that it usually complies with international law, and legal action in the International Court of Justice or the European Court is the only way that the two sets of marbles will ever be reunited. Unless, of course, the UK sells them to Europe to obtain a reduction in the cost of Brexit.
* * *
One court of great current controversy to which I occasionally travel is the European Court of Justice (ECJ), which interprets European Union law from a modern building in Luxembourg, a quick flip for British lawyers from City Airport. It’s a boring little place compared to Strasbourg, without much call for advocacy (submissions are on paper and are first decided by an ‘Advocate General’ before you are allowed a short hearing to contest – or agree with – his or her opinion). But the judges, drawn from the twenty-seven European Union members, are apolitical and astute. Quite a few are academics, with training in the interpretation of rules and regulations cast in convoluted Euro-prose. On this subject only are their decisions binding on English courts, and they are usually respected as uncontroversial and correct.
My first experience of ECJ jurisprudence concerned a ban by UK customs on a German rubber sex doll, despite the fact that British rubber sex dolls were freely on sale in Soho. Quite rightly, despite squeals from the British (anxious, it would seem, to protect their perverts from foreign polythene playmates), the ECJ ruled the ban contrary to freedom of trade within the common market. Customs could not maintain a ‘cordon sanitaire’ against indecent products from member countries which were the same as those being produced and sold at home. It was as a consequence of this ruling that customs officers had to drop their absurd case against Gay’s the Word for importing literature that would not be classed as obscene if published by UK publishers. Rulings such as this have knocked a little sense into British bureaucrats, and other decisions have forced them to comply with progressive standards on environmental regulation and data protection. The ECJ has gone so far, based on Edward Snowden’s revelations, as to rule that American companies like Facebook and Google cannot transfer subscriber data to America because of the lack of safeguards against CIA interception. This goes too far (we have fewer safeguards against GCHQ interception when data sits on a server in Europe) but nonetheless the ECJ’s intention of protecting the privacy of European citizens was worthy enough.
Having been ignored by the media for forty years, this court suddenly came to prominence in the Brexit debate. Shock and horror was evinced at a ‘foreign’ court that had power over British judges, even though its power could only be exercised in respect of European law, thereby relieving British judges of a task they did not want. It was an entirely benign institution, made a bogey by the ignorant populism of the Brexiteers.
The last case I did in Luxembourg concerned the dreadful conditions being experienced in Greece, where most refugees first land, at a time when that bankrupt nation could not afford to feed them or process their claims. That is what European law seemed to require – processing in the country of first arrival. But did the European Charter of Fundamental Rights, with its ‘right to human dignity’, change this position? We discussed the literary and philosophical origins of the right to dignity – I suggested the biblical parable of the Good Samaritan, Portia’s speech on the quality of mercy and Emmanuel Kant’s categorical imperative. It occurred to me, as I was addressing these judges, that over half came from nations that were run by, or had sided with, the Nazis – Germany, Austria, Italy and many of the Eastern European states. Their parents and grandparents would have witnessed, perhaps participated in, the miseries and atrocities inflicted, I told them, ‘within living memory’. As I sat down, I reflected how far we had come, in little more than half a century, from the trial at Nuremberg to a case in this spacious and civilised courtroom, in which descendants of Nazis could join us in unravelling and applying a rule requiring human dignity. On any view this was progress, and it is a thousand pities that the UK will no longer be a part of it.
* * *
I am proud of starting Doughty Street Chambers and particularly proud of the 150 younger – mostly, much younger – barristers who have come to share its ethos and commitment. It is a postmodern invention in the sense that it has harnessed the two great attributes of the profession – brain power and independence – into a cooperative enterprise for developing human rights principles in legal doctrine and practice, in a rapidly changing society (changing, I might add, partly as a result of an increasing acceptance of those principles). The work is focused not only on English law: Doughty Street International, our global arm, led by Steven Powles, takes our members to all continents and many countries in the world to fight death penalties, torture, state repression and discrimination against women and minorities. At home, our teams deal not only with media and constitutional law, but with actions against the police, inquests, battles over housing and mental health, the rights of prisoners, of women, and of the LGBT community, race relations, environmental protection and the rights of children. The Doughty Street model has already spawned rivals and imitators – it is hard to believe how revolutionary it all seemed back in 1990. None of us ever expect to make fortunes, just a reasonable income without any profit share. On a turnover of about £25 million per year, that leaves enough money to sponsor human rights initiatives. Of course our premises do not compare with the lavish offices with water views, or the conference rooms with walls dripping with valuable art, in which big commercial law firms operate in Sydney, London and New York, where millionaire solicitor partners share in equity and profits. We are, at Doughty Street, individual barristers who have combined for progress rather than profit, while retaining our independence. We like it this way.
Notes
59 Geoffrey Robertson, The Tyrannicide Brief (London: Chatto & Windus, 2005).
60 R v Ahluwalia (1993) 96 Cr App R 133.
61 For more detail about this case, see The Justice Game, op. cit., Chapter 17.
62 See Brown v Executors of the Estates of HM Queen Elizabeth, the Queen Mother & of HRH the Princess Margaret (2007) EWHC 1607 (Fam) and (2008) EWCA Civ 56, and Brown v Information Commissioner & the Attorney General (2015) UKUT 393 (AAC).
63 See Rusbridger & Toynbee v Attorney General (2003) UKHL 38 (House of Lords) and (2002) EWCA Civ 397 (Court of Appeal).
64 Tyson did fight Lewis for the title in 2002 but was knocked out in the eighth round. The celebrity audience included Tom Cruise, Britney Spears, Hugh Hefner, Michael Jordan, Ben Affleck, Halle Berry and Morgan Freeman, as well as Donald Trump and Alec Baldwin (who has been playing the President on Saturday Night Live).
65 Perinçek v Switzerland, No. 27510/08 ECHR 2015.