The Justice Game

by Geoffrey Robertson

  That it should take a criminal trial to expose Iraqgate rather than an investigation by Parliament or the media is in one sense an outrage, but in another a reassurance: try as it might, the State cannot confidently use legal proceedings as a tool for suppression. That was the lesson of the ABC trial, where there was nothing of embarrassment to cover up, and it was the more painful lesson of Matrix Churchill, where there was. No doubt the State can and has succeeded from time to time: it did with Ordtech, where a judge refused to direct the prosecution to produce vital documents. It did not work here because Paul Henderson was not prepared to accept the role of scapegoat. And once he had taken that position, the State became bound by the rules of the justice game, where the penalties for cheating are severe and the prospects of being found out by the other side should never be discounted.

  The Matrix Churchill trial collapsed on 9 November 1992, and a few days later Lord Justice Richard Scott was appointed to conduct an inquiry. His meticulous, non-judgmental approach produced precision analysis of what had gone wrong: ‘constitutional impropriety’ beginning with a criminal law permitted to pivot upon secretly changeable government policy and ending with an approach to public interest immunity which was wrong in principle and absurd in practice. Scott’s severest strictures were reserved for the witnesses who had misled us and for the ‘in-house’ lawyers who had approved the trimming of their evidence. Nicholas Lyell, the Attorney General, was found ‘personally at fault’ for his failure to take seriously his own public interest duty to supervise the prosecution. William Waldegrave was firmly identified as the architect of the policy to ‘designedly mislead’ Parliament by pretending there had been no change in the Howe Guidelines: although he had been acting honestly, he was held to have breached repeatedly the convention of ministerial responsibility to Parliament. This gave rise to a not very good joke: ‘There are three different ways of breaching the principle of ministerial accountability. They are, in ascending order of seriousness, the grave, the very grave, and the Waldegrave.’

  Publication of Scott’s inquiry findings in February 1996 was a defining moment for the government. It came replete with a massive disinformation exercise presented by Ian Lang, President of the Board of Trade, involving a propagandistic distortion of an 1,800-page report which opposition spokesmen had been given only three hours to read. The puerility of this behaviour, and the shameful failure of any member of the government to apologise to the defendants for a trial which everyone agreed should never have taken place, made for one of the most unedifying episodes in recent British politics. At 10.45 p.m. on 26 February 1996,1 watched from the Newsnight studio as MPs trooped through the lobbies on the censure motion over the Scott Report: the government’s winning margin was by one single vote. ‘The end of the Matrix Churchill affair?’ Peter Snow taunted. ‘Just the beginning,’ I replied, for want of anything better to say.

  On election night, over a year later, the BBC cameras recorded a different story: the whey-faced William Waldegrave, the trembling Malcolm Rifkind, the traumatised Ian Lang, lined up like aristocrats off the tumbrel to be guillotined by the returning officer. The blade of people’s justice cut deep: the heads of most other ministers and MPs who played minor roles in the affair rolled into the basket of oblivion. Future historians may well attribute the beginning of the Labour landslide in 1997 to the rumblings of Matrix Churchill after the trial collapsed: first Scott’s much reported hearings, the leaks from his report and finally the report itself, showing how Parliament was misled. Some Tory seats might have been saved had just one minister accepted responsibility and resigned, or even offered an apology to the defendants, but hubris dictated otherwise. The mistake the government made was to brazen out the affair in the belief that arcane points of PII law and sophisticated arguments about ministerial accountability would leave the ordinary voter unmoved. The ‘ordinary voter’ understands what is wrong about secretly selling arms to a dictator, and what is wrong about making it hard for innocent men to establish their innocence. They understood – and if they didn’t, The Sun spelled it out for them in its own erudite summary of Scott’s 1,800-page report: ‘Politicians are just slippery, power-hungry opportunists who will use any legitimate device to save their necks’. That was not the whole truth: Scott’s point was that in this case, their devices had been constitutionally illegitimate.

