The Justice Game

by Geoffrey Robertson

  After this seductive invitation, John Mortimer abandoned rehearsals for A Voyage Round My Father to produce a speech which would read in perfect cadences on the stage:

  Ladies and gentlemen of the jury, we have sat here while the best part of the summer has passed us by. Wimbledon tournaments have come and gone, the Royal Birkdale has passed us, and we have almost entered the Common Market, whilst we have turned over and over and over again the pages of a little underground magazine and done it so often that we may feel the Fabulous Furry Freak Brothers have entered our sleeping as well as our waking hours. A huge quantity of public time and money has been spent in the ardent and eager pursuit of what? A schoolboy prank. In pursuit of that prank, ladies and gentlemen of the jury, to squash this rather unsuccessful number of a little underground magazine, to gag a little cheeky criticism, to suppress some lavatory humour and some adolescent discussion of sex and drugs, we have had rolled out before us the great majestic engine of the Criminal Law. The threat to our nation of forty-eight blurred pages of schoolboy ebullience has been countered by the rolling prose of Count I of the indictment, by the tireless researches of Inspector Luff and the inexhaustible cross-examination of Mr Leary, and by the deep, carefully preserved sonorous solemnity of a great criminal trial. One may be tempted to feel that the prosecution is like some nervous public official who, when a child puts out a tongue at him in the street, calls out the army.

  As the final speaker, Richard Neville had to argue for his liberty. The remarkable fact is that his argument needed to be made at all, in the year AD 1971, by a defendant on trial for conspiracy to corrupt public morals, carrying a maximum penalty of imprisonment for life:

  One of the strangest and most menacing allegations levelled throughout this trial is that we are part of a community without love. ‘Sex is worshipped for its own sake,’ said Mr Leary, who went on to ask: ‘why have we heard nothing of love?’ The sort of love I suspect Mr Leary was searching for in Oz consists of violins, moonlit terraces, tuxedos, lace hankies and E-type Jaguars – the sort of world characterised by the novels of Barbara Cartland, where dashing young bucks cannot afford to kiss the satined debutante until marriage. To reject that sort of love is not to reject love at all, but to reject a myth or an image of love, which is not only unattainable, but, in the guise of ennobling women, actually enslaves them. I think that what Oz tries to do, or at least the community of which Oz is a part, is to redefine love, to broaden it, extend it, revitalise it, so it can be a force of release and not one of entrapment . . . I remember ten years ago Bob Dylan sang about the danger that tension between the generations would become so extreme that it will lead to a breakdown of communication.

  You mothers and fathers throughout the land

  Don’t criticise what you can’t understand

  Your sons and daughters are beyond your command

  Your old road is rapidly ageing

  Please get out of the new one if you can’t lend a hand

  For the times they are a-changing.

  Will you lend a hand, members of the jury?

  Richard Neville’s own hand extended towards them, from the high wall of the security dock. They seemed receptive. Then their heads swivelled in unison in the opposite direction as the judge cleared his throat to begin his summing-up.

  Judge Argyle’s views were unconsciously signalled to the jury through tone of voice and body language, which did not show up on the transcript for the Court of Appeal. Whenever he dealt with the defence his tone could not help but be scathing and contemptuous: the prosecution arguments he repeated with respect. Frequently, he expressed his own opinion – usually to the detriment of the defence, but always followed by the appeal-proof formula ‘. . . but it’s a matter entirely for you, members of the jury’. He would recite a piece of evidence favourable to the defence, in somewhat surprised tones, then turn to the jury: ‘Well, there it is!’ At this point he might hold up the magazine, and slowly let it drop – thump – onto the desk, as if it were a thing of infinite toxicity. He could hardly have made his views more clear had he actually held his nose and raised his arm as if pulling a toilet chain. Jonathan Dimbleby reported:

  The judge’s summing-up was stunning. Suddenly the defence witnesses became ‘so-called defence experts, who you may think either had to admit they were wrong or tell a lie’. If Oz was a window on the hippie world – ‘well, windows sometimes need cleaning, don’t they?’ As he finished with a witness, he would toss his copy of Oz disdainfully down onto the table, and with it, one felt, the case for the defence.

