My first appearance in the matter was in the Victorian Supreme Court, before a judge who did not understand our arguments and took exception to my encomia to free speech – platitudes that I had uttered in the House of Lords, the Privy Council and in courts around the Commonwealth, but which he seemed to think unfit to be heard in Melbourne – the ghost of Arthur Rylah, I suppose, still haunted its courts. The judgment’s infelicities were sufficient for me to persuade three High Court judges that the case should be considered by the full High Court.
The problem, once again, was the novelty of our argument – that free speech required application of the law where the publisher resided, and not of law anywhere. It had theory, philosophy and practical sense but no precedents, certainly none from Australia. Justice Ian (‘the Tub’) Callinan said he could not understand the difference between the internet and a newspaper – and reading his judgment it is clear that I failed to enlighten him. Michael Kirby appreciated our argument, and wrote an extremely long judgment to demonstrate that he did, but then said that the time had not yet come to accept such a radical proposition. The other judges, good black-letter lawyers, could find no black letters to assemble in our favour. They were not bothered about the threat to free speech if wealthy plaintiffs could bring libel actions in any country, even in, say, Russia or Singapore.6 It was, however, an enjoyable experience to go briefly through a door I had never opened, to the court in which, had I returned to accept Bill Deane’s offer of pupillage (after my time as a Rhodes scholar), I would probably have practised. I was impressed by Murray Gleeson’s chairmanship – he had to keep a balance between the loquacious judges on his left-hand side (Kirby, Callinan and McHugh), and the huddle of know-it-alls on his right (Hayne and Gummow and my old friend Mary Gaudron), who had decided the case already and were probably whispering about the next. What most impressed me was the team of young associates, three attached to each judge, who were the smartest people in the room.
The High Court sent the case back to Melbourne for trial, and we prepared for a lengthy one, but mediation saved the day. Sir Laurence Street, former chief justice of New South Wales and mediator par excellence, settled it in a morning, without any damages to be paid by Dow Jones. The High Court’s decision stood in the law books and was initially followed by one or two overseas courts, but in time its flaws became apparent and other courts ‘distinguished’ it – which is a polite word that judges use when they think a decision is totally wrong.
Mediation, sometimes confused with meditation, is the art of separating clients from their lawyers and convincing them that compromise is cheaper and better for their mental health than gambling on a favourable outcome in court. It’s a mark of professionalism to encourage your client to embark on a process that could settle a case that would bring you fame and fees were it to go to trial. Both sides benefit, even when they think (as they usually do) that they are in the absolute right. That was the position as we hunkered down to fight for free speech over a disputed moment in the magical mystery tour of the Beatles.
The Beatles provided the music for my generation, and the muzak thereafter. Despite my friendship with George and Olivia Harrison, and a visit to Liverpool on a Beatles bus tour with Jules – I had a twinge of nostalgia on seeing the signs for ‘Penny Lane’ and ‘Strawberry Field’ – I was never much into the ‘swinging sixties’. I arrived in Britain too late – in 1970 – and was soon defending them (in the Oz trial) rather than enjoying them. I regularly find Beatlemania irritating because my route to work takes me down Abbey Road, where my car is usually blocked by fans taking selfies at the iconic crossing in front of the recording studios. But in 2008 I found myself investigating events in the lives of the band in 1968, when they fell under the spell of a yogi called the Maharishi (dubbed by Private Eye the ‘Veririchi Lotsamoney Yogi Bear’) and followed him to his ashram at Rishikesh in India to learn more from his teachings. Other disciples joined them – Mike Love of the Beach Boys, Donovan, Mia Farrow and her sister, but the visit was not a success.
