They were forced to troop back into the witness box to deny, unconvincingly, Con’s allegations. How had Con come into possession of the ink seals which matched those on the wrappings of the cannabis slabs seized in room 7068 at the Kensington Hilton? ‘It’s a mystery to me, sir,’ was the reply from a rather more respectful police inspector. He and the other police witnesses vigorously denied the allegations that they had ‘licensed’ Con to deal in drugs and had taken their cut from his reward money, but in order to do so their confident assertions, made the previous week, about Con’s reliability as an informer had to be jettisoned. It was not long before we had some new police officers sitting in the back of the court. They were from A10, Scotland Yard’s special squad which investigated allegations of corruption against police officers.
In the end, the judge had no doubt that the prosecution evidence should be excluded. Buckley, he held, was plainly an agent provocateur; Rafi was not dealing in cannabis and would not have done so without Con’s persuasion. Although informers were vital to detection work, it would be ‘unfair and ignoble’ to allow a prosecution based on the work of this informer to proceed. He directed that the evidence against the police should be sent to the DPP. Rafiwas released from the cells below the Old Bailey, to stumble into the summer sunshine. Buckley-related drugs cases awaiting trial were abandoned, and twenty-four prisoners convicted by this police team had to be released from prison. The full story was recorded on the front page of the Sunday Times, telling the tale of ‘Cornelius and the Case of the Vanishing Drugs’.3
These were remarkable results, and many law enforcers did not like them. They believed that lawyers should not examine the methods by which criminals were brought to book, or argue that evidence of their guilt had been unfairly obtained. It was no business of the courts, in other words, to set standards for the police. It would have been better, said these officials (and some judges agreed with them), had Rafipleaded guilty and gone to prison for six years, rather than having a trial which provided an opportunity for barristers to make public accusations against Scotland Yard.
The problem with this argument is that misconduct by police or by their agents will rarely be revealed unless there is an opportunity to do so in a court. The very reason police are tempted to conspire with criminals is because they know they will not be dobbed in by colleagues, nor called to account through internal disciplinary systems. What gives pause to the corrupt policeman is that wild card, the defence lawyer, who may just nail him in open court.
When the farcical trial was over, Mr Geoffrey Robertson QC crowed, ‘Mr Scargill is as innocent as a new-born lamb.’ If he believes that, he’ll believe anything … MR SCARGILL IS NO LAMB, MR ROBERTSON. NOR WAS HE BORN YESTERDAY.
The Daily Mirror editorial was understandably bitter. The newspaper had spent a fortune on investigating and condemning the miners’ leader Arthur Scargill and the National Union of Mineworkers over their desperate attempts during the 1984–85 miners’ strike to combat the Thatcher government, which was determined to close the pits. There had been trusts created, bank accounts opened, donations put in and taken out, and the Daily Mirror had made these transactions sound deeply dodgy. They had been undertaken, after all, on behalf of miners, men who work with their hands for modest wages. It was outrageous – possibly even criminal – for such people to have trusts in their favour, operated through overseas bank accounts: who did they think they were, Robert Maxwell?
Encouraged by their proprietor, ‘Capt’n Bob’ Maxwell – who was still, at this point, larger than life, his massive theft of his own workers’ pension fund as yet unexposed – a team of rather dim-witted journalists at his Daily Mirror had gone about the business of destroying Arthur Scargill. They paid £50,000 to his driver, and £80,000 to one of his officials, for confidential information and documentation. They published the result of their investigations under banner headlines which ran for four days calling Scargill a crook. The Mineworkers Union set up an independent inquiry conducted by a former judge, which exonerated Scargill of all the serious accusations. It did, however, raise a number of criticisms and questions relating to trust law and accounting practice, and it was read with interest by an obscure and hitherto inactive government official called the Certification Officer for Trade Unions. It struck him that the Mineworkers Union had not disclosed any trust funds in its 1984 report, and there was an argument in law that it had a duty to do so. There was also an argument in law that it had no duty at all to do so. Instead of asking Parliament to clarify the law, or notifying unions that in future funds of this type would need to be notified, the Certification Officer embarked in 1991 on a very belated criminal prosecution for ‘wilful neglect’ to notify his office of the existence of trusts which (although outside the union’s control) were designed to benefit its striking members. The maximum fine was only £400, although the vast number of journalists who congregated in and around the court might have suggested to an uninformed onlooker that Arthur Scargill – at the time Margaret Thatcher’s main enemy – was up for serial killing.
