The most common theme in my practice and writing, until it became subsumed in my human rights work, was freedom of expression. In the course of my career I have at some stage defended almost every newspaper, television and radio station, video game supplier and picture agency, in trouble for what they had published or intended to publish. There were two exceptions: the lawyers at The Sun and the News of the World never briefed me (which I took as a compliment), nor did the lily-livered executives at the BBC, always reluctant for a full-blooded fight against the government. In the US, the First Amendment culture had created a mindset in which media groups would make common cause to fight any restrictions, but in Britain there was no organised lobby for freedom of speech.

After I gave a provocative speech at the Edinburgh Television Festival about how broadcasters had supinely let Mrs Thatcher foist upon them a new censorship body (chaired by William Rees-Mogg, who insisted that ‘television must behave itself like a guest in the home’), a media defence organisation was put together by John Birt and Barry Cox. It was a very British organisation – about a dozen of us, exclusively male, chaired by Lord McGregor (who had chaired a Royal Commission on the Press), meeting over dinner at the men-only Garrick Club. It was not really my scene as we politely wined and dined Thatcher ministers, although it did have one important lobbying success when we persuaded Leon Brittan to amend a new law increasing police powers so as to limit their ability to seize journalistic material.71

Everyone seemed to agree with Tom Stoppard: ‘I’m all for free speech. It’s the newspapers I can’t stand.’ That was, in part, a problem caused by the state of media law prior to the Human Rights Act. ‘The blind goddess of British justice raises her sword against the investigative journalist while her other hand fondles the Sunday muckraker,’ I complained in my first of several books on the subject. Libel was and still is the worst constraint – the burden of proof, quite illogically (those who bring cases should prove them) and alone of all civil law actions, is placed on the media defendant. Contempt of court protected lawyers and judges and litigants from criticism; there was no defence to official secrets prosecutions, and breach of confidence was a growth area used to force newspapers to reveal their sources. On the other hand, there was absolutely no protection for privacy – English law had never acknowledged it as a right and the tabloid press was full of the grossest intrusions. There was a portentous organisation called the Press Council, paid for by the press proprietors with the object of staving off the advent of a privacy law by pretending to discipline the press. It was a confidence trick.

That, at least, was the conclusion of an inquiry into the Press Council I chaired in 1980, published as a book, People Against the Press.72 The inquiry had been set up by the unions, although my colleagues were mostly liberal (they included Richard ‘The Uses of Literacy’ Hoggart, Geoffrey Goodman, Katharine Whitehorn and Phillip Whitehead MP). We were all concerned at the demands for statutory regulation (coming, at that time, from the right) and I began with a simple refutation: ‘Journalism is not a profession. It is the exercise by occupation of the right to free expression available to every citizen. That right, being available to all, cannot in principle be withdrawn from a few by a system of licensing or professional registration.’ But it could be made the subject of criticism and correction, and we produced a ‘Leveson Report’ more than thirty years before Leveson, with some differences. His idea that the media should be forced by law to make apologies is ridiculous. (When Richard Ingrams was asked in court whether he had ever published falsehoods in Private Eye, he replied, ‘Yes. The apologies.’) Worse was his recommendation – which has actually made it into legislation (though the government has not yet dared to bring it into operation) that newspapers which do not sign up to a state regulator should pay the legal costs of claimants who make false claims against them. We recommended instead a law to protect privacy (which has now come to pass, thanks to the Human Rights Act) and a statutory right of reply for those subjected to demonisation and unfair attacks. This measure operates satisfactorily in some European countries and does not involve a threat to free speech: on the contrary, it permits abuses of free speech to be mitigated by ordering more free speech.

At first, I had found it difficult to work out a way to measure the success (or failure) of the Press Council, but then I hit upon the idea of asking its complainants. I wrote to everyone who had obtained an adjudication from the Press Council in the past five years. Those who’d had their complaints upheld were far more critical of its conduct that those whose complaints had been dismissed! It was obvious that ‘self-regulation’ was a sham and that a body – any body (whether called the Press Council or, later, the Press Complaints Commission or, currently, the Independent Press Standards Organisation) – funded by press proprietors would never really hold the press to account. There are, today, far fewer invasions of privacy, but that is not because of IPSO but because victims can sue for invasions of privacy, and receive damages (in the phone-hacking cases, for example, large damages from the tabloids) that the ‘self-regulator’ could never order.

The ‘right of reply’ has never been put into law, although it might do something to mitigate the real vice of the British press today, namely the way it passes off propaganda as ‘news’. Stories are twisted to serve the editorial bias – in favour of Brexit, against Corbyn, and so on. IPSO made the mistake of declaring that editors have ‘a right to be partisan’ – which they do, in their editorials (which in consequence few bother to read). So editors have interpreted it as a right to denigrate unfairly, with stories based on anonymous sources (sometimes invented or exaggerated), confected quotations, dishonest headlines and prejudicial language. I was correct, back in 1980, to say that journalism is not a profession, and as a trade it is sometimes reckless and even contemptible, but I have never doubted the free-speech principle or the need to loosen the legal restraints over public interest reporting.

For that reason, I have become a trustee of the Bureau of Investigative Journalism – a body of reporters working with experts to understand and explain the problems caused by governmental and corporate malfeasance or negligence. The extraction of accurate information and its reliable analysis remain the greatest challenge for journalists today – making the news ‘worthy’ rather than ‘fake’. Freedom of speech still relies on the philosophical foundation provided by the poet Milton – put everything in the public marketplace, and the good and the true will combat and drive out the bad and the false. An optimistic credo today, Milton’s Areopagitica, but stirring nonetheless and worth repeating as often as possible.73 I do not get too worked up by university students ‘no-platforming’ speakers who have ample mainstream outlets for their provocations and, pace Voltaire, I no longer think it necessary to fight to the death for expressions I do not like (there are too many of them). But John Stuart Mill’s test remains valid – the state must not censor unless it can prove harm – and other rights (such as privacy, or confidentiality claimed by officials or corporations) must give way to the public interest in publication.

* * *

It was once famously said that freedom of speech in Britain depended on what ‘a jury of shopkeepers’ would allow – and that trial of media offences by juries was the best safeguard against government censorship. But that was said a long time ago, in relation to the printed word: once images were made to move on a screen, in cinemas and then on videos in a home, juries ceased to be trusted to keep the nation safe from bad pictures because, especially in the 1970s, they had a propensity to acquit. So for films and DVDs and PlayStation games and other forms of visual entertainment, the country has come to rely on a censor. It’s called the British Board of Film Classification (BBFC), a little bureaucracy in Soho Square whose decisions are subject to its own appeals board, and occasionally to judicial review in the High Court. It has the unobjectionable task of ‘certifying’ films for various age classifications, but the more questionable role of banning an occasional video or visual game to show the tabloids (and the MPs they incite to outrage) that it really does protect the public from sex and violence. The first censor I met – a charming old man called John Trevelyan – admitted that its real purpose was to protect the profits of the distributors who paid for it. He did a deal with the DPP, who agreed not to prosecute any film certified by the board. This was sure-fire insurance, which protected movie distributors from the kind of obscenity prosecutions being brought against book publishers. In due course I came to work for – and then against – his successor, James Ferman, a paternalistic American who served as Britain’s censor-in-chief for an excessive twenty-four years. I was able to observe the effects on the man of watching dirty movies for two decades: at first he wanted to cut them to pieces, then he seemed to become addicted to them, then he obsessively planned to release them to the public, which he achieved by devising an R18 certificate for what he termed ‘good clean pornography’.

My first brief for the BBFC was to advise on the cause célèbre of the time, Gore Vidal’s Caligula. The film starred Helen Mirren and Malcolm McDowell, treading their way gingerly through Roman orgies, staged by extras from porn films. Sir John Gielgud played Nerva – he had rejected the part with horror when it was first offered, but the cost of an extension to his home changed his mind, on condition that he was seen to die before the orgies began. The BBFC hired a number of senior counsel (I don’t know the collective word for a group of QC’s – a ‘purse’ of silks, I suppose) and Ferman was delighted when I spotted a scene which they had overlooked which had to be cut for legal reasons. It was a charming scene, of Roman matrons bottle-feeding their newborn babes, but my eagle eyes noted that each milk bottle was in the shape of a phallus – an indecent image in a scene with persons aged under sixteen (i.e. the babies). For a while I became a favourite adviser, giving a clean bill of health to Lolita (Jeremy Irons would have ended our friendship had I not – but his nymphet, unlike Nabokov’s, was aged sixteen) and then to The Last Temptation of Christ – Hollywood’s first take on the crucifixion. It was not blasphemous, and the most objectionable aspect of the movie was that all the bad characters – including the Devil – were played with English accents.