Ringo left early, unable to stomach Indian food. Then ‘Magic Alex’, one of John’s hangers-on, claimed to have observed the sage in sexual congress with a female devotee. This for some reason upset John and George, who also decided to depart. ‘What have I done?’ implored the bewildered yogi as they took their taxis to the airport. ‘If you’re so cosmic, you’ll know,’ was John’s withering reply. He even wrote a song, ‘Maharishi’, about the incident: ‘Maharishi – what have you done? You made a fool of everyone.’ The opening words (and the song title) were later changed to ‘Sexy Sadie’ at George’s request – he was beginning to doubt the truth of the allegation Magic Alex had made. So too, later, did John, as Magic Alex had an ulterior motive for breaking them up with the guru; namely, to restore his own influence over the band.
So how, forty years on, did I come to research this alleged, if all too common, case of a spiritual leader interacting sexually with an adoring follower? My client, the New York Times, had published an obituary for the Maharishi.7 It recounted the above facts, noting that the Beatles had been at their most creative (The White Album) under the Maharishi’s benign influence, and might well have stayed together had they remained his disciples. Entirely legitimate speculation to make in an obituary written by a distinguished musicologist, one would have thought, but not if one was Alex Mardas, a.k.a. Magic Alex. He emerged from decades of obscurity as a rather seedy businessman in Athens, and hired an aggressive lawyer in London to sue the New York Times for the imputation that he was a ‘charlatan’ (they had so described him) and rumour-monger.
Initially I had his case dismissed on the grounds that it belonged, if anywhere, in New York. (Only a handful of copies of the paper had been distributed in London.) However, we lost on appeal – English judges are jealous of their reputation as libel globo-cops – and there was nothing for it but to prepare for what would inevitably turn into a trial of historic sex abuse, featuring a parade of famous, if faded, pop stars.
It was not difficult to prove that Alex was a charlatan. He had come to London in 1965 and found work as a television repairman, but with the aid of a vivid imagination and a copy of Popular Science magazine he had convinced the Fab Four – John, in particular – that he was a genius, indeed a genie, who could produce fantastical electronic inventions. They included:
A force field that would surround the Beatles’ homes with coloured smoke so the paparazzi could not intrude;
An artificial sun which would hover over the Apple Boutique in Baker Street and light up the sky;
Magic paint which would make objects painted with it invisible;
A flying saucer made from the V-12 engines of George Harrison’s Ferrari and John Lennon’s Rolls-Royce;
A seventy-two-track recording studio more technologically advanced than EMI could offer at Abbey Road.
Dubbing him ‘Magic Alex’, the Beatles paid him a large amount of money to proceed with these inventions, none of which came to pass. The seventy-two-track recording studio at Apple headquarters in Savile Row was built, but when the band went there to record ‘Let It Be’ it did not work, and they were soon back at Abbey Road with a furious George Martin, their producer, who could not believe their gullibility. All the stories about the imagination and incompetence of Alex Mardas actually added a phrase to English scientific language: the ‘Mardas Gap’ is used to describe the disparity between a designer’s promise and what that designer can achieve. So Mardas did have a reputation – as something of a charlatan.
But the problem remained that the burden of proving truth is squarely on the defence in libel actions. And how, after forty years, could we prove a negative – that the swami did not meditate sexually with a female follower? As with all such rumours, those who had heard it at the time had conflicting memories: was he meant to have groped Mia Farrow, or her sister Prudence, or a blonde nurse named Pat, who was there as a hanger-on to one of the celebrity guests? She was the likely victim in Paul McCartney
’s memory: he recalled John saying ‘Maharishi made a pass at her’, to which Paul replied, ‘What’s wrong with that?’ To which John indignantly replied, ‘Well, you know, he’s just a bloody old letch like everybody else. What the fuck, we can’t go following that!’
In time, and after more rational meditation, both John and George concluded that the Maharishi was innocent of an allegation Mardas had made to get them away from the guru’s influence and his ashram. But both Beatles were dead by the time of the libel action, and although there were former devotees scattered around the world who were prepared to come to London to testify as to the unlikelihood of the allegation, my case fell short of proving that the holy man had refrained from sin.
