The Justice Game

by Geoffrey Robertson

  Legal commentators on the left have a knee-jerk antipathy to the notion of judges as guarantors of human rights. Their objections fail, at the end of the day, for want of any sensible alternative. The courts remain the only place where oppressive government action against individuals may be checked. The parliamentary opposition does not, by definition, have the numbers to intervene, short of a revolt by government back-benchers. MPs may harass and embarrass ministers over individual cases: they may call for explanations, but have no power to interfere further. The notion of Parliament as the sole guardian of liberty is risible: 3,000 pages of statutes and 2,000 separate statutory instruments receive Westminster’s imprimatur each year, many of them without proper scrutiny or debate, their contents understood only by a handful of administrators and draftsmen. The media may take up particular cases of injustice, subject to their ability to obtain sufficient information and to the political allegiances of editors and proprietors. But trial by media – partial, simplistic and sensational – is no substitute for trials by judges, decided by the application of fundamental principles of law.

  The law, after all, is a discipline which trains and controls those who apply it. When Convention principles become part of that law, they will be reflected in the attitudes of the law’s disciples. The great majority of judges are at present white males from upper-middle-class backgrounds, but this will change as new generations with a more acceptable social, sexual and racial mix are appointed. In any event, incorporation of the European Convention does not foreshadow government by judges. It will simply mean equipping the most appropriate institution – the courts – with better principles and procedures for identifying and remedying abuses of power perpetrated against citizens by government departments. What the judiciary will not possess is power to strike down the sovereign Acts of an elected Parliament, but what it needs to have – because no other person or institution independent of government has it – is authority to ensure that decisions which affect the lives of people, taken by officials exercising the discretions given them by such Acts, are made and executed fairly, and consistently with human rights principles. This does not involve judges in deciding government policy, although it may involve them in ensuring that as regards individuals, the policy is implemented justly and humanely. There will be many conservative interpretations of the Convention and they will disappoint, but they will not damage existing rights. The likelihood is that after an initial period of uncertainty, decisions will emerge which will enrich the understanding of Convention guarantees by reflecting the spirit of liberty which appears so abundantly in British history, literature and political rhetoric, yet so circumspectly, at present, in British law. It may do something, in all countries where English precedents carry influence, to make up for the illiberal legal legacy bequeathed to our former colonies.

  A Bill of Rights will be in tune with the progress made by the legal profession. I have set out the cases in this book chronologically to make the point that the justice game is much fairer than depicted by contemporary authors and television dramatists, who still portray it in a time warp, somewhere between the Notable British Trials series and an early episode of Rumpole. In those days the Old Bailey was a place of verbal torture, in which unfortunate members of the lesser orders were pulled to pieces by bullying, upper-class men in wigs and put down by caustic, terrifying judges. Its very atmosphere created an expectation of guilt, which successful defenders tried to dissipate by emotional but highly conventional appeals to the hearts of the hard-faced people of property who were the only class allowed to sit as jurors until 1973. Advocates have now shaped their styles to the cooler, more consumer-friendly spirit of the times. Gone are the pre-war histrionics of Marshall Hall and the bullying of Edward Carson, affectations which sound hollow in modern strip-lit courtrooms. Marshall Hall pulled off his notable victories in murder cases by cheap-jack appeals to the sentimental prejudices of propertied jurymen (‘Look at her, Gentlemen. God never gave her a chance. Won’t you?’). At a Crown Court in Snaresbrook or Acton today, young jurypersons would collapse in laughter if such an appeal were made – although they would be more likely than their predecessors to heed the plea if it were spoken with less bathos.

  Yet pernicious pictures of forensic life live on in anthologies of what passes for legal wit and wisdom. Lawyer’s anecdotes are rarely funny: they are usually about how grown men make jokes at the expense of the poor, the disabled and the inarticulate. The small boy who pulls wings off flies is practising for a career at the Bar. It is, indeed, at the expense of a small, poor and injured boy that the classic anecdote of forensic brilliance is told. The boy has been run over by a negligently driven tram, and the wealthy corporation responsible for his injuries have hired the much-admired advocate F E Smith to deny him compensation. ‘FE’, as he is affectionately known to his peers, coaxes the child to show the jury how high he can raise his arm after the injury, and then asks how high he could raise it before the injury – and of course the youthful arm is raised higher. This reparteedious story has been endlessly repeated over the past fifty years in law miscellanies and at legal dinners: a nursery trick, played to deny compensation to a boy who was run over by a tram through no fault of his own, it remains the paradigm forensic fable.