I fell out with Ferman when he banned Visions of Ecstasy, a harmless experimental film about the erotic trances of St Teresa of Ávila. He did this for political reasons, to show that he was sensitive to religious feelings after criticism for approving The Last Temptation. I appealed on behalf of the director, but he rigged the appeals committee by calling its most conservative members to hear the case, to which I responded by calling as an expert witness one of their discarded number, the novelist Fay Weldon. Notwithstanding her evidence, they found against us by 3–2, so off we went to Strasbourg, which at that time had a commission of sixteen legal experts to give a preliminary decision. They came down 14–2 in our favour, on the ground that upset to Catholic devotees of St Teresa did not provide a reason for stopping the sale of visions of her ecstasies to those who wished to see them. Ferman appealed to the court, where a preponderance of Catholic judges decided not that the movie was indecent but that a ban on it in Britain was within the state’s ‘margin of appreciation’ – a cop-out they use to avoid deciding controversial moral issues.

Even so, I was annoyed with Ferman using the law of blasphemy at a time when it was being used in some primitive countries to jail (and even execute) disbelievers. It was not acceptable for Britain’s censor to give blasphemy laws a seal of approval. But Ferman was intoxicated by his power to ban films by reference to arcane laws which ought to have been abolished long ago, and next he banned International Guerrillas – a ludicrous James Bond-style fantasy from Pakistan about the hunt for Salman Rushdie, whom it depicted as a sadistic terrorist. Ferman said it was a criminal libel on Rushdie, so I had Salman over to my home and we laughed our way through it. He wrote a witness statement condemning Ferman for censoring the movie, and this time the appeals committee unanimously voted to unban it.

The problem with the BBFC (as with the Press Council) was that it was set up to placate public anxieties and to keep its paymasters away from any problems with the criminal law. That meant it was vulnerable to political pressure at a time of moral panic. The first, in the early ’80s, came over what the Daily Mail dubbed ‘video nasties’ – a genre of horror movies with some grisly titles like The Evil Dead and I Spit on Your Grave. The Mail began a campaign that terrified the BBFC, with stories claiming, ‘37 per cent of children aged under 7 have seen a video nasty’ and ‘The video nasty has replaced the conjurer at children’s birthday parties’. Panicked MPs passed a special law to give the BBFC more power, and the DPP disgracefully issued a blacklist – an index of eighty-four titles that he demanded should be removed from sale, although no jury had convicted them. I defended several (including The Evil Dead and Andy Warhol’s Frankenstein) successfully. I failed, however, with Nightmares in a Damaged Brain, about the cinematic merit of which my expert (Guardian film critic Derek Malcolm) was lukewarm. ‘It’s very well executed,’ he told the jury. ‘So was the Nazi invasion of Belgium!’ exploded the judge. ‘That didn’t mean it had merit.’ After a couple of years the Daily Mail’s research was shown to be flawed, juries began to acquit and the moral panic subsided as quickly as it had arisen: movies on the DPP’s blacklist could be hired from Blockbuster by twelve-year-olds.

The next moral panic came in 1997, over video games, which had just become popular. The best were of British design and manufacture and I defended in the test case, over Carmageddon, a computer product of Stainless Games’ creative technology and black humour, which had sold in hundreds of thousands in fifty-seven countries and was classified ‘15’ in Australia and New Zealand. The BBFC refused to certify it as fit for any age, even for adults, cowed by pressure from the tabloids (‘Ban Killer Car Game: MPs Enraged By Sick Computer Game’). It was good dodgem car-style fun, at least for an old revhead like me, as you earned points by running over mad digitised cows and crazy blobs (‘sprites’) which squeaked when hit and splattered green ‘blood’ on your windshield. Ferman banned what he said was ‘a game which gives the player permission to carry out atrocious acts of carnage in this safely contained world of the PC screen … well heeled, laddish young men will take great delight in savage delinquency…’

This was the sort of nonsense that emanated from James in his overheated later period, but his long-overdue departure from the BBFC did not usher in a new era of common sense: in 2006 I was defending Grand Theft Auto and Manhunt II. The latter game was banned because gamers could ‘make use of a full range of weaponry, including axes, a mace, a baseball bat, plastic bags, Uzi submachine-guns, night-sticks, an iron maiden, an industrial compressor and toilet cistern lids’. I pointed out to the appeals committee that the game required the players to show some skill (e.g. an ability to disable an enemy with a toilet seat) and it accepted my arguments. The board petulantly protested to the Divisional Court, which asked the appeals committee to reconsider its decision, but it stuck to its guns (and its toilet seats). By this time, the BBFC had been hoisted by its own research: it commissioned an extensive study, ‘Video Games’, which found no connection between playing interactive games and a propensity to act out the violence in real life. Its conclusion, which should have been obvious to the board from the beginning, was: ‘Gamers play games because they enjoy it.’

* * *

My early days at the Bar coincided with a moral panic about pornography – although what passed for porn then was a lot less arousing than what that word denotes today. As I open the latest Sunday Times wealth list, I see names I defended in the mid-1970s, like that young London University graduate David Sullivan, first prosecuted for sending porn-in-the-post, although he could have been done for fraud: he would advertise magazines called Women and Horses! and send his punters pictures of stately equestriennes. After his bust he instructed me to keep the committal proceedings going as long as possible – I read the lay justices my Oxford thesis on obscenity – and by the time we reached the Old Bailey, eighteen months later, he had made enough money to retain both Jeremy Hutchinson and John Mortimer to lead me. ‘If the fine is more than £250,000, I’ll have to ask for time to pay,’ he told us at the court door. He was lucky in his judge, as well as his lawyers, and was fined £25. He went on to buy a newspaper (if you call the Daily Sport a newspaper), a football team and a chain of sex shops, and was soon to celebrate (on television, with Germaine Greer) his sale of one million vibrators.

Ralph and David Gold were other future multimillionaires; I defended them at Stoke Newington Crown Court before jurors who would go for lunch at the local pub, which featured strip shows more lurid than their magazines. (David’s daughter, Jacqueline Gold, now has the Ann Summers franchise.) British policemen in this period discovered that it was much more pleasant reading porn than capturing burglars: they would raid the local newsagents and carefully read and index all the top-shelf publications (a task that would take months) and then apply for a destruction order at the local magistrates court. I would travel there with the psychotherapist Phillip Hodson, who was editor of Forum (a reasonably genuine sex education magazine). We would take as an expert witness for its ‘public good’ defence a most distinguished cleric, the Reverend Chad Varah OBE, founder of the Samaritans, whose name one Old Bailey prosecutor insisted on pronouncing ‘Chad Guevara’. I did cause a shock in the courtroom after Chad had volunteered the fact that he had read the top-shelf magazines in bed the previous night. ‘And did you masturbate?’ I asked as innocently as possible, to the horror of the judge. Chad let a few beats pass before replying, ‘Alas, no.’ – with the emphasis on ‘Alas’. The jurors empathised, and quickly acquitted. Alex Comfort’s The Joy of Sex – subsequently (and still) a bestseller – did come to grief in Liverpool, before its very old stipendiary, one Mr Pugh, after it had been seized from the local WH Smith. He listened to me talk about the benefits of sex education for a while, and then interjected, ‘But this book is about perversion … it has a chapter on … [he whispered] oral sex.’ I produced a recent report which showed that a majority of married couples in Britain were admitting some indulgence in the practice. Mr Pugh sighed, and said in a voice of infinite sadness, ‘If that is really so, Mr Robertson, I’m glad I do not have long to live.’

* * *

There was another aspect of freedom of speech which found more favour, at least from the higher judiciary. It was the ‘open justice’ principle, and I often appeared on behalf of newspapers when it was breached by lower courts. There was no law that said that courts must be open, but they always had been, since medieval times when trials were ill-conducted public meetings. Then Jeremy Bentham formulated the principle that would have saved Assange from Sweden, namely that justice must be seen to be done: ‘Publicity is the very soul of justice. It keeps the judge, while trying, under trial.’ I quoted it repeatedly in applications to the High Court to remedy errors made by magistrates who had, for example, tried to suppress the name of a drug-addicted witness because she was a relative of Sir Winston Churchill, or the address of a defendant, a former Tory MP, who did not wish his ex-wife to learn it. However, courts were always trying to breach the rule. In Felixstowe, for example, the court announced a policy of withholding the names of individual JPs who tried controversial cases, and this ‘policy’ was quickly adopted by other courts. When I challenged it on behalf of Guardian journalist David Leigh, the High Court handed down a splendid judgment describing court reporters as ‘the watchdogs of justice’ and declaring that ‘there is no such person known to the law as the anonymous JP’. It added: ‘A magistrate will be more anxious to give a correct decision if he knows that his reasons must justify themselves at the bar of public opinion.’ That case – R v Felixstowe Justices ex parte Leigh – was hailed in its time (1987) as a landmark victory for court reporting. But I was recently struck by the shortness of the memory of those – i.e. court reporters – it was meant to benefit.74 Cliff Richard’s home was raided on a warrant that should not (at least in my opinion) have been issued, while a BBC helicopter filmed from above. Reporters asked for the name of the JP, but Sheffield Magistrates’ Court said it had a policy of not identifying them, and no newspaper thought (or could afford) to challenge this unlawful refusal.

