The Justice Game

by Geoffrey Robertson

  The judge, however, had other ideas. He took the view that once the prosecution had closed its case it had no power to abandon ship, at least without the judge’s consent. Ian Kennedy manfully (and correctly, I think) claimed the unilateral right of a prosecutor to withdraw at any time. Jeremy kept out of the cross-fire, after remarking that since we had told our client that the case would be dropped, it would obviously be unfair for it now to proceed. This new tangle displeased the judge even more: the hapless prosecutors were asked to cool their heels in the corridors while we went off to ask the Attorney General to sort it all out. ‘He’ll have to consider whether to – what do you criminal lawyers say . . . ?’

  ‘Enter a nolle prosequi,’ Jeremy and I chorused happily.

  It was a very twitchy Sir Michael Havers who met us that afternoon. He had an eye problem which caused him to wink at times uncontrollably, and it was difficult to tell whether he was disconcerted or trying to pick you up. It was the first time I had been invited to the Attorney’s richly carpeted offices in the High Court, and there is no truth in the rumour spread by one of his mischievous staffers that Jeremy and I re-enacted the scene for Sir Michael’s benefit, thumbs and all. Havers saw at once that the prosecution had come apart at the seams, and he recognised the constitutional implications of provoking a confrontation between judge and prosecutors over who has the final say about withdrawing a prosecution. (This is an important matter, of course, but it is the English way to avoid the grasping of constitutional nettles.) Sir Michael ordered his staff to draw up the fabled nolle prosequi, taking a grim satisfaction at being forced to do something he had secretly wanted to do all along.

  The next morning, the fourth day of the trial, the judge ruled as a matter of law that there was a case for Bogdanov to answer. Then, in bewildering succession:

  – The nolle prosequi was presented to the court by counsel on behalf of the Attorney General.

  – Ian Kennedy described Michael Bogdanov as ‘an honourable man’ who had not been ‘moved by immoral motives’.

  – Jeremy announced that we would have called many witnesses in Michael’s defence, and would ‘clearly and incontrovertibly have established that the allegation of “gross indecency” was entirely false’.

  It was then the judge’s turn. He denounced the prosecution’s decision to withdraw without seeking his consent as ‘misconceived and improper . . . once the prosecution has called its evidence a trial must continue.’ Then – all importantly – he awarded us all our legal costs, from public funds, and as a mark of his displeasure he made no order to reimburse Mrs Whitehouse. She sat huddled against the high oak of the judicial bench, in a state described by press reports as ‘uncharacteristically vulnerable and on the point of tears’.

  Outside court, Michael posed with the winner’s champagne, while Mary for once in her life avoided the press. Jeremy could not resist drawing the moral for their benefit: ‘You get your knickers twisted if you launch private prosecutions.’ Asked the next morning how she would raise the money to pay her legal costs, she supposed that ‘God will provide’. The Reverend Eric Mathieson, chaplain to the National Theatre, issued a statement calling on the Deity to do no such thing: ‘Mrs Whitehouse’s claim to have the moral conscience of the nation in her handbag must be resisted. She is a vain lady; publicity and success influence her not a little. She does not represent thoughtful Christian opinion in this country. She got a good deal of egg on her face today – hallelujah.’

  The satirists had a fine time. I particularly enjoyed Miles Kingston’s cod legal advice in The Times:

  I do not understand this stuff about ‘nolle prosequl’. Can you explain it?

  This is the first case in legal history, so far as I can determine, which deals with a play about Romans speaking English, and is handled by English lawyers speaking Latin. Piquant, n’est-ce pas?

  Oui, sans doute. Et nolle prosequi?

  A plea of nolle prosequi is entered when a situation of reductio ad absurdum is reached. The defence and prosecution agree to return to the status ante quo, everyone goes back to terra firma and the lawyers queue up for their denarii.

  I still don’t see what we have learnt from the whole thing.

  I think the lesson is very plain. If you are a Celtic peasant in the fields and you see a Roman soldier coming, don’t have a go and don’t argue back. Run like mad. The same applies if you are a young healthy theatre director and you see a middle-aged woman coming.

