The Justice Game

by Geoffrey Robertson

  The Labour Law Officers were good and conscientious men, much affected by the exigencies of the Cold War. Their failure was in not holding fast to the principle of freedom of expression in a democracy. The quality of ‘responsibility’ in a law officer includes an ability to distinguish between the national interest and the vested interest of the intelligence community in protecting from criticism their policies and their alliances and especially their budgets. It seems incredible now that the role of GCHQ remained a secret until the 1977 committal proceedings at Tottenham: a few years later it was barely out of the news as the government ban on trade unions and then on homosexuals became running disputes in the courts, and then Geoffrey Prime was jailed for having sold most of its secrets to the Soviets, years before A and C met B. Today SIGINT is known about and budgeted for and expected to play a part in gathering evidence of international crime and terrorism and human-rights abuses. It is pleasing to record that one of the first decisions taken by Robin Cook, when he became Foreign Secretary in 1997, was to direct that intercepts of Bosnian Serb communications gathered by GCHQ from its aerials in Cyprus should be supplied to the War Crimes prosecutors in The Hague. He had read of the existence of this evidence in a newspaper, in the kind of story which would, twenty years before, have provoked a prosecution under Section 1 of the Official Secrets Act.

  Chapter 6

  Gay News: The Angel’s Advocate

  To the pure, all things are impure

  Oscar Wilde

  The Old Bailey had never seen the like of Mary Whitehouse v Denis Lemon and Gay News, heard in the summer of 1977. The prosecutrix led prayer meetings in its corridors urging divine intervention in the jury’s deliberations (a novel form of contempt of court); the barristers quoted more from their Bibles than from their usual gospel, Archbold’s Criminal Law and Practice; the judge ingratiated himself with the jury by announcing the cricket score and delivered a summing-up which he later claimed had been inspired by God. The trial has most significance as, in all probability, the last of its kind. In retrospect it appears a miscarriage of justice, and I expect some homosexual Home Secretary will in the future give Gay News a posthumous pardon. It stands as a warning – which a later attempt to prosecute Salman Rushdie made indelible – against invoking the blasphemy law to protect one religion against people who adhere to other religions, or none at all.

  Both religion and homosexuality have come a long way in Britain in the two decades since the Gay News trial. The Church of England now does not concern itself with homosexuals who take communion, so much as with all the gays who give it. Gay News was a vital part of the movement which produced this sea change, and Mary Whitehouse was perceptive enough to recognise its potential. She had been a somewhat comic figure until the mid-seventies, when her moral concerns became more widely shared. By 1977 she was riding very high, partly as a result of a moral panic when a Danish pornographer named Thorsen came to London with the idea (or so he said) of making a hard-core film about the sex life of Christ. This stunt played into Mary’s hands: her National Viewers and Listeners Association received a letter from the Queen deploring the possibility, and both the Prime Minister and the Archbishop of Canterbury reassured the country that there were laws against such blasphemy. Mary Whitehouse suddenly appeared as the Protector of the Realm. A phrase which briefly entered the language, circa 1977, was ‘You’ve got to admit Mrs Whitehouse is right about some things.’

  That was when a short poem was published on the literary page of Gay News, a serious paper with a tiny circulation of eight thousand which dwelt upon news, arts and happenings of interest to the gay community. It was not a good poem but it was written by a good poet – Professor James Kirkup, who occupied many lines in Who’s Who. He was then President of the Poets’ Society of Japan, and a Professor of English Literature both in that country and at Ohio State University. He had published many books of poetry, and a play called Upon This Rock, performed in Peterborough Cathedral. His recreation was ‘standing in shafts of sunlight’ (when will people ever learn not to make jokes in their entries in Who’s Who?) and he explained that ‘The poem reflects my deeply religious nature. It is about the miracle of the conversion of the Centurion Longinus, and the resurrection of the dead body of Jesus through our human, earthly loves and desires . . . I wanted to present a human, earthly and imperfect Christ symbolising my own outcast state, and that of all outcasts in society.’

