The Justice Game

by Geoffrey Robertson

  So I turned to the Koran, in the same spirit of professional curiosity as I had studied the Bible during Gay News. That modern mortals may meaningfully blaspheme against either of these sacred texts is plainly absurd: the anachronisms that attract our petty criticism pale before their sweep of inspiration. The study convinced me that the author of The Satanic Verses did not intend or achieve any blasphemy. The book is the fictional story of two men, infused with Islam but confused by the temptations of the West. The first survives by returning to his roots. The other, Gibreel, pole-axed by his spiritual need to believe in God and his intellectual ability to return to the faith, finally commits suicide. The plot, in short, is not an advertisement for apostasy.

  Our thirteen barrister opponents could in the end only allege six blasphemies in the book and each one was based either on misreading it or upon theological error:

  – God is described in the book as ‘The Destroyer of Man’. As He is similarly described in the Old Testament and the Book of Revelation, especially of men who are unbelievers or enemies of the Jews.

  – The book contains criticisms of the prophet Abraham for his conduct towards Hagar and Ismael and their son. Abraham deserves criticism and is not seen as without fault in Islamic, Christian or Jewish traditions.

  – Rushdie refers to Mohammed as ‘Mahoud’. He called him variously ‘a conjuror’, ‘a magician’ and a ‘false prophet’. Rushdie does nothing of the sort. These descriptions come from the mouth of a drunken apostate, a character with whom neither author nor reader has sympathy. ‘Mahoud’ is in fact a name that has been used by Christians for the Prophet.

  – The book grossly insults the wives of the Prophet by having whores use their names. This is the point. The wives are expressly said to be chaste, and the adoption of their names by whores in a brothel symbolises the perversion and decadence into which the city had fallen before it surrendered to Islam.

  – The book vilifies the close companions of the Prophet, calling them ‘bums from Persia’ and ‘clowns’, whereas the Koran treats them as men of righteousness. These phrases are used by a depraved hack poet, hired to pen propaganda against the Prophet. Christ’s disciples were derided by his enemies as ignorant fishermen, so it can hardly be blasphemous for an author to imagine the Prophet’s followers being subjected to the same kind of criticism.

  – The book criticises the teachings of Islam for containing too many rules and seeking to control every aspect of everyday life. Characters in the book do make such criticisms, but they cannot amount to blasphemy because they do not vilify God or the Prophet.

  If the law of blasphemy had covered Islam, The Satanic Verses still would not have infringed it. The High Court did not have to decide as much, since the prosecution was misconceived, although it did set out our submissions sympathetically in its judgment. But even if Salman were to be tried and acquitted by an Old Bailey jury, the verdict would have made not the slightest difference to his dishonest enemies: as one Iranian leader put it, the fatwah was not about the book, but ‘over the West trying to dictate to Islam’. The case did have one satisfying result: the UK government announced that it would not extend blasphemy to protect other religions, or invoke it for ‘divisive and damaging litigation’. The official statement, issued to the Muslim community in November 1989 by the Home Office, declared ‘how inappropriate our legal mechanisms are for dealing with matters of faith and individual belief. Indeed, the Christian faith no longer relies on blasphemy prosecutions, preferring to recognise that the strength of their own belief is the best armour against mockers and blasphemers’. Amen to that. There will be no future prosecutions by the State, although Parliament will not abolish the blasphemy law. MPs share that indefinable fear of eternity which makes most of their constituents scribble ‘C of E’ in the space opposite ‘religion’ on the hospital admission form. (There are, by such indications, more Anglicans in our hospitals than in our churches.)

