Geoffrey Robertson's Blog, page 6

War crimes: Charles Taylor now, Bashar al-Assad next | Geoffrey Robertson

Justice has a momentum, and as Liberia's ex-leader is jailed, he's certain to be followed by other despots

International criminal justice grinds slowly, but it can grind exceedingly small. Charles Taylor was first indicted in 2003 for crimes against humanity, in a UN court over which I presided. Then, he strutted the world stage as a head of state. Ghana refused our request to arrest him when he visited, and Nigeria gave him refuge for several years. There was a general expectation that he would escape trial, but the whirligig of time brings its changes and revenges: Taylor was sentenced to 50 years imprisonment, for aiding and abetting 11 kinds of war crimes and crimes against humanity – ranging from terrorism, rape and murder of civilians, to recruiting child soldiers and child sex slaves.

The power to punish heads of state for crimes against humanity is a recent discovery: Cromwell's lawyers managed it with Charles I, but their judges were in due course executed for treason. Napoleon we exiled instead to St Helena, and not even FE Smith and Lloyd George could persuade their allies at Versailles to try the Kaiser for invading Belgium.

Nuremberg created a precedent, but it was not until Augusto Pinochet came to London in 1998 to take tea with Mrs Thatcher that the idea of ending the impunity of political and military leaders seemed possible. In those days it was bitterly controversial: the pope, Henry Kissinger, George Bush Snr, and even Fidel Castro wrote to Jack Straw demanding that he be freed. But today there are no such efforts on behalf of Taylor: international justice is here to stay.

That does not mean it should be welcomed uncritically, or that its principal defect should be overlooked – namely it does not in practice apply to the "big five" powers in the security council, or to their close friends (hence Syria's Bashar al-Assad has thus far escaped indictment because Russia supports him). But justice has its own momentum, and this selectivity will change. The importance of the Taylor decision, for example, is that it creates a precedent for prosecuting those who "aid and abet" by sending assistance to brutal factions in a civil war. President Ronald Reagan's conduct in arming the Nicaraguan Contras, if it occurred again, would be seen as comparable to the conduct for which Taylor was convicted.

Taylor supplied arms, ammunition and money to the rebels (and even the herbs that child soldiers were told to rub on their bodies to protect them from bullets) in return for a share of their spoils. What fixed him with criminal liability was that he provided this assistance at the time he knew, from reading newspapers, that the rebels were committing widespread and systematic atrocities. On this basis, any political or military leader who sends arms or ammunition to the brutal forces in Syria is guilty of aiding and abetting what is clearly a crime against humanity.

The Taylor proceedings are far from over: both prosecution and defence are appealing. The prosecution in fact suffered some serious defeats: it failed to prove beyond reasonable doubt that Taylor was "godfather" (in league with Colonel Gaddafi) of the mass-murdering and mass-mutilating rebel factions, or even that he had joined in their blood-curdling conspiracy. But, according to the court, he knew and he approved and he assisted. It is open to question, however, whether this is enough to convict him of aiding crimes which require "specific intent", such as rape or terrorism, so his appeal may on these counts be upheld.

An example of how international justice still needs improvement is provided by the three-year duration of Taylor's trial (seven months were taken up by his own testimony) and the unacceptable 13-month delay in delivering the judgment. Particularly jarring is the 50-year sentence, which consigns Taylor to prison until his 114th birthday. The US prosecutor, ludicrously, had demanded 80 years. It is a peculiarity of American criminal justice to sentence people to terms that expire long after they will: it is a custom both irrational and cruel which should have no place in international justice.

The UK has offered to house Taylor in its prisons, but not for a sentence of such unconscionable length. The appeal court is likely to reduce it. Taylor was, after all, acquitted of much more serious offences; and for all the horror produced by his money and his munitions, punishment must always be kept in perspective. The real problem for international justice is the diplomats and politicians – in the security council – who refuse to send those who ordered the bayoneting of Syrian children in their homes to the international criminal court.

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James Murdoch – the most forgetful manager in the world | Geoffrey Robertson

James Murdoch's hands-off leadership style has been a disaster for News International. Can the culture of its press be changed?

James Murdoch – the world's most forgetful manager – was lightly grilled this week by a "parliamentary select committee" of MPs selected only by virtue of their inability at cross-examination. It was a lengthy reprise of "Yes you did" (know about all the illegal hacking) and "No, I didn't" (because my editor, my lawyers and my executives failed to tell me the truth).

This tactic is known as "confession and avoidance" – you confess that all these dreadful things happened on your watch, but you saw and heard no evil, and certainly were not told about them by the editor (Colin Myler) or the lawyer (Tom Crone) who "misled" (ie lied to) the committee back in July when they said they told Murdoch about the hacking back in 2008.

The question that News Corporation investors will no doubt ask is what the chief executive thought he was doing, settling privacy invasion claims for hundreds of thousands of dollars more than they were worth, if it was not to cover up something very nasty that he ought to have known about. After all, who signed off on the lavish payments to hackers and snoopers and round-the-clock "surveillors"? How is it that Murdoch's state of blissful ignorance lasted for four years, while rival newspapers were exposing aspects of the scandal and News International was responding with the "one bad apple" defence crafted in 2007 when the News of the World's royal correspondent was jailed?

