The Justice Game

by Geoffrey Robertson

  What nobody heeded was the fact that John had no crime to run away from: on the contrary, his only crimes were committed in order to run away. The passport forgeries, the £29,000 taken from his one-man company for his expenses, the insurance policies taken out to console his unwitting wife – these were crimes committed in the course of fleeing from his middle-class English existence. But why? There would have been no great difficulty about leaving his wife for Sheila, his bankers would never have forced an MP into bankruptcy and his creditors would have compromised. The genuine mystery was why he magnified his run-of-the-mill problems, and behaved as though incurring comparatively minor debts was equivalent to committing great train robberies. I had no doubt that he was mentally disordered, that his illness was triggered by mild reverses, and that it combined with a natural arrogance and self-regard to produce a state of mind which paid little or no attention to whether his behaviour was criminal. The only two problems with this analysis were (1) how did that make him different from other politicians, and (2) how could a sufferer from this form of mental illness expect to be acquitted for crafty forgery and meticulously calculated fraud?

  Orthodox psychiatry offered no helpful answers, so I consulted R D Laing on the subject of my client’s divided self. Much of Laing’s work is controversial, although it always seemed to me that he advanced our knowledge of mental health at least by one insight, namely that the people we diagnose as paranoid usually do have something to fear. Ronnie had a dour sense of humour. His first report, after meeting Stonehouse, was written in question and answer form thus:

  Question: Is his account of his mental breakdown plausible to you as a psychiatrist?

  Answer: Yes.

  Question: Can you say for certain whether he is lying or not?

  Answer: No.

  I pressed the guru for more details. How should ordinary psychiatrists describe my client? R D became more expansive:

  Everyone perhaps has a breaking point. The term for this in psychiatry is a reactive psychosis. The mind temporarily ‘boggles’, the person ‘cracks’ in two or three, or even more, into multiple pieces – and dissociation, splitting, disintegration of the personality occurs. A man in public life begins to feel desperately trapped by the life he is in, and he reacts by acting out a weird death-rebirth fantasy.

  That was the closest we came to a defence. John had passed through some kind of ‘fugue’ – a journey of conscious abnormality, driven by self-interest (‘he never thought of us for a minute,’ said Barbara later), in which rules were things that applied to others; he was not in a mental state which could be described as dishonest, because he honestly believed that he could do no wrong. How, I asked Laing, could this ‘fugue’ condition in Mr Stonehouse be distinguished from that frequently encountered in other politicians caught in law-breaking, for example Richard Nixon? ‘It could not be so distinguished,’ came the answer. I reported these revelatory developments in political psychiatry to Dick, whose reaction left me with the distinct impression that he would leave his junior to present this part of the defence case.

  We had both been working for months on its preparation and were deep in conference with our client on the day before the trial was scheduled to commence, when a telephone call came through to Dick’s chambers. It was from Sheila Buckley’s QC, who had heard on the midday news that we had been sacked, and that John had decided to defend himself. Thunderstruck, Dick repeated this information and asked Stonehouse whether it was true. John confirmed that it was, and actually apologised (I had never heard him apologise before) for not telling us. There was nothing to be done, except to tie pink tape around our briefs and wish him luck on the morrow, when he would stand alone before a difficult judge and a jury hugely prejudiced against him.

  It was three months before I saw John again. This time, it was in the cells beneath the Old Bailey, whence his solicitor had summoned me as the ‘guilty’ verdicts began to roll in. Irrepressible as ever, he was already contemplating his appeal, for which I was rehired. Incredibly, he had written a 230-page book while defending himself: it was entitled My Trial, and subtitled My blow-by-blow account and psychological reaction to trial and verdict – from the Old Bailey dock. It did not become a best-seller, but it was certainly a first and probably a last. From all accounts except his own, John’s trial had been a sad affair, as he floundered in technical legal submissions in front of a disgruntled judge undisposed to help him. He had been permitted to call R D Laing and other expert witnesses as to his psychiatric state, but he had mishandled their questioning. (The noble art of self-defence is not appropriate where that defence depends on psychiatry. An accused eliciting sympathy for himself – ‘Tell me, why am I mentally ill?’ – is not a convincing sight.)

