The Justice Game

by Geoffrey Robertson

  Sir Gordon Downey’s Report, when released months after the election, was a comprehensive indictment of Neil Hamilton. It found the evidence that he received ‘cash for questions’ in brown envelopes from Al Fayed ‘compelling’. He deliberately misled Heseltine and improperly hid a number of other financial interests from Parliament. But what was the status of Downey’s report? Was he a judge, or merely an investigator for a committee of MPs – the Privileges Committee? Bizarrely, this committee then allowed the ex-MP to make a vicious televised attack, under parliamentary privilege, on Sir Gordon Downey and everyone else he blamed for his downfall. This was an unseemly occasion: how many other witnesses will now dare to come forward to accuse MPs, when they can be blackguarded like this for doing so? In December 1997 the Privileges Committee finally concluded that there could never be ‘absolute proof that Hamilton had been paid in brown envelopes, but endorsed Downey’s finding nonetheless. The MP had shown ‘a casualness bordering on contempt’ for disclosure rules, and if he had been re-elected he would have deserved ‘a substantial period of suspension from the service of the House’.

  What this meant was that if Hamilton had been re-elected as MP for Tatton in 1997, he would in due course have been ‘suspended’ – but not forced to resign – for a period of six months or so. This would hardly have been a satisfactory result, for his constituents or for the public or for himself, but it is the only result that self-regulation, post-Nolan, is able to deliver. The moral, surely, is that ‘voluntary self-regulation’ of and by MPs should no longer serve as a substitute for legal regulation. Amongst the many reasons for reform would be fairness to MPs like Neil Hamilton, who has never had the evidence against him tested by cross-examination. In his case, this was a result of his decision to withdraw from the libel action, but it would have been fairer to him and better for all concerned if Al Fayed’s allegations had from the outset been investigated and tried through the criminal process. In future, if MPs in Hamilton’s position are to be given the day they deserve in court, they will have to be arrested on charges of receiving bribes and, if the evidence warrants it, placed on trial at the Old Bailey. If acquitted, they can go back to Parliament, and if convicted they should go to prison – for a period long enough to deter other MPs from similar temptations to act dishonourably.

  Afterword: The Justice Game

  An advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world, that client and none other. To save that client by all expedient means – to protect that client at all hazards and costs to all others, including himself, is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other. He must go on, reckless of the consequences . . . even if his fate it should unhappily be, to involve his country in confusion for his client’s protection.

  Henry Brougham

  Professional people have no cares

  Whatever happens, they get theirs.

  Ogden Nash

  The truth about barristers is located at a mundane midpoint between the high-flown rhetoric of Lord Brougham (the advocate who defended Queen Caroline) and the master of the cynical sound-bite. It is precisely because barristers are well paid and immune to actions for negligence that they are meant to be psychologically prepared to stand up against the State on behalf of unpopular people and unpopular causes. I have never been convinced of this logic – as Gerald Gardiner said, ‘I’d rather be a barrister on a miner’s pay than a miner on a barrister’s pay’. But note how the stars of the Bar, most adept at playing the justice game on behalf of others, skilfully avoid having to play it for themselves. They cling to their immunity from actions for negligence – an unjustified privilege which protects incompetents from being sued. They even suffer dilatory or dishonest solicitors who do not pay their fees, preferring to blacklist them rather than to sue for recovery. They do all they can to stay out of court because they know about the pitfalls of litigation. They know that justice is a game: they play it with other people’s money and lives but never, if it can be avoided, with their own.

  This is a fact, not a criticism. Barristers are, on the whole, dutiful in warning would-be litigants of the hazards. Our professional advice is invariably cautious and laden with warnings often couched in sporting odds which emphasise the risk. I adopt medical metaphors: litigation is like suffering a long if ultimately curable disease: malaria perhaps, where the temperature rises and falls, and long periods of inactivity are followed by feverish outbursts. Who would choose to endure it, in a life which is anyway too short? The defendant in a criminal trial cannot but fight the course, but the would-be plaintiff or defendant in a civil action who can settle for a small payment or apology has every reason to live to fight another day which may never come. Lawyers are not barkers at a fun-fair, urging naive players to roll up and claim their luck against the House. The best often go unrecognised because their genius is to keep their clients out of court rather than in it, or to produce solutions so acceptable that the problem is never heard of again.

  The important point is that the justice game is not played for money but for people’s rights and liberties. The first rule is don’t play unless you have to. The second is play to win. And the third rule is that since winners often lose – in costs, in time, in irritation and mental fatigue – there must be more to victory than the pleasure of winning. There must be a moral.

  As is well known, barristers have adapted their morals from Hackney carriage-drivers, who found it advantageous to the continuance of their monopoly to take anyone anywhere. Today, the ‘cab-rank rule’ is described as the kerbstone of the advocate’s right to practise. It is said to have this salutary effect, that anyone – however evil, eccentric or unpopular – may find a professional to assist in asserting a legal right. But when such people are charged with criminal offences they usually qualify for legal aid, in which case there is no shortage of barristers anxious to defend them. The main virtue of the rule is that it protects barristers from unfair criticism for taking these unpopular cases: it reduces the amount of excrement through the letter-box.