Open justice by way of television is still resisted by many lawyers and judges, afraid (to be frank) that it will show them up or lead to criticism. It may, and for good reason (remember the hopeless Judge Lance Ito from the OJ Simpson trial?), but the interesting thing about televising OJ was the studies that emerged in the US showing that it has encouraged more people to do jury service and encouraged jurors to listen more critically to lawyers. There is an old English law dating from 1925 which bans photography in court, but this is no bar to televising public inquiries. You would think that the very fact that it is a public inquiry would encourage judges to let it be seen by the public, but television stations are often afraid to ask. I appeared for CNN to gain permission from a sensible judge to televise parts of the inquiry into Dr Harold Shipman, who had killed several hundred of his patients, but I could not move Lord Hutton, on behalf of ITV, to permit cameras to cover the inquest into the death of Dr David Kelly, who had been the source for how the Iraq dossier had been ‘sexed up’. He said the main witnesses might be intimidated by having to give evidence in front of the cameras, although since they comprised Tony Blair, Alastair Campbell and Geoff Hoon, I beg to doubt this very much.

My commitment to freedom of expression brought me strange forensic bedfellows – none more so than Sir James Goldsmith – a fanatically Europhobic billionaire – and Phyllis Bowman, head of the anti-abortion group the Society for the Protection of Unborn Children (SPUC). Sir James was first to realise, back in the days of Labour’s landslide 1997 election, that the only way to leave Europe would be via a referendum, so he formed the Referendum Party and stood over 600 candidates, one in almost every constituency, with Brexit as their only policy. Mainstream parties were allowed five ten-minute party political broadcasts, but the BBC/ITV committee that made such decisions gave the Referendum Party one measly five minutes, on the ground that it did not yet have any seats. How on earth could a new party come to power through the ballot box, I asked the High Court rhetorically, if it was not allowed to get its message across by as many television broadcasts as its opponents? The court did not grasp the principle of equality, and simply relied on the so-called expertise of the BBC/ITV ‘experts’, although they were all rather intellectually self-satisfied characters to whom Brexit did not seem of any importance.75 I was enthusiastically supporting Labour in 1997 but saw no difficulty in arguing the case for Sir James. We got on very well – he was dying of cancer at the time, but was fighting ferociously for his political beliefs, and I saluted his courage.

Phyllis Bowman, too, was the nicest of clients – a dear, devoted grandmother – although her anti-abortion beliefs would have cruel consequences and her way of promoting them – by publishing pictures of foetuses on ‘how to vote’ leaflets – undoubtedly offensive to many members of the public to whom they were handed. But that did not mean she should have been prosecuted under an absurd election law, which limited ‘third-party’ (i.e. pressure group) campaigning to the ridiculously low sum of £5 per constituency. This prevented not only SPUC but also Greenpeace, Friends of the Earth, Charter 88, CND and other campaigning groups from exercising their democratic right to participate meaningfully in elections. After having Phyllis’s prosecution dismissed on technical grounds, I took the case to Strasbourg, where we easily won – the British law was contrary both to the free-speech right under Article 10 (you could not buy much ‘free’ speech for £5) and to the right to participate in elections.76 Were you moved by the movie, Mr Murdoch?’ she Parliament was forced to change the law, which it did in 2000. (The limit is currently £2,000 per constituency.) Where human rights principles are concerned, you cannot pick and choose: Mrs Bowman’s victory benefited all pressure groups, including those supporting a woman’s right to choose.

* * *

It was (and still is) the law of libel that makes Britain a country where ‘free speech’ can become expensive speech. Libel lawyers operate on the principle ‘If in doubt, cut it out’ and trials for defamation can be occasions when the temple of law turns into a casino, as juries (before they were virtually abolished in 2015) awarded vast sums in tax-free damages, usually to plaintiffs who were already wealthy, against newspapers over allegations that could well have been true, although they could not be proved true, especially if sources were reluctant to come forward. In libel, for no logical reason and alone of all civil law actions, the burden of proof falls on the defence, which means that the claimant seeking damages does not have to prove his case: the defendant newspaper has to disprove it. Until recently, libel law had no defence for public interest investigative journalism, or for publications that had been properly researched and were reasonably believed to be true.

All this was antithetical to the First Amendment of the US constitution, which protected speech unless it was made with malice (i.e. in circumstances where the publication was reckless – making an allegation without caring whether it was true). So there was a conflict between American and English standards, which became acute when US newspapers and magazines were published in the UK. London became the libel capital of the world – ‘A town named Sue’, they called it, as American public figures took action here to protect a reputation they could not possess at home. In a global village, it hardly makes sense for plaintiffs to have different reputations in different parts of town, but US publishers were afraid of the expense of a British libel action: Daniel Moynihan’s famous jibe about Henry Kissinger – ‘Henry doesn’t lie because it’s in his interests, he lies because it’s in his nature’ – was solemnly edited out of US books about contemporary politics, and even from Time magazine, before they were published in Britain. I had to advise William Shawcross to make twenty-two cuts in his book Sideshow – a masterful account of Kissinger’s role in Nixon’s bombing of Cambodia – before it could be published in the UK: despite the public interest in reading all of a book already acclaimed in America, the ruinous cost of an English libel action left its publisher with no alternative. All that Americans and Russians needed to sue their critics in London’s claimant-friendly courts was a ‘reputation’ – i.e. that some people here had heard of them.

Texan oilman Oscar Wyatt, on whom J. R. Ewing’s character in Dallas was based, went so far as to claim he had a reputation to protect in England because his son was the first to have committed adultery with the Duchess of York and he had once been invited to dine at Buckingham Palace (I had his case against Forbes magazine dismissed: although he had been invited to dine at the palace, this happened only because the Queen was away).77 If the defendant newspaper had no office or property in London, successful plaintiffs at first tried to enforce their judgment in America. But not after a New York case in 1992, in which I was an expert witness on the inadequacies of English law: to enforce it, ruled the judge, would be ‘antithetical to the First Amendment’ because of the unfairness of putting the burden of proof on the defence.78 But international celebrity plaintiffs did not really need libel damages – what they wanted, by suing in London, was to chill any investigations into their own misconduct and to prevent or punish any publication about it.

The wonders of English libel law were touted abroad by English solicitors like Peter Carter-Ruck (his firm was the model for Private Eye’s ‘Sue, Grabbit and Runne’). So after the American forum shoppers came the Russian oligarchs, anxious to punish American newspapers guilty of probing their past. They would stash their wives in Chelsea mansions, their children at English private schools and their mistresses in Mayfair and seek to develop connections (often with second-class royals, available for hire) which would give them the standing to sue by claiming close connections with the local establishment and a consequent reputation in the UK that would be damaged by any published exposure, even in an American paper which sold only a handful of copies in London. They were men of enormous wealth, profiteers from the break-up of the Soviet Union under the corrupt Boris Yeltsin, and without moral scruple. One, who had stolen money allocated to buy shoes for peasant children, left a message on my answering machine – the sound of machine-gun fire. It was almost impossible to obtain evidence from Russia admissible in an English courtroom – with Dow Jones’s American lawyers Bob Sack and Stuart Karle, Mark Stephens and I went to Moscow to investigate one oligarch claimant, but we found that everything was up for sale (including KGB records) and would be regarded in an English court as tainted evidence.

The most important case was brought by the oligarch Boris Berezovsky. He sued Forbes magazine over an article about his KGB background and corrupt links with Yeltsin. It was written by a conscientious American journalist, Paul Klebnikov: Paul and I had no difficulty putting together a defence proving that Berezovsky was a gangster with a ‘roof’ (i.e. a protection squad) of murderous Chechens, and was deeply involved in fraud and political corruption. But Forbes had introduced Paul’s article with a comment about the ‘trail of corpses’ behind Berezovsky, and we could not prove on the balance of probabilities (i.e. that it was more likely than not) that he was a murderer. So we argued forum non conveniens – that the case did not belong in London: the facts in the article were entirely Moscow-centric, Forbes sold a million copies in the US but only 1,000 in England, and our courts should not arrogate to themselves the role of libel globo-cops for foreigners with little real connection to this country. We lost in the House of Lords, although narrowly (3–2), with the most persuasive judgments the two in our favour.79 The case settled, but the following year, in July 2004, Paul Klebnikov was assassinated in Moscow. It was suspected that Berezovsky had directed his execution, which was certainly a reprisal killing, but this could not be proved. Paul was one of a number of journalists murdered for looking too closely into oligarchs, and particularly into the biggest of them all, Vladimir Putin, who later turned on Berezovsky and tried to have him extradited. One day, Berezovsky was found dead in his Berkshire mansion. It looked (or had been made to look) like suicide. Nobody, including the coroner, could be sure.