  In one respect, the Stonehouse trial was unfair. The judge withdrew his bail at the close of the prosecution case, just before he was to go into the witness box in his own defence. This practice of ‘no bail after half-time’ was common in the seventies, and meant that the defendant was suddenly thrown into prison – with its inevitable sleeplessness and disorientation – at the very time when he needed all his wits about him. John had planned to go into the witness box, but after a night in prison he changed his mind and chose an alternative course known as making a ‘dock statement’. Defendants who adopted this course normally did so because they had something to hide which they did not want to emerge in cross-examination. Instead, they would stand up in the dock and make a short speech asserting little more than their innocence. But Stonehouse used the dock as a platform for no fewer than six days – thirty hours in length, his was the longest dock statement in history. The judge who suffered it was later appointed to the Royal Commission on Criminal Procedure where he lobbied enthusiastically for its abolition. In due course he prevailed, and the ancient right to make a dock statement was extinguished by legislation. John Stonehouse had filibustered it out of existence.

  In another respect, however, the Stonehouse proceedings became a bedrock of the law which protects the liberty of the subject. This came in the ultimate appeal decision by the House of Lords. The judge had been so convinced of Stonehouse’s guilt on the charge which the magistrate had dismissed, of attempting to obtain insurance moneys by deception, that he had not only permitted the prosecution to reinstate it but directed the jury that Stonehouse’s disappearing act in Miami was enough to constitute an ‘attempt’ and they had no choice but to convict, despite his plea of ‘not guilty’. It had been a hallowed but vulnerable tradition of English law that the jury, and the jury alone, must be left to decide the facts: no matter how damning these are, the judge should never make their minds up for them by directing a conviction. By the narrowest majority – three votes to two – the Law Lords embedded more firmly in the common law the great principle that the jury are entitled to acquit, irrespective of how strong the prosecution evidence is. Thanks now to ‘the rule in Stonehouse’, a judge is not permitted, no matter how guilty the defendant appears on the facts, to direct the jury to convict.

  This remains the most significant feature of English criminal law. It makes every trial a game, in the sense that there can be no certainty about conviction, because the judge cannot tell the jury what conclusion must be drawn from the evidence, however screamingly obvious one conclusion may seem to be. There is still something to play for, a possibility of acquittal because the law is bad or the defendant is sympathetic or the police have abused their powers. In politically motivated prosecutions judges provide the first level of protection: should they fail by overdue deference to the State, there is still the ‘gang of twelve’ which has the power to cause an upset. As a lawyer, I do not want such upsets to occur: it is the possibility that they will which makes the law (and those who practise it) acceptable.

  The rule in Stonehouse still applies in every court where juries sit, with their constitutional entitlement to bring what the dissenting Law Lords called ‘a perverse verdict’ but which (even when I sit as a judge) I prefer to think of
as a ‘sympathy acquittal’. Clive Ponting, who supplied an MP with classified information about the sinking of the Belgrano, was prosecuted under the catch-all provisions of the Official Secrets Act: they did not catch him, because of the rule in Stonehouse. This verdict discouraged the Thatcher government from prosecuting more of its political enemies. But in 1990, 106 Tory MPs demanded the prosecution of Pat Pottle and Michael Randle, who had been suspected since 1970 of helping George Blake to escape from prison. I knew they were guilty – if only because they had just published a book entitled The Blake Escape – How We Freed George Blake And Why. So when my legal argument about the unfairness of such a long-delayed prosecution failed, I had to wish them luck and withdraw from the case – I could not ethically invite the jury to ignore a law I was sworn to uphold. Pat and Michael defended themselves and invited the jury to acquit (which it did), as a protest against the staleness of their crime and the political motive behind their delayed prosecution. In this way the rule in Stonehouse still ensures that the only enemies of the State who are put in prison are enemies of the people as well.