  The law against blasphemy will remain in the law reports as a blue plaque to the free-thinkers who suffered for their free thoughts in previous times. I have read all their cases and marvel at the unchristian cruelty of the bishops who insisted on having them prosecuted, and of the judges who put them to hard labour in prison. The last was the dying, diabetic Gott, whose jury in 1922 recommended clemency: when a medical report was handed up to the Bench, the Chief Justice sneered ‘a sentence of hard labour will cause the authorities to pay greater attention to his health’. There was Thomas Williams, the sickly and penitent bookseller of Lincoln’s Inn, with his young children riddled with smallpox: even Erskine, his prosecutor, begged the bishops to forgive him for selling Tom Paine’s The Age of Reason, but they refused and the judges flung him into the House of Correction. ‘I trust it will not be too great an indulgence if I have a bed,’ were Williams’s last words, to which the Chief Justice retorted, ‘I cannot order that: this publication is horrible to the ear of a Christian.’ The reports of the old ‘State trials’ for blasphemy give potted biographies of counsel: the barristers advocating for the angels always flew straight to the Bench, while those devilling for the defence often ended up in the dock themselves at the next Assizes. So it is as much for the ingloriousness of its legal history as for its lack of principle that I should wish the blasphemy law abolished, leaving public order laws to protect, as they amply do, the decent devotions of the faithful of all religions against scurrility or abuse.

  II

  Lawyers, Guns and Money

  Chapter 7

  The Romans in Britain

  Darkness. Dogs bark in the distance. Silence.

  Conlag: Where the fuck are we?

  It gets a big laugh, this opening line, although I’m not sure what makes it so amusing. The fact that it’s spoken in an Irish accent into the imposing amphitheatre of the Olivier auditorium? A recognition, by an audience in 1981, that it crudely sums up the current state of the peace process in Northern Ireland? A wry acknowledgement that a much better evening could be had at any West End musical, rather than by venturing south of the river to witness an orgy of murder, rape, incest and buggery? John Osborne wrote in a letter to the Guardian: ‘Why go to the National Theatre when we can get all this at home?’

  The Romans in Britain was the first play to be prosecuted in Britain. This was a consequence of the National Theatre giving free opening-night tickets to the leader of the Greater London Council, Sir Horace Cutler. It is hard to think back to the time when London had a GLC, and even harder to remember it not being led by Ken Livingstone. His Tory predecessor is memorable mainly for storming out of Howard Brenton’s play at half-time, threatening to cut the National Theatre’s grant. His outburst brought much publicity for himself, as he had intended, and for the play, which picked up at the box office. Mrs Mary Whitehouse was informed the next day (so she recorded in her diary) that ‘Three Roman soldiers are apparently tearing off all their clothes and raping three young, male Britons in full view of the audience!’ She declared herself horrified: ‘It has been known for two thousand years how the Romans – some of them – behaved in Britain. We haven’t needed to wait all those years for the National Theatre to come and show us.’

  The play promised the same ingredients as the Gay News poem – religion, buggery and Roman centurions. Mary demanded that the Attorney General, Sir Michael Havers, prosecute the National for obscenity, but Havers, a play-goer with a renowned thespian son, declined. Mary then divined that a private prosecution was ‘what the Lord would have me do’. Rapturously, she confided to the diary she immediately published, ‘For a woman of seventy-one, mother and grandmother, to challenge an act of simulated buggery at the National Theatre in the full publicity which would attend the trial – what a comment on the days in which we live’. So the Director of Private Prosecutions reassembled her devout legal battalion from the war over Gay News and girded her loins for battle against a play she had not seen in a theatre she had never attended. John Mortimer, as a member of the National’s board, could
not appear for himself, and suggested the counsel Mary had dubbed ‘The Devil’s Advocate’ should be hired to frustrate her new attack on the arts.

  First, she had to find a legal loophole, because private prosecutions of the theatre had been banned by the Theatres Act in 1968. This legislation was passed to end the Lord Chamberlain’s historic role as censor of the stage and to make producers and directors, like other writers and artists, subject only to the law of obscenity. This meant that they could not be convicted unless the performance ‘tended to deprave or corrupt’ and additionally had no redeeming dramatic merit. Precisely in order to prevent vexatious or partisan prosecutions, Parliament decreed that no legal action could be brought against stage plays other than by, or with the consent of, the Attorney General. But just as the law did not prevent a prosecution for murder if an actor engaged in a centre-stage assassination, why should it prevent a prosecution for an act of gross indecency? A theatre was, for legal purposes, a public place, and although the actors might be following a script, there was a neat little offence in Section 13 of the Sexual Offences Act 1956 which would convict any male person who directed them. It was defined as ‘procuring, by a male, the commission of an act of gross indecency with another male, in a public place’.

