The Justice Game

by Geoffrey Robertson

  The philosophical advance made by British judges through their decision in Pratt and Morgan was that murderers condemned to death did not for that reason lose their quality as human beings. In legal terms, that a constitution guaranteeing fundamental rights to all citizens extended to those on death row as much as it did to those anywhere else: that the condemned prisoner no less than the terminally ill hospital patient is entitled to treatment which comports as much with dignity as their different circumstances allow. Is this capable of striking a transatlantic chord? Antonin Scalia, one of the Supreme Court’s most hard-line justices, sat with the Privy Council one morning during the Jamaican government’s argument. He left early – I would like to think in disgust, although perhaps he had shopping to do at Harrods.

  Attitudes to the death penalty are emotional, and tend to be based on personal experience. Ronald Reagan traced his support for capital punishment to a boyhood on the family ranch, watching his father shooting lame horses in the head. He often boasted about being the first state governor of California to introduce execution by lethal injection: he had just started to use this method down on the farm, and found it much cleaner than in his father’s day. My first memory – of anything, come to think of it – is seeing Movietone newsreels of the funerals of Ethel and Julius Rosenberg in 1952. She left behind a child of six – my own age – who walked behind the dark box covered with white flowers. By then, Caryl Chessman had been on death row for six years – his execution too, in 1960, moved me on the Movietone news. At university, it struck me that the politicians most anxious to inflict the death penalty were those most keen to risk my life by sending me to fight in Vietnam. By this time, criminology provided ample evidence that capital punishment does not reduce crime, and the briefest acquaintance with the American statistics proved that the death penalty is inflicted unequally, arbitrarily and especially on the poor and the black. But statistics can prove anything or nothing; even were it demonstrated that capital punishment has some deterrent effect, the transient and spiritually crippling satisfaction of revenge cannot justify the setting of a grisly example by a justice system which should be committed to promoting the values of humanity.

  I am not opposed to summary execution, in cases of necessity: the gunning down of tyrants, and of armed robbers, hostage-takers and terrorists caught in the act. This is poetic justice, in the simple sense that it serves them right. The mistake is to use the legal system in an attempt to dignify killing by the State. This was Winston Churchill’s point, in his much misunderstood argument that Nazi leaders should be taken out and shot rather than put through what he thought would be the charade of trial at Nuremberg. He feared that any aping of legal proceedings would give them more dignity in their deaths than in their lives. It was the mistake the Rumanians made when they gave the Ceauşescus the mockery of a trial before shooting them: it was necessary to kill them, to avoid their secret police rallying to their cause, but that was a practical political decision, not a just or legal one. The court-approved death penalty is wrong. And a system which is committed to the righting of wrongs cannot be used to perpetuate one.

  Capital punishment induces vicious behaviour, not only in prisoners on death row, but in the officials charged with their execution. The deviousness of Michael’s hanging, with every detail arranged overnight, out of court hours, in breach of custom and procedure, was one example. The killing of Noel Riley and his co-appellants, not in revenge for their unlawful acts but in revenge for their legal actions, is another. So too was the obsessive determination of Jamaica’s Governor, His Excellence the Most Honourable Sir Florizel Augustus Glasspole, to ‘cat and mouse’ Earl Pratt and Ivan Morgan to the gallows in defiance of international law, courts and standards. And so was the deceit practised on the Privy Council in 1994 by the government of Trinidad, which undertook not to hang Glen Ashby but then strung him up while a court was considering his appeal, a few days before his sentence would have had to be commuted. These are examples plucked from my Caribbean case-book: there are countless others. Behind all the truculence and dishonesty of State officials lies a grim determination to kill – not merely as machines performing the dictates of the court, or as honest executors of the will of the people, but as human beings consumed by a positive wish to take other human life. The saddest thing is the sheer waste of energy on all sides. But in the final analysis there is no new argument to be raised against capital punishment. John Bright said it all in 1850: ‘If you wish to teach the people to reverence human life, you must first show that you reverence it yourselves.’

  Chapter 5

  Ferrets or Skunks? The ABC Trial

  The trial which in the seventies had the most impact on law and on politics – certainly on lawyer-politicians, and on that amorphous construct, the State – is recalled through its acronym, ‘the ABC case’. This stands for the surnames of three defendants, Crispin Aubrey (a Time Out reporter), John Berry (an ex-soldier) and Duncan Campbell, a 24-year-old scientific prodigy who had chosen to make headlines as a freelance journalist rather than money as a telecommunications whizz-kid. They were arrested for talking to each other over a bottle of chianti in a London flat on a wet evening in February 1977, and prosecuted on charges laid under the Official Secrets Act which carried (in Campbell’s case) a maximum of thirty years’ imprisonment. By the time the proceedings ended, with a champagne celebration outside the Old Bailey eighteen months later, Britain was a less secret country. In 1977, the Attorney General’s response to Duncan Campbell’s ability to uncover State secrets was to try to lock him away. In 1987, when Campbell was about to broadcast details of the Zircon spy satellite, the Attorney General took him to lunch at the Garrick Club instead. This progress, from the stick of prison to the boiled carrots of the Gentleman’s Club, showed that a lesson had been learned: in a democracy, the criminal law cannot be deployed as a tool for disposing of those who use their right of free speech to embarrass or inconvenience the authorities.