  This was one comfort I took from my time with John Stonehouse. The other was that I had done my best to save him from himself. I have always refused to ‘twist the arms’ of clients to plead guilty, but in John’s case I begged him to take this course for the sake of everyone who loved him. He had asked me to predict his length of sentence, and I told him that if he pleaded ‘guilty’ and showed some contrition, the punishment would be no more than three years. If he instructed Dick and myself to fight everything, professionally and to the finish, I estimated a maximum sentence of five years or less. ‘But if you defend yourself and infuriate the judge, you could get seven.’ I rarely make predictions, in case they do not come true: this one did. The judge decided that pride would have its fall, and an over-severe sentence of seven years’ imprisonment was imposed and upheld on appeal. The Home Office refused him early parole, although he was the most harmless of inmates, and he died of a heart attack only a few years after his release. Sheila Buckley gave the lie to a lot of the nonsense written about her by reuniting and living with him in this last, broken period of his life. Inspired by the success of another disgraced ex-MP, the briefly debt-ridden Jeffrey Archer, he wrote several novels, but they lacked whatever it is that makes Archer’s work sell. I received a Christmas card from him each year until his death. It was always, poignantly, a House of Commons Christmas card.

  Chapter 4

  Michael X on Death Row

  ‘I’m in favour of abolishing the death penalty,’ said the taxi driver to whom I had explained my reasons for visiting the Royal Gaol in Trinidad. My face brightened, until he added ‘as soon as they hang Michael X’. It was Michael X I had come to see, and if possible to save. The most vocal black-power prophet in sixties Britain was now dishonoured in his own land, and awaiting execution on death row in Port of Spain. He had been convicted of killing one of his dwindling band of followers, and sentenced in consequence to hang: the Court of Appeal had unhesitatingly confirmed the conviction, and Trinidad’s ultimate tribunal – the Privy Council – had found no basis for thinking that justice may have miscarried. That ruling had been delivered in November 1973, just after I qualified to practise. Michael’s solicitor in London, Denis Muirhead, felt sure that something more could be done, although he had no funds left to do anything with. My overdraft amounted to an act of faith by my bank, but we both had student memories of the Australian lawyers who had taken every conceivable point to keep their clients alive, in the hope that public and political appetite for capital punishment would weary, as it finally did. Their ingenuity lives on in the law reports, which I read while sitting at Heathrow Airport for three days until a cheap stand-by ticket to Trinidad became available. I could not afford to pay the full fare, and Michael X could have been executed at any moment, while his impoverished lawyer was waiting for someone to cancel their Caribbean holiday.

  Lawyers and judges cannot arrogate to themselves the power to abolish capital punishment in countries where it has been established by the will of a democratically elected Parliament. They can either refuse to play any part – by resigning rather than passing death sentences – or they can do their best to minimise casualties – if judges, by imposing the most stringent legal safeguards; if barristers, by playing every trick in the textbook to preserve the lives of their clients. Committed death-row lawyers who delay the hangman with last-minute habeas corpus appeals and arcane points of law are objects of irritation and alarm to any government trying to arrange a popular execution. They are likened to ingenious tax lawyers whose imaginative avoidance schemes outwit the language of the legislature. But tax lawyers are not philosophically opposed to taxation of the rich, any more than the death-house lawyers are opposed to punishment of the guilty. What the latter are opposed to is punishment by way of human sacrifice. It is their duty to take every point possible, for the sake of their clients and for the sake of countries which progress by the development of constitutional values. So I had no hesitation in ransacking the common law to find some excuse for not hanging Michael X: the problem was that the common law offered very little encouragement.

  The common law which applies in the Caribbean Commonwealth is the law which has been made and handed down by English judges over the centuries – judges who were, in the past, the leading advocates of practices such as gibbeting, drawing and quartering, and hanging a dead body in chains, rituals they described as ‘bulwarks of the constitution’. Until the abolition of capital punishment in Britain in 1964 the common-law judges, far from thinking up obstacles to execution, had insisted they be carried out as speedily as possible – within six weeks of conviction, even making allowance for appeals. This was to emphasise the deterrent effect of punishment which followed so soon after the exposure of the facts of the crime in court; it was also to ensure that no campaign of sympathy for the criminal had time to build up a head of steam. This unattractive reason was never admitted: it was always made out that swift execution was necessary to avoid the mental torture of a long wait on death row. Given the choice, I would prefer five years on death row to five years of death – but no State should offer that choice to men it has decided, one day, to kill. I first appreciated that when I met Michael X.

