The Justice Game

by Geoffrey Robertson

  The witness would answer ‘yes’ or ‘no’, and the matter would be left hanging, as a clear judicial indication that the case of Mr Fatty Arbuckle proved beyond reasonable doubt that oral sex did harm. I rushed to a library to discover that whatever implement did cause the fatal internal injuries to starlet Virginia Rappe in a hotel bedroom in San Francisco in 1917, it was neither a tongue nor Mr Arbuckle (as a jury finally made clear by acquitting him). Somehow, rumours about the case had been filed in the judge’s mental data-bank as proof that oral sex can kill. The most telling insight into Argyle’s mind came from an article he wrote in the Spectator in 1995, extravagantly attacking the defendants and their witnesses. He revealed that he had felt it necessary to have a glass of water smashed to pieces, after disc jockey John Peel had taken a sip from it in the witness box. He apparently believed it might be infected because some years before the witness had picked up a brief venereal infection. This bizarre action (his usher did in fact destroy the glass) came about in the following way:

  Leary: Look at the article by Master Charles Shaar Murray which refers to ‘straightforward fuck music’ . . . Sexuality was one of the elements introduced into music on the pop scene by Mr Elvis Presley, in the rock ’n’ roll era, wasn’t it?

  Peel: I’m sure that sex has always been an important part of music since the earliest dance days, because a lot of early music was for things like fertility ceremonies.

  Leary: Yes, but you have not yet heard of a criticism, have you, of Mozart or Beethoven, which deals with somebody having an orgasm over it?

  Peel: Well, I must admit that I never read sexual climaxes into the music of Mozart or Beethoven. If I were to write music I should be very flattered to think people were making love to that music.

  Leary: Yes. I see you used the expression ‘making love’.

  Peel: Yes.

  Leary: So we take it that you would consider it bad taste to use the word ‘fuck’ rather than ‘making love’? Which would you prefer?

  Peel: The expressions are not different. I just felt because I was in court I should say ‘make love’ but everybody else seems to say ‘fuck’ so I will say ‘fuck’ as well.

  (Laughter.)

  Judge: Once again I have to remind people that this is not a theatre, but a court.

  Leary (having paused to study a note passed to prosecution from a court reporter): Are you married?

  Peel: Yes.

  Leary: Have you had venereal disease?

  Peel: Yes.

  Leary: Am I right in suggesting that you thought it right to announce over the air, so that anyone listening in could hear, the fact that unhappily you had contracted venereal disease?

  Peel: Yes, and I would do the same thing today. I had it and wish I didn’t, but the BBC had prepared a programme for broadcasting on Radio 4 about venereal disease and the fact that some people were not prepared to admit that they had got it and I was asked to participate. I mean, I wouldn’t be surprised to learn that quite a few people in the courtroom have had venereal disease. Whether they would admit it or not I don’t know.

  Judge: Well, just forgive me for a moment. It is so terribly easy to say a thing like that but what does it mean?

  Peel: Well, according to the doctors who did the programme, a great number of people in all walks of society suffer from venereal disease and the main problem they have in trying to combat the disease is that people are not prepared to discuss it openly . . .

  Leary: When you made the comment that you dare say a number of people in this court have had it and never mentioned it, which part of the courtroom had you in mind?

  Peel (looks at the dock, the barristers’ rows, the press box, the jury box . . .): I would say all parts of the courtroom.

  Leary: You were serious?

  Peel: Yes, I mean it is a very common disease.

  Judge: Let’s go on to another topic, Mr Leary.

  Leary: Do you mind if I ask a few more questions?

  Judge: I don’t think so. A very great accusation about the people in this court has been made. I can’t see any point in pursuing it. If the witness wishes to persist in it, he is perfectly entitled to do so, I suppose.

  Peel: I didn’t bring it up in the first place.