Bill Browder, another of my clients, was a successful American businessman based in Moscow, until corrupt police used his company for a tax scam and arrested his lawyer, Sergei Magnitsky, who had blown the whistle on them. Magnitsky was killed in prison, and in his memory Bill devoted his time and money to promote ‘Magnitsky Laws’, which punish human rights violators by preventing them enjoying their ill-gotten gains – freezing their assets in Western banks, and denying them entry to Western countries and casinos that are their favourite haunts (see Chapter Seventeen). Bill’s book Red Notice: A True Story of High Finance, Murder and One Man’s Fight for Justice was a bestseller. The Russians did not come for him with polonium or a poisoned umbrella, but with a writ for libel – brought by one of the cops he had implicated in Magnitsky’s death. This claimant hired expensive British lawyers and hunkered down for a trial that would have lasted for months and cost him millions, although he was on an annual police salary of US$15,000! State money was obviously behind him, as well as the KGB. I prepared our defence, using the testimony of Russian exiles (this time, I decided not to go to Moscow). Eventually the judge decided that the policeman had insufficient connection with England to be allowed to sue here, and was told to find his remedy in the Moscow courts. They were, of course, rigged in his favour: they had already convicted Bill, along with Sergei (even though he was dead), on trumped-up charges of fraud. They tried to have Interpol issue a ‘red notice’ against Bill to constrain his travel – hence the title of his book.

* * *

I have always, I suppose, been a journalist manqué. Early in my London life, when I was writing for the New Statesman, I actually considered abandoning the harsh discipline of the Bar in favour of the louche life of a hack, but I was deterred by the editor, who wanted to retain my inside take on the legal profession. But I spent a lot of time with journos, as friends or clients or both, and I had no doubt that helping to create a public interest defence to defamation would be a good thing for free speech. An even better thing would be to provide a legal right to protect journalists’ sources of information. When I began practising, English common law provided no help at all: it allowed police, but nobody else, to withhold the names of their informers, and for editors this could produce a crisis of conscience.

It happened to Peter Preston, a friend who edited The Guardian in the ’80s. In 1983, secret documents from the Ministry of Defence came to his office in a brown envelope, revealing the date when nuclear Cruise missiles would arrive at Greenham Common, an RAF camp in Berkshire. A women’s protest group was permanently encamped there, waiting for this unpredictable day, so the actual date was big news. When it was published by The Guardian, the state pounced and the Treasury Solicitor, that baleful presence in the Spycatcher case, obtained a court order on the newspaper to hand over the original documents, which had markings directing MI5 to the very desk in the Ministry of Defence from which they had been sent. Peter was badly advised by his lawyer and instead of destroying the documents before the order was issued, he held on to them and objected that the order would force him to reveal his sources. The judges simply laughed – that was exactly why the order had been imposed, and if he did not comply they would fine the paper a massive sum for every day he disobeyed. He had little choice, and soon the ‘mole’ in the ministry was flushed out: a 23-year-old clerk named Sarah Tisdall. I went to court to see her sentenced – a tiny, weeping presence huddled in the huge dock of Court No. 1 of the Old Bailey. She was sent to prison, and Peter, whom I saw afterwards, was devastated. He felt responsible, and he was – but the law had left him little choice other than the liquidation of The Guardian. Should it not assist journalists to protect their sources?

I was certain that it should. Although a good journalist will have skills of analysis and research and (like a barrister) an ability to master a complicated subject in a short time, one critical qualification (at least for an investigative journalist) is the ability to cultivate sources of information. Much of the news that gets published is fed to journalists by public relations departments, press releases and press conferences – British government departments employ more than 5,000 professional PR people, and corporations have many thousands more. They are really professional propagandists, putting the spin on their stories that is most favourable to their employer. This makes it important, if ‘news’ is to be worthy of that word, for journalists to have sources – whistleblowers, leakers, insiders or whatever – who can tell them the truth. Were it not for ‘unofficial sources’ talking off the record to journalists, there would be far fewer facts for discussion in democratic society. If journalists betray their sources, and those sources are in consequence sent to prison, then information for investigative news reports will start to dry up, and what is published will be less reliable. That is why journalists cultivate sources by promising them anonymity. This must be a solemn promise, made in the service of the greater public interest, and it binds the conscience of the individual journalist as well as the conscience of their editor and – if he has a conscience – their proprietor. But moral rights are worthless unless reflected in legal rights, and unless a legal right could be extrapolated from the principle of freedom of expression in the European Convention on Human Rights, there would be no protection at all for journalists faced with court orders to reveal their sources.

In the early 1990s, a brief arrived from Geoffrey Bindman that enabled us to change the law, thanks to the courage of a young journalist named Bill Goodwin. He was working as a graduate trainee for a business magazine when he received information about a much-promoted company which revealed that it was in financial difficulties. He called the company, like a good journalist, to discuss the report, whereupon it went into meltdown and obtained a court order for Bill to reveal his source. I appeared for him before Lennie Hoffman, a first-class Chancery judge – my old tutor at Oxford, as a matter of fact – who treated my argument with the disdain he had no doubt treated my essays. He was sympathetic, but there was no way out – Bill was ordered to reveal his source, which the company insisted must be one of its high-level executives. Bill refused, so we went to the Court of Appeal, which offered him a Faustian bargain: put the name of your source in an envelope, which will not be opened unless you lose in the highest court. The highest court in England, they stipulated – I suspect they knew we were going to take this case all the way to the European Court of Human Rights in Strasbourg.

Of course we lost in the Court of Appeal, and in the final court the Law Lords were unsympathetic. The presiding judge gave me a condescending lecture: ‘Mr Robertson, legal argument proceeds by building on precedents and statute law. You have cited no precedents and keep giving us this airy-fairy theory about free speech.’ Well, exactly. There were no precedents. We lost, 5–0. We set off for a final appeal. The European Convention on Human Rights had been ratified by the free nations of Europe after the war, and during the Wilson government the great Lord Chancellor Gerald Gardiner had given individual litigants the right to petition its court. If their complaint was upheld, Britain had a duty to change its law to comply with the judgment. So off we went, to argue that Bill’s conviction was a breach of Article 10 of the ECHR: ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…’

My submissions rolled on for 100 pages – but they took us over all the preliminary hurdles until we reached the Grand Chamber, of seventeen judges sitting around a long semi-circular bench.

Advocacy in Strasbourg is pretty easy – it is mainly done on written submissions, which counsel on each side has half an hour to develop in their argument, after which judges ask their questions. We then adjourn for coffee, and return to speak for fifteen minutes to answer those questions. Then we adjourn for an as-long-as-you-want lunch, in a city of Michelinstarred restaurants. It’s probably the most pleasurable experience legal practice has to offer, so I invited John Mortimer and Bob Sack, as well as Kathy, who brought Georgina, aged one month. We drove to nearby Colmar for lunch at what was – and may still be – the best restaurant in the world. L’Auberge de l’Ill is set by the River Ill, in a village with chimney tops on which sit brooding storks. In its window is its guest book, open on a page for a day in 1956 where the signatures of the Queen Mother and Simone de Beauvoir are displayed, although I doubt they dined together. Inside, the presence of baby Georgie was greeted with delight and she was passed, gurgling, around the tables (this would never happen in an English restaurant). After coffee and petits fours by the river, we left in the late afternoon to catch ‘the little Fokker’ back to London.

Some months later, the judgment came down. We had won. The court ruled that Bill’s conviction was a breach of Article 10 because of the importance, overlooked by our English judges, of ‘having regard [for the] … protection of journalistic sources for press freedom in a democratic society and the potentially chilling effect an order for source disclosure has on the exercise of that freedom’. It accepted our argument, which had been unanimously rejected at every court level in Britain:

This ruling became part of UK law in 1998, when the Blair government incorporated the European Convention as part of its Human Rights Act. It has given journalists in England stronger legal protection for their sources than journalists in the US – they can now give concrete undertakings to their sources that they will not be ordered by courts to identify them. This should be binding in conscience on newspaper proprietors, but in what was arguably the most shocking breach of ethics in newspaper history, Rupert Murdoch directed that the names of the sources of the journalists working for his papers The Sun and the News of the World should be handed over to the police. This arose during the phone-hacking scandal, when it emerged that tabloid papers had been illegally intercepting telephone calls and messages. It was said that Murdoch was advised by his American lawyers that unless he fully cooperated with the police there might be repercussions for his US media ownerships. Murdoch directed that all dealings with sources, logged on their computers, should be handed over to the police team that had been invited to take up residence at the News International offices in Wapping. This led to the prosecution of dozens of journalists and their sources: some of the latter had not been paid but were in government employ (all were sacked, whether or not the prosecution succeeded) and many who were paid had divulged information of public importance, such as how the Ministry of Defence was sending soldiers into battle without adequate equipment.