  Mrs Whitehouse wanted to cast gays out – if not out of society, then certainly out of the Church. She had just published a book which railed against ‘the most insidious of all pressure groups – the Gay Liberation Movement’. She claimed that homosexuality was caused by abnormal sexual behaviour by parents ‘during pregnancy or just after’ and asserted that ‘psychiatric literature proves that sixty per cent of homosexuals who go for treatment get completely cured and moved into a heterosexual position’. This book was entitled Whatever Happened to Sex? which was a good question, given her revelation that sexual orientation could vanish, like acne, with proper treatment. She famously insisted that ‘I am not against homosexuals as people, but believe homosexual practice to be wrong’, but as one biography pointed out, ‘this was rather like saying that one was anti-Semitic but that one had nothing against individual Jews’.

  Nonetheless, I liked Mrs Whitehouse, ever since I had trodden on her toes at the Young Conservatives Ball, but rushed to a law library to blow dust off the ancient law reports when Gay News instructed me to resist her application to prosecute them. The last blasphemy case had been in 1922, when a Mr Gott was jailed for distributing Rib Ticklers for Parsons, which related that Jesus entered Jerusalem ‘like a circus clown on the back of two donkeys’. The old cases in which judges forged the blasphemy law were full of Old Testament cruelties. The leading authority came from 1676, when a madman named John Taylor was heard raving that Christ was a whoremaster and organised religion a cheat. Since a crime against religion was in those days a crime against the State, the court ruled that ‘Christianity is a parcel of the laws of England and therefore to reproach the Christian religion is to speak in subversion of the law’. Taylor was placed in the pillory with a placard around his neck reading ‘For blasphemous words tending to the subversion of all Government’.

  ‘You will have to canvass the law at the trial,’ said Mr Justice Bristow, giving leave for Mary’s prosecution to go ahead. She alleged that the Kirkup poem ‘attacked the fundamentals of the Christian faith’, and presented an affidavit from an evangelical theologian who claimed that it undermined three fundamental Anglican tenets, that Christ is without sin, that homosexuality is evil and that there cannot be sex in Paradise. As the success of the prosecution would make these propositions a parcel of the laws of England, some doctrinal examination of them seemed in order. Both sides prepared for trial by searching for expert witnesses willing to engage each other in battle over the canons of Christianity.

  It was not easy in the climate of 1977 to find many divines to stack up against St Paul. A certain questioning of his letter to the Romans had been sparked by Bishop John Robinson’s suggestion in Honest to God that Jesus may have been homosexual, and a few liberal theologians had just dared to publish The Myth of God Incarnate. But they were nervous of the evangelical wing of the Church and the tactics of Mary Whitehouse. ‘That woman!’ expostulated Dr Robinson, declining to give evidence. ‘I have suffered quite enough at her hands.’ A few were prepared to do so – like Donald Craig, and Dr Norman Pittinger of Cambridge’s Divinity School. The prosecutrix was having her difficulties too. She wanted nothing but the best – the Archbishops of Canterbury and of York no less, together with Cardinal Basil Hume. She demanded they enter the witness box to throw the combined weight of the Churches behind her condemnation of Gay News. Astutely they declined: the debate over women priests had barely been kindled; that over gay access to Heaven was not to be contemplated.

  Gay News was a struggling paper for an oppressed minority, and resisting the resur
gence of blasphemy laws seemed a worthy enough cause in which to waive my fees. Curiously its solicitor and co-owner, Richard Creed, wouldn’t hear of it. ‘You must charge a commercial fee,’ he insisted. Then, to my embarrassment, I saw that the newspaper was organising fund-raising activities to meet its ‘legal costs’ which (given that Denis Lemon was on legal aid) solely comprised the cost of my appearance on behalf of the company. So I renewed my offer. ‘No, I’ve agreed a full fee with your clerk,’ said Richard, remarkably happy after this ordeal. Then a gay friend took to telephoning me with accounts of his contribution to the Gay News Defence Fund at events around the country. ‘Contributed another £5 towards your brief fee, old boy, cost of the disco in Leicester last night. Met the most delightful young man who wants to thank you personally. May I put him on?’ The penny began to drop, as did my further offers to waive my fees. The Defence Fund climbed to £30,000, some indication of the number of gay relationships initiated by Mrs Whitehouse.