  Twenty-five years later, the long-retired Argyle went on to tell Spectator readers how he still switches off his bedside radio when he hears Peel’s familiar, flat voice. The episode is typical of a trial which became a collision of cultural incomprehension. Even the court reporters took sides: the seedy regulars, ‘Old Bailey hacks’ in shabby pinstripe suits, occupied the press benches and curried favour with the police by feeding them titbits of information (such as Peel’s broadcast, years before, about his VD). These court correspondents were a sad bunch of ‘Lunchtime O’Boozes’, who perceived themselves as press officers for the police. One morning, hidden behind a pillar in the antechamber, I overheard several of them boasting about how they had kept reports of Richard Neville’s closing speech out of their newspapers. ‘Except the Guardian, of course. We can’t do anything about that.’ They refused to accommodate on their press bench specialist writers, such as Nicholas de Jongh from the Guardian and Jonathan Dimbleby for the New Statesman – they had to sit with Oz supporters in the back row of the stalls.

  The tension of the trial was tightened by its ritual. The oak panels of the old court, the fancy-dress parades each Monday with retainers brandishing swords to usher in the judge, who carried a nosegay (once clutched by judges to ward off prison fever), all impressed with the weight of history, and with the expectation of a conviction. We had, somehow, to defuse the tension, to encourage the jury to think differently – even laterally – about this case. Richard and I spent a long evening with Edward de Bono pondering how this might be achieved. He assured us that he had the answer, which worked at his seminars to jolt executives out of their mind-sets. It was a brightly coloured wind-up toy bird, which he offered to produce (ready-wound) from his inside pocket at an appropriate moment, and have it flap across the court. ‘It always helps on solemn occasions,’ he assured us. ‘I’ll explain to the judge and jury how the surprise has worked to unlock their thinking processes, to enable them to look at the evidence with a more open mind.’ De Bono gave evidence for several hours, but the atmosphere was not conducive to take-off. The bird did not fly. ‘Just as well,’ I consoled the crestfallen Richard. ‘We would all have been jailed for contempt.’

  Like the squalor behind the splendour of the stage at Covent Garden, so the solemn ritual of an Old Bailey trial disguised the fact that it was produced in greasepaint and chaos. The solicitors’ clerks who stage-managed the shows would meet to rehearse the cast for the day around the formica tables of the Rex Café opposite the court. Each morning, over fried bacon and beans, the bottle-blondes would be coached to recite their alibis about the defendant being in her bed at the time the bank was robbed. This was amateur hour – the police delivered their lines like professionals, in a loud voice from a script in their pocket notebook. It was a strange system, the English criminal justice I observed in the other courts and precincts of this fabled building. A serious crime would be committed and the police would be told – usually correctly, by a paid informant – who did it. The criminal would then be arrested and ‘verballed’ – i.e. a confession which he never made would be recorded in police notebooks. This would in due course be ‘challenged’ for weeks by his barrister (paid lavishly on legal aid) while he would, with the help of his solicitor’s clerk, have invented an alibi. More or less everyone committed perjury. Many police were bent and so were some solicitors’ clerks; but the conviction rates were reasonable, white-collar criminals were rarely troubled, and the public was happy watching Dixon of Dock Green on the box and believing it reflected reality.

  Another discovery was what can only be described as the plodding orality of the English criminal trial. The judge is expected to take down all the spoken evidence in longhand, in a large red book, and then with Olympian imp
artiality to remind the jury of such of it as will be crucial to their verdict. In the theatre of the courtroom, a small spotlight is trained throughout on ‘his Lordship’s pen’. This has the effect of emphasising what the judge thinks is important. It was a technique which Argyle employed as if trained by Stanislavsky: if during the trial he regarded evidence as irrelevant he would put his pen down with a clatter, fold his arms and lean back in his seat. ‘Watch his Lordship’s pen’ counsel always say, to witnesses who speak too quickly: the jury watch it too, as a sign of whether they should pay attention. The ritual dance of his Lordship’s pen not only slows and directs proceedings: it conduces to mistakes in every summing up. Evidence not taken down will not feature, and evidence which has been taken down inaccurately will be regurgitated to the jury inaccurately. In other countries courts arrange for palentype transcripts to be available a few hours after the evidence has been given. But in Britain although shorthand writers take down every word of evidence, they are only asked to type it up if there is a conviction and it is relevant to a point of appeal. Thus most of their work is pointless: it is not available to enable an accurate summing-up. This is as true in 1997 as it was in 1971, when it produced some of the mistakes Judge Argyle made when he came to sum the case up to the jury.

