The Justice Game

by Geoffrey Robertson

  Levin and Drabble stood up well, although the ‘character evidence’ episode ended with the judge repaying an old score:

  Judge: (as if apropos of nothing) Do you have children?

  Drabble: (Here we go) Yes, two boys.

  Judge: (crocodile smile) What are their ages?

  Drabble: One is sixteen, the other twelve.

  Judge: (Aha!) And do you let them read anything they want?

  Drabble: (sees it coming) Not everything, no. But I would let them read Gay News.

  Judge: (pounces) Have they read the poem?

  Drabble: (thinking quickly) The elder one has, because I’ve shown it to him. I’m afraid the younger one can’t be persuaded to read anything.

  It was the traditional Old Bailey googly, and Margaret was right to play it with a straight bat. But in his summing-up the judge did not let the jury forget the sixteen-year-old Master Drabble: ‘We know it is read not only by homosexuals; some probation officers read it, Mr Levin and other dramatic critics, Miss Drabble and maybe other literary critics, and Miss Drabble’s sixteen-year-old son, and perhaps other sixteen-year-olds.’

  That was all the evidence the jury were allowed to hear, before they were swept into the final speeches. John Smythe, having condemned ‘all the filth that is in Gay News’, denounced the imputation of homosexuality to Christ as an attack on Christianity ‘too obvious for words’. How would the jury feel about ‘an accusation of homosexuality against a member of the Royal Family? Yet Christ is not just a king, but the King of Kings.’ His peroration was tub-thumping: this was a trial of ‘vital significance’ and ‘tremendous importance’. This case was ‘about whether anything is to remain sacred. You are being asked to set the standard for the last quarter of the twentieth century . . . a verdict of “not guilty” would open the floodgates. The privilege of raising a banner against the tiny minority who seek to inflict this sort of thing on us and our children belongs exclusively to you.’

  It was period rhetoric, this appeal to jurors to set historic standards. It is always attractive, of course, to be part of something historic. But some jurors might baulk at using the criminal law to protect society from one man’s imagination. The poem was sixty lines long and I decided that there was nothing for it but to explain, line by line, how it tried to communicate – metaphorically rather than literally, by likening divine love to human love – Christ being the word made flesh. The only way, in other words, to deal with the case for Mrs Whitehouse was to be holier than her. In two of her autobiographies she gives me a kind notice, praising with faint damns:

  I shall never forget the dreadful sense of despair which overwhelmed me after hearing Geoffrey Robertson sum up for the defence. It was a truly remarkable performance. His manner was gentle and persuasive. In the silence that fell upon the court Robertson talked about God’s love for sinners and for homosexuals who, like everyone else, must have the hope of salvation and redemption . . . he picked up The Book of Common Prayer and drew the jury’s attention to the words of the communion service: ‘This is my Body – eat this. This is my Blood – drink this’ . . . God must have spoken through Robertson’s words, whatever his intent. A wonderful example of the way He can and does use all things to His purpose.

  Just call me the Angel’s Advocate. But Mary could not resist adding, ‘After Geoffrey Robertson’s address to the jury, the phrase “the Devil’s Advocate” took on a whole new meaning.’ In fact, I had made one fatal mistake. I own up to it for the benefit of anyone else called upon to defend a poem on a charge of blasphemy at the Old Bailey. If you must deal with its interpretation, MAKE SURE YOU READ EVERY LINE ALOUD. I funked a few phrases and some six lines that I could not bring myself to repeat. I glossed, I summarised and I read bits of metaphysical poetry. But my failure was leapt upon by the judge, as swiftly as a spider jumps a struggling fly. He told the jury that lines forty-three to forty-eight were ‘the ultimate in profanity’. And he reminded them repeatedly that I had not read them out – ‘Are you surprised?’ And he told them that the test for blasphemy was whether they could read the poem out loud without blushing. The ‘truly remarkable performance’ was his and not mine.

  Reaction to a poem is peculiarly personal. Mine was conditioned, no doubt, by a degree in English literature and the fact that I do not have a gay bone in my body. I could interpret the imagery, but not muster much interest in it. Mary had hooted when she heard I had been seen on a beach in the South of France reading a Bible, and hoped it would do me some good, but she knew nothing of my religious upbringing (there were Plymouth Brethren lurking on one side of the family) or of the fact that I could still weep inwardly at the idea of the crucifixion. I had been shocked on first reading Kirkup’s poem, ‘The Love that Dares to Speak its Name’ – an adaptation of the famous line by Lord Alfred Douglas which Oscar Wilde had been taunted with at his own trial eighty years before. It was a monologue by the centurion mentioned in Matthew as being converted on Gethsemane.

  As they took him from the cross

  I, the centurion, took him in my arms –

  The tough lean body

  of a man no longer young

  beardless, breathless

  but well hung.

  I was alone with him.

  For the last time

  I kissed his mouth. My tongue

  found his, better with death.

  I licked his wounds –

  the blood was harsh.