  The most crucial decision was out of our hands. It was the selection of the trial judge. Alan King-Hamilton was appointed, he thinks, because he was a Jew (he was President of the West London Synagogue) apparently on the assumption that this would make him impartial. On the subject of homosexuality, however, he was neither unopinionated or up to date. When trying the publishers of The Mouth and Oral Sex in 1970 he had suggested that Gibbon’s Decline and Fall of the Roman Empire proved that decadence and immorality, exemplified by increasing homosexuality and venereal disease, might herald the end of civilisation as we knew it. (Jeremy Hutchinson, defending, had to point out that Gibbon did not attribute the fall of Rome to a proliferation in sexual practices, but rather to an increase in – among other things – Christianity.) Alan was clever and quick-witted, a good lawyer full of innocent (or rather, guilty) merriment and an excellent judge of fraud trials, but he was not the most temperate judge of morals. On first reading the poem he says he was ‘so shocked and horrified and revolted’ that ‘I wondered if I was right to try the case’. Having considered carefully his own motion to disqualify himself for bias he ruled in his own favour, on the grounds that any other judge would react in the same way. In 1977, this was probably true.

  The trial began on the fourth of July. It had been an immensely difficult case to prepare for both sides, since there was no modern law of blasphemy and the old precedents – most of them from the early nineteenth century – had almost all been concerned with disbelief, often that of booksellers who stocked Tom Paine’s The Age of Reason. The ingredients of the crime had been stated differently at different times, and we could not foretell how it would be defined today or predict whether we would be permitted to call theological or literary evidence. There was some doubt whether blasphemy even existed as a crime: it was said authoritatively to have disappeared in Scotland where there had been no prosecution for one hundred and fifty years, and to be doubtful in Wales as a result of the disestablishment there of the Anglican Church. John Mortimer (who was defending the editor, Denis Lemon) emerged from behind a high pile of centuries-old law books on the first morning:

  Judge: I am just thinking of the jury. How long is all this argument going to last?

  Mortimer: Until lunchtime.

  Judge: Goodness gracious me. I was hoping the case would be over by then.

  Mortimer: I am sorry to disappoint your Lordship, but we should enquire whether this law exists or not.

  We lost all the legal arguments. For example, a practice had grown up – it was introduced by Gerald Gardiner at the Lady Chatterley trial – of permitting the defence to follow the prosecution’s opening with its own address, thus enabling jurors to read the material having heard both sides, rather than fresh from the prosecutor’s condemnation of it. This would be obviously fair in the case of a poem open to different interpretations. But the judge required the jury to listen only to the inflammatory prosecution opening – John Smythe, counsel for the prosecution, described the poem as ‘so vile it would be hard for the most perverted imagination to conjure up anything worse . . . almost too vile for words, even in the Old Bailey’ – and then to sit in their seats, in full public gaze, while reading the work which the prosecution had just interpreted for them. All twelve jurors had, we gloomily noted, taken their oath on the New Testament.

  The prosecution applied to call a theologian, Dr J I Packer, author of Evangelicalism and the Sovereignty of God which identified as the root cause of error in the Church the mistake of ‘subjecting the scriptures to the supposed demands of human logic’. We did not oppose the application. On the contrary, we relished the opportunity to come to grips with a Christian fundamentalism which excluded practising homosexuals from the prospect of salvation, and sought to punish this metaphysical verse-argument as a blasphemy, the very crime for which Jesus was crucified. The prosecution was a simple syllogism: Christ is sinless and homosexuality is sinful, ergo imputing homosexuality to Christ is blasphemy. But we found doctors of divinity to dispute both premises. Christ, on Calvary, took upon him the sins of the world. And Paul, when writing to the Romans, had no idea that he would be mistranslated two thousand years later: he was condemning malakói (debauched promiscuity) and arsenokóitai – catamites who act against their nature, rather than those who follow their nature into same-sex relationships in the late twentieth century. Had these issues been canvassed, as the prosecution suggested, Gay News would not have been convicted: there will always be reasonable doubt over the number of angels who can dance on pins.