It is this length of time during which the allegations were allowed to fester that is so puzzling. The right and sensible thing to do was to have them properly and fully investigated, then to sack anyone involved for misbehaviour and turn the evidence over to the police. But morality is what they apparently do not teach you at Harvard Business School. In any event, the truth about industrial-scale crime is very likely to come out, and chief executives are well advised to lance the boil rather than to cover it up, or turn a blind eye.

So what happens now? The select committee is an amateur exercise of little legal consequence – it will now write its report, although under UK contempt law it will be severely limited in its comments in case they prejudice impending trials. These trials are likely to be further delayed because News International has deluged Scotland Yard with 300m emails, which will take the police years just to read. So far they have identified 5,700 potential victims of phone hacking, and most of these will eventually sue, with damages and legal costs likely in time to total upwards of £500m.

Murdoch took every opportunity to insist that the culture of the company was changing. But it is hard to see how it will recover from the damage if he is to be the dynastic exemplar: his incurious, hands-off management style has been a disaster. Certainly the old tabloid ethos has gone – Les Hinton retired early and Andy Coulson and Rebekah Brooks have been arrested, along with a dozen inky-fingered journalists from the old News of the World (and, significantly, one who was arrested last week from the Sun).

In Australia on Wednesday, there came the shock resignation of another old-school Rupert Murdoch supremo, John Hartigan, who ran the rightwing papers that have 70% of the national circulation. This was in advance of an independent inquiry into Australian media that may uncover more nastiness (although Rupert Murdoch has always insisted that he would not inflict his tabloids on his native land, because he wouldn't want his mother – Dame Elisabeth Murdoch – to read them).

It may be a harbinger of things to come that Hartigan has been replaced by Kim Williams, a widely respected figure in the arts who began his career by managing string quartets and ended at Fox Studios, where he has supervised some quality films and documentaries. Change the culture of the Murdoch press by bringing in culture? Stranger things have happened.

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Threat to press freedom

Police officers investigating the crimes of News of the World journalists have misguidedly looked to the Official Secrets Act for help

The latest threat to press freedom comes not as a result of the crimes of News of the World journalists, but from the foolishness of police officers charged with investigating those crimes. They have reached for the blunderbuss of the Official Secrets Act (1989) in a misguided attempt to obtain access to the sources of the information about the hacking of Milly Dowler obtained by Guardian journalists in their coverage of the scandal.

That coverage has exposed not only the hackers but also the incompetence of the police, and it is no doubt for that reason that Scotland Yard is overzealous in its latest attempt to discover their sources.

But it is doing so in a manner unauthorised by law, which requires protection for journalists' sources for the very good reason that they would dry up if informants promised anonymity were to be exposed and prosecuted.

This was established in the leading case of Bill Goodwin v UK, when a young reporter who courageously refused court orders to disclose his source was vindicated by the European court of human rights, which held that the watchdog role of the media would be imperilled if government agencies were able to force disclosure of sources in order to subject them to reprisals. The spectacle of Sarah Tisdall, the defence department clerk cruelly jailed for revealing the date of the arrival of cruise missiles at Greenham Common, should never be allowed to recur.

This attempt to get at the Guardian's sources is not only a blatant breach of the Human Rights Act and article 10 of the convention, but it appears to involve a misapplication of the Official Secrets Act. Section 4 of that act protects information which would impede the arrest or prosecution of offenders, and is appropriate for prosecuting police officers who sell intelligence or tip off criminals.

Scotland Yard apparently justifies its application for a draconian search order on the theory that the journalists may have "incited" officers to disclose confidential information to them. But the court of appeal in David Shayler's case made clear it would take an "extreme case" for a journalist to be guilty of incitement. There would need, for example, to be the offer of money, which is not alleged here. There is nothing to suggest that the information the journalists obtained was "damaging", a requirement for prosecution.

The allegation of incitement appears to be a device to obtain journalistic sources of a revelation that was overwhelmingly in the public interest. Indeed, it was in the international public interest, informing as it did the worldwide interest in the parliamentary select committee's invigilation of the Murdochs. Why, then, is this not a defence? Back in 1989, when the act was going through parliament, the Labour and Liberal opposition urged that a public interest defence should be incorporated, but the Thatcher government, hostile to the media after its embarrassment over Spycatcher, was implacably opposed. Clearly, the time has come for the coalition to make good its claim to support press freedom by making this belated amendment to the Official Secrets Act.

In the meantime, what can be done immediately about Scotland Yard's oppressive initiative? The government cannot avoid responsibility, as the attorney general is required under Section 9 of the act to approve all prosecutions, and it logically follows that he should intervene at the earliest stage to stop Scotland Yard preparing a misguided prosecution in a manner which breaches the law. The matter should be raised in parliament, much as the Speaker was condemned for allowing the unconstitutional Scotland Yard searches of Damian Green's office in the hope of finding documents implicating his source.

If the attorney general is inhibited from acting, and the police refuse to take advice from the DPP, then the matter will proceed to court. The journalists may be faced with the unhappy dilemma of having to consider whether to destroy their notes were the court to. If they have promised their source(s) confidentiality, no doubt they will do so and go to jail for contempt of court. That will be an ironic tribute to the stupidity of Scotland Yard – a police service that fails to investigate criminal hackers but puts in jail the journalists who exposed them.

