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Kafka on Thames

Adrian Hardiman

Love, Paul Gambaccini, by Paul Gambaccini, Biteback Publishing, 448 pp, £20, ISBN: 978-1849549110

The unfacts, did we possess them, are too imprecisely few to warrant our certitude … if it be true that any of those recorded ever took place for many, we trow, beyessed to and denayed of, are given to us by some who use the truth but sparingly ...
James Joyce, Finnegans Wake

Perhaps we expect too much of the law. Childhood games of Cluedo ‑ Colonel Mustard, in the library, with a candlestick – and detective stories from Wilkie Collins to Stieg Larsson have created an expectation of simple justice, scientific resolution and finality. But life’s not like that, or not any more.

Now we live in the era of the ten-part Netflix sensation Making a Murderer and the world’s most popular podcast, Serial. Both expose to the world the shaky nature of justice even in some very ordinary cases in the United States and the role which malice, incompetence and self-protection can play in the theoretically scientific process of detection and trial. Each case is subjected, in the works mentioned, to saturation analysis, but the process ends only with enhanced doubt.

Strictly speaking, that is not a problem for the law. Every person is presumed to be innocent, so if an investigation or trial simply fails to resolve the issue beyond reasonable doubt the suspect or defendant is entitled to the benefit of the presumption. But this can be a hard thing for some people to accept. In sexual cases particularly, even very old ones, such people seem inclined to think that there should be a different presumption: that the accuser is to be believed. Thus Hillary Clinton in January 2016 declared that every accuser was entitled to be believed. Asked whether this entitlement extended to the women who had made allegations against her husband and, in at least one case, against herself, she amended her statement orally, at a raucous election meeting, to “Everyone is entitled to be believed at first until they are disbelieved… [after?] evidence.” The intervening words are not clearly audible. Mrs Clinton is a lawyer of some experience.

This conflict of feeling, which is shared by far more people than Mrs Clinton, has radically undermined the presumption of innocence and has given rise, even in a thoroughly civilised country like Great Britain, to a climate of opinion in which some people, and some institutions, postpone or forsake the idea of bringing an accused person to trial, which carries the possibility of an acquittal, preferring instead to use the powers of the criminal law to subject such people to public shaming so intense that it can destroy their lives. This provides all the stigma of a conviction with none of the risks of a trial. A disproportionate number of the victims of this process are elderly white males. The book under review provides a brilliant account of this process from the point of view of one unlikely victim.

This remarkable book, written mostly in diary form, tells the appalling story of how a well-to-do, well-educated, well-known and widely respected sixty-something media personality was all but destroyed by a sophisticated and apparently concerted campaign of leaking by the police and harassment by the media in 2014-2015. He was never convicted of, or even charged with, any offence, but he was sentenced by the police/media coalition to what an English academic criminologist reviewer of this book has called “social death”. The effect on his professional activities amounted to “economic calamity”. He was “shunned” (this word is used like a technical term) by various individuals who had previously courted him. He was ostentatiously abandoned by various organisations to which he had devoted time and money, not least Ed Miliband’s Labour Party.

Paul Gambaccini, now sixty-six, was something of a national treasure in England, a status achieved through his remarkable career over the forty years preceding October 29th, 2013, the day he was arrested. An American by birth, he was educated at Dartmouth College, New Hampshire, before coming to Oxford on a Fulbright scholarship. He never left England after that. After a short period in journalism (for Rolling Stone) he became a radio disc jockey with the BBC. His remit broadened over the years into that of a more general cultural commentator: he is said to have been the only man to have had programmes running simultaneously on BBC One, Two, Three and Four.

In August 2013, to mark his fortieth anniversary in broadcasting, the BBC honoured him with a tribute programme, in which the four preceding decades were dubbed The Gambaccini Years. And so they were, for music fans.

Paul Gambaccini has for many years been an openly gay man, now living in London with his husband, whose parents, decent and respectable people who move in a quite different world from his, were amongst his bravest and most loyal supporters. He was associated with a great many groups and organisations and in particular was a lifelong supporter of the Labour Party. Ed Miliband’s first fundraiser following his election as leader was held in Gambaccini’s  London flat. He was a member of an exclusive Labour financial supporters’ group, the Thousand Club. But the events of a few days in late October and early November 2013, and their sequel, made him an untouchable in Labour circles and far beyond.