Had Mardas been suing a British newspaper, the case would have been simple to settle: a quick negotiation, a small published apology for any distress he had suffered, payment of his legal costs. But the New York Times was unlike any other newspaper. Its venerated publisher, Adolph S. Ochs, had decreed as long ago as 1922 that the paper would fight every libel action to the death – a policy which had served to deter gold-diggers and had produced in 1964 the famous Supreme Court decision in New York Times v Sullivan, in which the First Amendment was interpreted to protect any public interest journalism that was absent of malice. The edict hung framed in the New York Times’ boardroom – copies were faxed to any recalcitrant counsel who dared to suggest a settlement. Much as I valued the paper as a client (‘a litigant to breed from’), the Mardas case was not worth the candle. I had sent my colleague Jen Robinson around the US to dig out musical legends of my generation: the old rockers, hippies and hangers-on would have provided public entertainment for weeks, and Magic Alex might have been laughed out of court. But it would cost millions, so the New York Times agreed this time to relax its policy far enough to permit mediation.
The mediator usually shuttles back and forth between the parties trying to find some common ground, and Lord Hoffmann, my former Oxford tutor, did this for us in rented rooms in Athens. The parties are meant to stay apart, but I bumped into Magic Alex in person when he came out of his team’s room for a cigarette. We had a friend in common, which started our conversation – in no time he was telling me that, for business reasons, all he wanted was a statement that the paper did not intend to brand him a confidence trickster. He didn’t care about the Maharishi or money. On that basis the deal was quickly sealed: the paper agreed to state that it had not meant to imply that Mardas was a confidence trickster, and his action was withdrawn. And having met him, I do not think he was. A charlatan, of sorts, but one who was deluded about his own incompetence and inability to achieve his inventions, rather than a crook who took the Beatles for a ride, in a flying saucer provided by their V-12 engines.
Acting for the US media gave me a grounding in First Amendment theory to deploy against certain British taboos – for example, publishing what went on in a jury room. In America, jurors can give interviews, even write books about their experiences, but when the New Statesman published an interview with jurors explaining why they had acquitted the politician Jeremy Thorpe of murder, the attorney-general prosecuted its editor. At the time, I had been a barrister for only five years, and expected a QC would be brought in for the defence. Bruce Page, the editor, had other ideas: ‘You advised us we could publish, so you are the best person to defend your decision.’ (Also, I expect, the cheapest). I was confident of my advice: there was no law stopping journalists talking to juries, and in a democracy Parliament, not the judges, must make one. Parliament did, after my victory, banning jurors from talking out of court (most Australian states followed).8 I would not mind prohibiting jurors from selling their secrets or identifying colleagues, but now the law prevents them revealing impropriety or injustice, which inhibits research into how juries arrive at verdicts. There was a fear that transparency might expose inadequacies in the jury system – in which case, I believe it is better to know about them and try to repair them.
Another near-taboo subject in Britain was suicide: in 1981 the attorney-general tried to stop the Voluntary Euthanasia Society (VES) from publishing The Guide to Self-Deliverance – a manual detailing some surefire ways without resort to unreliable methods such as wrist-slitting or drug-overdosing. The guide, on my advice, was made available only to members and had a preface by Arthur Koestler setting out lots of reasons for living, but shortly after publication several members chose to die using the book’s recommended methods. I succeeded in court in beating off the attorney-general’s attempt to stop further publication, and the VES was tempted to put it on open sale.9 But, worried about the book’s availability for purchase by temporarily depressed teenagers, I found that my support for free speech had limits. My caution has been overtaken by events – they can now download the information from the internet.