  The Oz trial was serving as my induction into English criminal law as practised at the Old Bailey, a world removed from law as taught in the lecture halls of Oxford. Judge Argyle glared at my star witness – Ronald Dworkin, the Professor of Jurisprudence at Oxford – as if upset at the thought that an academic lawyer (and an American, at that) could teach an Old Bailey judge anything. ‘You succeeded to the jurisprudence chair of the renowned Professor H L A Hart . . .’ The judge broke in as Richard was reciting Dworkin’s qualifications. ‘Who? H L A who?’ ‘Er, I’m sorry, I thought he was well known,’ stammered Richard. ‘Spell this name,’ snapped the judge. He did not take many notes of Dworkin’s answers, narrowing his eyes and occasionally interrupting, ‘This is a courtroom, Professor, not a lecture theatre.’

  Then there was the notorious appearance of Marty Feldman, who had agreed to testify to the merits of the humour in Oz. He thought Rupert was genuinely funny and came to say why. The problem began because of the unnecessary ritual then surrounding witnesses who did not wish to take an oath on the New Testament. ‘Witness does not wish to take the oath, my Lord,’ the usher would loudly say, as the cue for Argyle (a devout Christian) to look pained and ask, ‘Why? Why do you want to affirm?’ Feldman, taken aback by the unnecessary question, took this as an insult. ‘Because I think there are more obscene things in the Bible than in this issue of Oz.’ ‘That’s not what I wanted to hear. The answer is that you don’t have any religion,’ said the judge, firmly. ‘I have my own religion. It’s not one that you would understand,’ Feldman shot back. Things could only get worse, and they did. ‘I don’t know if it matters,’ Argyle interjected a few minutes later, ‘but I can’t hear anything the witness is saying.’ ‘I think it matters,’ Feldman answered, and then he raised his voice. ‘Shall I say it louder?’ Argyle put down his pen, folded his arms and turned his back on the witness. ‘Sorry, Judge,’ said the comedian, no longer funny. ‘Am I waking you up?’ His evidence completed, Feldman walked to the court door, muttering to the defendants as he passed the dock, ‘He’s a boring old fart.’ This whisper was heard by a Times reporter, and was front-page news the next day. It was an unedifying episode, provoked by a procedure (now abandoned) which assumed that an oath not taken on the Bible needed explanation. Argyle relived the incident in his summing-up, reminding the jury that according to the Bible that Feldman had declined, those who led children astray deserved to be ‘drowned in the depths of the sea’ with millstones around their necks. It seemed, the way he said it, a matter of regret that his own sentencing powers over the defendants were more limited.

  There was a paranoia around these proceedings which I was not alone in failing to understand. The Oz trial was held under tight security, in a courtroom with a dock specially designed to hold vicious East End gangsters like the Krays and the Richardsons. Judge Argyle has since revealed that behind the scenes in the court corridor were four armed Special Branch officers and two alsatian dogs and their handlers, guarding him twenty-four hours a day. At night, they took up their positions in a suite in the Savoy, rented for his use at public expense. Yet these defendants were incapable of hurting the proverbial fly, and their supporters were too spaced out or peaced out to pose any threat to anyone. The judge believed (he still did, when he wrote about these security arrangements in 1995) that he was dealing with dangerous criminals. The sad truth lay in the deranged mind of the wife of his court clerk, a Mrs Blackaller. She busied herself throughout the trial sending threats to murder the judge, her husband and even herself, pretending to be ‘a friend of Oz’. So seriously were they taken that twelve hundred hours of police time were wasted on investigating them, for which the woman was later prosecuted and sentenced for psychiatric treatment.