Murdoch’s journalists and their sources were subjected to dawn raids and the heartache of waiting several years for trials. The mass betrayal of sources was not against the law, of course – there is nothing but a proprietor’s own integrity to stop him or her from flouting the code of conduct that all papers purport to uphold. (‘Journalists have a moral obligation to protect confidential sources of information.’) But Murdoch’s conduct, in throwing his journalists’ sources (as well as his journalists) to the wolves, was unconscionable. I said so in an article I was commissioned to write by the news editor of The Times – the very fact that I was invited shows the depth of moral outrage among journalists at News Ltd’s serious papers.81

* * *

I did a lot of work in the ’90s for Dow Jones – the American Lawyer journal profiled me as ‘Dow Jones’s man about the Commonwealth’ – in cases in which I defended its journalists from intemperate governments in countries where speech was not free. This was Dow Jones before Murdoch took it over – the editorials in the Wall Street Journal were generally conservative, but the paper and others in its stable prided themselves on objective reporting and in particular on standing up for free-speech principles whenever their journalists were endangered. I went to court in Singapore to defend Barry Wain, the editor of the Wall Street Journal Asia, for the crime of publishing a polite criticism of its courts (it is contempt to suggest in Singapore that its judges have in any way gone wrong). In Malaysia, I teamed up with its best advocate, Muhammad Shafee Abdullah, to engage in legal jousts with its Prime Minister, the bullying Dr Mahathir, when he tried to expel two Wall Street journalists. When he lost, unlike Lee and Mugabe, he accepted the verdict – but then sacked the judges who delivered it.

By the turn of the century, the media was into the internet age, and one great legal issue was where you could sue a publication that was available on the web. Was it where the alleged defamation was put on the server (usually in the country where the publisher was established), or where it was downloaded (which could mean liability for the publisher in many countries)? We discussed this a lot – Dow Jones’s US lawyers were Bob Sack, a brilliant exponent of defamation (Sack on Libel), now a US federal judge on the Second Circuit, and Stuart Karle, the in-house counsel dedicated to the company’s free-speech mission. We wanted the paper to be judged by the standards of the First Amendment. We looked for a test case in a court outside the US, which could decide that internet downloading from a US site of a US newspaper article should be judged by the standards of US law. I gave them the worst advice I have ever delivered: ‘Let’s have the test case in Australia. They have a really progressive High Court.’

The case we would take to my really progressive High Court soon came up, in the form of an article in Barron’s, a serious Dow Jones financial magazine, about one Joe Gutnick, a Melbourne identity known for his generosity to synagogues and Jewish charities of extreme orthodoxy, and most prominently for his ownership of a local Melbourne football club. He was trying to move into the New York stock market, and Barron’s subjected him to a piece of US-style investigative journalism which he had never experienced from the Australian press, constrained by libel law inherited from England. Although the magazine had sold just two print copies in Victoria, the article had been downloaded by his Melbourne stockbrokers and members of his synagogue, and he brought an action for defamation in the Supreme Court of Victoria.

We objected that this court had no jurisdiction over an American publication which had been electronically extracted by Australians from New Jersey, where it was sitting on the Dow Jones server. We called a lot of very technical evidence which, to be simplistic, showed that downloading electronic messages involved sending electronic impulses from Melbourne to the New Jersey server, where they captured the article in its electronic form and brought it back to Victoria for reassembling. So it was as if Gutnick had sent a servant to America to buy a copy of the paper and bring it back: the actual ‘publication’, i.e. the handover of the information, technically took place in New Jersey, so the decision as to whether it defamed the businessman should be taken by New Jersey law. The judge in Victoria did not understand my arguments and took great exception to my encomia to free speech – platitudes that I had uttered in the House of Lords, the Privy Council and in courts around the Commonwealth, but which he seemed to think unfit to be heard in Melbourne. His judgment’s infelicities were sufficient for me to persuade three High Court judges that the case should be considered by the full High Court.

The problem we had, once again, was the novelty of our argument: it had theory, philosophy and practical sense but no precedents, certainly none from Australia, which had no Bill of Rights that I could invoke. The judges, seven good black-letter lawyers, could find no black letters to assemble in our favour.82 They were not bothered about the threat to free speech if wealthy plaintiffs could bring libel actions in any country, even in, say, Russia or Singapore. It was, however, an enjoyable experience to go briefly through a door I had never opened, to the court where I would doubtless have practiced, had it not been for the largesse of Cecil Rhodes. I was particularly struck by the quickness and erudition of the clerks (three per judge), who were the smartest people in the room.

The High Court sent the case back to Melbourne for trial, and we prepared for a lengthy one, but mediation saved the day. Sir Laurence Street, Australia’s top mediator, settled it in a morning, without any damages to be paid by Dow Jones. The High Court’s decision stood in the law books and was initially followed in Britain, but in time its flaws became apparent and it has been ‘distinguished’ – the polite word that judges use when they think a decision is totally wrong.

* * *

Mediation, sometimes confused with meditation, is the art of separating clients from their lawyers and convincing them that compromise is cheaper and better for their mental health than gambling on a favourable outcome in court. It’s a mark of professionalism to encourage your client to embark on a process that could settle a case that would bring you fame and fees were it to go to trial. Both sides benefit, even when they think (as they usually do) that they are in the absolute right. That was the position as we prepared to fight for free speech over a disputed moment in the magical mystery tour of the Beatles.

The Beatles provided the music for my generation, and the muzak thereafter. Despite my friendship with George and Olivia Harrison, and a visit to Liverpool on a Beatles bus tour with Jules – I had a twinge of nostalgia on seeing the road signs for ‘Penny Lane’ and ‘Strawberry Field’ – I was never much into memories of the ‘swinging ’60s’. I arrived in Britain too late – in 1970 – and was soon defending them (in the Oz trial) rather than enjoying them. I regularly find Beatlemania irritating because my route to work takes me down Abbey Road, where my car is usually blocked by fans taking selfies at the iconic crossing in front of the recording studios. But in 2008 I found myself investigating events in the lives of the band in 1968, when they had fallen under the spell of a yogi called the Maharishi (dubbed by Private Eye the ‘Veririchi Lotsamoney Yogi Bear’) and had followed him to his ashram at Rishikesh in India to learn more from his Hindu teachings. Other worshippers joined them – Mike Love of the Beach Boys, Donovan, Mia Farrow and her sister, but the visit was not a success.

Ringo left early, unable to stomach Indian food. Then ‘Magic Alex’, one of John’s hangers-on, claimed to have observed the sage in sexual congress with a female devotee. This for some reason upset John and George, who also decided to depart. ‘What have I done?’ implored the bewildered yogi as they took their taxis to the airport. ‘If you’re so cosmic, you’ll know,’ was John’s withering reply. He even wrote a song, ‘Maharishi’, about the incident: ‘Maharishi – what have you done? You made a fool of everyone.’ The opening words (and the song title) were later changed to ‘Sexy Sadie’ at George’s request – he was beginning to doubt the truth of the allegation Magic Alex had made. (As, later, did John, since Magic Alex had an ulterior motive for breaking them up with the guru, namely to restore his own influence over the band.)

So how, forty years later, did I come to study this alleged, if all too common, case of a spiritual leader interacting sexually with an adoring follower? My client, the New York Times, had published an obituary of the Maharishi.83 It recounted the above facts, noting that the Beatles had been at their most creative (The White Album) under the Maharishi’s benign influence, and may well have stayed together had they remained his disciples. Entirely legitimate speculation to make in an obituary written by a distinguished musicologist, one would have thought, but not if one were Alex Mardas, aka Magic Alex. He emerged from decades of obscurity as a rather seedy businessman in Athens, with an effective London lawyer in tow, to sue the New York Times for the imputation that he was a ‘charlatan’ (they had so described him) and a rumour-monger.

Initially I had his case dismissed on the grounds that it belonged, if anywhere, in New York (only a handful of copies of the paper had been distributed in London). However, we lost on appeal – English judges are jealous of their reputation as libel globo-cops – and there was nothing for it but to prepare for what would inevitably turn into a trial for historical sex abuse, with a parade of famous if faded pop stars.

It was not difficult to prove that Alex was a charlatan. He had come to London in the ’60s and found work as a television repairman, but with the aid of a vivid imagination and a copy of Popular Science magazine he had convinced the Fab Four – John, in particular – that he was a genius – indeed a genie – who could produce fantastical electronic inventions. They would include:

Dubbing him ‘Magic Alex’, the Beatles paid him a large amount of money to proceed with these inventions, none of which came to pass. The 72-track recording studio at Apple headquarters in Savile Row was built, but when they went there to record ‘Let It Be’ it did not work, and they were soon back at Abbey Road with a furious George Martin, their producer, who could not believe their gullibility. All the stories about the imagination and incompetence of Alex Mardas actually added a phrase to English scientific language: the ‘Mardas Gap’ is now used to describe the disparity between a designer’s promise and what that designer can achieve. So Mardas did have a reputation – as something of a charlatan.