  The jury was out for several hours, before returning to ask the judge for a definition of ‘obscene’. He read to them from the Oxford English Dictionary, which said it meant, amongst other things, ‘indecent’. In law, that is precisely what obscene does not mean, as the Court of Appeal had repeatedly emphasised. I knew this schoolboy howler should lead the Court of Appeal to invalidate any conviction on Count 2: everything (or at least, the defendants’ liberty for the next ten years) hinged on the verdict on the conspiracy to corrupt public morals charge. Would the jury be moved by Bob Dylan to lend a hand? ‘On Count I, do you find the defendants guilty or not guilty?’ asked the court clerk. ‘Not guilty,’ said the foreman. The sighs of relief from the gallery, and from the counsel’s row, were audible.

  Anti-climactically but predictably, the foreman went on to announce ‘guilty’ verdicts on the obscenity and indecency counts. The judge could hardly wait to ask, ‘Have deportation papers been served on Richard Neville?’ They had, said Inspector Luff – neither knew that Anna Wintour was still prepared to extend her own hand in convenient matrimony, although the wedding might now have to be at Wormwood Scrubs Prison. The three editors tensed for the sentences, but Judge Argyle announced that he was remanding them in custody for ‘medical and psychiatric reports’. John jumped up: ‘It really is inhuman to keep them in suspense any longer,’ but the judge turned to the prison officers and said, with the relief of a man making a bowel movement after weeks of constipation, ‘Gaoler, take them down!’

  I could not believe it. Where were we – the Soviet Union? These dissidents were stark-staring sane, yet were being imprisoned for three weeks to have their heads examined. It was the next development, however, which threw the media into a frenzy. When I visited the defendants after their first night in prison I did not at first recognise, in the gloom of the cell, the three crew-cut, disinfected figures who were laughing at me. ‘Surprise!’ they chorused. Prison regulations, like those of the armed forces, required short back and sides: the State had wreaked its atavistic revenge by stripping them of their hippie symbol of insolence. That they were long-hairs no longer should not be kept secret: the next morning every newspaper led with ‘artist’s impressions’ of the new-look Oz trio. At breakfast tables throughout the land, generation gaps widened as the old exulted and the young exploded. At this breaking point, something happened. Something very English, really: an unspoken recognition that things had gone too far, that it was time for moderation to reassert itself. At last the forces of reason, notably silent before the trial, began to make themselves heard. Michael Foot, Tony Benn and many other MPs put down early-day motions condemning the judge for sending them to prison for psychiatric reports, and Bernard Levin (who had refused point-blank to give evidence for the defence) produced for The Times one of his finest polemics against the prosecution. The Home Secretary made a quick change to the prison rules, which would henceforth allow remand prisoners to keep their hair on.

  Judge Argyle, however, was unmoved. On the day of the sentences, the psychiatric report he had ordered on the defendants was read: ‘They are of high intelligence and lack interest in material gain. They are polite and courteous. There are aspects of society that appal them and they edited Oz to show the urgent need of reform.’ At first the judge railed against the defence experts and their liberal, lateral thinking. He continued: ‘As these three accused are over twenty-one, probation would be totally inappro
priate’ (there is no appropriate age for a probation order); ‘They are comparatively poor men, therefore a fine is inappropriate’ (judges should never decide that prison is the only alternative because a person is too poor to pay a fine); and ‘It follows therefore, that the sentence of the court should be a custodial one’ (it did not – the sentence could have been suspended for first-time offenders). In the result, he ‘had no option’ but to jail Neville for fifteen months; Anderson received three months less, apparently because he had once been a barrister, while Dennis, ‘because you are very much less intelligent than the other two’, received a dullard’s discount and went down for merely nine months. Each was made to stand in turn, for Argyle to incant ‘take him down’, before disappearing in a swarm of prison officers to the dungeons. There were a few cries of horror at Richard’s sentence, from his girlfriend Louise Ferrier and the journalist Carol Sarler – with the decorum of cement trucks the heavily built Old Bailey attendants, waiting for this moment, seized both women and carried them from the court. The judge complimented the Obscene Publications Squad for their ‘extremely unpleasant task’ in raiding and reading Oz, before making a stately exit with his ruffed-up aldermen toting the sword and the mace of his office.

