It was some achievement, creating in Rumpole a lawyer the world could love. It was also, and to my surprise, an achievement in 1971 to find a QC prepared to defend Oz magazine. I suspect John Mortimer thought of sex as an amusing but bemusing fact of life, not to be taken entirely seriously. ‘The whole business has been overestimated by the poets,’ as his own father, played by Alec Guinness, put it in the play (A Voyage Round My Father) that John was preparing for its West End opening in two months’ time.
Father: No brilliance is needed in the law. Nothing but common sense and relatively clean fingernails . . . Learn a little law, won’t you? Just to please me.
Son: It was my father’s way to offer the law to me – the great stone column of authority which has been dragged by an adulterous, careless, negligent and half-criminal humanity down the ages – as if it were a small mechanical toy which might occupy half an hour on a rainy afternoon.
In time, John would become my own forensic father, teaching by example that the art of cross-examination is not to examine crossly and that it is a fearful thing to have responsibility for another’s fate. For the present, his willingness to sacrifice his precious writing time to save these provocateurs from prison gave reason to hope that there was yet some life left in old liberal England.
Chapter 2
The Trials of Oz
These accused men agreed to publish a magazine which would carry, as it had carried before, the banner of the alternative society. Look at that magazine and ask yourselves: ‘What alternatives are there?’ Dropping out of society. Expecting the State to provide – and by the State I mean nothing more than you and me – those of us who don’t mind working, who think it’s right to work, those of us whom advocates of the alternative society might describe as ‘those foolish enough to work’. It puts forward as a way of life, does this alternative society, sex as being something to be worshipped for itself until you reach the ultimate state called ‘fucking in the streets’. You won’t, I know, members of the jury, sneer at accepted values, or reject that viewpoint of Oz which holds that it is not right to be too ready to sneer at accepted values and to destroy everything we believed until now.
This was how treasury counsel Brian Leary put the Crown’s case against the three editors of Oz magazine, at their trial in the Old Bailey in the summer of 1971. Richard Neville defended himself, and John Mortimer appeared for Jim Anderson and Felix Dennis. I was in the well of the court throughout, as stage-hand for the defence. I knew all about the law – but nothing about justice, and I was looking forward to seeing it done.
The prosecution explained how the defendants had conspired to publish the twenty-eighth edition of Oz – the ‘Schoolkids’ Edition’. The conspiracy had begun quite genteelly, with a story in the Daily Telegraph that the editors of Oz were feeling so old and boring that they wanted to give editorial control of one edition to schoolchildren. As a result some two-dozen teenagers, cited as co-conspirators, had come to a basement in Notting Hill and compiled this magazine. The jurors would be required to read it in the privacy of their jury room, to decide whether it was (in order of importance) a conspiracy to corrupt public morals (Count i), an obscene article (Count 2), or merely an indecent object sent to a few subscribers through the post (Count 3).
It is a notable feature of obscenity trials that they seldom involve great works of art or literature. Lady Chatterley’s Lover was among the least impressive of Lawrence’s novels, and Last Exit to Brooklyn is hardly a classic. Oz 28 would have contributed substantially to ‘the worst of Oz’ – its most enduring merit came from its borrowings from American cartoonists Robert Crumb and Gilbert Sheldon (The Fabulous Furry Freak Brothers) and its precocious music reviews by Charles Shaar Murray. There were of course the ‘small ads’ for what was delicately termed ‘erotic minorities’, among which with the help of a magnifying glass (the print was minute) might be descried an advertisement for that Amsterdam paper, Suck, describing an act of oral sex. Then there were the front and back covers, featuring female silhouettes later described by the Lord Chief Justice as ‘extremely attractively drawn and appearing to be a simple piece of artistic work . . . closer inspection however shows that the women are indulging in lesbian activities . . . attention has not unnaturally been drawn to that as an example of material which might deprave or corrupt’. Not unnaturally in 1971, although as the Chief Justice conceded, there were also ‘a great many serious and wholly innocuous articles and a great many illustrations, some of them charming and humorous, which would not cause the slightest flutter in any well-conducted Victorian household. Others, however, are quite different . . .’ by which he meant the Rupert Bear strip. The prosecution had a witness statement from the Secretary of the National Union of Teachers, complaining that the magazine would tend to undermine the authority of teachers. Did that amount to a subversion of public morals? It was all a matter for the jury, applying the law as directed by the judge, Michael Argyle QC.