But the problem remained that the burden of proving truth is squarely on the defence in libel actions. And how, after forty years, could we prove a negative – that the swami did not meditate erotically with a female follower? Like all such rumours, those who had heard it at the time had conflicting memories: was he meant to have groped Mia Farrow, or her sister Prudence, or a blonde nurse named Pat who was there as a hanger-on to one of the celebrity guests? She was the likely victim in Paul McCartney’s memory: he recalled John saying, ‘Maharishi made a pass at her,’ to which Paul replied, ‘What’s wrong with that?’ To which John indignantly replied, ‘Well, you know, he’s just a bloody old letch like everybody else. What the fuck, we can’t go following that!’

In time, and after more rational meditation, both John and George concluded that the Maharishi was innocent of an allegation Mardas had made to get them away from the guru’s influence and his ashram. But both Beatles were dead by the time of the libel action, and although there were former devotees scattered around the world who were prepared to come to London to testify as to the unlikelihood of the allegation, my evidence fell short of proving that the holy man had refrained from sin.

Had Mardas been suing a British newspaper, the case would have been simple to settle: a quick negotiation, a small published apology for any distress he had suffered, with moderate payment towards his legal costs. But the New York Times was unlike any other newspaper. Its venerated publisher, Adolph S. Ochs, had decreed as long ago as 1922 that the paper would fight every libel action to the death – a policy which had served to deter gold-diggers and had produced in 1964 the famous Supreme Court decision in New York Times v Sullivan, in which the First Amendment was interpreted to protect any journalism that was absent of malice. The edict, in his own handwriting, hung framed in the newspaper’s boardroom – copies were faxed to any recalcitrant counsel who dared to suggest a settlement. Much as I valued the paper as a client, I advised that the Mardas case was not worth the candle. I had sent my colleague Jen Robinson around the US to dig out musical legends of my generation: the old rockers, hippies and hangers-on (many still unreconstructed) would have provided public entertainment for weeks and ‘Magic Alex’ might have been laughed out of court. But it would cost millions, so the New York Times agreed this time to relax its policy far enough to permit mediation.

The mediator usually shuttles back and forth between the parties trying to find some common ground, and Lennie (by now Lord) Hoffmann did this for us in an arbitration suite in Athens. The parties are meant to stay apart, but I bumped into Magic Alex in person when he came out of his team’s room for a cigarette. We had a friend in common, which started our conversation – in no time he was telling me that, for reasons of his future business, what he wanted was a statement that the paper did not intend to brand him a confidence trickster. He didn’t care about the Maharishi or money, and on that basis the deal was quickly sealed: the paper agreed to state that it had not meant to imply that Mardas was a confidence trickster, and his action was withdrawn. And having met him, in actual fact I do not think he was. A charlatan of sorts, but one who was deluded about his own incompetence and inability to achieve his inventions, rather than a crook who took the Beatles for a ride, in a flying saucer provided by their V-12 engines.

* * *

In 1984, I co-authored (with Andrew Nicol) a textbook, Media Law. It began as a slim volume which we were tempted to call The Journalist’s Toothbrush, because so many reporters were being advised to carry an overnight bag when summoned to court, in case they were sent to prison. Now in its sixth edition, it runs to 1,044 pages, and has always argued in favour of a public interest defence of ‘reasonable publication’ in libel cases.84 I was first able to argue for this defence in court when defending the Telegraph against a libel claim brought by the then unknown Saif Gaddafi, favourite son of the colonel. It is not clear why he took action under English law, although it may have stemmed from advice I had given his father some years earlier. A novel had been published called The Fifth Horseman (i.e. of the Apocalypse) about Colonel Gaddafi’s fictitious plot to blow up Manhattan with a nuclear device, and I was summoned to the Libyan embassy in St James’s Square to tell the colonel what could be done about it. Speaking through a translator to a client somewhere in a desert tent, I pronounced the book extremely defamatory (which it was – Gaddafi was not a nuclear terrorist) and said I would be happy to act for him at a reasonable fee to obtain large damages. We would issue a writ and all he would have to do would be to fold up his tent and come to London to swear (he might even be allowed to swear an oath on his Green Book) that he would never dream of acquiring weapons of mass destruction.

I did not hear from the colonel again, but he may have passed on to his son, a student at the London School of Economics, something of the wonders of English libel law. Saif sued the Telegraph over an article which tied him to a complicated currency fraud. The piece began ‘Like father, like son’, which was the only sentence – although it was plainly defamatory – to which he did not take exception. The article was probably true, but since it had come from intelligence sources, we could never prove that in court. Our only chance was to pioneer a public interest defence, based on a free-speech right to publish important stories with reasonable care. There were few precedents, but enough straws in the legal wind to argue for the Telegraph’s right to tell an important story, reasonably believed to be true, about the Libyan dictator’s son and heir.

Before the trial started, young Gaddafi went off to visit the Barrier Reef, with an entourage of retainers, who picked up most of the prostitutes in Cairns and took them on a sex- and drugs-fuelled cruise to shoot at sharks. This provided ammunition for cross-examination, although I concentrated on ‘Like father, like son’ and on probing why Saif was so proud of the comparison. He came across as arrogant and brutal – the jury did not like him – and it was no surprise that, come the adjournment, his lawyers made a good offer to settle. It was accepted, and over a drink to celebrate I told the proprietor, Conrad Black, of my regret – we would have made legal history had he turned down the offer and gone eventually on appeal to ask the judges to create a public interest defence. He roared with laughter: ‘Let Rupert make new law – that’s the sort of thing he likes.’

I acted for for The Times – i.e. for Rupert – when it was sued by Michael Ashcroft, then Tory Party treasurer, over allegations that he had been using banks in the Caribbean as fronts for money laundering and drug trafficking. I put on a public interest defence which Ashcroft’s counsel, George Carman, tried to strike out. As we were arguing hammer and tongs in the courtroom, we were passed a note from our solicitors, saying that Ashcroft had met Rupert on a golf course in Florida and that they had decided to settle. (‘The buggers,’ said George under his breath. ‘I haven’t agreed my brief fee.’) I could understand Rupert’s decision. It is usually better to settle lawsuits rather than old scores. Ashcroft is very wealthy and donated prize money to Britain’s Political Book Awards. In 2015 I won ‘Polemic of the Year’ for my book on the Armenian genocide, and had no hesitation in accepting the prize from him – like MI5’s Roger Hollis, he had been the victim of false allegations made by incompetent spooks (in Ashcroft’s case, at the US Drug Enforcement Agency), which is why there was nonetheless an arguable public interest in publishing them.

Proprietors were not keen to pay to reform libel law through the courts (understandably – the cost of taking a case to the highest court adds up to over a million pounds in legal fees). But American editors at the Wall Street Journal had no such inhibitions, political or financial, and were happy to extend the principles of First Amendment freedom to Britain, the country whose repressive sedition laws, used against America’s founding fathers, had inspired them to pass the First Amendment in the first place.

The plaintiff in the crucial case I took for the Journal in 2006, Mohammed Jameel, was a man in the motor trade in Saudi Arabia, where he owned most of the Toyota dealerships and was a multi-billionaire. In the aftermath of 9/11 it became an anxious international question as to whether Saudi Arabia – whence the Bin Ladens and most of the hijackers had come – would cooperate with the US in efforts to clamp down on terrorists. The Wall Street Journal was first to report that it was cooperating, to the extent of monitoring, at the CIA’s request, some of their leading businessmen. Among the names included on its list, published in the Journal, was that of Mohammed Jameel. He sued, and was awarded damages for the implied defamation that he had come under suspicion – the lower courts said the Journal’s story would have been the same if the names had been left out. That just showed how little the judges knew about news-gathering: the very fact that the names were of important public figures close to the regime gave verisimilitude to the story and confirmed that Saudi Arabia really was cooperating with the US. We had to go to the House of Lords to establish that the public interest in news could override an incidental defamation, so long as the journalist had acted responsibly in checking facts as far as they could be checked. It was a great leap forward for news reporting.85

When I had first come to the Bar, I had observed a Ugandan princess, Elizabeth of Toro, collecting large sums in damages from every British newspaper. She had been Idi Amin’s Foreign Minister but was sacked because he said that she had been found having sex in a toilet at France’s Orly Airport. The republication of Amin’s defamatory accusation was obviously in the public interest (as a sign of his madness, for a start), yet after her victory newspapers did not dare publish other attacks on public figures for fear that they would be similarly mulcted in libel damages. Jameel v Wall Street Journal Europe at last freed newspapers from this threat, in cases where what was newsworthy was not the truth of a statement but the fact that it had been made.