  The fact that this offence was designed for men who masturbate themselves or others in public toilets did not matter. The National Theatre was no different, for all relevant legal purposes, from a large public toilet (architecturally, it resembled one) and providentially the actors were male and so was the director, Michael Bogdanov. So they charged him in that ‘he, being a male person, procured an act of gross indecency between one Peter Sproule, a male, and another male named Greg Hicks’. At the first court hearing, the prosecution demanded that Bogdanov be refused bail unless and until the National Theatre undertook to abandon all further performances of The Romans in Britain. This was not a case brought to dowse the lights on a few moments of simulated buggery: as John Smythe QC explained to the magistrate, ‘the prosecutrix takes exception to the whole play’.

  In this, Mrs Whitehouse had many predecessors. It was Henry VIII who passed the first law providing that ‘plays and other fantasies’ which criticised his closure of the monasteries should be ‘abolished, extinguished and forbidden’. He called it ‘An Act for the Advancement of True Religion’. All theatrical events were required to be licensed by the Master of the Revels, an officer of the Lord Chamberlain. Censorship was at first confined to unpalatable political messages rather than to sex and violence, but in 1837 the Lord Chamberlain was formally empowered to refuse a licence ‘whenever he shall be of opinion that it is fitting for the preservation of good manners, decorum or of the public peace so to do’. Naked buttocks were not seen on the stage for almost a century, although by 1930 the Lord Chamberlain had relaxed sufficiently to issue formal instructions to the effect that:

  Actresses may pose completely nude provided:

  the pose is motionless and expressionless;

  the pose is artistic and something rather more than a mere display of nakedness;

  the lighting must be subdued.

  Buggery simulated on a well-lit centre-stage was not what the Lord Chamberlain had in mind, and certainly not in a play attacking government policy in Northern Ireland. Throughout the thirties he banned all plays sympathetic to communism, while suppressing irreverent references to fascist dictators (the line ‘Even Hitler had a mother’ he excised from a revue in 1938). Any play which conceded the existence of homosexuality (Hellman’s The Children’s Hour, Miller’s A View from the Bridge and Anderson’s Tea and Sympathy) was automatically banned until 1958, when another change was announced: a play might have a homosexual as a character provided there was no suggestion that his condition should be lawful. Another formal instruction was issued to all theatres:

  ‘Embraces or practical demonstrations of love between homosexuals will not be allowed.’

  The Theatres Act, in 1968, appeared in this context a truly liberating measure. Ken Tynan put motion and expression into nudity on the lit stage in Oh, Calcutta! and no prosecution ensued. I had been engaged in 1976 to advise him on a successor entitled Carte Blanche which he was staging at the Duchess Theatre. I was the sole member of the audience for an ‘undress rehearsal’, in the course of which I would occasionally have to ask the actors to ‘freeze’ so that I could discuss some legal problems with Ken and the director, Clifford Williams. We would mount the stage as the players tensed themselves in position, and I would explain as we bent over their naked bodies just what might provoke a prosecution. Tynan was the most innocent of sophisticates, evincing a genuine wonder at sex and the lawyer’s mind, and at what he termed our ability to split pubic hairs. However, it was bottoms that were most likely to cause trouble: ‘The law requires a tighter clenching of the buttocks,’ I would solemnly advise on close perusal of sagging flesh. ‘Really,’ he would mutter, wandering around the stage, ‘how interesting. The law . . . more clenching of the buttocks? Tighter clefts in the buttocks . . . So, that’s what the law requires . . .’ The Romans was a world removed from Tynan’s experiments in the drama of arousal: it was emetic and not erotic. The scene in question was intended to terrify, not titillate.