Geoffrey Robertson QC is co-author of Robertson and Nicol on Media Law (5th edition, Penguin)

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Gaddafi to The Hague | Geoffrey Robertson

David Cameron is wrong. Justice can't be left to the Libyans. It's time to start putting tyrants on trial

The fall of a tyrant is usually the cause of popular rejoicing followed by public vengeance. This is the fate the rebels obviously want for Colonel Gaddafi – hence their £1m bounty on his head and offer of a pardon for his killer. But it is just possible, should he be taken alive, that we will enter a new and better era in which tyrants will instead be dispatched to The Hague for fair trial in an international court for their crimes against humanity.

David Cameron has made one serious mistake – parroted repeatedly by the international development secretary, Andrew Mitchell – by insisting that the fate of the Gaddafis should be a matter for the Libyan people. This was the line George Bush took after the capture of Saddam Hussein, as a rhetorical cover for his determination that the death penalty be imposed on the Iraqi despot by politically manipulated local judges.

It is too much to expect that Gaddafi can receive justice at the hands of those whom he has repressed for so long, in a corrupt judicial system that he controlled (and so could not be considered "judicial" in any real sense). It must now be reconstructed from scratch, with new judges independent of the National Transitional Council. That gimcrack organisation's UN spokesman said that it wants to organise Gaddafi's trial, but it is plainly unable to secure an unbiased legal process when he does fall into its hands. The bounty on his head seems to confirm the NTC's preference for Gaddafi's summary execution.

There is a more important reason of principle why the fate of the Gaddafis must not be left to the Libyans. The colonel is charged with crimes against humanity – the mass murder of civilians by perpetrating offences so barbaric that the very fact that a fellow human being can commit them demeans us all. Ordering the massacre of 1,200 captives in a prison compound, blowing 270 people out of the sky over Lockerbie, and almost as many in a UTA passenger jet over Chad a few months later – these are merely the most egregious examples of international crimes committed by the worst man left in the world. It is essential, therefore, that Gaddafi face real justice in The Hague and not revenge in Benghazi.

Moreover, liberation has come to the Libyans by courtesy of international law and they have a reciprocal duty to abide by it. The UN security council decided, by adopting resolution 1970, to refer the situation there to the international criminal court in The Hague, which in consequence brought down the indictments on Gaddafi, Gaddafi's son Saif and Abdullah al-Senussi, a relative who heads their intelligence service. By adopting resolution 1973 the security council mandated Nato action in order to protect civilian lives, and nobody pretends that the regime could have been overthrown without that air, sea and logistical support. The rebel leaders have a legal duty to hand any captured indictees over to the ICC, and the UK should insist that they do so.

Perhaps most importantly, the idea of putting tyrants on trial has caught on in the countries that they tyrannise. The slogans in the Syrian streets this week say "Assad to The Hague". There is an expectation of justice that has arisen in the Arab spring, and Cameron must not disappoint it.

"Gaddafi to The Hague" will send a chilling signal to all other governments tempted to kill their own people. There is no decent or lawful alternative, and leaders of Nato countries must make that very clear to the National Transitional Council.

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Get Rupert Murdoch on the Leveson inquiry stand | Geoffrey Robertson

David Cameron is naive to rely on the police to get to the truth. Leveson must be unleashed on News International – now

'Be ye ever so high, the law is above you" is the great principle that embodies the rule of law. The Leveson inquiry established today will have the power to question Rupert Murdoch in public, even if the police from Operation Weeting lack the gumption to detain him in custody to assist with inquiries. Anyone whose employees engage in bribery, corruption or other crime for his benefit should be called upon to explain if they knew or approved, if only to exculpate themselves from secondary liability (eg for conspiracy, incitement, or aiding and abetting a criminal offence).

The prime minister thinks that Leveson should concentrate first on press ethics, and not proceed to uncover the truth until police inquiries are finished and any trials have run their course. This process will take at least three years (the police phone-hacking investigation still has 3,800 victims to contact) and presupposes that police officers have the intellectual ability to get at the truth, through any miasma given off by corrupt colleagues and journalists and newspaper executives under suspicion. And police inquiries are inadequate: suspects and potential witnesses have a right not to answer questions, and no duty to tell the truth if they do.

The incompetence of Scotland Yard in political cases was on public display on Tuesday, when senior officers admitted to abject failures in elemental detection and a forelock-tugging acceptance of anything News International told them, however obviously evasive or self-interested. After this display of how constabulary duty is not done, how naive is the prime minister in believing that a police inquiry is capable of getting to the bottom of this scandal?

Murdoch provides an acid test. As proprietor he could at least be expected to check any significant payments, to ensure that his company gets value for money. This was the basis for Michael Foot accusing him of personal responsibility for that infamous defamation in the Sunday Times – "KGB: Foot was our agent" – namely that he would have checked the payment made for the serialisation on which it was based. Several editors are on record confirming his practice of personally checking their expenditures. Someone in authority must have asked about the benefit of a six-figure payment to Glenn Mulcaire.

Mulcaire's position is intriguing. The police have 11,000 pages of his notes, but do not appear to have questioned him beyond his rifling of royal privacy in 2006. Whether he is prepared to talk to police is unclear – he cannot be required to answer their questions, and it has been reported that he is being financially supported by News International. Since he apparently knows where most of the bodies are buried, it is essential that Leveson require him to answer questions – on oath, in public and soon.