It fell to me to open the defence and to urge the judge to dismiss the charges on the grounds that there was no admissible evidence to support them. I explained how the matter originated in allegations of corruption against the defendants made ‘in a national newspaper as a result of very extensive bribes, not disclosed to its readers, which have obviously tainted the evidence of the prosecution witnesses who received them’. For this attack on its behaviour (and, more importantly, I suspect, for getting Arthur Scargill off the charge), the Mirror editorially condemned me. I could wear that – all in a day’s work when you defend unpopular people who happen not to be guilty of the charges brought against them. But the editor of the Daily Mirror, one Richard Stott, was not content to attack me in his editorial. For the first and last time in my career I was made the subject of a complaint to the Professional Conduct Committee of the Bar Council that was credible enough for this disciplinary committee to investigate. My misconduct, in Stott’s eyes, was to subject his precious newspaper to gratuitous criticism by falsely accusing it of ‘bribing’ its informers by paying them large amounts of money.
Any complaint against a barrister by the editor of a national newspaper (the Mirror had a circulation of around three million) had to be taken seriously. It was, and I was called upon to explain my conduct. I was confident that the offending words had been relevant to our defence, and not inaccurate in relation to the conduct of the Mirror, which had rewarded potential witnesses with large sums of money for breaking the confidences of their ex-employer. But any lawyer who defends himself has a fool for a client. So I consulted Richard Du Cann QC, a former head of the Professional Conduct Committee and the advocate whose views on ethical matters I most respected. I found myself, at the close of our discussion of the case, feeling that sense of dread which so many clients must feel as they come to the crunch with their counsellor: ‘Do you think I have anything to worry about?’ Dick was too fond of teasing not to let several miserable beats go by before expostulating ‘No!’
The Professional Conduct Committee gave long and careful consideration to Stott’s complaint, and dismissed it after a spirited discussion. They had studied transcripts of the trial, obtained responses from all the other participants, and could find no basis for criticising me. Any professional disciplinary body which sits in secret and dismisses an unjustified complaint is an easy target for criticism, however, and I would have preferred the matter to have been dealt with publicly. I doubt whether Stott would have relished the publicity his rivals would have given to the question of whether the Mirror’s ‘chequebook journalism’ amounted to ‘bribery’ when it amounted to £130,000, but he worked himself into a high lather of indignation for one last abusive letter to the Bar Council about its verdict, which he ungraciously copied to me:
Thank you for your letter regarding the ‘investigation’ into the conduct of Mr Geoffrey Robertson QC. Once again you have fully vindicated the reputation
of your Council for justice not only not being done, but not being seen to be done.
Fiat Justica! I suppose there is somebody still at the Bar who understands Latin. Incidentally, I know you are not over-fastidious about accuracy but the name is Stott, not Scott.
This masterpiece of injured dignity (he had been addressed as Richard Scott) was dated 13 September 1991, a few weeks before Robert Maxwell, unable to face an investigation of his criminality in looting the Mirror’s pension fund, committed suicide by jumping off his boat in the middle of the night in the middle of the Mediterranean. The absurd Stott first wrote hagiographic obituaries (‘The Man Who Saved the Mirror’) and then, at long last and only when it was safe to do so, acknowledged the truth (‘Maxwell Was a Crook’). Although he had failed to uncover the massive criminality taking place under his own nose, he was said to be a good editor, and in defending his staff he was doubtless doing what he thought was his duty, and I was sorry he could not see that I was doing mine in defending Arthur Scargill.