* * *

Taking American First Amendment values to courts outside America was easy enough when it meant defending worthwhile investigative journalism, but more difficult when it came to investigative journalism interleaved with naked women. This had been Hugh Hefner’s trick with Playboy magazine to confound the censors, and it was copied by Penthouse founder Bob Guccione – the journalism in his magazine was harder, but so were the photos. Those were the days of sexual repression, when porn was seen as liberating by early feminists: its enemies were supporters of Lord Longford and Mary Whitehouse. By the late ’70s I had become, through my textbook on the subject and Old Bailey cases, a world expert on censorship, and was dispatched to liberate a country even more sexually backward than Australia – New Zealand. It had its own Mary Whitehouse equivalent, named Patricia Bartlett, with whom I did battle on several occasions before New Zealand’s Indecent Publications Board. The Kiwis took these cases very seriously and came down with guidelines precisely detailing what could be shown in magazines – at one point, I complained that they were splitting pubic hairs (but nobody laughed). I defended some trashy magazines, but I also acted for the publishers of banned works of literature and genuine sex educational material (Alex Comfort’s The Joy of Sex again) and in 1979 won a judgment that liberalised the customs rules, permitting entry to New Zealand of an Australian novel which had just been prohibited: Puberty Blues, co-authored by one Kathy Lette.

My successes with New Zealand customs brought a call to strategise an attack on Canadian customs, which despite propinquity to the US had banned some editions of Penthouse because they had references to cunnilingus. The Canadian Customs Department had by law to give reasons for its decision, and incautiously stated in a letter to the publishers, ‘Canadians are not in favour of oral sex.’ This struck me as such an absurd statement – by then it was 1980 – that I advised my clients simply to take out full-page advertisements in Canadian newspapers quoting it, and inviting Canadians to disagree. Some newspapers accepted the advertisement, and the government began to look ridiculous. Canadian television then staged a great debate between its defender of decency – the Attorney General and political tough guy Roy McMurtry – and Bob Guccione. Their interlocutor pointed out that both these macho men were wearing the same brand of cowboy boots to debate whether Canadian women were in favour of oral sex, and the interview became surreal. Bob and Roy saw eye to eye, as well as toe to toe, and the ban was never imposed again. Ridicule turned out to be much better advice than to challenge the ban in court, where po-faced judges would probably have upheld it.

From the mid-1970s onwards, I was crossing the pond quite regularly to work on media law cases with American lawyers. It renewed my fascination with the land of the free, or at least the land that was then more free than the UK. There was a particular thrill about just being in America, even if it was only to watch on television from a hotel room the Jimmy Carter nomination acceptance speech when he quoted Bob Dylan (‘America is busy being born, not busy dying’) or Obama walking out, with that bottle of Fiji Water, into a Chicago park on his election night to proclaim, ‘Yes, we did’.

As the T-shirt says, I love NY. The experimental theatre was better than in London, there were revivals of my favourite Broadway musicals, and there was – always and for ever – the Met. My son loved seeing the crazy polar bears in the Central Park Zoo – in his autistic imagination his real father is Steve Martin and I am actually a polar bear who disappears at night into the freezer; or, when I am in the Caribbean, I am with my climate-challenged family in the North Pole. I chose to stay at the raffish Elysée, where Tennessee Williams and Harold Robbins had worked on their drafts. When Kathy came along it would be the Algonquin, where her heroine Dorothy Parker once punned across the round table.

This was the difference, before the UK adopted its Human Rights Act, between the two legal systems: English common law was malleable, its rules always having exceptions which judges could seize upon and twist to comport with their own subjective prejudices. US legal principles – especially those derived from the constitution – were absolute. Its First Amendment struck down laws restricting freedom of expression, so in Britain a free-speech lawyer has to fight cases which could never be contemplated in America, where expression of fact or opinion can never be a crime (unless you are Julian Assange and can be prosecuted as a spy).

An obvious example is how jurors in the US may speak out after their verdict, give interviews and even write books about their experience. In the UK, the merest recollection of what happened during jury deliberations may incur a jail sentence of up to two years. This was the unlooked-for consequence of a case which arose from the prosecution of the Liberal Party leader Jeremy Thorpe for attempting to shut up a gay boyfriend, Norman Scott, by having him murdered. The chief witness for the prosecution was an MP colleague, whose evidence of Thorpe’s murderous intentions was credible, except for the fact that he had already sold his story to the Telegraph for a £25,000 down payment and a bonus of a further £25,000 if Thorpe was convicted on his testimony. It was a disgraceful deal, and when jurors were interviewed by journalist David Leigh and a colleague, they said that it was the main reason they had acquitted Thorpe. The editor of the New Statesman was keen to publish the interview, and I advised him he could do so – it had manifest public interest (if only to show the dangers of allowing the media to buy up trial witnesses) and there was no law against interviewing jurors. There was, of course, an ill-defined law of contempt of court, which allowed judges to punish actions which tended to pervert justice, but the action that had perverted justice in the Thorpe trial was that of the Telegraph, not of the New Statesman in exposing its consequence. Disgracefully, if typically, Conservative Attorney General Michael Havers decided to prosecute the New Statesman, and not the Conservative-supporting Telegraph.

I had only been a barrister for five years, and expected the journal would hire a QC for its defence. I reckoned without the sense – or sense of humour – of Bruce Page, its editor: ‘You advised us to publish, so you should be the best person to defend your decision.’ (Also, I was the cheapest.) It is the sort of honour that lies heavily upon you – barristers often advise against publication (in which case they cannot be proved wrong) but here I had stuck my neck out – the judges should not, in my view, twist their contempt power to create a new criminal offence, and although they would be sorely tempted, I believed they would have fidelity to law.

Nonetheless, many lawyers were horrified at the prospect that talking jurors might expose inadequacy in lawyers, and indeed in the jury system itself. I threw myself into research at the British Library – difficult, before the internet – and came up with fifty-seven interviews and articles by jurors about their experiences which had been published over the years. Some were truly insightful – Graham Greene, Simon Hoggart and Alan Coren were among the authors – and, as I emphasised to the court, all were reassuring and supportive of the system of jury trial. It was for Parliament, not the judges, to create new penal law, especially if it meant muzzling thousands of citizens who did jury service each year. To my surprise, the Chief Justice – the formerly fearsome Lord Widgery – had begun to suffer from dementia, and was asking odd questions (‘Who is Mr Bruce Page?’ ‘He is the defendant, m’lud’) and reading his papers upside down. Fortunately, the colleague who covered for him was a good common lawyer, and accepted my arguments. The New Statesman (and inferentially, its legal adviser) was acquitted.86

I thought this decision a great victory, although I was given pause when I heard that the irresponsible Lord Denning, at Temple dinners, was condemning the Attorney General for not appealing it. (‘They are saying there’s no law against it. They should have appealed to me. I would have made one.’) But the spectre of newspapers interviewing jurors after celebrated trials outraged QC MPs (there were a lot of them in Parliament at the time) and they procured a draconian amendment to the Contempt of Court Act which made it an imprisonable crime for any juror to dare whisper any detail of what had gone on in the jury room, no matter how much the revelation might be in the public interest. Their object, quite unashamedly, was to protect the institution of jury trial from informed criticism, and this law has even stopped scientific and beneficial research on how juries reach their verdicts. I would have no objection to a law that prevented jurors from selling their secrets, or identifying fellow jurors, but this is a dragnet offence which prevents revelation of serious impropriety or injustice in the jury room. It is yet another example of a British penchant for sweeping distasteful truths about much-loved institutions – whether the jury or the monarchy – under the carpet.

Another example of a British taboo, where law puts its fingers to its lips and goes ‘Shh…’, is on the subject of suicide. I had to fight a court battle to free information on the subject when I was counsel to the Voluntary Euthanasia Society, which had begun a battle – which continues – to abolish the crime of aiding or abetting suicide.

For many centuries English law laid down that bodies of suicide should be buried at night at crossroads, with a stake through their heart and a stone on their heads. This antipathy was given its rationale by the eighteenth-century jurist Blackstone: it was punishment for the presumption of ‘invading the prerogative of the almighty, and rushing into his immediate presence uncalled for’. Self-murder was a serious crime, and would-be suicides were prosecuted for botching their own demise – a Gilbertian law providing comedy in The Mikado, but not repealed until 1961. The Suicide Act of that year exonerated the victim, but perpetrated the punishment (up to fourteen years’ imprisonment) for aiding or counselling anyone who needs help to effectuate a wish to die with dignity. This was a time when compassionate doctors who complied with requests to shorten the life of a dying patient were prosecuted, and MPs blanched at requests to further reform the law – as they still do today.