What Cameron fails to appreciate is that the Inquiries Act of 2005 protects suspects, by preventing any judicial finding on criminal or civil liability. Leveson has legal powers to obtain documents and require Murdoch and Mulcaire to attend for public examination; it could begin public hearings in October and deliver a report by Easter. Far from damaging News International it would actually provide an element of fairness to journalists and executives overwhelmed by spiralling allegations that they cannot effectively contest.

The question of press ethics should come second, not first, and be answered with reference to the full facts of the scandal. Cameron's preference for independent regulation is much better thought out than Ed Miliband's "instinct" for self-regulation. Doesn't he realise that almost every form of self-regulation has been tried in this country, and has abjectly failed?

When the leader of the opposition was in short pants, I chaired an inquiry set up by the NUJ. We concluded that the press needed two bodies: one to provide a full-blooded defence of media freedom (even more necessary today); and an ombudsman with statutory powers to order rights of reply and factual corrections with due prominence, adjudicate (or mediate) code of conduct disputes, and arrange legal and ethical training for journalists (and refresher courses for editors). This very limited form of regulation carried no dangers to press freedom: it works on the basis that the cure for abuses of free speech is more speech.

Journalism is not a profession. It is the exercise by occupation of the right to freedom of expression that is available to all, and cannot be taken away by any statutory system of licensing. But when journalists, editors and executives stand accused of widespread breaches of criminal law, they should have no place to hide. The Leveson inquiry should be fully resourced, with counsel and investigators working over the summer so that Messrs Murdoch and Mulcaire can take the stand in October. Unlike the Hutton inquiry, Leveson must be televised – and not only by BSkyB.

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News of the World: A newspaper is gone, but an inquiry is as urgent as ever | Geoffrey Robertson

There must be a public inquiry into the culture of the tabloid press, the bribery of police and the failure of self-regulation

So farewell then, News of the World. We will remember Squidgygate and Camillagate, the buying up of witnesses ("blood money"), the "kiss and sell" affairs, the celebrity hacks and most recently the phone hacking. Its editors have been "drinking at the last chance saloon" for 30 years, which should enter the record books as the longest swill in history.

It saw off the powerless Press Council, replaced by the worthless Press Complaints Commission (PCC). Nothing has really changed since it was condemned for publishing topless pictures of Diana on a private beach, to which judgment the paper responded by republishing them under the headline "This is what the row's all about, folks".

The News of the World proved that, whenever cutthroat circulation was at stake, self-regulation was bound to fail in instilling any sense of ethical conduct, or even respect for the criminal law, in the business of tabloid infotainment. That is partly because we are an excessively prurient society, addicted to Sunday morning schadenfreude as we read of other people's griefs and adulteries. But it is also because the harlot's prerogative through the ages, of power without responsibility, has cowed most of the democratic institutions that should stand up for decency and the rule of law.

For all the self-righteousness on display in parliament, MPs took their cue from the prime minister's utterly mistaken assumption that there should be no public inquiry until police investigations had run their course. By which time – years into the future, as Scotland Yard virtually admitted yesterday, engulfed by 11,000 pages with 4,000 names (and that's just for 2006) – memories will have faded and News International will be the proprietor of BSkyB.

This is exactly the situation that the Inquiries Act of 2005 was passed to avoid. It permits a speedy and authoritative examination of a matter of scandal and concern, so as to allay public disquiet and ensure the scandal is not repeated. Such an inquiry does not pre-judge trials – it has no power to determine anyone's civil or criminal liability. But its chairman has the power to require the production of documents and to insist that anyone – even Rupert Murdoch – attend for public examination. This power can be enforced by the high court, on pain of criminal sanction. Such an inquiry is set up by resolution of both houses of parliament, to examine a matter "of urgent public importance".

The issues that need urgent inquiry are not made any less urgent by the closure of the paper. They are not only those identified by the prime minister, such as the ineptness of the original police investigation. There must be an examination of the culture of the tabloid press, the bribery and corruption that has gone on between journalists and their police sources, the total failure of self-regulation (and how to replace it), the inadequate training of journalists in law and ethics (most had no idea that phone hacking was made illegal in 1998, and still regarded payments to police as "inappropriate", when in fact they are seriously criminal).

Previous royal commissions into the press – the last reported in 1975 – did achieve some useful reforms, especially by introducing rules to protect against media monopolies (scandalously ignored by John Biffen when Murdoch took over the Times and Sunday Times) and laying down the test for "fit and proper" proprietors. That is a test which a public inquiry would be much better equipped to answer than Jeremy Hunt, a judge in his party's cause.

There can be no excuse to delay, other than fear of News International (and, to be fair, the company has said it would welcome a public inquiry). Moreover, police inquiries in this area have not been very competent or comprehensive; witnesses and suspects do not have to answer questions; there will be no attempt to get at the truth about ethical standards. Police are notoriously poor at investigating senior police officers, whose relations with media executives need to be put under the microscope. In such sensitive and political matters, Britain is still in the age of constable Dogberry – in the US, the process would be conducted much more effectively by special prosecutors, and in Europe by examining judges.

So a public inquiry under the 2005 act, set up in the next few days with a clear brief (which must include BSkyB) and a deadline to report in six to nine months, is the sensible way forward. David Cameron is right to avoid a sitting judge – they should be kept out of politics. Fortuitously, two leading jurists who have valuably contributed to intellectual debate on press freedom – Lord Hoffmann and Sir Stephen Sedley – have recently retired, and may be available to chair.