As Recorder of Birmingham, Judge Argyle had become famous for his catch-cry ‘we just don’t do this sort of thing in Birmingham’, uttered when imposing heavy deterrent sentences. He sent delinquents who vandalised public telephone boxes to prison for three years, and boasted that the result was to extinguish this particular crime in Birmingham, although the local press pointed out the consequential upsurge in telephone vandalism in Coventry, just outside his jurisdiction. Then he announced a novel campaign to end burglary by sentencing burglars to prison for life: ‘If you come, boys, we are waiting for you,’ he trumpeted from the Bench. The Court of Appeal was sufficiently concerned to call for a transcript of his remarks. His judgeship was a career consolation for the Tory MP he had tried several times to become, and a platform from which to inveigh against what he saw as the evils of the permissive society. His sentences on the Oz editors would be severe – if the jury convicted.
Oz was one of the last cases tried by a jury which was not randomly selected. Until 1972, every juror had to own property – a qualification which at this time meant they were mainly male, and generally middle-aged or elderly. This did not of itself worry the defendants; they had spent many evenings fantasising about the elderly gay actor, the middle-aged polytechnic lecturer and the successful graphic designer who would be summoned to the Old Bailey to hold the scales between Oz and the State. The night before the trial they saw the list of names, addresses and occupations of the jury panel and their faces fell: ‘Boilermaker, Driver, Ganger, Foreman, Crane Driver, Salesman, Supervisor . . .’ They had drawn a hard-hat panel from the building sites of Kent and EI5: the very class of person who would loathe Oz the most. There was not a single member occupationally predisposed to youthful iconoclasm. I noticed that one juror, a builder from Bexleyheath, was named William Blake, so in deference to the poet we determined not to challenge him. However, he turned out to be a severe sixty-something who looked with such horror at the long-haired defendants that they had to object. The defendants (the three editors and the company, Oz Publications Ink) mustered twenty-eight challenges between them, and each was used in an increasingly frantic attempt to obtain younger jurors. The final panel comprised ten men and two women, all lower-middle-class artisans of average age about sixty. A jury of peers it was not, but the marketing man in Felix Dennis loved the challenge: if he could persuade this lot to like Oz, the magazine’s future was assured. In his opening speech, Richard tried a small joke: ‘We have had a Transsexual Oz, a Female Liberation Oz, a Homosexual Oz, a Flying Saucer Oz and a Schoolkids’ Oz. At the end of the trial, we’ll invite you to edit a Jurors’ Oz.’ Ominously, no juror smiled.
The prosecution case was brief. The only exhibit was the magazine itself. Detective Superintendent Luff told of his frequent raids on the Oz office, seizing the contents of filing cabinets and even the pictures on the walls. He told the court that his interview with Felix Dennis had ended with the suspect exclaiming ‘Right on!’ Judge Argyle, taking down the evidence longhand, looked up, puzzled. ‘Write on . . . but you
had finished the interview?’ ‘Not write on – W - R - I - T - E, my Lord – but R - I - G - H - T on. It’s a revolutionary expression,’ Luff added darkly. He pronounced the magazine ‘unacceptable from the family point of view’. He was followed into the witness box by a co-conspirator from an unacceptable Hampstead family: Viv Berger, the fifteen-year-old son of Grace Berger, Chair of the National Council for Civil Liberties. It had been Viv’s idea to produce a collage using a six-panel cartoon by Robert Crumb and a page from his childhood Rupert Annual. ‘Subconsciously,’ he told John Mortimer, ‘I wanted to shock your generation.’ He succeeded: half of the six-week trial was devoted to ‘the Rupert Bear strip’. The forensic effect of young Berger’s art may be gathered from this passage in editor Jim Anderson’s cross-examination:
Leary (reading from Anderson’s editorial): ‘Oz was hit with its biggest dose of creative energy for a long time. Have a look at the Rupert Bear strip. Youthful Genius.’ Did you write this, Mr Anderson?