  Yes, but who has won?

  The case cost £400,000.1 think we can safely say that the lawyers did not lose.

  And so we bade farewell to the courtroom crusades of Mary Whitehouse. She was a chastened figure thereafter, limiting her targets to ‘video nasties’ and that invader from outer space, satellite pornography. She became less and less relevant, as the Thatcher Government she supported encouraged sexual profiteering – from the groaning porn shelves in every corner newsagent to dirty talk on telephone lines leased from the privatised British Telecom. She had attacked much that was good and innovative in British television, beginning in the sixties with Cathy Come Home and Till Death Us Do Part and anything penned by Dennis Potter. I recently tried to persuade Channel 4 executives to run a ‘Mary Whitehouse memorial season’ – a week devoted to the works she has condemned in her lifetime – but there is still a nervousness about standing up to She Who Must Be Dismayed. It is a curious fact that The Romans in Britain has never again been performed professionally, in Britain, Rome or anywhere else. It seems a perfect choice for a theatre in Sarajevo or Rwanda or other places which need to know more about the nature of xenophobia. It remains as a footnote in Britain’s social history, as the bridge at which a formidable cultural vandal fell – or at least, lost her footing. In her most recent autobiography (she has published three), Mary does not once mention the trial of The Romans in Britain. This I take as the greatest tribute she could pay its defenders.

  Chapter 8

  Invitation to an Inquest: Helen Smith

  Helen Smith was a 23-year-old nurse from Leeds, working at the Baksh Private Hospital in Jeddah. On 20 May 1979 the chief hospital surgeon, Richard Arnot, invited her to a party to be held that evening at his fifth-floor apartment in the building next door to the hospital. Richard and his wife, Penny, were giving the party for a New Zealand diver, Tim Hayter, who was leaving the country the next day. Also invited were four German salvage operators who worked with Hayter at the port, Johannes Otten (a Dutch ship’s captain) and a French marine biologist named Jacques Texier. Another British doctor named Kirwin put in a brief appearance with a case of whisky. The two young Arnot children went to bed; Helen danced with most of the men but as the night wore on she and Otten became more intimate. The two left the main room at some point through the thick curtains to the balcony, on which was a ‘sunlounger’ bed. It was ringed by a three-foot-high safety railing, before a seventy-foot drop to the concreted ground below.

  Some time after 2.30 a.m. the four Germans decided to call it a night and left to drive back to their quarters at the port. Texier, who lived on a boat fifty miles outside Jeddah, was very tired and decided to bunk down on the couch. He immediately fell into a deep sleep from which he said he was awoken, at about 5 a.m., by a noise from the dining-room. It was a loud orgasm, apparently being enjoyed by Penny Arnot at the instigation of Tim Hayter. These two then went to make coffee in the kitchen where Texier joined them: the three walked out on the balcony to watch the sunrise and Penny looked down and screamed: this time, he said, with horror.

  A man, naked, was impaled on the sharp iron arrows set in the concrete wall which ringed the apartment block. The spikes had punctured his stomach and were protruding from his back: his legs made a ‘V’ sign at the road, while his head hung down on the other side of the wall. His right arm extended to the forecourt, parallel to the long, red streak made by his blood and guts on the white concrete. Passers-by were looking through the gaps in the railings, which had crumpled under the force
of the fall. They could see the dead man’s erect penis, and began to point and snigger when they noticed the body of the woman.

  She lay face down inside the tiled courtyard, her head against the building and her feet towards the red-stained wall. There was no blood on or around her, and no evident bruising: when turned over, she looked as though she might wake. Her right arm was bent as if to stretch and stroke her cheek, which had no imperfection other than a few scratches and a small crater in the middle of her forehead, as if a pen or a ring had been impressed, twisted into the skin. Her simple cotton dress and petticoat had ridden up, her bra was in place but her black knickers were down and on her left leg only.