  Chapter 16

  Diana in the Dock: Does Privacy Matter?

  On St Valentine’s Day 1995 I was scheduled to meet HRH the Princess of Wales, across a crowded courtroom. I would be representing the manager of a health club where she had worked out for several years, until the Sunday Mirror published a ‘world exclusive’: DI SPY SENSATION – The most amazing pictures you’ll ever see. They were spread over seven pages and were photographs of her exercising on a contraption called a leg-press, taken by a camera hidden in the gym ceiling. The pictures were certainly striking, not least because they were unposed: they showed Diana, calm and confident, pitted against a fitness machine. But the sight of her image in a gloating tabloid caused such a deep humiliation and sense of violation that she determined to do something that had no direct precedent in British law: to obtain damages for the invasion of her privacy. She asked the court to shape the common law so as to shelter her from the very world of tabloid editors and paparazzi which had become an essential feature of her life and, in due course, of her death.

  These sneak pictures had been published in November 1993, and everyone deplored both Bryce Taylor, the gym manager who had taken them, and the Mirror which had paid him £125,000 and increased its circulation accordingly. Diana had been the victim of a dirty trick which provided windfall profits to undeserving people. But could she, and if so should she, sue? The two questions must be separated: whether the law can be made to provide recompense for infringement of privacy came first, but the second – whether it was sensible for someone like Diana to exercise the assumed right – depended on a very different calculation. Could the justice game be won convincingly and without damage to herself? At first, she carried all before her, obtaining injunctions and orders of every kind against Taylor, freezing his assets and effectively ruining him. He offered to give Diana all his rights and profits in the photographs if only she would call off the lawyers. She refused, presumably because she wanted a legal example made of him, as the precedent for a privacy law. At this point the very fair judge who was to try the case became concerned: justice would hardly be seen to be done if she changed the law by prevailing over an unrepresented defendant. So legal aid was extended to the impoverished Mr Taylor and the task of defending him fell to me.

  Practice at the Bar involves no moral quandary, in the sense that our ethics are those of the cab-rank on which we ply for trade. I might have preferred to act for the Princess: ironically, I was the author of a textbook that analysed and deplored the absence of any privacy law in Britain, pointing out the hollowness of the boast that ‘an Englishman’s home is his castle’ at a time when photographers encounter no legal difficulty in crossing the drawbridge and proceeding directly to the bedchamber. But these photographs were not a clear-cut case. They had been taken at what Time Out described as ‘the least private gym in London’ which had a motto for shirkers: ‘you have no hiding place’. LA Fitness comprised one giant room, criss-crossed by catwalks, so that everybody could see everybody else. The leg-press machine that Diana used was in front of a vast glass wall looking onto a public thoroughfare: it was like working out in a shop window. She had not objected when children pressed their noses to the glass and exclaimed, ‘Look at the Princess of Wales!’

  But did this matter? The Mirror bought the pictures not from street photographers or fellow gym members but from its manager, who owed Diana some measure of consideration. She had been turned on to LA Fitness by an article about one of its personal trainers which appeared in the Daily Mail in September 1990. It announced ‘All you need to achieve the body beautiful is to get down and cardio-funk’. My first question
in cross-examination would be ‘What, Ms Windsor, is cardio-funk?’ and the reply would be ‘an exercise which combines funky dance steps with aerobic moves set to hip-hop music’. The judge would interpose ‘What is hip-hop music?’ and we would be off into the nether world of choreographed colonics and the art of toning buttock muscles on the lifecycle, the rotary torso, the lateral pull-down machine and the concept II Rowing Ergometer (to prepare for this case I had gone where sedentary lawyers fear to tread, and briefly joined a gym).