  With Marcel Berlins, a friend working at The Times, I stood on the court steps to watch as hundreds of demonstrators, encircled by as many policemen, lit a bonfire: an effigy of the judge was going up in flames. British justice (Marcel studied law in South Africa) had been a lodestar for us both: it now seemed there might be more justice on offer back in the colonies than at the Old Bailey. In search of some kind of sanity I took a taxi to the offices of Private Eye where Paul Foot was foaming at the mouth and comparing the infamy of the day to that on which Shelley was sent down from ‘Univ’ for blasphemy. He ushered me into the presence of an ashen-faced Lord Gnome – at least that was how the proprietor, Peter Cook, introduced himself. ‘I always believed they would get me, that I would be the one they would put inside. Now it’s happened to Richard Neville. I feel I should be in his shoes.’ I left the licensed jesters at work on their Oz trial edition (the cover was a savage caricature of the judge by Gerald Scarfe, captioned: ‘This justice must be seen to be done’) and went off to prepare a bail application. Bail pending appeal was (and still is) almost impossible to obtain, but failure would mean that the editors would remain in prison for four months before their appeal could be heard.

  The application was heard at 2 p.m. the next day, a Friday, before the ‘vacation judge’ – the most recent appointment to the High Court Bench, given the short straw of working over the summer holiday. Mr Justice Griffiths was a kind but cautious man, who needed to be convinced this was an exceptional case. John used all the legal arguments – ever so lightly dressed with emotion – for so regarding it, and the judge said he would think about ‘this very difficult matter’ over the weekend. ‘He wants to read the Sunday editorials first,’ came the cynical whisper from David Offenbach. These were divided about Oz and I could offer no great hope to Richard when I saw him at the prison on Sunday afternoon. For the first time in this whole saga, I sensed he was afraid. ‘You’ve got to get me out tomorrow . . .’ Would he, I wondered, go so far as to admit to the fear of every handsome heterosexual, of being raped in prison? No, not even to me? ‘It’s . . . er . . . got to the stage where I really can’t stand the smell of Felix’s socks.’

  At 9.55 a.m. the next morning, in the High Court, we were truly anxious. I scarcely noticed a young blonde in a denim jacket and jeans emerge from the judge’s entrance. She came swiftly down the steps to seat herself beside John Mortimer. He looked up from his papers and blinked owlishly at this lovely apparition, who seemed to have hitched a star in Carnaby Street and landed in the row reserved for Queen’s Counsel in Court 13 in the Royal Court of Justice. ‘Ah, excuse me, but this is counsel’s row,’ I heard John murmur reluctantly. ‘The judge wouldn’t like it if he saw you sitting here.’ There was a beat, and a tight smile. ‘I don’t think Dad would mind.’ What was happening then dawned: the judge came in, made conventional noises about how rare it is for bail to be granted pending appeal, and then, his daughter’s gaze upon him, granted bail to all the defendants. He had not adjourned to read the editorials, but to listen to his children. Bob Dylan did not get it quite right: in some of our better homes, the daughters were not beyond command, they were in command.

  The court clerk filled out the release forms, which I grabbed and rushed into the Strand to hail a taxi to Wormwood Scrubs, followed by the world’s press. By the time the Oz editors were processed there were a hundred journalists and photographers milling about the prison gate, clamouring for pictures of their short-haired craniums. The transformation was remarkable: Richard, who two weeks before had resembled the young Oscar Wilde, now had the profile of a Lombroso criminal type. He was not so overcome with joy as to forget that ‘the Scrubs’ is handily situated for Television Centre: that night he was accorded a respectful half-hour interview by David Dimbleby on BBC2. At this ripe moment, no doubt, he could have mounted the barricades and led some sort of revolution, but to the disappointment of his acolytes Richard in his humble heart was a journalist, with the lizard of Oz in his genes: all he wanted now was to lie with friends in the sun. Oz had not been about either lust or emancipation: it was about pointing derisive fingers at emperors who had no clothes, without having the slightest inclination to tailor new ones. The Empire had made the mistake of striking back.