  The passers-by were sniggering because they drew the obvious conclusion: these two toppled over while having sex. The police arrived quickly and ascertained that the couple were last seen late at night on the balcony of an apartment on the fifth floor, seventy feet directly above, during a party at which nine bottles of whisky were consumed by as many guests. The obvious conclusion was taken to be the correct conclusion – that these deaths were accidental. For this was Saudi Arabia, and law enforcement does not have the same priorities, or the same law, as the Western countries from which the party guests had come. In Jeddah, post-mortems are rare, even after violent death, because of Koranic traditions: it would be eighteen months before Helen Smith’s body, frozen and filled with sawdust, underwent proper examination in the mortuary at Leeds.

  The inquest did not take place until November 1982, two and a half years after Helen’s death. Tim Hayter and Penny Arnot refused to attend. Those who did – Richard Arnot, Texier and the four German divers – told stories which were not fully consistent but had one thing in common: if Helen was murdered, they knew nothing about it. The only people who were awake and on the scene at 3.10 a.m., the time Johannes Otten’s watch had stopped, were Tim and Penny, and they were the only witnesses from the party who failed to attend the inquest. Penny was living in Langley, Virginia, home of the CIA, with a new husband, the son of the CIA chief in Saudi Arabia.

  Snippets like this drove the British press to frenzies of speculation about the cause of Helen’s death: it received more newspaper coverage than any other case in which I have been involved. She was raped and murdered by Arab princes. The Arnots were working for MI6, using Helen as a decoy to obtain information from the divers about the top-secret operations at the port. The whisky (worth £250 on the black market) was supplied by British intelligence. Embassy officials were present at the party. The Foreign Office, from Douglas Hurd down to the deputy consul in Jeddah, had conspired to cover up crimes committed in the course of an intelligence operation in which Helen was expendable. All this was nonsense, but the behaviour of the British authorities towards Helen’s father, Ron Smith, made it seem plausible. Ron was a rough Yorkshireman – an ex-policeman who ran an electronics business and had a habit of taping everyone who talked to him. Some thought him mad, although many would add that he had been driven mad – by the Foreign Office. It had first withheld from him the details of Helen’s death, then told him he could not go out to Jeddah because he could not get a visa (the Saudi authorities issued one within twenty-four hours when he asked them personally); it warned him not to open the coffin because his daughter’s face had been smashed to a pulp by falling on it; in Jeddah the embassy even refused him access to a typewriter to make the formal request necessary to obtain a post-mortem.

  Some of this official behaviour might be put down to a toffee-nosed reaction to Ron’s class (i.e. his lack of it). But the FO’s real dilemma deserves to be appreciated. All the party guests had been imprisoned, including two British nationals, Richard and Penny Arnot, and they were additionally responsible for Hayter, the New Zealander. Ron Smith was going round Jeddah alleging that his daughter had been murdered – the opinion of most of the staff at the hospital. The Saudi police, dismissive at first, slowly began to take the possibility seriously. They interrogated Penny so closely that, to give herself an alibi for murder, she said she was having sex with Hayter at the relevant time. (She did not realise that by admitting to adultery she was confessing to a crime punishable more severely than murder, namely by stoning to death.) In the midst of all this, a television programme re-enacting the execution of a Saudi princess for this same crime of adultery (Death of a Princess) had been transmitted in the UK, and in revenge the Saudi government was threatening to break off diplomatic relations and to withhold all oil exports and impose sanctions on British companies. Ron Smith’s suspicions were, in short, a diplomatic nightmare. The FO was appalled when Penny Arnot received what was in Saudi Arabia a compassionate sentence for ‘unlawful intercourse’ (eighty strokes of the cane, administered in public) because it knew that her humiliation would be unacceptable to the British public. Finally, through the personal efforts of Lord Carrington, the Arnots were freed without the caning, and returned to England on 8 August 1980 to sell their story for £10,000 to the Daily Mail. The newspaper ran it for four days, then described it as ‘less than truthful in certain aspects’.