  When Diana first visited his health club, Bryce was every inch the forelock-tugging manager, offering her honorary membership and giving her – literally – free reign. She made the mistake of accepting this freebie: by saving £500 per year she weakened her claim that he owed her confidentiality, because she had not paid for any. It was not a ‘club’ in any real or exclusive sense, but a suburban business which would take anyone if they paid, be they criminals or Irish republicans or tabloid journalists. On her first visit she was assured by Taylor that her visits would be treated confidentially, and it was on this undertaking that her lawyers relied to argue that there was a ‘fiduciary relationship’ between her and the gym manager which he had breached by taking the surreptitious photographs. What he had done, by rigging up the secret camera, snapping her unawares and selling the pictures to the tabloids, was certainly sneaky and many would think ‘there ought to be a law against it’. But was there?

  The alternative analysis was that although she was welcomed as a guest whenever she chose to grace the premises with her presence, she acquired no enforceable rights against covert photography. Attending a gym is like going to a disco or eating in a restaurant, an ordinary transaction which establishes no special fiduciary or ‘trust’ relationship between customer and management. The gymnasium, from ancient Greece onwards, has been a public arena, and this modern version with its throbbing funk music and MTV system was a place people came to work out together and to socialise. That was the very reason Diana would leave Kensington Palace and drive for up to an hour, two or three times a week, to this everyday place full of nondescript people, to chat them up and light them up. She could much more conveniently have used the gym at Buckingham Palace, which had the very same leg-press machine for footmen who wanted to keep one step ahead. The Mirror had depicted what dozens of members had seen with their own eyes, and what children had seen when they gawked through the window. ‘It was not as if you had rigged up your secret camera in the changing room or the toilets,’ I said to Bryce Taylor. ‘Funny thing – she never used the changing room or the toilets,’ he replied, and I wondered how much the tabloids would have offered if she had.

  The facts of this case were nicely balanced, and the law was not entirely clear. Bryce Taylor’s motive was mercenary and he made no pretence that it was not. But before taking the photographs he had gone to see a leading city solicitor who told him that since there was no protection for privacy his actions were not illegal, and on that assurance he had gone ahead. The Mirror, however, which was his co-defendant, had to find a ‘public interest’ justification. It said it had only published these ‘amazing pictures’ (World Exclusive: turn to pages 2 and 3, 12 and 13 and centre pages) because they revealed the inadequacy of her police protection. If Bryce Taylor could shoot her with a secret camera, the IRA could shoot her too. This argument would justify the press violating every important person’s privacy in order to check on their security arrangements. The Mirror tried to compensate by oozing compliments about how good she was looking and carrying on as if it were starting a health education campaign to get Britain back into shape, but none of this made up for the original violation, the shock and sense of powerlessness that the plaintiff had suffered. The newspaper’s humbuggery made her more determined on revenge.

  But Diana wanted privacy only when it suited her. There was confusion left in the wake of Diana – Her True Story by Andrew Morton. Outraged at his revelation of the tawdry secrets of the Royal marriage, and after assurances from Diana that she had absolutely nothing to do with him, the Palace complained so vociferously that Harrods and some other stores refused to stock the book and the Press Council roundly condemned the newspaper which serialised it. On further investigation the Council came to the belief that the book’s intrusions ‘had been contrived by the Princess and her entourage’. This is a matter which I might have had to explore with Diana in the witness box, and no doubt she would have revealed, as Andrew Morton did after her death, that she had collaborated so closely with him that she even corrected the proofs of his book. The Princess of Wales had, in effect, invaded her own privacy, and had certainly conspired with Morton to violate her husband’s. She had, after all, married into a British constitutional arrangement which by tradition extracted a certain price for placing her on a pedestal. She was not prepared to pay that price, but nor was she prepared to relinquish the pedestal. No one could criticise her for the breakdown of her marriage, but afterwards silence was always an option. Instead, she had chosen to revel in the role of Queen of Hearts, a high-profile and unique life, in which the paparazzi were an occupational hazard.