  The judge saw the trap our learned evangelical friends were setting for themselves, and saved them from it. There would be no theological evidence called by either side, he ruled, because the jurors had all taken the oath on the Bible and must be assumed to know what it said. Disappointed, we asked whether they might be told by literary experts about the merits of the poem, or at least how they could try to appreciate them. This was an important application: the chance of acquittal depended upon the jury reading the work figuratively rather than literally. The judge had been bested by experts before, notably by Margaret Drabble in a famous exchange during the trial of Paul Ableman’s The Mouth and Oral Sex:

  Judge King-Hamilton: We have got on for over two thousand years without any mention of oral sex. Why do we need to read about it now?

  Drabble: (no response)

  Judge: Witness, why do you hesitate?

  Drabble: I’m sorry, my Lord, I was just trying to remember the passage in Ovid.

  There would be no literary witnesses in this trial, ruled Judge King-Hamilton. And no other witnesses either, because he ruled that the poet’s intention was irrelevant, and so was the editor’s and the publisher’s. There seemed to be no evidence which could be called on behalf of the defence. By this time, legal argument had lasted four days: the jurors had been present in court for barely an hour, to hear the prosecution’s opening speech and to read the poem. The judge motioned the usher to bring them in, to hear final speeches. I asked for a short adjournment, and called for Margaret Drabble.

  I was faced with an intensely difficult dilemma. The jury had heard no evidence at all in this case: they had had John Smythe’s opening sermon, and would now hear his closing one, and John Mortimer and I would speak before the judge’s last word would obliterate our efforts. The jury would decide this case on a photocopy of the poem, hearing nothing of Gay News or its readership, or of the acceptability in this day and age of publishing a newspaper for homosexuals and speculating about their place in Christianity. Unless . . . I could try to circumvent the ban on defence witnesses by calling ‘character evidence’ for the newspaper. The danger of this course was that the prosecution could cross-examine them on (for example) the personal advertisements featured in a column headed ‘Love Knoweth No Law’. This would inflame any jury-room prejudice against homosexuals. We had no distinguished homosexuals for the role of character witness: very few were ‘out’ in 1977. I figured that of our candidates to speak well of Gay News, the two who could most take ca
re of themselves in the witness box were Bernard Levin and Margaret Drabble. So I sowed the wind and waited to reap the whirlwind.

  It came as soon as Bernard pronounced Gay News a serious and responsible newspaper. The prosecution wheeled into court a trolley piled with back issues – they appeared to have been reading little else, in preparation for this moment – and for several hours bombarded the witnesses with insinuations about the paper’s role in propagating homosexuality:

  Smythe: You say Gay News is always a responsible newspaper. Look at this review of a book about homosexual love-making. It publishes explicit descriptions and illustrations. Is that responsible?

  Levin: I don’t think explicitness is inconsistent with responsibility.

  Judge: Why should homosexuals need help of this kind?

  Levin: Because, like everyone else I suppose, they need to know about sexual techniques.

  Judge: Well, I don’t know why heterosexuals should need help to know how to make love.

  Levin: Well, the evidence is overwhelming that many of them do.

  Judge: It’s all beyond me, I’m afraid.

  Nothing was beyond Alan King-Hamilton. Homosexuality had been decriminalised, but not legitimised: it was a love which still had difficulty owning up. Homosexuals had been refused any protection in the Sex Discrimination Act of 1975, and just a few weeks before the trial Lord Arran’s bill to lower the age of consent from twenty-one to eighteen had been overwhelmingly defeated. There were no known gay MPs, other than in the Jeremy Thorpe sense (he was still insisting his relationship with Norman Scott was merely ‘affectionate’, although he was now publicly suspected of trying to kill him to keep that affection a secret). It was later in 1977 that the first MP was ‘outed’ by the press, which treated Maureen Colquhoun’s lesbianism as a scandal disqualifying her from public office. There were quite a few gay barristers, but none came within a mile of us. I recall lunchtimes in the Old Bailey law library, alone and desperately looking for cases on points of law which had suddenly arisen: there would be a dozen excited counsel from the Bar’s Christian wing, all helping the prosecution to research the same point. Twenty years on, the Bar has a flourishing gay and lesbian movement, with annual lectures presided over by High Court judges, but in 1977 John and I had not one whisper of support, even from the two gay members of our own chambers. Gay News was defended entirely by heterosexuals.