A few respected members of the press and public should be appointed to the tribunal – the likes of Kate Adie, Martin Bell, Richard Branson and Harold Evans come to mind. With its own counsel and team of investigators, the hearings could begin in October and be over by Christmas, with the report published by Easter. Hunt has postponed his quasi-judicial decision on BSkyB until September, but no one will believe it is in any sense "judicial" unless it is informed by a proper inquiry into the fitness of News International.

The closure of the News of the World must not end the debate over the ethical limits of tabloid journalism: this dramatic gesture should be a signal to begin it in earnest. The PCC is a confidence trick that has ceased to inspire confidence – other countries which respect free speech have statutory "press ombudspersons" who adjudicate public complaints, direct retractions and compensation, enforce rights of reply and monitor ethical standards. Had the British media been prepared to accept this form of statutory regulation, the public would be enjoying the News of the World for years to come.

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Robin Vincent obituary

Legal pioneer who brought justice to war-torn Sierra Leone

Robin Vincent, who has died of cancer aged 67, was an unsung hero of the international justice movement. At the time it was faltering after 9/11, he stepped out of the genteel environs of the Lord Chancellor's Department into war-torn Sierra Leone, and not only set up an international court there, but made it work.

His achievement was such that the United Nations turned to him again, in desperate need of his expertise, to get the Lebanon Tribunal (dealing with the assassination in 2005 of the Lebanese prime minister Rafik Hariri) off the ground. Today, with the former Bosnian Serb general Ratko Mladic arrested, the Libyan leader Muammar Gaddafi indicted, and a verdict imminent on the former Liberian president Charles Taylor, the principle of putting political and military leaders on trial for crimes against humanity seems accepted, but only because there is proof that it can work in practice. That proof owes much to Robin's managerial skill, belief in justice and sense of fair play.

Robin was Worcester-born and bred, a lifelong cricketer who went straight from school into the courts service, starting as a deputy clerk to the county justices. His rare ability to deal with the egos of lawyers and judges and run a courtroom, while juggling jurors and ushers and listing officials, was soon noticed and he advanced steadily to the chief clerkship of the crown court in Birmingham and then in Manchester.

The Lord Chancellor's Department then brought him in 1986 to London, where he headed several divisions (including judicial appointments) before leading the Court Service Agency from 1993 until 2001. It was then that the British Council realised that his unusual skill was exportable, and dispatched him to cities in Russia to train court administrators. Robin had found his mission – to bring justice to places where it had been absent for too long.

Bringing it to the aftermath of the war in Sierra Leone – one of the world's poorest nations – was one of the UN's biggest challenges. He helped to design a hybrid court which would sit not in the safety of The Hague but at the scene of the crime, with international judges and prosecutors working in tandem with Sierra Leone appointees. He became the registrar of the special court for war crimes, and from 2002 to 2006 he oversaw the building of its prison, its legal offices and its courtrooms in Freetown, and organised its trials and appeals, which have contributed to the development of international criminal law, notably on the illegality of recruiting child soldiers and the invalidity of amnesties for those chiefly responsible for crimes against humanity.

Freetown was still a hazardous place when the court began its work in December 2002, especially with the prevalence of malaria. Several bouts did not stop Robin. With his assistant Robert Thompson, he recruited and trained a team of officials and dealt calmly but cunningly with UN bureaucracy, local corruption and over-demanding judges. His work on the ground was interspersed with flights to New York to argue for resources to keep the court in business.

At one point he sent a list of essential demands direct to the UN secretary general, Kofi Annan, threatening to resign if they were not met. "You shouldn't resign, old chap," said a visiting stuffed-shirt from London. "You won't get your 'k'." "I don't give a damn about my 'k'," replied Robin, "I only care about my court." Annan came through with the necessary resources, and in 2006 Robin was appointed CMG. He had been made CBE in 2001.

It was my privilege, as the court's first president, to work with Robin, most importantly to establish a defence office headed by a "principal defender", in order to correct the organisational bias in favour of the prosecutor that had been apparent at Nuremberg and in early tribunals in The Hague. This became a precedent for later courts. Robin also set up a successful programme to explain the court's work in schools and at public meetings throughout the country. Transparency was a feature of his management style. When the rebel leader Foday Sankoh died of natural causes in our prison, Robin's thorough and quickly published report into his death prevented conspiracy theories from taking hold.

Robin was a joy to work with, and (his staff attest) to work for. A humble man (except when sledging Australians over cricket), he stood up to judges and bureaucrats with rational argument against their claims of privilege or red tape. He was full of good humour and kindness, and sponsored an extraordinary local football team of limbless victims (mutilation had been a favourite rebel tactic). Asked the secret of his successful court management, he said: "A registrar should be like the referee at the football match which ends with the crowd asking 'where's the ref?' Because he did such a good job, they never noticed him."

Robin is survived by Hazel, his wife of 40 years, along with his two sons, Mark and Steven, and four grandchildren. Until his service abroad, he was a first team player with Stockport Georgians Cricket Club.