On the first of those dates Gambaccini was arrested in his London flat at 4.38am by Metropolitan Police officers who were part of “Operation Yewtree”. This was an operation set up in 2012 when the Met’s abject failure to detect or interrupt the activities of Jimmy Savile had become public knowledge. Yewtree, apparently in an effort to redeem the force’s reputation,concentrated on historical inquiries against celebrities, mainly from the worlds of show business and politics. Gambaccini had publicly criticised both the police and the BBC over Savile.

There were other victims besides Gambaccini. The octogenarian former Tory politician Lord (formerly Leon) Brittan QC died in January 2015 with an open Yewtree investigation apparently outstanding against him, even though a decision that there was no evidence to prosecute him had actually been taken long before he died. But this was concealed and never admitted or announced during his lifetime. Brittan’s family eventually received a full apology, but only after it was too late for him. Gambaccini also received a belated apology, for all the good it did him.

Still more recently, on Friday January 15th, 2016 a ninety-two year old D-Day veteran and former chief of the defence staff, Field Marshal Lord Bramall, also received an apology of sorts from the Metropolitan Police for the appalling hounding he had been subjected to after being involved in a leaked Yewtree inquiry into very old allegations. He too was the subject of a dawn raid on the flat where he lived with his dying wife, conducted by no fewer than twenty police officers, who stayed for seven hours. It is hard to view this as anything but an exercise in throwing the Met’s official weight about and hoping to garner some good publicity. The eventual apology was grudging in the extreme and blamed the media for Lord Bramall’s ordeal. There is, of course, a denial that the police leaked Bramall’s name, a denial believed by absolutely no one, just as in Gambaccini’s case.

Gambaccini’s diary of events begins, with a nod to James Bond, on the day of his arrest, with the phrase “My name is Kafka. Franz Kafka.” And indeed his story has many of the hallmarks of Kafka’s surreal novel of persecution The Trial. He describes being immediately plunged into a world where arrests happen at times like 4.38am, to ensure that the suspect is likely to be home, but also to disorient him, to justify holding him in a cell (for four hours in this case) before he is interviewed by the police, or before he can consult his solicitor. A cell, incidentally, with an unscreened toilet but with no toilet paper. It is a world with which his family solicitor of many years was absolutely unfamiliar, being a lawyer dealing mostly in “leases and wills”; where the criminal lawyer to whom he is hastily referred instructs him, when asked to sign a routine police document, to draw squiggly lines below his signature to prevent anything else being added; and worse. The very worst is that, though he is arrested only for questioning and is never charged, the police immediately leak that fact of his arrest and detention, thereby destroying his career and reputation. He knows they will do this because it had become their practice to do so in other Yewtree arrests (he was the fifteenth person arrested). It catapults him into an unreal world, a world where a posse of journalists takes up residence outside his apartment building; where the Sun editorially complained that it could not name him (yet); where his relatives abroad, in Europe and the US, are systematically doorstepped; where he enters and leaves his apartment block under a blanket in the back of a car and where he is quite systematically “shunned” by people and organisations from whom he deserves nothing but good and for whom he has done much good in the past.

The first calls from the media were received at Gambaccini’s home while he was actually still in the police station. He realised that, as he feared: “The police have leaked my name.” He has to make contact with various personal and professional associates before they read the news in the redtops because “it only takes a couple of hours to realise that this arrest is one of the worst kept secrets in police history”. The next day a female journalist, equipped with shopping bags to suggest she is a resident, manages to tailgate a bona fide caller into his building and is found later hiding in the basement. Shortly after this he has to cancel the first of a sequence of social or charitable events: he was due to host a yearly charity dinner but “I cannot be associated with charities for young people until I am cleared. My string of MITES (a music industry charity) dinners ends at fourteen.”

