Another voice
The defence that failed
Auberon Waugh
Like most Englishmen of the middle class I was born with a solid respect for British justice. I remain unconvinced of Timothy Evans's innocence, and wish a Conservative government would reopen the case. But my confidence was shaken five years ago by an experience in the High Court which is to be found as a footnote in legal textbooks —or at any rate in Galley on Libel and Slander, seventh edition (ed. McEwen and Lewis, Common Law Library £15.00) —under the exciting title `Beloff v. Pressdram (1973) 1 All E.R. 241 (defence failed)'.
The last two words are what rankle. Nothing is so boring as the man who feels he has been the victim of a miscarriage of justice, nor do I wish to reopen old wounds, still less repeat the alleged libel which formed the basis of Ms Beloffs action. However, I felt the injustice so keenly at the time that reading an account of the Dreyfus case many years later I began, for the first time, to suspect that Dreyfus might have been innocent. What convinced me was the libel action brought against Zola after his famous letter Taccuse' in Clemenceau's L'Aurore. Zola, of course, was found guilty, his appeal was dismissed and he had to flee the country — to England, of all places, _where he stayed with the journalist H.R. Vizetelly, a man who had already been imprisoned by the English authorities for his translation of Zola's novels.
I cannot honestly pretend that my posture in Beloff V. Pressdram (1973) 1 All E.R. 241 (defence failed) was as noble as Zola's or as poignant as Dreyfus's (always assuming Dreyfus to have been innocent) in their several tangles with the law. The bone of contention was whether some words I had used which, in their literal meaning, might have been held to impute unchaste and unscrupulous behaviour in Ms Beloff would, in fact, have been so held by reasonable people, having regard for the circumstances in which they appeared. Any defence of jest in a libel action is auto matically referred to an Irish case of 1831, Donoghue v. Hayes, where it was held in the words of Smith B: 'If a man in jest conveys a serious imputation, he jests at his peril', only slightly modified by the view of Joy C.B., in the same case: 'The principle is clear, that a person shall not be allowed to murder another's reputation in jest. But if the words be so spoken that it is obvious to every bystander that only a jest is meant, no injury is done, and consequently no action would lie.'
If I had been conducting the defence, I would have filled the witness box with queues of psychiatrists, experts in social attitudes, behaviourists, geneticists, biolog ists, priests, existentialists, women, coloured immigrants, literary critics, experts on the psychology of humour, 'workers', students, politicians, all prepared to testify that no reasonable person could have supposed that the words contained any serious imputation whatever. Those testifying to the contrary on the plaintiff's behalf would have had their sense of humour and common sense impugned under extensive cross-examination, the case would have run for thirty or forty days while a large and representative cross-section of the public had its say, and either Ms Beloff or I (or possibly both) would have ended in the bankruptcy courts. To establish Englishmen's right to make jokes about each other in legal case-history might not be the most satisfactory form of literary immortality, but it is better than adding a gloomy footnote to the long history of our country's repression of writers, and it would be rather more than any of my contemporaries who died in Cyprus,. Suez, Aden or Belfast ever achieved. Even if one could not have established that, one would have established a powerful deterrent against similar actions. But! was not conducting the defence, and Ms Beloff had hired an eloquent young barrister in Tom Bingham whose indignation at the supposed slur on his client's reputation was a wondrous and beautiful sight. What decided the point was the attitude of the judge, Mr Justice O'Connor. The weight of his direction to the jury, as I understood it, was that if a single person, intelligent or stupid, level-headed or seriously misguided, was likely to interpret the words literally, then the literal interpretation must stand. A successful appeal on grounds of misdirection would have meant a retrial, and none of the other parties had any stomach for it. Various bargains were made, the details of which I never learned, and the verdict was allowed to stand as a footnote to the legal case histories of our time, a blot on the fair reign of Queen Elizabeth II.
Or so I thought until now. Two recent events have given me pause, both concerning this legal definition of 'reasonable men and women', although only one has anything to do with Ms Beloff. The first, which is the less interesting, comes from a study of public reaction to a television programme I presented last month called Personal Report. Few Spectator readers will have seen it, I imagine, as it was transmitted at a time when most of them would have been eating their dinners. In any case, the arguments contained in it would be thoroughly familiar to them already. It excited about a hundred letters. Normally, it Is not possible to read, let alone answer' letters which arise from television Pret rammes, unless one is prepared to devote one's life to the task, but this week, ha"ig thrown a number of new novels into dle, wastepaper basket after five pages, I state° reading the letters. Some of them — about a quarter — were congratulatory. The rest were critical, often abusive. What alarmed me most was that about half of the critical or abusive letters, and nearly all the congratulatory ones, wated manifestly the work of lunatics. A few be, no address but of those which did Oil' came from a mental institution. Perhaps' writers were not clinically insane, but then rambling comments — snatches of alit°. biography, random observations frequenrifd of a violent and contradictory nature — no logical coherence, nor was there anf explanation of what they hoped to achieve by writing to me. But the most alarming worry was how these people fitted into thed legal definition of reasonable men an women. Not only had they failed to under.; stand what the programme was about —the„ is understandable enough, as I was by n" means sure myself— but they were plainlY sef obsessed by class hatred and resentments° every sort that they could not be trusted r°t reach a reasonable verdict on any subiee whatever. I dread to think what any of then might have decided who had read my °tic inal joke about Ms Beloff. Nor, in fact, ein think that it matters what they might have, thought, but the law takes no account 0' that. In theory, they are all reasonable Mee and women, qualified to sit on a jury. The second incident, which does involv! Ms Beloff, concerns Sir Harold Wils0n5 apparent obsession that she was plottingr°5 overthrow him, as revealed by Mr Jane Margach, the veteran political CO respondent. Sir Harold, of course, he issued the usual ritual denial, so one of the is lying. In a free country, we are all allowe, to decide for ourselves which it is (althotirr we may not be allowed to give reasons our decision) and I am firmly of the belie' knowing all three of them, however slighfif' that on this occasion Mr Margach is telling the truth, and Sir Harold is lying. What Sir Harold actually said was this: 'I cannot think of a more improbab,le scenario. I did not really bother to read It. These stories are degenerating into Mire farce.' Well, exactly. Mr Wilson at the tinle_,,t°f my alleged libel on Ms Beloff was no c1az1 or embittered old age pensioner mit ed from access to the media. He was a once anti future Prime Minister. Yet who can re 5 what effect my innocent little joke about! le Beloff might have had on him? If the Wh°,. v/e country, reputedly composed of reason men and women, can elect such a Pets°,,s, Prime Minister on four separate occasi°,",,b then the whole concept of reason on wilwa British justice is based must plainly be 9 myth. Reasonable men and women ate . tiny minority. We must cultivate the technt ques of addressing unreason.
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