  It had one last strike. The Lord Chief Justice presided over the three-day appeal in November, hearing our seventy-eight grounds of appeal against Judge Argyle’s summing-up. Lord Widgery had an exact legal mind, and by the third day he was convinced that although many of the factual mistakes did not amount to much, there had been several serious errors which had to derail the obscenity conviction. Unless . . . There is always, in criminal appeals, this ‘unless’ – called in those days ‘the proviso’. The judge has erred so fundamentally that the conviction must be quashed, unless the Court of Appeal is satisfied that the evidence is so overwhelming that the conviction would have been inevitable had the error not been made. On the last morning, the Chief made his reservation plain: he just could not imagine how the tiny advertisement for Suck magazine, which he described as ‘a written account of the joys from the female aspect of an act of oral sexual intercourse’, could be anything other than obscene. ‘There is nothing here,’ he said plaintively, ‘which could induce people not to conduct the activity described.’

  By lunchtime, the defendants were in a state of panic, and John and I were at a loss, even with the help of Professor Dworkin, to think of anything more that might be said as to why they should not go back to prison for publishing the fact that women might find cunnilingus an enjoyable experience. John’s face was sagging badly as we returned for the normal 2 p.m. start. Surprisingly, there was no sign of the three judges. We waited and waited, until at 3.15 they returned with minds that had clearly been made up. ‘You need not address us further about the proviso,’ said the Chief in his clipped voice, before launching into a long judgment. The off-the-judicial-cuff decision is one of the lost glories of the English appeal courts now that judges all use word-processors, and Lord Widgery was the Laurence Olivier of the impromptu judgment. Suddenly his voice switched off, he bowed and exited, and we realised that the obscenity convictions and the prison sentences and the deportation order had all vanished into thin air.

  The Lord Chief Justice had said that he was deeply troubled by the judge’s constant denigration of the expert witnesses. Moreover, he had not understood the defence. One of its main planks was that the effect of Oz was emetic rather than erotic, aversive rather than titillating: it would not lure people into emulating the conduct that it satirised or depicted unpleasantly, but rather cause them revulsion. Somehow Judge Argyle managed to reinvent this argument in his own mind: he told the jury that it would only have this aversive effect on readers who were mentally ill. This proved fatal
to the conviction, and so was his direction that obscenity meant what the dictionary said were its synonyms: ‘filthy, disgusting, indecent, loathsome, lewd’.

  But what was it that had, over the extended lunch-hour, persuaded the Chief Justice not to apply the proviso? The explanation which went around the Bar was that like many judges of his age and rectitude, whose reading matter was largely confined to law reports and The Times, Lord Widgery could envisage nothing more obscene than publishing the possibility that women might enjoy oral sex. For this appeal, fortuitously, he was flanked by two men of the world. Unable to convince the Chief by argument, one sent his clerk, a former able seaman, to Soho with £20 and a direction to acquire some ‘up and down the wicket’ examples of the pornography there on open sale. He returned at lunchtime with magazines which consumed their Lordships until 3.15 p.m. and served to persuade the Lord Chief Justice that Oz paled by comparison. That was why, in the course of his judgment, he issued a resounding call for pornographers to be jailed. He was oblivious to the fact that the shops from which the samples had been acquired were being run in partnership with the Metropolitan Police.

  This was the crowning irony of the Oz trial: it was a fig leaf to cover up the deep and vicious corruption in Scotland Yard. This corruption spiralled downwards from Assistant Commissioner level to encompass the Obscene Publications Squad. These policemen had for some years been in the handsome pay of Soho pornographers. They called ahead before ‘raiding’ their shops, and seized lorry-loads of porn which would be totted up for the crime statistics and then surreptitiously returned to its owners. (One senior commander was so breast-high with the porn merchants that he actually edited one of their ‘spanking’ magazines.) As a pretence that the police really were concerned with the nation’s morals, the much-publicised raids and trials of the underground press served as the perfect decoy. Indeed, even as the Oz trial was drawing to a close, the camouflage for the following year was being prepared. A team of eight police officers and two sniffer dogs walked the length of Berwick Street in Soho, passing eight bookshops they ‘licensed’ to sell pornography of the hardest core. They entered a decrepit building and climbed rickety stairs to the attic, where they pounced on the singer Mick Farren and several dazed artists working on the production of the underground comic Nasty Tales (more Crumb and Shelton, interspersed with the work of local cartoonists). The artists were arrested on obscenity charges, and marched in handcuffs down the stairs and past all the porn shops to the police vans. Too honest to pay for police protection, too political to be prurient, they were to be the next convenient scapegoats.