• Robin Anthony Vincent, legal manager, born 27 February 1944; died 12 June 2011

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My hero: John Cooke

As Cromwell's solicitor general, he drafted the Act which abolished the monarchy. Then, for good measure, he abolished the House of Lords as 'useless and dangerous'

My hero is a man who did his best and gave his life to stop England becoming the kind of nation it will be over the next week. John Cooke prosecuted Charles I. As Cromwell's solicitor general, he drafted the Act which abolished the monarchy ("the office of a king in this country is unnecessary, burdensome and dangerous to the liberty, safety and public interest of the people"). Then, for good measure, he abolished the House of Lords as "useless and dangerous". For these heroic acts of republican faith, he was disembowelled at the restoration. He was the son of a Leicestershire farmer. He defended "Freeborn John" Lilburne the Leveller, in a case that established the right to silence. Cooke was the visionary who first recognised poverty as a cause of crime, and was the first to suggest a national health service (in 1647) and abolition of imprisonment for debt (two centuries before Dickens). He proposed that barristers' fees should be controlled and they should do 10% of their work pro bono.

When all the great lawyers fled from the Temple for fear of treason if they prosecuted the king, Cooke accepted the brief and mounted what became in effect the first war-crimes trial of a head of state. The "great lawyers" soon returned to frustrate Cooke's reforms, so he accepted Cromwell's offer to become chief justice of Ireland, where he speeded up proceedings and decided cases in favour of tenants rather than landlords. Come the restoration, however, he was arrested as a regicide, subjected to an outrageously rigged trial, and then hanged, drawn and quartered at Charing Cross.

Cooke was a man of great courage and republican principle. In words worth remembering this week, he wrote to his wife from the Tower shortly before his execution: "We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not delighted more in servitude than freedom."

Geoffrey Robertson
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The trial of Lady Chatterley's Lover

No other jury verdict has had such a profound social impact as the acquittal of Penguin Books in the Lady Chatterley trial. Fifty years on, Geoffrey Robertson QC looks at how it changed Britain's cultural landscape. A preview from tomorrow's Guardian Review.
 
Also in tomorrow's Review: Martin Amis on Philip Larkin's women, an interview with Colm Tóibín, Alasdair Gray's paintings, and Will Hutton on William Beveridge

The Old Bailey has, for centuries, provided the ultimate arena for challenging the state. But of all its trials – for murder and mayhem, for treason and sedition – none has had such profound social and political consequences as the trial in 1960 of Penguin Books for publishing Lady Chatterley's Lover. The verdict was a crucial step towards the freedom of the written word, at least for works of literary merit (works of no literary merit were not safe until the trial of Oz in 1971, and works of demerit had to await the acquittal of Inside Linda Lovelace in 1977). But the Chatterley trial marked the first symbolic moral battle between the humanitarian force of English liberalism and the dead hand of those described by George Orwell as "the striped-trousered ones who rule", a battle joined in the 1960s on issues crucial to human rights, including the legalisation of homosexuality and abortion, abolition of the death penalty and of theatre censorship, and reform of the divorce laws. The acquittal of Lady Chatterley was the first sign that victory was achievable, and with the guidance of the book's great defender, Gerald Gardiner QC (Labour lord chancellor 1964–70), victory was, in due course, achieved.

There is a myth that freedom of speech has been safely protected in England by the jury. This is almost precisely the opposite of the truth. Old Bailey juries (comprised until 1972 solely of property owners) usually did what they were told by judges, and convicted. Until 1959, the publisher of a book that contained any "purple passage" that might have a "tendency to deprave and corrupt those whose minds are open to such immoral influences" was liable to imprisonment. Literary standards were set at what was deemed acceptable reading for 14-year-old schoolgirls – whether or not they could, or would want to, read it. Merit was no defence: in 1928 Radclyffe Hall's The Well of Loneliness was destroyed by a magistrate who realised to his horror that one line in the novel ("and that night they were not divided") meant that two female characters had been to bed together. He said this would "induce thoughts of a most impure character and would glorify the horrible tendency of lesbianism"; the prosecution had Rudyard Kipling attend the court, in case the magistrate needed a literary expert to persuade him to "keep the Empire pure". Censorship of sexual references in literature was pervasive in England in the 1930s (there was a brief respite for James Joyce's Ulysses when a sumptuously bound copy was found among the papers of a deceased lord chancellor). In the 1950s police seized copies of the Kinsey report and prosecuted four major publishers for works of modern fiction – three were convicted. In this period, books by Henry Miller, Lawrence Durrell, Cyril Connolly and others were available only to those English readers who could afford to travel to Paris to purchase them.

In 1959, persuaded by the Society of Authors, parliament passed a new Obscene Publications Act with a preamble that promised "to provide for the protection of literature and to strengthen the law concerning pornography". The distinction was to prove elusive, certainly to the attorney general, Reginald Manningham-Buller. In August 1960 he read the first four chapters of Lady Chatterley's Lover on the boat train to Southampton and wrote to the director of public prosecutions approving the prosecution of Penguin Books ("I hope you get a conviction"). The key factor in the decision to prosecute was that Penguin proposed to sell the book for 3/6; in other words, to put it within easy reach of women and the working classes. This, the DPP's files reveal, was what the upper-middle-class male lawyers and politicians of the time refused to tolerate.