  For a poem denounced because ‘every stanza was vile’, these hardly merited that description. A lonely Roman officer who kept the company of men is left alone with the body, after officiating at an obscene ritual of torture and murder. Little wonder he fantasises, repeating the gossip (‘A gluttonous man, a wine-bibber, a friend of publicans and sinners’) that had so inflamed the rabble as to demand the man’s death. Meant to be understood as the centurion’s stream of consciousness, the next six-line metaphysical conceit reflecting a ‘love’ for all mankind was for the prosecutor the ‘worst stanza, too odious for words’:

  I knew he’d had it off with other men –

  with Herod’s guards, with Pontius Pilate,

  with John the Baptist, with Paul of Tarsus,

  with foxy Judas, a great kisser, with

  the rest of all the twelve, together and apart.

  He loved all men, body, soul and spirit – even me.

  For the judges who read the poem, this was the gravest of criminal libels: an allegation of orgies and promiscuous homosexuality. Of course, it had not been intended to be taken literally, but then intention was irrelevant. In court, words are expected to mean what they say. The centurion went on to embrace the body of Christ in words which added little to the indictment, until the passage which the judge suggested was so profane not even I would read it aloud:

  And then the miracle possessed us.

  I felt him enter into me, and fiercely spend

  his spirit’s final seed within my hole, my soul,

  pulse upon pulse, unto the ends of the earth –

  he crucified me with him into kingdom come.

  Reading this again after two decades, I wonder whether the reason I could not read it was the awfulness of the poetry rather than the grossness of the blasphemy. What I read instead was a sonnet by John Donne (‘Batter my heart, three-personed God’) which ends:

  Yet dearly I love you and would be lov’d fain,

  But am betroth’d unto your enemy;

  Divorce us, untie, or break that knot again,

  Take me to you, imprison me, for I

  Except y’enthral me never shall be free

  Nor ever chaste except you ravish me.

  The ecstasy of the metaphysical poet’s union with God has never been more exquisitely put than by the one-time Bishop of London: James Kirkup was not in his class, although parallels between sexual and religious ecstasy have been with us in the imagery of Christian poets since St John of the Cross. Kirkup’s fate was to be in the wrong place (Gay News) at th
e wrong time (during a ‘moral panic’ over the Thorsen film). His poem rallied a bit, I think, in its closing lines:

  And after three long, lonely days, like years,

  in which I roamed the gardens of my grief

  searching for him, my one friend who had gone from me,

  he rose from sleep, at dawn, and showed himself to me before

  all others, and took me to him with

  the love that now forever dares to speak its name.

  I did read these lines with more feeling, and reminded the jury of the Eucharist: ‘He dwelleth in me, and I in him.’ I even read Paul, who wanted to be ‘all things to all men’ – why not to gay men as well? I also suggested that in small print on page twenty-six (the Arts section) of a paper with a circulation of eight thousand copies, it was not likely to subvert the fabric of society. It was no lavatory limerick, or precursor of a pornographic film, and those who read it through and in context would not find in its tone the vilification and ridicule which is the true gist of blasphemy. It was, in short, a muddled comment about the mystery of the crucifixion and the empty tomb.

  John followed me on Friday afternoon, the voice of reason between the two opposing sermons:

  The prosecution in this case appears on behalf of unknown supernatural forces and my learned friend Mr Robertson for a company without any corporeal existence. I alone appear for a human being, who is in the dock in peril on this antique charge which has not been used for more than fifty years. The Sermon on the Mount tells us to love our neighbours, but Mrs Mary Whitehouse has put her neighbour in the dock . . .

  He played for time and returned to the crease on Monday morning with a Radio 4 talk on poetry and the role of allegory and parable in Christian teaching. This was a private prosecution which demeaned Christianity by pretending it needed the protection of the criminal law. Jesus had said ‘whoever speaketh a word against the Son of Man it shall be forgiven him’, and that was how true Christians should react to the prosecution. I should like to have taken a jury vote at this point, because I suspect it would have been split down the middle. An acquittal was never on the cards because the emotional loyalties aroused by the prosecution ran so deep. Although the jury is renowned as a bastion of free speech, this is a demonstrable historical error in blasphemy cases: in the hundreds of prosecutions in British history, with one exception THE JURY HAS ALWAYS CONVICTED. It even convicted Shelley’s ‘Queen Mab’ in 1840 in a private prosecution brought by a free-thinker for a joke.

  The trial had in a vague way been unedifying, as both sides used holy scriptures for what I believe was an unworthy purpose: to persuade of an argument rather than to reveal the truth. So the ‘result’ that I hoped for was, in fact, no result at all. It would be a jury divided on these huge and obsessional questions which could not sensibly be resolved, as could burglary and fraud, down at the Old Bailey. That view was not shared by the judge, as his autobiography later made plain:

  From the time the trial began, I had an extraordinary feeling of unreality: that I was rather watching the trial, instead of presiding over it. I have never experienced a similar sensation before or since. As for the summing-up itself, I can confidently assert that it was the best, by far, I have ever given. I can say this without blushing because, throughout its preparation and also when delivering it, I was half-conscious of being guided by some superhuman inspiration.