  It came in the middle of the first act of a play which presented, bleakly and bitterly, the atavistic behaviour of men at war and those who get in their way. Nothing much has changed in the psychology of armies of occupation, implied Brenton, from Julius Caesar’s invasion of Britain in 54 BC to Brigadier Frank Kitson’s low-intensity operations on the Northern Irish borders in the seventies. This was a play about the extremes to which people will go to improve their chances of survival. It did not make for a comfortable night in the theatre, and nor was it very relevant to the world of 1981, frozen in a Cold War in which ethnic hatreds were more or less contained. The Romans is contemporary now, after Bosnia and Rwanda: its scenes of violence pale in comparison to the evidence of rape, torture and murder emerging from the war crimes trials at The Hague. Brenton’s soldiers are drunk on the same sadistic cocktail of power and patriotism and panic. The play was ahead of its time, but on any view it was a puritanical work, heavy-handed in moral outrage. If the jury could be made to understand it, then acquittal for Michael Bogdanov was certain.

  Our most difficult problem was whether the jury would even be allowed to see the play in order to understand it. There was a formidable legal issue as to whether any ‘reconstruction’ was admissible in evidence. The leading case came from the sixties, when the young Paul Raymond was charged with an indecent exhibition at his Soho club, involving the performance of a lady who danced lewdly with a large python. The defence was refused permission to show a filmed reconstruction, on the grounds that the snake might not make the same moves as it had on the night charged in the indictment. On this bizarre precedent, it was unlikely that the judge would permit the jury to see either a special performance or a video of The Romans in Britain, or even read the script. They would have to make do with the reheated recollections of Mrs Whitehouse’s solicitor, a Mr Graham Ross-Cornes, who had ventured to the National Theatre for the first time in his life to see whatever it was that had outraged Sir Horace Cutler. In his witness statement he swore that he observed from his seat in the Olivier Theatre an actor dressed as a Roman soldier take off his tunic, hold his penis in his hand with the tip protruding, walk across the stage and place the said tip against the buttocks of an actor playing a young druid. If this is what really happened on the night Ross-Cornes had attended The Romans, Bogdanov would probably be found guilty of procuring an act of gross indecency. But was it what really happened? For a start, there was more to this play than the few moments mentioned in the witness statement.

  Conlag, our comic opening-line Irishman, is a refugee in mainland Britain where warring tribes are more terrified of invading Romans than of each other. Three teenage brothers set the dogs on him but he escapes with a female slave. One of these boys, Marban, is training to be a drui
d priest: scene three opens with their idle patter after a swim in the river. The boys tease Marban about the priesthood: playing upon their nerves, he responds with a trick of his new trade:

  Do you want to see a ghost? Have you thought why, since we all live beyond the grave, in the sweet fields, the rich woods there, we don’t see them more often, the dead?

  Because of the pain of dying, brother

  which is like a wall.

  Solid thick with pain.

  So the cracks in the wall of death are rare. Tiny.

  And the life of the dead can only flare through them, for a moment.

  As they do in the lights over a marsh

  Like this:

  (Marban produces a puff of smoke from powder hidden in a rock which he strikes with a flint stone)

  The scene thus lit by poetic language, the youthful Britons strip and swim, then lie naked in the sun:

  Brac hands Viridio the wineskin. He raises it to drink.

  Three Roman Soldiers walk out of the woods. The soldiers and the brothers see each other at the same time. There is a considerable distance between them.

  A silence.

  First Soldier: Three wogs.

  Second Soldier: What are they, d’you know?

  Third Soldier: A wog is a wog. Pretty arses. Give ’em something.

  The soldiers laugh.

  First Brac is struck, with a sword in the stomach. Then Viridio, after a defiant curse, has Roman shields slammed against him, and falls dead. Marban, left to defend himself with a knife, manages to cut the First Soldier before he is overcome. The Third Soldier directs the Second to hold the young priest.