  The taxi-rank rule is of some constitutional importance. It originated in Lord Erskine’s explanation to an Old Bailey jury as to why he accepted the brief to defend Tom Paine’s Rights of Man, despite the fact that it cost him a lucrative retainer as adviser to the Prince of Wales. A cynic might say that Erskine accepted this brief so that he could boast about his own virtue in doing so: his famous speech is never read in full, because it is an epic of self-adulation, in the course of which he so condemns the book and its author (who had the foresight to flee to France) that he forgets to offer the jury any argument against convicting his client. But in the course of this speech Erskine stated the cab-rank rule in immortal language: ‘From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practise, from that moment on the liberties of England are at an end.’

  This proud principle applies to all whose duty is to stand up to the State with professional skill on behalf of any wretch who obtains their services. That its constitutional importance needs emphasis was demonstrated in November 1997, when a barrister who happened to be married to the Prime Minister was wrongly criticised in the press for taking – in fact, for winning – a case enlarging the civil rights of convicted rapists. It may be difficult to explain why someone as clever as Cherie Booth QC should cudgel her brains on behalf of criminals – one day she might be instructed to argue for Myra Hindley’s rights to be treated fairly by the Home Secretary – but unless we can face that prospect with equanimity there is little point in boasting about a legal profession independent of the State. Of course, the analogy between barristers and taxi-drivers cannot be pushed too far: for a start, we frequently carry indigent passengers free of charge. In other respects, our attitudes are similar to the cabbie
s I often hail: it’s ‘Sorry Guv, I’m just knocking off for lunch’ or ‘I won’t take a fare south of the river’. (In other words it interferes with a vacation or is to be heard at the Inner London Crown Court.) So long as there are other, equally experienced drivers available, no problem of principle arises. What the rule guards against is barristers turning down cases in the area of their expertise because they dislike the defendant or the nature of the alleged offence.

  There have been breaches of the rule – notably when the Bar Council itself stopped an English barrister from defending Nazis on trial at Nuremberg, and when no fewer than twenty-one QCs turned down briefs on behalf of the Old Bailey bombers in 1974. That was the time when one kindly judge, later a Law Lord, took a sufficient interest in my career to urge me, for its sake, never to accept a brief for a bomb trial: ‘You don’t want to become part of the alternative bar.’ That was the mistaken mindset of his generation, and the miscarriages of justices it permitted have returned to haunt us all. It failed to recognise that it is the mark of a civilised society that persons accused of such evil should have the allegations against them tested with the utmost rigour.

  I cannot forget my first call to the ‘alternative bar’, to advise an Irishman arrested for planting a bomb at West Ham underground station, killing a guard and endangering the lives of many commuters. It was in 1975, and the walk to his cell was through a corridor lined with Special Branch officers, their eyes full of contempt for a person and a profession determined to help an enemy, a few hours after the death of an innocent. It was understandable, this righteous rage which has sometimes inflamed policemen to fabricate confessions or to beat suspects whom they believe (often correctly) to be guilty. It was also frightening. As I walked along the line I wanted to say to the nearest hard face, ‘Look, we’re on the same side really. I know you’ve risked your life capturing him’ (he had a gun) ‘and you are braver and more socially useful than I will ever be. But I’ve just got this small role to play in the process, to make sure that if he’s put away, it’s done fairly and squarely, OK?’ They would not, by their looks, have understood; they knew I was going to advise an obviously guilty man to exercise his right to silence, which might make it marginally more difficult to convict, and they hated me for it.

  This rage I had felt at West Ham against the defending lawyer translated into a general contempt for the adversarial system of justice: why bother about obeying the rules of trial, any more than obeying the rules of interrogation? The trial was a public relations wrap-up to the detective work of deducing guilt from association with Sinn Fein and from hand-swabs, even if these might also test positive from touching playing cards or cellophane around cigarette packets. Justice was not treated as the deadly serious game that it is, to be played by rules: cheating became acceptable so long as you were sure the defendants were guilty. The real problem about this ‘noble cause corruption’, which is obscured by films like In the Name of the Father with its travesty trial of the Guildford Four, was that the real thing seemed so fair. The judges were not biased, although no doubt they believed that Special Branch and the security services had found the guilty men. What they did not take on board – until forensic science came up with the ESDA test which could read electrostatically between the lines of old police pocketbooks – was the relationship between police rule-breaking (or the non-existence of rules for police to break) and miscarriages of justice.

