3
‘Operation Julie’, The Cambridge Two
Although I had that first courtroom success as prosecutor, my real interest – in line with the inspiration I had received from watching so many episodes of The Defenders – was in defending.
I was called to the Bar in 1967, and throughout my early years as a barrister one of the hottest issues – both political and social – was the increase in drug use, in particular cannabis.
As for my own experience of cannabis, I’m not going to fall back on that overused cop-out that I smoked but didn’t inhale, because I didn’t smoke at all. Many of my contemporaries did, however, and I soon got drawn into the campaign to legalise – or, more precisely, decriminalise – the drug.
In my spare time I was a volunteer at two centres in London providing advice to addicts: one run by the Association for the Prevention of Addiction (APA) in King Street, Covent Garden, and the other a walk-in centre under Hungerford Bridge. Many of the people who used these centres were addicted to heroin and in a state of such extreme distress that, while I was in my twenties, as were some of them, it was as if they were living on a different planet.
Through the volunteering I met Bernard (Bernie) Simons, a hugely generous, witty and cultured person who spread his life across many interests, particularly the National Theatre: he became a close friend, but sadly died prematurely in the late 1980s. Another volunteer was the acclaimed writer Anthony Masters. His work was amazingly eclectic, from children’s books to political biographies.His breadth of interest also encompassed running soup kitchens for addicts and the homeless, and championing the cause of Travellers. Both he and his wife Robina became close friends. His early death in 2003 was yet another real loss. I also came to know Jon Snow (now presenter of Channel 4 News), who shared our concern about drugs as well as many other issues over the intervening years.
The centres brought me into contact with individuals who’d intentionally broken the law, but who felt they had no alternative; and before being able to offer advice, I wanted to understand who they were, their motivation and the roots of their addiction – essential if you have to represent someone, but an approach not generally approved of by the majority of the Bar at the time.
There was a large amount of public ignorance and misinformation, especially in relation to LSD and cannabis – pronounced ‘canaaarbis’ by the higher echelons of the legal fraternity at the time. Fine distinctions between physical addiction and psychological dependence were not appreciated then. I started attending government committees along with others like Bill Deedes, the well-respected journalist, and all the while Bernie was instructing me on a series of drug cases, which took up a great deal of court time in the early 1970s.
Bernie knew that I was outraged by the consummate hypocrisy of those who were vehemently hostile to drug-takers while imbibing excessive quantities of claret – in any case, he really didn’t know too many other barristers whom he could brief. We began to write a book together, and helped launch a new magazine called Drugs and Society by co-writing a regular legal column.
Looking back on the articles I wrote, they seem somewhat tame now, but at the time they were regarded as quite radical. For example, in July 1973 I penned an article entitled ‘Private Drug Use – No Crime?’,1 a critique of the first Misuse of Drugs Act of 1971. Like so much social legislation, the Act had been passed with very little informed debate, and I sought to question two aspects: the jurisprudential basis on which the criminal law was invoked to sanction certain types of behaviour, and a lack of provision for the education and treatment of addicts.
The central thrust of my argument was based on the work of John Stuart Mill contained in his essay On Liberty, which distinguished between self-regarding and other-regarding acts. In essence, self-regarding acts which do not encroach on the life and liberty of someone else should not attract state sanction, whereas with other-regarding acts, which do, the state may intervene to protect good order. This was a strictly libertarian viewpoint reflected in part by Professor H. L. A. Hart in Law, Liberty and Morality, and opposed by Lord Devlin in The Enforcement of Morals. I tried to suggest that people who pursue dangerous activities purely for themselves, and who are not endangering anyone else, should not be criminalised. I have shifted position since then, because it is almost impossible to postulate any activity that can be isolated in such a way that it can have no effect on anyone else. The real question is what kind of regulation society wishes to have in place to deal with the social repercussions: this has assumed considerable importance recently with the civil procedures that have been introduced to deal with anti-social behaviour.
In 1973 articles along these lines were adding to the image I seemed to be engendering with the cases I took, as someone who needed to be watched, and I have no doubt that some form of MI5 file on me was opened. At the time I certainly felt that what I was doing was risky and frowned upon, an apprehension heightened once I began representing Irish defendants.