  The justice system needs new fables, and certainly new anecdotes, to mirror all the changes that have been made to the game over the past quarter-century. Horace Rumpole served us well, although today he would be bankrupted by wasted costs orders and his face would not fit the glossy chambers brochure. His idiosyncratic independence was necessary at a time when the State would regularly trundle out what John Mortimer calls ‘the great engine of the criminal law’ to crush sinners and artists and dissidents. But that great engine, for all its smoke and noise, is not getting us very far or very fast either in processing juveniles so they will not reoffend or in convicting serious fraudsters or rapists or bent coppers. I meet colleagues from other countries who are ‘special prosecutors’, putting behind bars Mafia bosses and masters of the Wall Street universe, or who head commissions which catch by their white collars corrupt politicians and public servants and policemen. But in Britain, for all the half-baked ideas which come tumbling in profusion from Home Secretaries, you still have to be pretty stupid to end up in prison.

  But that is another story, and a different book. The prison I remember most vividly was one I visited in Vietnam on a mission for Amnesty, in the countryside beyond Ho Chi Minh City (formerly Saigon). Our hosts hotly denied that it was a prison at all, but rather a ‘re-education camp’. It was full of broken men shuffling back and forth to a prison library stocked with the works of VI Lenin. The war had ended fifteen years before, and they had been held ever since: all had been officers of the South Vietnam Army, who had been guilty, we were assured, of brutal war crimes. The victors sincerely believed this, and it said something for the new regime that they had not been summarily executed. But it did not say enough. These suspects had never been tried, never given the possibility of proving their innocence. I knew better than to raise awkward questions in the presence of guards but I did ask, when we were out of earshot, whether they would have preferred a trial – with the death penalty if they lost – or fifteen years’ detention. They all said, and genuinely I think, that they would rather have taken their chance on justice.

  Practising law has taught me little more than that there are two sides to every argument and that the verdict will go against an argument which is good if the other argument is better. Never in twenty-five years have I heard a witness tell the whole truth (honest memory is always selective) and never have I seen a judge be totally fair, although many are as fair as their background and training and grumbling ulcer will allow. I have come to disbelieve defendants with gold taps in their bathroom and have learned that where there’s smoke there’s usually fire, although occasionally it comes from a smoke machine, and that even the smoking gun may have fingerprints on the handle which do not match the suspect’s.
After a string of wrongful convictions were uncovered a few years ago an admirable Chief Justice, Peter Taylor, went on television: he thumped the table and declared ‘Justice is not a game!’ That was when it struck me that we would do better to recognise that justice is the most serious and important game of all, and the best side will have a better chance of winning if its rules are precise and fair and obeyed. But what matters above all is that the result must never be a foregone conclusion. For all the grandiose descriptions that have been offered of the adversary system of trial, and for all the pomp and self-esteem that tends to affect its professional participants, it is the best method we have yet devised for giving the suckers an even break.

  Chapter Notes

  1. Who is Mr Abble Hoffman?

  Richard Neville provides an account of his life and crimes in Hippie Hippie Shake (Bloomsbury, 1995). C H Rolph’s The Trial of Lady Chatterley was reissued by Penguin in 1990 in a commemorative edition, with a foreword by the author. And see G Robertson and J Carrick, ‘The Trials of Nancy Young’, The Australian Quarterly (June 1970), and Clavir and Spitzer (eds.), The Chicago Conspiracy Trial (Cape, 1971).

  2. The Trials of Oz

  The play The Trials of Oz was performed at the Aldwych Theatre in London, directed by Buzz Goodbody, January 1972; at the Anderson Theatre, New York (as a musical) directed by Jim Sharman, December 1972; and in the BBC ‘Performance’ series, directed by Simon Curtis, 1992. There was an instant book by Tony Palmer, The Trials of Oz (Blond and Briggs, 1971). The legal significance of the case is assessed by the author in Obscenity (Weidenfeld, 1979) and Media Law (third edition, Penguin, 1992). The Court of Appeal judgment is reported as R v Anderson, Neville, Dennis and Oz Publications Ink Ltd, 1972 1 QB 304. Michael Argyle’s memoirs were published in the Spectator on 20 May 1995; the magazine’s apology followed in its 17 June edition.