The choice of Lady Chatterley as a test-case was inept, but it suited the anti-intellectual temper of the legal establishment and it would mean the defeat of an impeccably liberal cause. Besides, DH Lawrence had form. Back in 1915 all copies of The Rainbow had been seized by police and burned (as much for its anti-war message as for its openness about sex). In 1928, police threatened the publisher Martin Secker with prosecution unless it removed 13 pages from Pansies, a book of Lawrence's poems. The publisher complied, but sent all its unexpurgated copies abroad. The following year police raided an exhibition of Lawrence's paintings and seized every canvas on which they could descry any wisp of pubic hair. For the next 30 years British customs erected a cordon sanitaire to keep out smuggled copies of Lady Chatterley, which by this time was being published in France and Italy. So Lawrence was entrenched in prudish English minds as the filthy fifth columnist, an enemy much more dangerous than predictably dirty foreigners such as De Sade or Nabokov (whose banned Lolita would have been a more sensible target). With parochial arrogance, the prosecuting authorities ignored the New York court of appeal, which in 1959 had overturned a ban on Lady Chatterley because it was written with "a power and tenderness which was compelling" and which justified its use of four-letter Anglo-Saxon words.

Those words were a red rag to Manningham-Buller and the "grey elderly ones" (as Lawrence had described his censors), a breach of the etiquette and decorum relied on to cover up unpleasant truths. In 1960, in the interests of keeping wives dutiful and servants touching their forelocks, Lady Constance Chatterley's affair with a gamekeeper was unmentionable. The prosecutors were complacent: they would have the judge on their side, and a jury comprised of people of property, predominantly male, middle aged, middle minded and middle class. And they had four-letter words galore: the prosecuting counsel's first request was that a clerk in the DPP's office should count them carefully. In his opening speech to the jury, he played them as if they were trump cards: "The word 'fuck' or 'fucking' appears no less than 30 times . . . 'Cunt' 14 times; 'balls' 13 times; 'shit' and 'arse' six times apiece; 'cock' four times; 'piss' three times, and so on."

But what the prosecution failed to comprehend was that the 1959 Act had wrought some important changes in the law. Although it retained a "tendency to deprave and corrupt" as the test of obscenity, books had now to be "taken as a whole" – that is, not judged solely on their purple passages – and only in respect of persons likely to read them; in other words, not 14-year-old schoolgirls, unless they were directed to that teenage market. Most importantly, section 4 of the Act provided that even if the jury found that the book tended to deprave and corrupt it could nonetheless acquit if persuaded that publication "is justified in the interests of science, literature, art and learning or any other object of general concern". The unsung hero of the trial, Penguin's solicitor, Michael Rubinstein, threw himself into the task of recruiting expert witnesses for the defence – not just professors of literature but famous novelists and unknown novelists, journalists, psychologists and even clerics.

After the case had been lost, the attorney general pretended that the Crown had disdained to match the defence "bishop for bishop and don for don", but this was a lie. In fact, the prosecution made desperate attempts to find anyone of distinction who might support a ban on Lawrence's novel. The DPP's first suggestion was to rely again on Kipling, until it was discovered that he had died in 1936. TS Eliot turned them down, as did FR Leavis (although he also refused to testify for the defence) and Helen Gardner, reader in English literature at Oxford, who told the DPP (as she was later to tell the jury) that the book was the work of a writer of genius and complete integrity. It is a measure of the narrowness of legal education in England in those days that this had simply not occurred to the lawyers in the DPP's office or to the team of Treasury Counsel, a pampered, old-Etonian set of barristers who conduct major prosecutions at the Old Bailey before their inevitable elevation to its judicial benches. Its leader, Mervyn Griffith-Jones, had no interest in literature: he was the incarnation of upper-middle-class morality, obsessed with the book's danger to social order. His famously asinine question about wives and servants was asked rhetorically and with utter sincerity.

Griffith-Jones's assumptions about society reflected his station in it, and as the trial developed he seemed more scandalised by adultery – especially with a servant – than by the four-letter words that had preoccupied him at the start. Those few witnesses he bothered to cross-examine were tackled on subjects he knew nothing about, and he tried to cover up his own confusion with gratuitous insults ("you are not at Leicester University at the moment"). Ignorant of the facts as well as the facts of life, Griffith-Jones failed even to recognise Lawrence's paean to anal sex. ("Not very easy, sometimes, not very easy, you know, to know what in fact he is driving at in that passage"). After the trial the warden of All Souls, John Sparrow, wrote an article in Encounter claiming that the jury would have convicted had the prosecution been able to identify which passage was being driven at, but he, too, did not understand the new law. Under the 1959 Act, purple passages, even on the subject of heterosexual buggery (still the "abominable crime"), no longer necessarily meant a guilty verdict. Jurors had to ask themselves the common-sense question of whether the publication as a whole would do any harm and, if so, whether its literary merit might redeem it.

The tactical superiority of the defence team was evident from the outset. In a daring move on the first day of the trial, Gardiner and Jeremy Hutchinson QC declined the judge's invitation to invoke the sexist law that allowed them to empanel an all-male jury in obscenity cases, and even used their right of challenge to add a third female juror. They realised the danger that an all-male jury might be over-protective towards women in their absence and they calculated that the prosecution's paternalism would alienate female jurors.

Gardiner's forensic performance, transcribed in CH Rolph's Penguin Special The Trial of Lady Chatterley, was a masterclass in modern barristering. He eschewed the histrionics of Old Bailey hacks like Marshall Hall ("look at her, gentleman of the jury. God never gave her a chance – won't you?"). Instead, he addressed the jury in powerful but straightforward language, respecting them but never condescending or playing obviously to their sympathy. He firmly indicated that they, not the judge, were responsible for the verdict. Had there been no jury, Justice Byrne would certainly have convicted.