  As the trial drew to a close, I felt the defence was in fairly good shape on two of the three charges. ‘Your defendants are all so nice,’ Brian Leary said to me at the time, and later. Our witnesses were mainly professors with short hair and happy marriages, and the most Brian could extract from them was a confession that George Melly swore in front of his children (‘You are trying to make me out to be some kind of NW1 monster’) and that Grace Berger had taken her son to see Hair. ‘Well just pardon me,’ interjected the judge. ‘But is Hair an article?’ ‘Hair is a play,’ sighed John Mortimer wearily. ‘It’s been running in the West End for the last five years.’

  The conspiracy charge (Count 1) was the big worry, because it gave the judge unlimited sentencing power. Obscenity (Count 2), which carried a maximum of three years, was a more focused question, namely whether Oz tended to deprave and corrupt a significant proportion of its readership. The law was clear that ‘deprave and corrupt’ meant to make ‘morally bad’ rather than simply to shock and disgust, but the latter was enough for a conviction on the third charge (Count 3) of sending an indecent article through Her Majesty’s mails. This was a minor offence, for which even Argyle would be hard-pressed to pass a jail sentence – just as well, since we were hard-pressed to find any defence. Some of the satirical cartoons were, in a word, indecent. But they were not obscene in the legal sense, because they did not tend to deprave and corrupt, in the opinion of ten of the country’s leading psychologists, psychiatrists and educationalists who had testified. At times, this argument came perilously close to contending that nothing – at least, neither the written word nor illustrations – could deprave and corrupt. There was a novel argument here, since pornography had been freely available for the past decade in Scandinavia without causing any obvious increase in depravity. Moreover, in America, a Presidential Commission had just reported, after spending millions on research, that pornography did not cause anti-social behaviour. Pornographic films had been shown to college students and married couples who were none the worse for the experience. ‘What, thirty hours of oral sex and still no detrimental effect!’ John Mortimer declaimed. ‘Zis is right,’ Professor Hans Eysenck would nod his head sagely.

  I always wonder about the ethics of such studies, and indeed, the validity of their conclusions. In the years after Oz, barristers would take the US Presidential Commission Report around the country for obscenity defences, proclaiming this research as the revealed truth. My favourite was one study which concluded that ‘pornography enhances marital communication’. That clinched it for juries: porn was now pro-family. Many years later, a follow-up study was done with the married couples who had participated in the original experiment. They explained that what had enhanced their marital communication was not watching the pornography, but their shared amusement at filling in the researchers’ absurd questionnaires afterwards.

  As a matter of law, obscenity requires some glamorisation, titillation, or other inducement to behave badly, and Oz 28 was
one of the least seductive pieces of literature ever published. The real problem was the indecency charge, to which the only obvious defence I could find was the one which the European Court of Justice would uphold fifteen years later (see page 156), namely that it was wrong to have a more stringent standard for what was sent through the post than for what was sold over the counter. At the trial, we settled on the causative argument that there was a difference between an indecent act, and the depiction of an indecent act which might itself not be indecent – if it were clothed with humour or satire or some other redeeming quality. But Judge Argyle had the last word, and his direction to the jury on indecency was as follows:

  Indecent is less than obscene. It refers to matters which are unbecoming and immodest. If you are on the beach with your children and a woman comes along and takes off all her clothes, and proceeds to walk about on the beach and then to swim, this is immodest or indecent in our society on a crowded beach: we just don’t do this kind of thing in this country. Another example to help you with indecency is this: let us say you attend an athletic event, and the athletes – beautiful physical specimens, male or female – haven’t got clothing which fits properly and as they compete, you can see their private parts, it is immodest and it is indecent in this country.

  We just don’t do this kind of thing in Birmingham.

  Before the summing-up came the final speeches. Brian Leary’s closing remark was insinuatingly effective:

  The question which you may like to ask yourselves when you go out to consider your verdict in this case, is not ‘Would I like my children to see it’, because no doubt your own children come from very nice homes where they can discuss properly questions about love and sex and the dangers of taking drugs. Ask yourselves rather, ‘Would I like my neighbour’s children to see this particular magazine’. Because, when all is said and done, morality is essential to the health of a community such as ours and it is for you, ladies and gentlemen of the jury, to set the moral standard by which we shall continue to live in this country.