  3. One of Our MPs is Missing

  John Stonehouse tells his own story in Death of an Idealist (W H Allen, 1975) and My Trial (Wyndam, 1975). The judicial account is DPP v Stonehouse (1978) AC 55. R D Laing and his fridge feature in R D Laing: A Biography by his son, Adrian (Peter Owen, 1984). The book about Kenneth Lennon is titled Reluctant Judas (Maurice Temple Smith, 1976).

  4. Michael X on Death Row

  The Michael X story is told by Derek Humphrey and David Tindal, False Messiah (Hart-Davis, 1977), and by V S Naipaul, The Killings in Trinidad (André Deutsch, 1980). Both works carry the easy condemnation of instant hindsight: a more balanced retrospective by Edward Pilkington, ‘The Other Brother X’, was published in the Guardian on 2 March 1993. The Privy Council decision in Michael’s case is reported as de Freitas v Benny (1976) AC 239; its Noel Riley judgment is Riley v Attorney General of Jamaica (1983) 1 AC 719; while Earl Pratt & Ivan Morgan v Attorney General of Jamaica is at (1994) 2 AC 1. The position in Jamaica prior to Pratt is described in Jamaica – the Death Penalty (Amnesty, 1989). The description of hangings comes from evidence given by the Warden of San Quentin to the US Senate Judiciary Committee in 1968; a recent gruesome study of the execution business in the USA is Stephen Trombley’s The Execution Protocol (Century, 1993). The best history of legal opposition to capital punishment is the optimistically entitled The Abolition of the Death Penalty in International Law, by William Schabas (Grotius, 1993).

  5. Ferrets or Skunks? The ABC Trial

  The ABC trial is the subject of a book by A (Crispin Aubrey), called Who’s Watching You? (Penguin, 1980), and has been analysed by David Leigh in The Frontiers of Secrecy (Junction Books, 1980) and by David Hooper in Official Secrets – the Use and Abuse of the Law (Coronet, 1988). Jock Kane’s allegations were the subject of ‘World in Action’ (ITV, 9 June 1980) and of a book GCHQ: The Negative Asset which remains injuncted from publication. E P Thompson’s polemic against the Attorney General is republished in Writing by Candlelight (The Merlin Press, 1980).

  6. Gay News: The Angel’s Advocate

  The best book on blasphemy is Blasphemy: Verbal Offence against the Sacred, from Moses to Salman Rushdie, by Leonard W Levy (Knopf, 1993). The Gay News trial is reported in a booklet by Nicolas Walter (who attended each day), published in 1977 by the Rationalist Press Association: Blasphemy in Britain: The Practice and Punishment of Blasphemy and the Trial of Gay News. The view from the Bench is to be found in Alan King-Hamilton’s autobiography, And Nothing but the Truth (Weidenfeld, 1982), and from defence counsel’s row in John Mortimer’s autobiography, Murderers and Other Friends (Viking, 1994). The trial is the highlight of two of Mary Whitehouse’s autobiographies, A Most Dangerous Woman (Lion Books, 1982) and Quite Contrary (Sidgwick & Jackson, 1993). She writes on homosexuality in Whatever Happened to Sex? (Wayland, 1977), and her tactics are analysed by Michael Tracey and David Morrison in Whitehouse (Macmillan, 1979). Whatever happened to Gay News is told in Title Fight: the Battle for Gay News, by Gillian Hanscombe and Andrew Lumsden (Brilliance Books, 1983). The author’s argument for reforming the laws relating to both blasphemy and homosexuality are in Freedom, the Individual and the Law (seventh edition, Penguin, 1993). See also The Law Commission, Offences Against Religion and Public Worship, Working Paper No. 79, HMSO 1981: Report, HMSO 1985; Whitehouse v Lemon and Gay News Ltd (1979), A.C. 617; Conegate v Customs and Excise Commission (1986), 2 All ER 688; R v Chief Stipendiary Magistrate, ex parte Choudhury (1991), All ER 306 (the Satanic Verses case).