I’m sure that this image cannot have been helped by the fact that I joined a rock band of fellow lawyers called The Mindless Pleasures. We played at lawyers’ parties, street festivals and in a pub in Stoke Newington on Saturday nights, and because I was the drummer we were definitely off-beat. My kit was fourth-hand and tatty, but its well-worn appearance lent a certain depth and implied that I had a track record, whereas there were no tracks and no records . . .
Meantime I continued taking drugs cases. My first appeal in the Court of Appeal was in front of the Lord Chief Justice, Lord Widgery, in 1971, the year before he presided over the first Bloody Sunday inquiry. The appeal concerned a nice point of law, which has remained as an authority right up to the present day and can be found in every criminal practitioner’s handbook (known as Archbold), under the title Searle and Others, and it came down to this: before you could be convicted of joint possession of drugs found in a place you occupied with others – such as a room, a minibus or a car – it would not be enough for the prosecution to show mere knowledge of the presence of drugs; they would also have to prove that you had an element of control, which might arise if you were able to take what you wanted from a common pool of drugs.
There were many other drug cases which gave rise to extraordinary and bizarre issues. When two men called Ameer and Lucas were arrested for trading in cannabis in a hotel in west London, they claimed it was a police sting set up by an agent provocateur.
Geoffrey Robertson (now a leading authority on international
human-rights law) was my co-counsel and Allan Green (an incisive
advocate, later Director of Public Prosecutions) was prosecuting. The judge was Bernard Gillis, meticulous and punctilious. At trial in 1977 the agent provocateur suggested that the police had licensed him to deal, and had rewarded him with slabs of cannabis from the deals. When challenged by the prosecution to prove such outlandish claims, the informer said he kept some of the cannabis seals under his mother’s bed at home – and the next day he produced in court the seals themselves, which exactly matched the ones in our case.
After the acquittal of the defendants, the journalist David May of the Sunday Times constantly pressed the police authorities for an explanation, but, so far as I’m aware, to this day none has ever been forthcoming.
In 1978 the Daily Express trumpeted a police investigation called ‘Operation Julie’, which had broken the world’s biggest drug ring, responsible for the manufacture of six million doses of LSD. I considered that part of my task in defending one of the people charged (who pleaded guilty) was to attempt to take the heat out of the gross exaggerations being made about the effects of LSD. The conventional wisdom at the time about how to present a plea in mitigation concentrated on the personal circumstances and the role of an individual defendant. No one would have dreamed of challenging the legislation itself and its rationale – completely unacceptable and far too political. This did not deter me, but on reflection maybe I was wrong to underestimate the detrimental effects of LSD.
It was only a few years earlier that cannabis had been viewed as the greatest evil on Earth, with both the police and the courts displaying considerable ignorance even about the various forms that it took.
I had a friend (I’ll call him Eric, to protect the guilty) who was growing a few plants in the window box of his basement flat somewhere in Tufnell Park in north London. The local bobby on his rounds commented on the verdant growth, only to be informed by Eric that it was a form of nettle he was cultivating for soup.
When Eric moved with a few friends to a large Victorian house, so the story goes, the plants went with him, and come harvest time he took them inside. The house had one of those clothes-drying racks that can be raised to the ceiling via a pulley, and Eric said he used to hang the cannabis leaves over this to dry. Somebody must have tipped off the police, for late one evening they arrived on his doorstep, accompanied by sniffer dogs. Fleet of foot and with great presence of mind, Eric rapidly stuffed the leaves into the laundry basket and rushed out into the back garden wondering where to hide the stash – then in a moment of panic emptied the basket over the fence into the neighbour’s garden. The dogs sniffed around for a while, but the prey had flown . . .
Eric’s neighbour was a member of the aristocracy, and the next morning Lady Whoever-She-Was awoke and looked out into the garden, where she was amazed to see a pile of leaves, from a tree she didn’t possess, at a season that was not autumnal. Without further ado, she went outside and swept the leaves neatly into a pile, then set fire to them. The aroma penetrated the slumbers of he who had so carefully harvested them – and soon, his nose pressed to the window, Eric was watching the soaring flames of the bonfire and the remains of his precious cannabis floating gently up in the breeze . . . her Ladyship swaying delicately in the wind.