14
In the Privy
There was another far-off court which as a teenager I had dreamt of one day addressing – the Privy Council, the ultimate court of appeal for Australia until 1986. On the staircase of its building in Downing Street, a few doors from the home of the prime minister, hung portraits of long-dead Law Lords who had once decided the meaning of the constitutions of all the countries in the Commonwealth. Their successors, still with many constitutions in their keeping, sat at a horseshoe-shaped table facing counsel, who stood to address them from a big polished lectern. I had a rush of adrenalin whenever I stood at this lectern, from which Doc Evatt and Garfield Barwick, Bill Deane, Sir Isaac Isaacs and other great advocates had argued their interpretations of the Australian constitution. Through the high windows on my right I could see Big Ben and a parade of black taxis and red double-decker buses which reminded me that this courtroom was once at the epicentre of the British Empire. It jurisprudentially orbited in space, landing one day in Antigua, another in Brunei, another in Mauritius. The concentrated legal minds in the chamber had to imagine they were in the slums of Kingston or the tenements of Hong Kong or the sheep-filled meadows of New Zealand, depending on the nature of the case and the country in which it arose.
The proceedings were sedate – there was none of the bustle and drama of the Old Bailey – but they could be of great political importance to member states of the Commonwealth. The high walls of the courtroom were lined with law reports, and nearby was a library with the laws of every country within the Privy Council’s jurisdiction. I loved the atmosphere of this place and its ghosts from colonial history. When the Privy Council was moved, in 2009, to the Supreme Court building down the road in Parliament Square, I begged various High Commissions to purchase the building and turn it into a museum of Empire history. None was interested, least of all Australia.
It was as a death-row lawyer that I first climbed those stairs, to what I hoped would be justice for men in the Caribbean who were facing execution. Death-row petitions were heard every Tuesday, when the Law Lords who sat ‘on the Privy’ would interrupt their hearings of cases they thought more important – about gas pipelines in Brunei or bridge collapses in New Zealand – and listen to our last-ditch appeals.
The real problem for death-row lawyers is that you can never abolish the death penalty, you can only make it harder to carry out. We can, of course, find errors in the legal process, and I would spend weeks scouring dog-eared trial transcripts for such errors. But the death penalty itself is untouchable. If people in a democracy vote to support it, there is nothing the courts can do to strike it down, because that would be to defy the will of Parliament. It’s no use calling evidence to prove that the death penalty is no deterrent to crime. (Since 1990 states in the US without the death penalty have had consistently lower murder rates.)1 Rational argument gets you nowhere – the courts simply have no power to stop hangings, or lethal injections, or the operatic barbarity of death by firing squads, or Stalin’s favourite procedure (and actually the least agonising of all) – an unexpected bullet in the back of the head while being walked down a dark corridor.
In the Caribbean, the most ironic thing was to see black politicians following their colonial masters: they did not hang women, but for men convicted of murder they kept all the sadistic rituals of the gallows – reading the death warrant outside the cell of the condemned man; weighing and measuring him for the drop; the execution always at dawn, witnessed by an official party who would sit down to a cooked breakfast while the body twisted in front of them for the regulation sixty minutes. The body was never returned to the relatives, so that they did not see the ‘giraffe effect’ – hanging elongates the neck. In Jamaica’s main prison, they buried the corpses in the kitchen garden – and produced the best vegetables in the country.
I would visit these death rows, in Trinidad and Jamaica, where men waited years to be executed – governments changed, appeals took a long time, nobody was hanged until the public demanded vengeance after a nasty murder. And of course, as was the case with Chan and Sukumaran in Indonesia, ten years later the state is not killing the same man who has committed the crime. Some of the men I defended were reformed individuals. Some had become mentally ill. And some had always been innocent – the very fallibility of criminal justice is another strong objection to the death penalty.
The argument that has now virtually stopped executions in the Caribbean and East Africa came to me when I visited Michael X. His real name was Michael de Freitas, and he had been a Black Power figure in Britain in the sixties and a friend of John Lennon.