  7. The Romans in Britain

  The script of The Romans in Britain by Howard Brenton is published by Eyre Methuen (1981). Mary Whitehouse’s diary features in Mary Whitehouse, A Most Dangerous Woman (Lion Books, 1982).

  8. Invitation to an Inquest: Helen Smith

  See The Helen Smith Story by Paul Foot (Fontana, 1983) and Inquest: Helen Smith, The Whole Truth? by Gordon Wilson and Dave Harrison (Methuen, 1983).

  9. The Prisoner of Venda

  The report of the human rights mission to Malawi was published by the Law Society in 1992. Banda’s rule is described by John Lwanda, Kamuzu Banda of Malawi: A Study in Power and Paralysis (Dudu Nsomba Publications, 1993). See also Where Silence Rules: The Suppression of Dissent in Malawi (Africa Watch, 1990). Dr Banda died in November 1997.

  10. Show Trials

  Francis Seow, Singapore’s former Solicitor General, traces the ‘Marxist conspiracy’ in To Catch a Tartar – A Dissident in Lee Kuan Yew’s Prison (1994). And see Asia Watch, Silencing All Critics: Human Rights Violations in Singapore (September 1989).

  11. Fantasy Island

  The facts stated in this chapter are based on findings of the Royal Commission, published as Guns for Antigua, by Louis Blom-Cooper QC (Duckworth, 1990). I have drawn additionally on the transcripts of the Commission’s oral hearings and the exhibits submitted to it, and on the Hearings before the Permanent Sub-Committee on Investigations of the Committee on Governmental Affairs of the United States Senate, 12 and 13 September 1989 (Structure of International Drug Trafficking Organisations, testimony of Diego Viatara Salinas) and 27 and 28 February 1991 (Arms Trafficking, Mercenaries and Drug Cartels). Further details of Antiguan government corruption are to be found in the Report to the Government of Antigua relating to Roydan Farm by the law firm of Washington, Perito and Dubuc, a report not published by the Antiguan government. The Commission’s Report should be compared with the decision of the Antiguan High Court in quashing one of its recommendations: In an Application by Clyde S Walker (Redhead J, 25 July, 1995) ‘The Future of Colombia’ by Gabriel García Márquez was first published in Granta magazine (1989), and repeated in News of a Kidnapping (1997). The details of assassinations are found in The Fight Against the Drug Traffic in Colombia (office of the President, February 1990). No visit to Antigua is complete without reading Jamaica Kincaid, A Small Place (Penguin, 1988).

  12. Come Up and See My Boggs

  Contemporary accounts of the Old Bailey trial include Lawrence Wechsler, ‘Onwards and Upwards with the Arts: Boggs Part 1’ (New Yorker, 18 January 1988), ‘Part II’ (New Yorker, 25 January 1988) and Darcy Fre
y, ‘Dow Jones’s Man about the Commonwealth’ (The American Lawyer Jan/Feb 1988, p. 143). The Shock of the New by Robert Hughes and The Art of Paper Currency by Martin Monestier (Quartet, 1983) served as textbooks for the trial. For Boggs and his more recent brushes with the Secret Service, see Timothy Sultan ‘In Boggs we Trust’, the Spectator, 13 May 1995.

  13. Ali Daghir and the Forty Nuclear Triggers

  For the author’s more academic analysis of Daghir and other cases, see Entrapment Evidence: Manna From Heaven, or Fruit of the Poisoned Tree? The Criminal Law Review, November 1993. The Court of Appeal decision quashing the convictions of Ali Daghir and Jeanine Speckman was given on 25 May 1994. The Report by Congressman Gonzalez, Nuclear Triggers Sting, Commerce Blunders and CIA Deception was delivered to the US Congress on 18 February 1993. The US Government Treasury memorandum is dated 4 August 1989 and is headed ‘Request for Foreign Travel – Operation Quarry’. Daghir’s guilt was assumed by Time and Newsweek in their stories of his arrest: April 9, 1990. For a perceptive analysis of the case, as demonstrating that the functions of intelligence agencies and law enforcement are not compatible, see Nikos Passas and Jack Blum, ‘Intelligence Services and Undercover Operations: The Case of Euromac’ in Field and Pelser (eds) Invading the Private: State Accountability and New Policing in Europe (Dartmouth, 1998).