  Termination of Duncan Campbell, if not with extreme prejudice then at least by a long prison sentence, was the object of a prosecution brought by a Labour government. The few who condemned it at the time (most vociferously, a young Scottish MP named Robin Cook) may have learned from history and may not, attaining office twenty years later, be condemned to repeat it. That depends on what they made of their senior colleagues who loudly condemned human rights abuses (like secret trials and the jailing of dissident journalists) in other countries, yet who could approve the prosecution of A, B and C. It was ordered by the law officers, Sam Silkin and Peter Archer, who were leading members of Amnesty and JUSTICE. Foreign Secretary David Owen published pontificating lectures on human rights at the very time officials of the organisations for which he was responsible – GCHQ and MI6 – were pressing for heavy jail sentences on Campbell. Home Secretary Merlyn Rees reneged on his party’s promise to reform the Official Secrets Act so as to make the ‘mere receipt’ by journalists of official information no longer a crime. Civil liberties were not safe in the seventies in the hands of Labour cabinet ministers. Nor were they secured by independent prosecutors or defended by liberal newspaper editors or vindicated by a jury. Most of the credit for their protection belonged to a fierce but fair High Court judge, with help from a fearless QC, an irresponsible television programme, a Marxist historian and a few hundred residents of North London prepared to earn a Special Branch record for standing up against a serious abuse of human rights.

  The geo-politics of the ABC proceedings went crudely like this. The cloak-and-dagger spies whom Le Carré and other novelists had convinced the public were crucial to the Cold War had, by 1977, little relevance to it. The top secrets came not through Human Intelligence (HUMINT in security speak) but through ELINT (Electronic Intelligence) and COMINT (Communications Intelligence) as intercepted, cracked and decoded by Signals Intelligence (SIGINT). This is hardly a revelation in 1997, when the wartime work of the Bletchley code-breakers is so widely celebrated, but even that was classified �
��top secret’ in Britain in 1977. The UK was very much a subservient partner to the United States in Western defence arrangements, but its abiding asset was a spider’s web of intercept stations covering the globe, spun from microwave towers located in the outposts of the former British Empire. The spider itself was headquartered in Cheltenham (hence GCHQ – General Communications Head Quarters), its threads criss-crossing the Atlantic to its mate, the National Security Agency (NSA) in Fort Maryland, Virginia.

  What the Americans valued most was the signals intelligence scooped up in Cheltenham from a net which ranged from Pine Gap in Australia to Little Sai Wan in Hong Kong to Ayios Nikolaos in Cyprus. Any electronic communication could be caught in the net: an incautious comment by a terrorist in a long-distance phone call; one tank commander talking to another on some benighted border; political leaders chatting on car telephones in Moscow. SIGINT was important to Britain as a guarantee of some continuing influence on American defence strategy. The subject was blanketed by ‘D’ notices, the curious and very English system whereby the country’s newspaper editors – all of them – cravenly complied with directives from a committee dominated by the security services and the armed forces. These notices had no legal force at all, nor any basis in law, but they ensured that SIGINT was unmentionable and unmentioned in the media: the initials ‘GCHQ’ had never appeared in that order in British print, and any comment on the work of the thousands of technicians and translators in Cheltenham, and on the array of aerials on several dozen US bases in Britain, was forbidden on pain of an Official Secrets Act prosecution. A terror about mentioning the subject had descended on the British media after a case in 1956, when two undergraduates were jailed for wittily recounting some national service experiences at a signals intercept base in Crete.

  SIGINT and GCHQ were not so secret to the rest of the world. In America, in the aftermath of Vietnam, a good deal of investigative journalism had focused on NSA and its role in programmes directed against radicals, by both the Johnson and the Nixon administrations. There had been two major inquiries – a Senate committee chaired by Frank Church and the Pike Inquiry by Congress – which had identified the central role of GCHQ in the UK-USA agreement, signed in 1947 by the two countries (and by Australia and Canada) pledging to cooperate in code-breaking and to share all their intercepts. There had been a plethora of published articles – from scientific papers to features in Penthouse – about the international eavesdropping alliance, and first-person accounts by American servicemen of work at SIGINT bases. This publicity – much of it critical – had to be suffered in silence under the First Amendment. Thus the consequence of the British security blanket was to keep the British public in ignorance of one major contribution it was making to the defence of the West. The real absurdity was that the Soviets knew all about SIGINT. They had been told, in detail, by defectors: George Blake had given them a fairly accurate global picture during his years in MI6, and in the sixties and early seventies a number of senior SIGINT operatives had defected to Moscow. Moreover, the SIGINT capacity of a base is obvious both to the naked eye and to the Soviet ‘spy in the sky’ satellite. A microwave transmitter cannot be hidden, let alone the electronic Stonehenge of aerials which announce themselves as intercept stations. There was a cluster of such sites in Britain – most of which Campbell had identified by the time he was arrested – and their existence was no secret to the Warsaw Pact commanders whose communications they monitored.