There is of course a serious side to all this. I have always recognised the substantial risks to health of all forms of drugs, including prescription drugs and alcohol. But imprisonment is not the answer to the drugs problem, and should be reserved for the rarest of extreme cases. The original idea for the registration and management of heroin addicts was a British initiative and was along the right lines, but the current emphasis on penalties distracts from the crucial task of examining the causes and providing essential education.
It was for these reasons that much later in my career I was glad to be able to help Ruth Wyner and John Brock, who became known as the Cambridge Two.
They both worked at Wintercomfort, a drop-in centre in Cambridge for homeless young people, most of whom were dependent on drugs – Ruth was Director and John the Day Centre Manager – and both were dedicated charity workers. Established in 1989, Wintercomfort provided a facility not offered by anyone else in the area and had the backing of reputable academics at Cambridge University, and yet the local police regarded it as a centre for drug dealing.
The police action began in February 1998 when two undercover policemen calling themselves Ed and Swampy began calling at the Wintercomfort Day Centre and involving themselves in secret drug deals taking place between some of the homeless. An extensive surveillance operation was mounted, backed up by a camera hidden under the roof of a building on the opposite side of the street.
In May the operation was concluded with the arrest of eight drug dealers and of Ruth and John, and the couple were charged with ‘permitting premises to be used for the purpose of supplying a class-A drug’. The trial began eighteen months later at King’s Lynn Crown Court and lasted seven weeks, involving evidence from 300 hours of videotape.
No one suggested that either Ruth or John had been personally involved in any of the drug deals, or that they had been present at the time these took place. The case against them was simply that they had ‘turned a blind eye’ to what was going on and had not done enough to stop it. Ruth and John argued forcefully that they had done as much as was humanly possible without compromising the whole object of the Day Centre, based as it was on client confidentiality and trust. Wintercomfort was an essential first step in getting homeless people off the streets in order to address their problems – what’s more, they argued, involving the police could put their staff at risk of reprisals.
On 17 December 1999 Ruth and John were convicted and sentenced to five and four years respectively – particularly harsh sentences, which had serious repercussions for other social workers in this field.
The astonishing campaign launched on their behalf by the homeless people who had used the Day Centre has been graphically chronicled by Alex Masters in his book Stuart: A Life Backwards.
Stuart and others organised a march of the homeless and a ‘sleepout’ over three days outside the Home Office, and also won the support of Alan Bennett, Joan Baez, Victoria Wood, several MPs, a large number of Cambridge academics and the trade union Unison.
By the time I came on board for their appeal in December 2000, a good head of steam had been raised in favour of Ruth and John. Each of them had two children and their families had suffered greatly, while John himself was close to breakdown – and all because of their honest endeavours to help people come off drugs and rebuild their lives without constantly begging on the streets and harassing members of the public. For my part, I felt a palpable sense of anger about the iniquity of their situation.
We got leave to appeal both conviction and sentence – and lost on conviction, but won on sentence. The law as interpreted by the Appeal Court judges was in my view quite unrealistic, determining as ‘irrelevant’ a defendant’s belief that the steps he had taken to prevent dealing were reasonable. My contention was that a jury should not reach its conclusion solely on an objective basis, by overriding the genuine, bona-fide subjective belief of what was reasonably possible in the circumstances, held by a professional worker in the field. I lost on this point, and I still feel that this was an erroneous decision, which will have to be revisited at some point if there is ever to be a constructive and sensible approach to this ever-increasing problem. Fortunately, the judges substantially reduced Ruth and John’s sentences to allow their immediate release.
We have to try and think laterally about how we get people off hard drugs, and mentoring seems to be an idea that works on a very practical level. I remember a BBC television programme in which a lawyer became a mentor to a woman coming off heroin: it was a good demonstration of how, if you don’t lock someone up, but have someone willing to be a ‘best friend’ (and, in a sense, usher the person gently back into life) things can change. Just being there – setting up contacts, listening, nothing too heavy, but providing reliable support – can work. The woman wrote a wonderful letter to her mentor thanking him for backing her, acknowledging how much she owed him and saying that he had given her back her life: she’d finally made it and come off heroin. This was true innovation, with the courts providing the opportunity and somebody on the outside being prepared to give up time just to be alongside that person in need.
And yet I can’t believe I’m still having to argue this case, almost thirty-five years after Bernie and I blazed a trail on these very same points in the articles we wrote.