The OZ trial: John Mortimer’s finest hour
The great barrister, novelist and playwright – who died last Friday aged 85 – stood up to and beat the British establishment, recalls a grateful client
London, early summer, 1971. Time was running out. Despite all the promises and assurances that our legal team would soon identify and appoint a capable barrister to represent us at our forthcoming trial, such legal eagles remained strangely elusive. It was like hunting the Snark.
Which was odd. After all, London's Inns of Court were packed with the blighters.
As the months had gone by and our trial date loomed, the same sequence of events repeated itself. A likely candidate would agree to represent us, delighted, no doubt, at the prospect of what was sure to be a high profile case at the Old Bailey. Then, within a few days, they would weasel out of their commitment with some feeble excuse or other.
What was going on? Our embattled solicitors told us they had never encountered anything like it. Publicity and high profile cases were (and are) meat and drink to barristers, especially QCs. Many would crawl over broken glass to ensure their photograph appeared in a national daily. It just didn't make sense.
Nor did the failure of that hoary old myth within British criminal law, the 'taxi-cab principle' - a time-honoured custom which dictates that any criminal barrister asked to represent a client must step up to the plate unless engaged upon another case. This was all the more worrying as our trial was likely to prove complex.
There were months of preparatory work produced by our dedicated legal team, mountains of documents and witness statements, for this mythical barrister to absorb. (Sure enough, the trial later turned into the longest conspiracy trial in British history.)
More weeks went by. Puzzlement turned to concern. Concern became barely concealed panic. Perhaps it was time to cry foul?
With only a week or so to go, we applied to a judge and told him our troubles, requesting more time to appoint a suitable champion. Judge Argyle's response was frosty and dismissive.
Telling us that he felt he could speak openly as he would not be trying the case himself, he denied our request for a postponement and made it clear that we must either appoint a barrister very quickly or the judge presiding at Court No 2 at the Old Bailey would appoint one for us on the day. Application dismissed!
Once again, our solicitors were puzzled; both at the refusal of our request and the manner of its obnoxious delivery. The one silver lining appeared to be that Argyle, a recent import to the Bailey from Birmingham Crown Court and a justice already famous for his savage sentencing, was at least out of the picture as our potential trial judge. Or so we thought.
And then our luck changed. Within a forkful or two of his smoked salmon lunch - or was it Dover sole? - John Mortimer QC, vaguely familiar to us as a playwright who had written about his blind father, happily agreed to represent us.
When I quizzed my co-defendant, OZ editor Richard Neville, about John's reaction to our protracted search, Richard said that the great man had just giggled. This sounded promising. The pomposity of British QCs at the time was legendary.
John had agreed to represent us despite having a concurrent case running, despite the very short time available for him to become familiar with our case, despite having to attend rehearsals for the launch of yet another play and despite the pregnancy of his new wife.
Nor did he appear remotely concerned at Richard's insistence on defending himself (while John would represent Jim Anderson and me); nor at the absurd number of expert defence witnesses we wished to call.
So it was that the OZ trial became John's most notorious case. He was quick to point out to us that we had been charged under an archaic law. Contrary to what most observers assumed later, this was not an obscenity trial about pornography aimed at curbing the excesses of the 'permissive society'. Instead, John's entire focus appeared to be centred on this specific charge. And with good reason, as we soon came to appreciate.
You see, John Mortimer did not 'lose' the OZ Trial, even though we went to jail. Let me explain.
As the editors of OZ magazine, we were charged under a law which had lain dormant for more than 100 years. The charge was Conspiracy, not Obscenity - in lay English, 'Conspiracy to corrupt and debauch the morals of the young of the Realm'. This ploy on the part of the prosecutors meant that, should we be found guilty, the judge could sentence all three of us to virtually any jail term he saw fit to impose.
This was (and remains) the beauty of all conspiracy trials, at least to prosecutors. In our case, the judge would not be limited in his sentencing to anything like the degree a plain old obscenity charge might have merited.
In the event, John Mortimer, against all the odds, and (let it be admitted) the expectations of his clients, persuaded the jury at the OZ Trial that this conspiracy charge was utterly disproportionate to whatever sins we may have committed. Again and again, he demanded they dismiss the conspiracy charge as a monstrous imposition on freedom of speech and thought.