Byrne directed the jury to consider whether the book "portrays the life of an immoral woman", to remember the meaning of "lawful marriage" in a Christian country and to reflect that "the gamekeeper, incidentally, had a wife also. Thus what the ultimate result there would be is a matter for you to consider."

Judges in 1960 regarded themselves, rather more than they do today, as the custodians of moral virtue. In performing this egregious function, they came to blur the distinction between literature and life. Their confusion was well represented by Lord Hailsham, in the parliamentary debate that followed the verdict: "Before I accepted as valid or valuable or even excusable the relationship between Lady Chatterley and Mellors, I should have liked to know what sort of parents they became to the child . . . I should have liked to see the kind of house they proposed to set up together; I should have liked to know how Mellors would have survived living on Connie's rentier income of £600 . . . and I should have liked to know whether they acquired a circle of friends, or, if not, how their relationship survived social isolation."

So far as Byrne and Hailsham and Griffith-Jones were concerned, the function of the modern novel was that laid down by Oscar Wilde's Miss Prism: "the good end happily, the bad end unhappily – that is what 'fiction' means." The acquittal was a victory for moral relativism and sexual tolerance, as well as for literary freedom.

No other jury verdict in British history has had such a deep social impact. Over the next three months Penguin sold 3m copies of the book – an example of what many years later was described as "the Spycatcher effect", by which the attempt to suppress a book through unsuccessful litigation serves only to promote huge sales. The jury – that iconic representative of democratic society – had given its imprimatur to ending the taboo on sexual discussion in art and entertainment. Within a few years the stifling censorship of the theatre by the lord chamberlain had been abolished, and a gritty realism emerged in British cinema and drama. (Saturday Night and Sunday Morning came out at the same time as the unexpurgated Lady Chatterley, and very soon Peter Finch was commenting on Glenda Jackson's "tired old tits" in Sunday Bloody Sunday and Ken Tynan said the first "fuck" on the BBC.) Homosexuality was decriminalised, abortions were available on reasonable demand, and in order to obtain a divorce it was unnecessary to prove that a spouse had committed the "matrimonial crime" of adultery. Judges no longer put on black caps to sentence prisoners to hang by the neck until dead.

In 1960, Sir Allen Lane took some risks and suffered a lot of personal abuse, although his lawyers adroitly arranged for the case to be brought against the company rather than its directors in person, so there was never any danger of a prison sentence. But he put his company in peril for a principle: "my idea was to produce a book that would sell at the price of 10 cigarettes". Books have increased in price even more than cigarettes over the past 50 years and caused a lot less harm. Indeed, the message of Lady Chatterley's Lover, half a century after the trial, is that literature in itself does no harm at all. The damage that gets attributed to books – and to plays and movies and cartoons – is caused by the actions of people who try to suppress them.

• This is a preview from tomorrow's Guardian Review. Also in tomorrow's Review: Martin Amis on Philip Larkin's women, an interview with Colm Toibin, Alasdair Gray's paintings, and Will Hutton on William Beveridge.

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DH LawrenceGeoffrey Robertson
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Why the Holy See is treated as a state | Geoffrey Robertson

Even the Vatican itself, in its official statement to the UN, bases its claim to statehood on the 'sordid' Lateran treaty

When commentators attack others, readers should clearly be told where they're coming from. In the case of Austen Ivereigh, for example, he is not a dispassionate commentator but a prolific propagandist for the papal cause.

His piece is in one sense absurd for it criticises me over a lecture I had yet to deliver and, furthermore, Ivereigh is not a lawyer. The UK had diplomatic contacts with the Holy See in 1914, at a time when it had no claim to statehood because it had no territory (the Papal States had been extinguished by the Risorgimento in 1870). So it could only claim to be a state, once again, when Mussolini gave it a palace and gardens under the Lateran treaty in 1929. There is no dispute about this other than by Ivereigh – the Vatican, in its official statement to the UN, bases its claim to statehood on the Lateran treaty and only on the Lateran treaty. The Lateran treaty is crucial to the FCO's recognition of the Holy See as a state for the simple reason that it is the only basis upon which the Holy See itself claims to be a state.

This is all explained in detail in chapters 4 and 5 of my book, The Case of the Pope ( So let us have no more allegations from papal propagandists that I have made "an elementary error of fact" or any error at all.

Ivereigh concedes that if this is the case (and it is) my point is challenging – as he frames it: "Why recognise a state on the basis of a sordid little treaty to which the UK was not even a party?" Precisely.

His point about canon law is refuted in chapter 3 of the The Case of the Pope. All large organisations have internal disciplinary systems but only the Catholic church operates a law that purports to put its members on trial for serious crimes and impose utter ("pontifical secrecy") on all participants from the outset, thereby preventing transmission of the evidence to law enforcement authorities.

Unattractively, Ivereigh seeks to shift the blame for the child abuse claims to Catholic bishops. Some were certainly irresolute or negligent but they were all obeying the directives of canon law and reporting to the Congregation for the Doctrine of the Faith, headed between 1981 to 2005 by Cardinal Ratzinger, who turned a blind eye to the mounting crisis and still refuses to place into canon law the "paramountcy principle" recommended by Lord Nolan in his 2001 report, namely that the interests of the child should always come first' (see Chapters 2 and 8 of The Case of the Pope).

CatholicismChristianityReligionForeign policyGeoffrey Robertson
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