Anderson: Yes, I did.
Leary: Is it still your opinion that Vivien Berger’s cartoon of Rupert Bear is the work of ‘youthful genius’?
Anderson: Yes, I think it was an extremely clever and funny idea.
Leary: Did it amount to youthful genius?
Anderson: Well . . . maybe I was a little bit generous in my praise but . . .
Leary: The youthful genius set to work by snipping out of the Rupert Annual the head of the bear. That’s right?
Anderson: Yes . . . er . . . I suppose that’s what he did.
Leary: And then if we were keen to watch a genius at work, we would see him sticking it on the cartoon already drawn for him?
Anderson: Yes.
Leary: Wherein lies the genius?
Anderson: I think it’s in the juxtaposition of the two ideas, the childhood symbol of innocence . . .
Leary (shouts): MAKING RUPERT BEAR FUCK?
Anderson (after a long pause): . . . Er . . . Yes.
Leary: Is that what you consider youthful genius?
Anderson: Yes, I thought it was extraordinary, even brilliant.
Leary: Extraordinary it may be, but whatever it is, it’s not genius, is it?
This fine example of Old Bailey cross-examination deserves a place in the advocacy courses which now affect to teach a trade which comes instinctively or not at all. It is the demolition of the overstatement, cleverly achieved by having the witness endorse it without qualification before it is taken apart. It was accomplished with perfect timing and a dramatic climax: a quarter of a century later, I can still hear Brian Leary – who questions in a soft, insinuating voice – producing an electrifying shock for everyone in court by shouting the unthinkable.
Jim Anderson crumpled quickly, but the cross-examiner hardly needed more subtlety to undermine the eminent artist Felix Topolski, who also began overconfidently:
Topolski: This to me is a tremendously clever, tremendously witty putting together of the opposite elements in the comic culture, and creating a riotous clash. I think it is a great invention if one accepts its satirical basis.
Leary: What we’re looking at here is a new Andy Warhol?
Topolski: Well, it works in that direction. There’s a statement by Arthur Koestler that comes to mind, ‘unexpected elements brought together produce an act of creation’.
Leary: I fully understand what you mean about bringing the two things together. I want to separate them for a moment . . . Topolski: But that’s unfair to the situation on this page.
Leary: Do you agree that Rupert as he appears in the comic strip in a national daily and in the Rupert Annual is not art?
Topolski: Not to me.
Leary: But you say that bringing the two together makes it different?
Topolski: Yes.
Leary: Does it make it art with a capital ‘A’ in your opinion?
Topolski: It makes it satirical art.
Leary: Satirical art. I see.
In cross-examining experts on artistic merit, sarcasm will get you everywhere. Topolski can describe Warhol’s genius, but cannot explain why Rupert is art when he has an erection, but non-art without any organ at all. Where the cross-examiner tended to come unstuck was with the defence psychologists, who were not asserting that the sight of Rupert rampant was art with a capital ‘A’, but that it would not have a depraving and corrupting effect on the beholder. He failed to confuse the popular ‘lateral thinker’ Dr Edward de Bono:
Leary: What do you suppose the effect is intended to be of equipping Rupert Bear with such a large-sized organ?
De Bono: I don’t know enough about bears to know their exact proportions; I imagine their organs are hidden in their fur. But if you had a realistic drawing I think you would miss the point of the drawing entirely.
Leary (angrily): Mr de Bono, why is Rupert Bear equipped with a large organ?
De Bono: What size do you think would be natural?