  *

  Britain’s largest spy network organisation is not MI5 or MI6 but an electronic intelligence network controlled from a country town in the Cotswolds. With the huge US National Security Agency as partner, it intercepts and decodes communications throughout the world. Freelance writer Duncan Campbell and Mark Hosenball trace the rise to power of the electronic eavesdroppers.

  These words – the opening paragraph of a double-page spread in Time Out in May 1976 – triggered an immediate response from the State. Hosenball, the 25-year-old son of a Washington lawyer, working as a journalist for the Evening Standard, was ordered out of the country by Home Secretary Merlyn Rees on the grounds that he was a danger to national security. Campbell was Scottish and could not be disposed of quite so easily: MI5 watched him and waited. Hosenball went to court, to seek reasons for his deportation but succeeded only in giving Lord Denning, whose love of freedom sometimes stopped short of extending it to foreigners or dissidents, the opportunity to decree that government actions were legally unchallengeable when made on grounds of national security. Hosenball was left to state his case to a tribunal of what were called ‘three wise men’ (they were more like three blind mice), who heard him out in an oak-panelled room of the Imperial Services Club in Pall Mall. He had no idea why he was being deported until he saw their sudden excitement when he mentioned ‘The Eavesdroppers’. His own contribution to the article had been minimal – it was written almost entirely by Campbell, who readily admitted his authorship. Nonetheless, in February 1977, Merlyn Rees confirmed the deportation orders on Hosenball, as well as on the CIA defector, Phillip Agee.

  John Berry, a social worker in North London who had, seven years earlier, been a corporal in a SIGINT regiment in Cyprus, was angry enough to write to the ‘Agee-Hosenball Defence Committee’, care of the National Council for Civil Liberties at Kings Cross. He identified himself as a former member of ‘an organisation spending vast amounts of money in total absence of public control’ who would ‘like to know of any medium through which these concerns could be published’. The Committee knew of only one publication which might be prepared to defy the ‘D’ notice which had been placed on GCHQ and all its networks, and that is how his letter ended up on the desk of the environmental reporter, Crispin Aubrey, working for Time Out, a London listings magazine and the only ‘underground paper’ to survive police raids with circulation enhanced and politics more or less intact. Since Aubrey knew nothing about electronic surveillance he summoned Duncan Campbell to join him at an interview with this promising source. ‘I want you to decide whether he’s a bullshitter,’ he said as they fixed a time (7 p.m., 18 February 1977) and a place (Berry’s flat) for a first meeting. These details were carefully noted by MI5, which was tapping the telephones of Duncan Campbell as well as the telephones of the NCCL, under a warrant which must have been signed by Labour’s Home Secretary, Merlyn Rees.

  MI5 ordered a Special Branch team to converge on the Muswell Hill basement where A, B and C met as planned. Aubrey had such innocent intent that he brought his new tape-recorder – a Christmas present he had not yet had the chance to use – and ran it for three hours to provide an unassailable transcript of their criminal conversation. At 10 p.m. the tape ran out and the meeting broke up, at which precise point thirteen Special Branch officers descended to arrest them for offences committed under the Official Secrets Act. A, B and C were held in police cells for two days without being allowed to see their families or their solicitors, while Campbell’s flat in Brighton was raided and its vast library (including the novels of Hemingway and Graham Greene, and a book listed in the trial exhibits as The Female Unok) was transferred to Scotland Yard by police pantechnicon. The three were refused bail, and carted off to Brixton Prison. They were charged under Section 2 of the Official Secrets Act, which made it an offence to give or receive ‘official’ information, whether secret or not. This was, said the police, a ‘holding charge’ – i.e. a justification for holding dangerous men in custody until more serious charges were formulated.

  I became involved in this case at this point, and by mistake. Hearing a news flash that a journalist named Duncan Campbell had been arrested, I assumed him to be my friend of that name who was then the editor of Time Out. I called Bernard Simons, Time Out’s solicitor, and offered to stand as his surety. Bernard thanked me but explained that the arrested man was ‘the other Duncan Campbell’ whom I did not know. Would I like to be his counsel instead, to seek bail from a High Court judge? This application was to be vigorously opposed, so I rustled up
John Mortimer to lead me in making it.

  The security services in those days believed they could obtain anything they wanted from the courts by incanting the magic words ‘danger to national security’. But as Philby and Blunt well understood, there is in England one immunity to the spell: the possession of class. John Mortimer knew this too and carefully eschewed any argument based on freedom of speech. Duncan, he explained, was recently ‘down from Oxford’ (‘Which college?’ asked the judge automatically). His lineage, although Scottish, was distinguished. Crispin Aubrey, too, had exemplary middle-class roots (chaps named Crispin do not belong in prison). Ever so delicately, John defused the Crown’s allegation that they were out to cause ‘exceptionally grave damage to national security’ with references to Oxford days and student pranks and young men of good parentage who obviously didn’t realise the seriousness of what they were doing. The judge released the two journalists into the custody of their good parents. The ex-soldier, who came from a working-class background, he ordered to remain in prison.