In the 1980s, a few of the society’s more enthusiastic euthanasiasts were fed up, and became revved up. They changed their name to EXIT, and offered a kind of take-away suicide service. A telephone call from a potential suicide would, after some brief enquiry, be handed over to a ‘dispatcher’, an elderly gentleman who would turn up at the given address with the necessary sleeping pills and a plastic bag to put over the head to curtail breathing. After some deaths, he was prosecuted at the Old Bailey together with Nicholas Reed, the secretary of EXIT, who became my client. Some of the evidence was heart-rending – the service had been a boon to a number of terminally ill people, and to their families, when doctors had refused to ease the pain. But a few of the cases – of depression, rather than terminal illness – were less clear-cut and we failed (despite the eloquence of John Mortimer, who appeared for the ‘dispatcher’) to achieve a sympathy verdict.87

I had more success, however, with the society’s ‘do it yourself’ instruction manual entitled A Guide to Self-Deliverance. It came with a philosophical foreword by Arthur Koestler and set out the arguments against committing suicide before proceeding to detail five sure-fire ways of accomplishing it without resorting to desperate and unreliable measures such as wrist-slitting or drug overdosing. In the hostile climate of the time, I advised that distribution should be confined to members of the society, and thousands joined in order to obtain it.

After thirty-five members had dispatched themselves with its guidance (it was in some cases found beside the body, the relevant passages underlined), the Attorney General came under pressure to act. He was reluctant to bring criminal charges against the executives of the society – they had not personally assisted anyone’s suicide, but had merely made accurate information available for individual choice, and they were highly respectable people who were likely to be acquitted by an Old Bailey jury. So, instead, the government mounted a civil action, running to a High Court judge in the hope that he would declare the publication a crime and thus force the society to withdraw it. As with the New Statesman case, it was slightly nerve-racking to appear in court to defend your own advice – you engage as objectively as you can in a proceeding in which your own mind is on trial. Fortunately, the judge was Harry Woolf, an independent and excellent jurist (and, later, a fine Chief Justice). He accepted my argument that the government could not usurp jury trial and have judges declare that certain conduct was criminal, if there was no specific law against it. Especially in the case of a literate and even-handed booklet, with a foreword by Arthur Koestler which might actually deter some readers from the fatal action.88

After our victory, I had earnest discussions with my clients over whether the booklet should now be put on sale to the public. In 1984, this issue really bothered me – as a matter of personal morality rather than law, I told them I would not like to see A Guide to Self-Deliverance on sale at WH Smiths, available to any temporarily depressed teenager. They agreed, and the booklet was made available only to their members. Now, thirty years on, you can download its methods from the internet.

* * *

Although my reputation was mainly as a defender of free speech, I had no difficulty accepting briefs to act against foul speech by suing reckless or negligent newspapers. Large damages were won by Helen Mirren, for example, over a story that she was impossible to work with – a story invented by a malicious journalist to whom she had refused an interview. A libel action is generally to be avoided, but becomes a necessity if a lie strikes at your integrity. My friend Michael Foot, himself a renowned journalist, always advised MPs not to sue, but after he became leader of the Labour Party the Sunday Times published a front page he could not ignore. Its headline screamed ‘KGB: MICHAEL FOOT WAS OUR AGENT’. At one level, this was ridiculous and regarded as such: Foot was the epitome of a patriotic Englishman, notwithstanding (actually, because of) his left-wing views, which drew him to the Levellers and Chartists and other proudly English socialist movements. Private Eye aroused laughter throughout the land with a picture of Michael and his dog (‘Disraeli’) hunting for dead-letter boxes on Hampstead Heath. But since being a KGB agent is an act of treason, Michael had to sue. The allegation was a beat-up from a book the Sunday Times had bought for serialisation, and there was no evidence to back it other than that KGB agents would sometimes attend fundraising parties for Tribune, Michael’s left-wing newspaper, and leave a contribution.

If I wanted to find the person really responsible for the publication of this falsehood, I did not have far to look. But in libel law, hardly ever did you sue proprietors personally. That was because you had to prove they were the ‘moving spirit’ of the paper and that they had caused the words to be published. My solicitor, David Price, did some investigation, and discovered that Murdoch would call the editors of his British Sunday papers every Thursday. He would ask what they intended to publish on the front page and he would question them intensively about whether they were getting value for the money paid for any serialisation rights. He would therefore have known of, and approved, ‘kgb: michael foot was our agent’.

So we did sue Rupert Murdoch personally. His lawyers tried to deflect the writ, claiming that the story was the responsibility of the editor, but we replied that on the Sunday Times front page, ‘splash’ stories like this were subject to approval by a proprietor who was its ‘moving spirit’. I was looking forward to cross-examining Rupert, but it was not to be. Like Princess Diana, he settled at the door of the court – in this case, by agreeing to pay a six-figure sum to Michael in damages. I had another bad case of ‘courtus interruptus’. Nonetheless, we trooped off with Michael to celebrate at the Soho haunt of London’s old left intelligentsia, the Gay Hussar (named before ‘gay’ acquired another meaning).

I had tried to stop Murdoch from buying the Sunday Times to begin with. He was anxious to purchase Times Newspapers – The Times itself was losing money but its sister paper, the Sunday Times, was not, and for that reason the law required his purchase of that paper to be referred to the Monopolies and Mergers Commission. Rupert did not want this, and Mrs Thatcher’s government broke the law to accommodate him. He went privately to see her and afterwards her Trade Secretary announced that the deal would go through without referral.

I was brought in to act for Sunday Times journalists who did not want Murdoch as their boss. I was led by Lennie Hoffman, the then top Chancery silk, and we were pretty certain of success – our expert accountants all verified that the Sunday Times was viable as a going concern. We could not guarantee victory, of course, and our solicitor said something to the journalists about a danger of losing by one vote in the final appeal court and having to mortgage their houses. The majority took fright and voted to withdraw the case and accept Murdoch as their proprietor in return for his promise to set up an ‘independent’ board to protect editorial integrity – a laughable ruse for which all but nineteen of them fell.

Thereafter Murdoch got rid of two editors (Harold Evans and Andrew Neil) whom he thought too independent, and published sensational lies such as the ‘Hitler Diaries’ and the Foot–KGB story. It was at that point I coined an aphorism that became my only entry in the Australian Dictionary of Quotations: ‘Rupert Murdoch is a great Australian, in the sense that Attila is a great Hun.’

That said, some years later I was pleased to introduce Rupert to twenty-year-old Georgie, at the after-show party for the Sydney premiere of the film of Les Misérables. ‘Were you moved by the movie, Mr Murdoch?’ she asked sweetly.

‘Oh yes, I was very moved,’ he beamed.

‘Those poor radical students killed on the barricades – didn’t it make you want to cry?’ (Georgie was a student leader at SOAS.)

‘It did. Actually I dropped a few tears before the happy ending.’

Then, a steely rising voice: ‘And how, Mr Murdoch, do you think Fox News would have covered that protest? On the side of the police repression, of course, as it always is. Fox News is…’

Rupert turned his deaf ear to her diatribe (a tactic he deploys when berated by parliamentary committees). He moved away, in the direction of Hugh Jackman and Russell Crowe, muttering, ‘I love Fox News.’

Notes

71 See Police and Criminal Evidence Act 1984.

72 Geoffrey Robertson, People Against the Press (London: Quartet, 1980).

73 ‘The attempt to keep out evil doctrine by licensing is like the exploit of that gallant man who thought to keep out the cows by shutting his park gate … Lords and Commons of England, consider what nation it is whereof ye are, a nation not dull and slow, but of a quick, ingenious and piercing spirit. It must not be shackled or restricted. Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.’

74 R v Felixstowe Justices ex p Leigh (1987) QBD 582.

75 R v BBC & ITC ex p Referendum Party (1997) EMLR 605.

76 Bowman v UK (1998) 26 EHRR 1.

77 Wyatt v Forbes (unreported) (2 December 1997), Morland J.

78 Bachchan v India Abroad Publications (1992) 585 NYS 2d 661.

79 Berezovsky v Forbes (2000) EMLR 643.

80 Goodwin v UK (1996) 22 EHRR 123, para 39.

81 Geoffrey Robertson, ‘Protecting Sources Is a Legal and Moral Duty’ (The Times, 15 February 2012).

82 Dow Jones & Company Inc. v Gutnick (2002) 210 CLR 575.

83 Allan Kozinn, ‘Meditation on the Man Who saved the Beatles’ (New York Times, 7 February 2008).

84 Geoffrey Robertson and Andrew Nicol, Robertson and Nicol on Media Law, fifth edition (London: Penguin, 2007).

85 Jameel & Another v Wall Street Journal Europe (No. 2) (HL) (2006) UKHL 44.

86 Attorney General v New Statesman & Nation Publishing Co. Ltd (1981) QB1.

87 R v Reed (Nicholas) (1982) Crim LR 819.

88 AG v Able (1984) 1 All ER 277.