Judge: Well, forgive me, but you mustn’t ask counsel questions. Leary (another tack): A success, do you think this lavatory drawing?
De Bono: If one considers it a success to have it published in Oz then I dare say it would be a certain measure of success.
Leary: The success being this. That the lavatory wall is only available to those people who use the lavatory for the purpose of nature and this particular magazine has, as we are told, a circulation of up to 40,000.
De Bono: I find that question difficult to answer, Mr Leary, unless I knew the turnover of a normal lavatory wall, which I would expect to be in the region of 30,000.
Judge: What, one lavatory, 30,000?
De Bono: If you stop to calculate it, I expect so.
De Bono’s analogy, like ‘lateral thinking’, does not bear too much examination, but cross-examiners do not have time to think on their feet and Leary was thrown by the mathematics. As the trial wore on, it was interesting to observe (a common phenomenon, this, in obscenity cases) that the subject matter of the art developed a life of its own, and ended up in the dock. The Lady Chatterley trial was less of D H Lawrence as a writer than of Connie Chatterley as a wife taken in adultery. In Rupert Bear’s case, he was in the dock of a juvenile court, on a charge of indecent behaviour while truanting. Dr Michael Schofield had written many books about the effect of verbal and visual stimuli on young humans, but not on young animals:
Leary: What sort of age would you think Rupert is, to your mind? What sort of aged bear?
Schofield: Oh, I’m very sorry – I’m not up to date with bears.
Leary: You don’t have to be because he doesn’t change, Rupert, does he? (Witness shakes his head – in disbelief, but judge assumes ignorance.)
Judge: I think the question is: what age do you think Rupert is intended to be, a child, an adult, or what?
Schofield: It’s an unreal question: you might as well ask me how old is Jupiter.
Leary: He’s a young bear, isn’t he? He goes to school – that’s right, isn’t it?
Schofield: I don’t know whether he goes to school or not. I’m sorry but I’m obviously not as well informed as you are about little bears. I’m a psychologist.
In this way was battle joined at the Old Bailey for six weeks of the hot summer of 1971. It seemed at times that we were all serving the interests of entertainment: American lawyers in London over for their Bar conference would jostle for seats in the public gallery as they might at a theatre, their roars of laughter silenced by ushers’ booming cries of ‘Silence!’ followed by the judge’s regular threat to clear the public gallery. ‘This is a courtroom, not a theatre,’ he would remind them repeatedly. John Mortimer would leave the courtroom each afternoon for the Vaudeville Theatre (where A Voyage Round My Father was being rehearsed) with a sense that he was returning to real life.
The case continued. George Melly, sociologist and jazz singer, was asked whether he thought it acceptable ‘in this day and age’ for a magazine to describe oral sex attractively. He did: ‘I don’t think cunnilingus could do ac
tual harm if you believe that sexuality is a wide thing in which one can do a large number of things as long as they don’t hurt the opposite partner.’
‘Well, pardon me,’ Judge Argyle was ineffably polite. ‘For those of us who did not have a classical education, what do you mean by this word “cunnilinctus”?’ He had misheard, as if the reference had been to a cough medicine. Melly beamed, thinking he was being asked to be less formal: ‘I’m sorry, my Lord, I’ve been a bit inhibited by the architecture. I will try to use better known expressions in the future. “Sucking” or “blowing”, your Lordship. Or “going down” or “gobbling” is another alternative. Another expression used in my naval days, your Lordship, was “yodelling in the canyon”.’
This brought more laughter and cries of ‘Silence!’ and threats to clear the gallery. Twenty-six years later, it inspired the title of the 1997 British Eurovision song entry, ‘Yodelling in the Canyon of Love’. For Judge Argyle, however, oral sex was always unthinkable and invariably dangerous. Whenever any witness made the point that it was not harmful, he would intervene: ‘Well, just excuse me. Have you ever heard of the case of Mr Fatty Arbuckle?’
The Justice Game Page 4