  The summing-up was a miracle of persuasion, although had it really been devised by the Deity I hope it would have been rather more fair to the defence. It went like this:

  First the judge complained that it was necessary to place in perspective Mr Mortimer’s attack on this ‘antique’ law. The laws against murder and theft were just as ‘antique’. The fact that there had not been a prosecution for blasphemy for more than half a century showed what a really useful law it was. Mr Mortimer had said that this was a doubtful branch of the law and very complex. ‘I have no doubt about the law and do not think it is complex.’ It was a question of libel, which is something that damages reputation. To say of a bishop that he committed homosexual acts with a vicar would be the clearest of libels. Was this a libel, therefore, on Christ? Just look at the lines that Mr Robertson did not read! ‘Those lines you may think are the ultimate in profanity: but it is for you, members of the jury, not me. Nevertheless, look at it and see what these lines say. Can you imagine anything more profane?’ The judge continued:

  There can be no doubt what the poem says. It says Christ was not only homosexual but promiscuous, that he indulged in every kind of homosexual activity with others, singly and in orgies during his lifetime . . . It is entirely a matter for you, but I suggest you must ask yourselves whether there could really be anything more profane. If a similar poem were written about a living person, it would obviously defame and vilify and be a clear case of libel, there can be no doubt about that. You may wonder how much more offensive and likely to provoke resentment if the vilification is aimed at Christ . . . if the allegation in the poem even might have been true, you may think there would not have been any Christian religion at all!

  Then the judge told them how utterly irrelevant was the poet’s motive and intention.

  Mr Robertson put forward a possible interpretation – give it such consideration as you think that interpretation merits, but the point is, how would an ordinary Christian interpret it? He omitted certain lines. Do you think these lines he omitted in any way express a love of God? . . . He said there was no danger to peace because of the poem. I have explained that there does not have to be any danger to peace. He said it was published in a responsible paper and no one was forced to buy it. That is absolutely true but is not relevant anyway. He said Christ was unique and can only be appreciated by comparison, and he said that you are being asked to punish human imagination . . . Can a poet not make such a poem without an element of explicit sex and vilification?

  This was coming close to a direction to convict, although I suppose the judge’s superhuman guide was not bound by the rule in Stonehouse. The jury was required to assume that God existed, and to ask themselves: ‘Do you think God would like to be recognised in the context of a poem such as this?’

  Then the judge reduced the law of blasphemy to some simple questions:

  Did it shock you when you first read it?

  Could it shock or offend anyone who read it?

  Could you read it to an audience of fellow Christians without blushing?

  Finally, Judge King-Hamilton (or his superhuman inspiration) used three powerful rhetorical devices. The first was to set up a false dichotomy, suggesting that an acquittal might mean ‘anything goes’:

  There are some [i.e. Mrs Whitehouse] who think that permissiveness has gone far enough and that this poem has gone beyond what is permissive. There are others [hint: the defence] who think that there should be no limit whatsoever on what may be published. If they are right, one may wonder what scurrilous profanity may appear next. There is a world of difference between opening a window in a stuffy Victorian library and letting in a little fresh air, and on the other hand, leaving both windows and doors open so there is a raging draft, bringing in with it a retinue of attendant dangers with all their consequences.

  The next device was the warning couched in terms so attractive that the action warned against becomes a temptation difficult to resist: ‘The purpose of the prosecution is not to set any future standard – although it may well be that by your verdict you will in effect be setting a standard, but that is by the way. Do not let it weigh upon you that what you do may be setting a standard for future generations.’

  Finally, the punch line: ‘If you are sure it is a blasphemy, then it is your duty, to which you are bound by the jurors’ oath which each of you took on the New Testament, to say guilty.’

  Divinely inspired or fiendishly clever? At the defence table, we had little doubt, and moped off to the Bar common room to await the guilty verdict, stumbling on the way over the prosecutrix and her supporters prayin
g for it in the corridor. Surprisingly, it took five hours for these prayers to be answered, and then not in full: two jurors had the fortitude to resist and to record their dissent. Denis Lemon was hauled to his feet: ‘Prisoner at the Bar, you stand convicted of crime. Have you anything to say before the court passes judgment upon you according to the law?’

  Centuries ago, this served as the cue for blasphemers to make long speeches justifying their crime and increasing their punishment. The ruling that the editor’s intention did not matter had prevented Denis from giving evidence at the trial, and there was no point in giving it now. Judge King-Hamilton launched into an attack on the National Council for Civil Liberties for criticising the blasphemy laws, and then turned to praise ‘ten of the jurors who had the moral courage to reach the verdict that they did’, although given his summing-up, the only ‘moral courage’ was that displayed by the two dissenters. ‘I have no doubt whatsoever,’ he continued, ‘and apparently ten of the jury agree with me, that this poem was quite appalling and that it contains scurrilous profanity and I hope never to see the like of it again.’ It was ‘past comprehension’ how a university professor could write it and ‘touch and go’ whether Denis Lemon should not go straight to prison. He was given a suspended prison sentence of nine months, an entirely inappropriate punishment which the Court of Appeal in due course quashed.