  On arrival at the Royal Gaol, it was a relief to find that Michael had yet to be executed. I was taken to visit him, in the way that one might be taken by a zoo-keeper to see the rarest specimen in a monkey-house. That is the only possible – because it is the exact – analogy for death row in Trinidad’s Royal Gaol. There were thirty men, sweating in the heat, fingers scratching through the wire of their concrete-floored cages, screeching and shouting at each other and at the warders. Each cell was 8′ 4″ by 5′ 10″, and contained only a mattress and a slop bucket. In them, the inmates spent twenty-three, often twenty-four, hours of the day, occasionally taken out for exercise in handcuffs. The uncovered light bulb in each cell burned all night. No work of any kind was organised, and education was not allowed: some of the prisoners were obviously mentally disturbed, while others merely raged. Michael alone was quiet and self-contained: close-shaven, wiry, light-skinned (his father was Portuguese), he looked nothing like the black-power revolutionary with face twisted in bitter defiance, a stereotype he had originated for the benefit of the media in Britain a few years before. As I leant against the wire of his cage this solemn, vulnerable member of the living dead explained what would happen.

  Death warrants were always read on Thursdays, between 2 p.m. and 4 p.m. The inmates spent those hours in a state of terror, straining to hear the creak of the door through which the prison governor entered when there was a warrant to be proclaimed. He would stride up and down with his folded parchment, sometimes taking a small sadistic pleasure in stopping in front of one man whom he would torture for a moment merely by clearing his throat, and then moving across to the cage of the actual victim, where he unravelled his scroll and announced: ‘In the name of Q
ueen Elizabeth the Second by the Grace of God of Great Britain, Northern Ireland and the British Dominions beyond the seas Queen, Defender of the Faith, Greetings!’

  Following this grotesque salutation from the monarch, the condemned man heard a good deal of archaic language to the effect that someone bearing his name (‘the said man’) must be hanged by the neck until he be dead, the execution of which remains to be done, but shall be done the following Tuesday, at 7 a.m., at the usual place of execution (a large room separated from death row only by a door). At the end of this sonorous declamation came the good news: Her Majesty had graciously allowed the condemned wretch twenty-four Trinidad dollars (about £5) to order the final meal of his choice – provided he ordered it then and there. Since a man who has just been told he will hang by the neck until he is dead is hardly in the mood to contemplate a menu, the royal largesse was usually spent on ice-cream.

  From the reading of the warrant on Thursday afternoon to the breaking of the cervical vertebrae on Tuesday morning, the routine was fixed. Each day, the prisoner was weighed and measured, to enable the length of the drop to be calculated exactly so that the noose would break the neck rather than decapitate. The rope, imported from a firm in Birmingham, came packaged specially with the desired weight range for its human recipient printed on the box. (The rope was never used twice: after it performed its function, it was thoughtfully sent to the Royal Trinidad Blind Society, whose members used the sisal for weaving.) On Saturday the gallows were moved into position, and the trapdoor greased and tested: everyone on death row, including the man who was to fall through it, could hear the trap open. On Sunday the executioner came, to eye his victim and check his apparatus: he was paid the equivalent of fifteen English guineas. Monday evening brought the family for a last fifteen-minute visit during which they were not allowed to touch the loved one they would lose at dawn. Other prisoners in the cramped row endured the ordeal as relatives wailed, screamed and sometimes had to be carried out on stretchers. The hangman and the priest would arrive at midnight, and at 5.30 a.m. a dozen government officials attended as witnesses: they watched as the prisoner was led, naked, to take his last bath, then dressed in a clean white gown, soon to be stained with his bodily fluids. A white pointed hood was placed over his head, which made him look like a Ku Klux Klansman as he walked to a cell opposite the gallows for a final tranquillising prayer with the priest. He did not see the guards behind, who dragged him across the narrow corridor of death row to the gallows-room, and strung him up.