In 1984 I authored (with a Doughty Street colleague, Andrew Nicol) Media Law. It began as a slim volume which we were tempted to call The Journalist’s Toothbrush, because so many reporters were being advised to carry an overnight bag when they went to court, in case they were sent to prison. Now in its sixth edition, this book runs to 1044 pages, and has always argued in favour of a public interest defence of ‘reasonable publication’ in libel cases. I was first able to argue for this defence in court when defending the Telegraph against a libel claim brought by the then unknown Saif Gaddafi, favourite son of the Libyan leader. It is not clear why he took action under English law, although it may have stemmed from advice I had given his father some years earlier. A novel had been published called The Fifth Horseman (i.e. of the Apocalypse) about Colonel Gaddafi’s fictitious plot to blow up Manhattan with a nuclear device, and I was summoned to the Libyan Embassy in St James’s Square to tell the colonel what could be done about it. Speaking through a translator to a client somewhere in a desert tent, I pronounced the book extremely defamatory (which it was – Gaddafiwas not a nuclear terrorist) and said I would be happy to act for him at a reasonable fee to obtain large damages. We would issue a writ and all he would have to do would be to fold up his tent and come to London to swear that he would never dream of acquiring weapons of mass destruction.
I did not hear from the colonel again, but he might have passed on to his son, a student at the London School of Economics, something of the wonders of English libel law. Saif sued the Telegraph over an article which tied him to a complicated currency fraud. The piece began ‘Like father, like son’, which was the only sentence – although it was plainly defamatory – to which he did not take exception. The article was probably true, but since it had come from intelligence sources we could never prove that in court.10 Our only chance was to pioneer a public interest defence, based on a free-speech right to publish important stories with reasonable care. By this stage the High Court of Australia had drawn an ‘implication’ from the constitution of a presumption in favour of free speech (but only on matters concerning politics), so I used that, and other straws in the legal wind, to argue for the Telegraph’s right to tell an important story, reasonably believed to be true, about the Libyan dictator’s son and heir.
Before the trial started, young Gaddafi went off to visit the Barrier Reef, with an entourage of retainers who picked up most of the prostitutes in Cairns and took them on a sex- and drugs-fuelled cruise to shoot at sharks. This provided ammunition for cross-examination, although I concentrated on ‘Like father, like son’ and on probing why Saif was so proud of the comparison. He came across as arrogant and brutal – the jury did not like him – and it was no surprise that, come the adjournment, his lawyers made a good offer to settle. We accepted, and over a drink to celebrate I told Conrad Black, the Telegraph’s proprietor, that he could have made legal history if we had turned down the offer and appealed to the higher court – the Law Lords – to create a public interest defence. He roared with laughter: ‘Let Rupert make new law – that’s the sort of thing he likes. We’re settling.’
Conrad was not entirely correct about Rupert’s legal valour. I acted fo
r The Times when it was sued by Michael Ashcroft, the Tory Party treasurer, over allegations that he had been using banks in the Caribbean as fronts for money laundering and drug trafficking. I put on a public interest defence which Ashcroft’s counsel, George Carman, tried to strike out. As we were arguing hammer and tongs in the courtroom, we were passed a note from our solicitors, saying that Ashcroft had met Rupert on a golf course in Florida and they had decided to settle. (‘The buggers,’ said George under his breath. ‘I haven’t agreed my brief fee!’) I could understand Rupert’s decision, and that of Conrad Black in the Gaddafi case: it is usually better to settle lawsuits rather than old scores. Ashcroft is very wealthy and has donated prize money to Britain’s Political Book Awards. In 2015 I won ‘Polemic of the Year’ for my book on the Armenian genocide, and had no hesitation in accepting the prize from him – like MI5’s Roger Hollis, he had been the victim of false allegations made by incompetent spooks (in Ashcroft’s case, at the US Drug Enforcement Agency).
Proprietors were understandably not keen to pay to reform libel law through the courts (the cost of taking a case to the highest court could add up to millions of dollars), and Parliament (the place, in a democracy, where the law should be amended) was slow to act because MPs wanted to continue to sue their critics with ease, and profit. But American editors at the Wall Street Journal had no such inhibitions, political or financial, and were happy to fund an exercise to extend the principles of First Amendment freedom to Britain, the country whose repressive sedition laws, used against the American founding fathers, had inspired them to pass the Amendment in the first place.
Rather His Own Man Page 41