  By this time, the canker of cover-up had already been planted in the justice process. Ron had brought Helen’s body back to Leeds, within the jurisdiction of the local coroner. A British subject had died violently, and in unexplained circumstances, and the law required coroner Miles Coverdale to hold a proper post-mortem examination. It was conducted by a local pathologist, Dr Michael Green. In July, as the arrangements for restoration of diplomatic relations with Saudi Arabia and the release of the Arnots were being finalised, Mr Coverdale issued a statement to the press. In it, he purported to announce Dr Green’s findings: some bone fractures were ‘entirely consistent’ with the body falling seventy feet and landing on its right side, and some absences (of bleeding, and of skull and long-bone fracturing) were ‘not inconsistent’ with landing on her right side from a height of seventy feet. There were some ‘minor’ bruises and scratches, indicating slaps and blows, but these ‘did not contribute to death’ and so Coverdale concluded ‘I do not consider that I would be justified in opening an inquest on the information so far before me.’

  This was an improper statement, as Mr Coverdale – a solicitor – well knew. For Dr Green had in fact found injuries to the thighs and genitals which were indicative of rape, but which Coverdale had directed Green to leave out of his report. Green’s true opinion, as he admitted at the inquest, was that if Helen’s death had occurred in Britain it would certainly have required an immediate murder inquiry. He said he protested to the coroner, who justified withholding the information because ‘he did not wish to cause Mr Smith any further distress’. This could not have been the real reason, for Mr Smith had been publicly canvassing the possibility that his daughter had been raped and murdered for over a year. What distressed Ron Smith were official evasions – like Mr Coverdale’s, who continued to suppress this evidence of crime. When Dr Green’s conscience impelled him to give hints of his real findings to the press once the Arnots were safely back from Jeddah, the coroner threatened to have him prosecuted for contempt of court. It is precisely when officials behave in this way that the media expect there is more to a story than meets the eye.

  Ron Smith was not fooled by Coverdale’s censored version of the post-mortem. He sold his business and devoted all his money and time to finding out how his daughter died. The answer was never going to be other than squalid and the ‘accident’ explanation – toppling over the balcony during drunken sex – was probably the least squalid. But Ron Smith was driven both by the phenomenon that relatives of murder victims can ‘make an end’ only when someone is punished, and by the condescension he received from diplomats and from the coroner. He managed to interest Holland’s leading pathologist, Professor Dalgaard, who offered to conduct another autopsy. Not quite trusting a foreigner, Coverdale insisted that Dr Green and a more senior forensic scientist, Professor Alan Usher, should be present as well. This was fortunate, for these three experts were able to reach a dramatic consensus.


  The cause of Helen’s death was a blow to the head, which rendered her unconscious and produced bleeding into the brain, causing death a few minutes later. Prior to this fatal blow, she had been punched and scratched on the face about ten times, and possibly held by the neck. (Dr Green had been wrong about the shoulder fracture: there was none, and without it there could not have been a fall from the Arnots’ fifth-floor apartment). If the injuries to her body, especially on the right side, had been caused by a fall, it must, said Usher, have been from lower than thirty feet, and Dalgaard concluded she could only have fallen ‘a few feet’. He was uncertain whether the genital injuries were the result of forced, as against forceful, sex, although Usher thought they indicated rape and ‘suggest that some violent sexual activity had occurred, most probably against the girl’s will’. There was one great mystery, to which none of the pathologists could suggest a solution: Helen’s sternum (breast-bone) had been broken, but the lack of bruising suggested she must have been dead at the time.

  This evidence, made available to Coverdale in December 1980, was so redolent of foul play that an inquest was required immediately. Yet still the coroner temporised, calling for a report from the West Yorkshire Police and then (having received it in March 1981) delaying any decision until re-organisation of the coronial districts in mid-year relieved him of making one. It fell to his replacement, Phillip Gill, to inform Ron Smith in August 1981 that ‘as Helen’s death occurred outside the jurisdiction of the English courts I am satisfied that this case does not fall within my jurisdiction for the holding of an inquest’. Ron Smith’s response to this ruling was delivered the following week. Summoned to his local court for rate arrears, he explained to the clerk (who could not understand why so many journalists were present) that he had run up debts in discovering the truth about his daughter’s death, because ‘Thatcher, Carrington, Hurd, Whitelaw, and many more people have been involved in the cover-up to protect various people, not the Arnots’.