And dismiss it they eventually did, to the visible fury of Judge Argyle. (Oh yes, despite his earlier assurances that he would not be presiding at our trial, Argyle was appointed as our judge - and what a wretched spectacle he made of himself, blustering furiously that his earlier assurances were neither here nor there.)
To have overcome the natural dislike of a predominately working-class jury towards "layabout, drug-taking hippy" defendants and to have persuaded that jury to dismiss the central plank of a prosecution's case in such a front-page trial, was a remarkable achievement. All the more remarkable when you compare John's background to those he was attempting to persuade.
Most juries in such trials feel that they themselves are on trial in the court of public opinion. Usually, they listen closely to the judge and take the easy option. All but a very few journalists, legal experts and commentators missed this point.
Yes, the jury found us guilty of two very minor, tacked-on charges relating to sending subscription copies of OZ through the Royal Mail, but these minor charges utterly limited Judge Argyle's ability to jail us for a decade or more.
And would Argyle have done so had John Mortimer failed to convince that jury of eleven in the late summer of 1971? (Argyle had dismissed one female juror who seemed a mite too friendly towards us, early in the trial.) Well, in his own words, years later, Argyle indicated that he felt that the proper sentence for the publishers of OZ magazine would have been between 12 -15 years "hard labour".
Instead, as a reward for having 'buggered up' his summing-up of the OZ trial, and for the sin of making a laughing stock of British jurisprudence, Argyle was sent back to Birmingham with his tail between his legs. He died penniless and alone in his home as the president of a society dedicated to bringing back hanging.
For John Mortimer, this was just another case in a long career spent defending freedom of speech. His real life was filled with much else, not least his stage plays, screenplays, stage performances, journalism and Rumpole novels; his love of wine and good food; his extended family; his travels; his Dickensian utterances; his great work for the Howard League for Penal Reform, and many acts of quiet kindness.
But for me personally, whenever I think of John Mortimer, I shall conjure the image of a champagne orator, his wig rakishly askew, standing in the well of Court No 2 of the Old Bailey, the spittle drying white around his mouth, as he persuades a jury to stand up to a judge choking on venomous bile and a prosecution fueled by cynical spite.
As Rumpole incarnate, this was John Mortimer's finest hour.
AUTHOR’S NOTE: OZ was a 'counter-culture' magazine of the late 1960s and early 1970s. Originally founded in Australia, it was launched in London in 1967 by Richard Neville. I joined the magazine in 1968.
Then came Ted Heath's government in 1970. The OZ offices were raided again and again by Scotland Yard's so-called 'Dirty Squad', officially the Obscene Publications Division of the Metropolitan Police.
Eventually they charged three OZ editors, Richard, Jim Anderson and me, with a serious crime, using an archaic law: Conspiracy to Pervert the Morals of the Young of the Realm. This led to the longest conspiracy trial in British history.
We eventually beat the 'conspiracy' rap but were sent to prison for two minor charges tacked on as an afterthought. The public outcry was so great we were swiftly released (highly unusually, it should be noted) prior to our successful appeal and after serving time in Wormwood Scrubs and Wandsworth prisons.
Later, the 'Dirty Squad' was discovered to be institutionally corrupt and many of its officers were sent to prison and the squad disbanded. It emerged they had targeted OZ because they were taking so many bribes from pornographers they suffered from a poor arrest record.
Today the 1970s seem as remote as the Middle Ages, but I would make three points: When you hear the word 'conspiracy' in a court of law, you can be almost certain there is monkey-business afoot.
Secondly, prisons in Britain are overcrowded because we imprison more of our citizens than all but a few countries in the world. Many of these prisoners are mentally ill.
Lastly, the judiciary in Britain is deeply flawed. More than one senior barrister refused, against their sworn oath, to represent OZ, probably because they felt that to do so might harm their career. (We were fortunate that John Mortimer finally accepted our case: he cared far less for his career in the law due to his growing fame as a playwright).
Our own trial judge was so eager to convict us that his summing-up has become a byword for incompetence and bias. And the judiciary's political masters, including the Home Secretary and others, were involved in the whole shabby episode up to their wattled necks.
No system of law can be perfect and I have heard it argued that much has changed for the better, judicially speaking, in recent years in Britain. Maybe. But I doubt it. I very, very much doubt it.