  It is hard to remember, after the world’s grief over her death, how equivocally this woman was viewed when her case came to trial in February 1995. Her reputation picked up subsequently, with the Panorama interview and her landmines campaign, but before then her conduct – which can now be diagnosed more kindly as manifestations of a stress disorder – seemed calculated to promote a self-indulgent culture of victimisation and complaint. She had begun making her fleeting visits to AIDS clinics and hospitals, but these appeared to be quests for photo opportunities – it was said she was taking a leaf out of the Benetton advertising book, using the diseased and the dying as visual props to make herself look better than she was. Against this background, one answer to her sudden assertion that she had a legal right to restrain the publication of photographs taken without her consent was that although she had not been asked, she had nonetheless been inviting it to happen.

  At any event, the time came to prepare for trial. The Princess, we heard, had constructed a miniature courtroom at Kensington Palace to rehearse for her cross-examination, and had hired a private detective (ex-MI5) to check on the defence. She went to New York a few weeks before the trial to be presented with a prize for her humanitarian work by Dr Kissinger (whose decision to bomb Cambodia counts for many as a crime against humanity). At her request, she was pictured hugging dying black AIDS babies. By this time, 940 journalists had applied for the seventy-five seats available in Court 36 of the Royal Courts of Justice. Their coverage would have little to do with the rights and wrongs of the case, or its fine legal points: the stories would be written to boost circulation. ‘This will be the end of your reputation,’ said Alan Clark cheerily when we met at a book launch. ‘No matter how your cross-examination goes, it will be reported as an absolute triumph for Diana – that’s the story that will sell.’ The television news ‘courtroom artists’ had already painted their impressions: I was depicted, all jowls and splutter, rebuked by Her Radiance as she stood serenely in the witness box.

  Still, I tried to keep an open mind: I was in favour of privacy law but opposed to monarchy, believing with Tom Paine that an hereditary Head of State is as sensible as an hereditary poet. My only recent Royal connection had been in the previous year, when James Hewitt sought my advice. He was being hunted down by the media after the publication of Princess in Love, and called me from his hideout – a pigsty in Languedoc – just as a battalion of Sun journalists reached a neighbouring village. In true Bulldog Drummond fashion he had an army pal lift him in a helicopter to High Wycombe, and another drove him to Islington where, following Salman Rushdie, he bunked down in my attic – the last place the tabloid lynch mob would expect to find him. Their real grudge was, I suspect, that he had turned down their offers of half a million pounds in order to tell his story for comparatively little to Anna Pasternak. James did not deserve the obloquy heaped upon him: his affair wit
h Diana was bound to come out, and he made sure it was told as a fairy-tale, with malice towards nobody, in romantic (but excruciating) prose. The episode brought home a point that Tom Paine never took into account, namely the contribution made by Royalty and all its associates to public entertainment.

  To that end, the defence was now given a taste of what the plaintiff had endured. My solicitor’s mobile telephone conversations with a potential witness were intercepted and sold to a newspaper. The strangest stories began to appear: it was alleged that James Hewitt was still in my attic, to be produced as a surprise witness. The Times described me as ‘anti-establishment, republican and Australian’, presumably in ascending order of horror. My elderly parents were ‘doorstepped’ by reporters late at night, 10,000 miles from London, and asked what advice they would give Diana. ‘I would settle out of court,’ said my father, always eager to help.

  I have related these facts about the case in order to make a subjective attempt to square the circle – more accurately, to locate points on a penumbra – spanning the two values of press freedom and privacy. Professors of law and journalism solemnly locate the point at which the line should be drawn between free speech and privacy by distinguishing what is in the public interest from what is of interest to the public. But to what purpose? That which interests the public is ipso facto in the public interest, because this determines what makes the news. So in every country press freedom boils down to a bargain, a three-way deal between State power, popular instinct and the media’s muscle. Everywhere, the press is only relatively free. In some countries the definition may be nothing more than the one offered by Tom Stoppard’s African dictator in Night and Day: ‘We have a relatively free press, by which I mean a press run by my relatives.’ In the West, a free press is more complicated.