  Policemen and prison officers are more friendly now, and more fair: they have learned the hard way that lawyers who assist the enemy are actually assisting the justice system that the enemy aims to undermine. But it still can be difficult for young lawyers to come to terms with their professional duty in ‘terrorist’ cases. Many years later, in 1991, I took a pupil barrister to the committal proceedings for Dessie Ellis, the man who had made many of the IRA’s explosive devices which caused mayhem on the mainland. He was the first Irishman to be formally extradited to stand trial in Britain, and the magistrate had been persuaded by a technical submission that there was no jurisdiction to try him here, so he would have to be set free. After the body search on leaving the court we walked back to my car, past armed police and alsatians and below the sharp shooters silhouetted against the roofs of overlooking buildings, and the pupil asked me nervously, ‘Can you really sleep happily after that result?’ I could, because it proved that the British State was fair enough to allow itself to be beaten at its own game.

  Cases I could wish on other players usually involve freedom of expression, a principle of greater importance than the examples by which it must be defended. I had moral qualms over The Guide to Self-Deliverance, a ‘do-it-yourself’ suicide instruction manual issued to members of the Voluntary Euthanasia Society. The Attorney General sought to ban it, after forty-two people had died while following its advice – sometimes with the Guide, open and underlined, on the bed beside them. Suicide-lib is, I feel, a right for the over-nineties, or those with terminal illness, but by bringing the action the Attorney General had raised the stakes: if he failed, the Guide could be sold in station bookstores to any depressed teenager temporarily taken hostage by his hormones. The action did fail, but I confess to sleeping more easily when the Society agreed with my advice and announced that rather than make the Guide a bestseller, it would confine distribution to its life members.

  The most unpopular men I ever defended were from the Paedophile Information Exchange (PIE). They were not active paedophiles, but were certainly in the grip of a disease of the wrist which might be called graphophilia – an urge to correspond about child sex fantasies, at great length and in pornographical detail. PIE comprised a few dozen people: five were charged with conspiracy and the others were arrested and obliged to plead guilty to the minor offence of sending indecent material through the post. At the committal they were all, with one significant exception, called to give ‘Queen’s evidence’. I was revolted by their correspondence – yards and yards of infantile sexual fantasising in copperplate schoolmasterly hands. Nonetheless, I was a taxi prepared to ply for trade in such dark suburbs, and I cross-examined the procession of embarrassed men who had been permitted to plead to the minor charges in return for giving evidence against the others. The chief curiosity of the prosecution case was that everyone’s favourite pen-pal, the hub of this daisy chain of pornographic penmanship, had not been arrested: for some unaccountable reason he was not a defendant nor called as a prosecution witness. The court was told that his name was Mr Henderson. I enquired no further: the rat-smelling antennae so vital for a defence counsel were not properly tuned. I failed to discover a classic British cover-up until after the trial, when police leaked to Private Eye the fact that it had been decided ‘at a high level’ that the man, whose name was not Henderson, should not be prosecuted or identified, because he had recently retired as the British High Commissioner in Canada after a long and distinguished career with MI6.

  ‘If liberty means anything at all, it means the right to tell people what they do not want to hear,’ said George Orwell – ironically, in an introduction to Animal Farm which Gollancz, his left-wing publishers, declined to publish lest it give offence to Stalin. The cases in this book are mostly about the right to tell people what most of them would never wish to see or read, or what ‘they’ – officials Orwell calls ‘the striped-trousered ones who rule’ – do not want the people to hear. What is kept from the public, and what the public wish to be kept from, have this in common, that the law tends to be relied upon as the means of suppression. This book should serve as a warning to those who rely upon it: don’t.

  This is because Henry Brougham was right to this extent, that lawyers have no business truckling to ‘they who must be obeyed’, be ‘they’ ministers or security officials or secret policemen. A government enters court on terms equal to its enemies: other than in Singapore there can be no presumption of legality simply because an action has been done by officials of the State. In this book I have chosen cases to demonstrate how the law may humb
le the most powerful: governments here and abroad; the great departments of Whitehall; the security services; and wealthy private litigants ranging from the Bank of England to the Princess of Wales. It will not perform this function always or even usually, but it must always remain possible for law power to win over State power or private might, either through the upsets that the ‘gang of twelve’ are capable of causing or through independent prosecuters or judicial attention to principle. ‘Justice’ is not a result conforming to popular expectation, it is an objective judgment on the fairness of the procedures under which the case has been tried.

  For this reason I am passionately in favour of the incorporation into British law of the European Convention on Human Rights, bedrock principles which recite the rules of the justice game. The Convention was drawn up in 1951 to serve both as a legal bulwark against the resurgence of fascism and as an articulation of civil rights being threatened by communist regimes in Eastern Europe. It embodies standards not so much fundamental as elemental, and the reason why so many of our laws and administrative practices have breached it is because we too often regard civil liberties as privileges to be granted at the discretion of the powerful rather than rights capable of assertion by members of the public. Enactment of the Convention will measurably improve the protection for individual freedom. It will enable full-blooded challenges to be made to the way discretionary power is exercised by ministers and officials, not merely by way of procedural review but from universal principles. It will improve the quality and comprehensibility of judicial decision-making, since arguments from first principles are apt to be more logical, realistic and understandable than those artificially constructed from the rag-bag of case-law precedents.