In 1971, Michael X left London and went home to Trinidad, where he founded a commune: in due course de Freitas was convicted of a murder committed there and sentenced to death. I met him when he was one of the living dead, on death row at the Royal Gaol in Port of Spain, with thirty other men, each in monkey cages that measured 8 by 6 feet, with a mattress and a slop bucket. They were kept in those cells for twenty-three hours a day in sweltering 35-degree heat, and subjected to a cacophony of screeching and screaming from other inmates.
As I sat with Michael, for several hours on several days, I began to appreciate what I later termed ‘the death row phenomenon’, a form of mental torture caused by alternating hope and despair. Listening to the reading of the other men’s death warrants and the sound of the trapdoor opening in the execution room next door induces mental derangement in doomed men who do not have a kill-by date. It gave me an idea. I said to Michael, ‘This is actually a place of mental torture. Maybe we should argue that a long stay on death row amounts to torture, which is banned by the constitution.’
I’ll never forget what happened next: Michael smiled, for the only time during my visits, and put his finger to his lips. ‘Shhh,’ he said. ‘Listen. This place is always full of noise.’ At that moment there was total silence. Every man on that block was pressing against the bars of his cage, leaning towards us and straining to hear. ‘You must realise that for them you represent hope,’ Michael said. ‘Their only hope. Promise me that one day you will make this argument, for their sake, not mine. They will hang me, no matter what.’
Notwithstanding his prophecy, we took the argument – that a protracted period on death row amounted to torture – to the Privy Council, but Lord Diplock derided it; he said the delay was Michael’s own fault for appealing.2 I looked into my books for a precedent and was reminded that in the Robert Tait case in Victoria, Henry Bolte and Arthur Rylah were stopped by Australia’s High Court from hanging Tait pending his psychiatric examination. I was about to file for an injunction, so we could arrange for such an examination for Michael, when the Trinidadian government rushed him to the gallows, at midnight, without telling us, so that we could not get a judge to stay his execution.
I had made a promise to him that day on death row, when silence fell, and twenty years later I was able to fulfil it when my argument finally succeeded. A prolonged stay on death row, the Privy Coun
cil ruled in 1992, amounts to torture, and means the death sentence has to be commuted. This case, Pratt & Morgan v Attorney-General for Jamaica, took a month to argue – the Privy Council sat seven rather than the usual five Law Lords for the first time in fifty years, since the Australian Banks Nationalisation case, when Doc Evatt spoke for so long that two of them died while listening to him.3 The judgment in Pratt & Morgan has led to the commutation of death sentences in over 1000 cases in the Caribbean and throughout East Africa. It is the case I look back on with most pride – it took six months to prepare, pro bono, and I led a team of barristers from my newly established chambers in Doughty Street. It demonstrated the importance of upholding international humanitarian standards for prisoners, even for convicted murderers.
Another case that illustrated the danger of the death penalty – and the difficulty of oral advocacy in America – was that of Krishna Maharaj, whom I met on death row in Florida and represented before the state’s Supreme Court. He had been convicted of a brutal double murder, of a father and his son, and was sentenced to die in ‘Old Sparky’ – the electric chair in Florida State Prison. I was not surprised that the jury had convicted him: although he had seemingly credible alibi witnesses, the prosecution had evidence of a grudge against the victims, his fingerprint in the hotel room where they were murdered, and even an eye-witness – flaky, but the jury believed him. The task was to have his death sentence commuted, and because he was British, several hundred MPs had instructed me to make the argument on his behalf, and I was specially admitted to the Florida Bar to do so. It was an unnerving experience addressing its state Supreme Court: I was allocated only twenty minutes to distil my written submissions. (Even in the US Federal Supreme Court advocates are allowed only half an hour.) There was a green light on my lectern which flashed red when I had two minutes left and stayed red when my time was up – an advocate who takes any extra time can be punished for contempt of court.
Rather His Own Man Page 34