Gambaccini’s employer, the BBC, “makes it clear … that I will continue on air until I am named or charged …” This is because “the corporation wants to cover its backside against possible accusations of employing a person suspected of sexual offences”. Reality closes in in other ways too: a friend, a high executive in the BBC, offers to introduce him to her own “reputational lawyer”, who comes accompanied by a “reputational PR”. Both of these professional men, it must be said, give sterling service but this is the third set of advisers he has been forced to employ: his family solicitor, the criminal lawyer and the reputational team. There is then discussion, leading to Gambaccini taking on a new solicitor, from the well known firm of Bindmans, about what counsel to retain. He concludes:

‘Taking silk’ sounds like indulging in some sort of polite drug. However, if I have to go to court, I will be sure to be represented by someone who has taken silk.

All of these numerous professionals who come into Gambaccini’s life after his arrest give him great service. But he has had to employ the just at the time when his source of income has dried up, as was absolutely predictable when the police leaked his name. Hence the “economic calamity” he describes.

The individuals and organisations who were significant in Gambaccini’s life varied a good deal in their reaction to his difficulties. Some friends were heroic in their refusal to shun him and a few organisations were brave as well. But mostly the organisations come out much worse than the individuals, turning away for fear of being tainted. The reaction of the Labour Party is not unlike that of other groups. He had already, before his arrest, been invited to the “Thousand Club” 2013 Christmas drinks, by his friend Charlie Falconer, a party grandee, the former Labour lord chancellor Lord Falconer of Thornton; “warmly invited” too, according to the card. Two days after the arrest an assistant of Falconer’s (the party’s “donor stewardship officer”) asked by text for a number on which she could speak to him confidentially. When she rings it is to disinvite him to the Christmas drinks. They hate doing this, of course, but: “You know what the Press are like”.

Thus, just a few years after he very publicly hosted a Labour Party fundraiser, held, at the party’s request in his home, he is persona non grata. This is the subject of one of the saddest passages in the book: he severs his relationship with the Labour Party, reflecting:

It has obviously not occurred to anyone in Labour that something more than manners is at stake here. An injustice is occurring in its own House, yet it turns away from the victim for fear of taint … the heroism of leaders from Clement Attlee to Neil Kinnock has yielded to cowardice.

There follows a long, sad account of the depth and length of Gambaccini’s connection with the party, going back to the days of former prime minister Jim Callaghan. It all counts for nothing now. Falconer later apologised. Shortly after this apology Gambaccini found that his bowling club of twenty years had removed his “pin” from their display of the pins of celebrity members.

The allegations made against Gambaccini are so old and so vague that they were virtually impossible to make any useful comment about, other than strong denial. They involved two individuals. Because of the terms of the UK Sexual Offences (Amendment) Act, 1976, about which he has been warned, he is not entitled to identify the two complainants or give any detail of what they said which might identify them. In other words these people are guaranteed absolute anonymity, a basic protection which the police quite deliberately stripped from Gambaccini himself. But it is possible to say that the allegations related to a six-year period of time between twenty-nine and thirty-five years before his arrest. Each of these accusers, who are known to each other, allege that they engaged in homosexual activities with Gambaccini in premises belonging to a neighbour of his at a time when he lived in a quite different area of London. It is important to reiterate that no evidence was found to support these allegations and they were not made the subject of a prosecution. But because the accusers alleged they were teenagers at the relevant time, and because the leaks about Gambaccini came from Operation Yewtree, it allowed the worst of the tabloids to apply the paedophile label: one reported his detention near a photograph of a different event, in which a sign saying “Burn the Paedo” was clearly visible. All Gambaccini’s misfortunes are due to the fact that, as the criminologist reviewer quoted above put it in the Times Literary Supplement, “The paedophile label is so toxic that it leads to a form of social death” (Professor Eugene McLaughlin).

Gambaccini had been, as we have seen, an early and very public critic of Jimmy Savile and the Savile investigation. As a result of the leaks from Operation Yewtree he suffered the ultimate and ultimately damaging fate of having his photograph appear next to Savile’s in certain newspapers. A coincidence?

A very important aspect of UK criminal procedure is that, when the police have arrested a person for questioning, they can release him on police bail without the need to go to court, binding him to turn up for further questioning at a later date. This can be repeated several times and was repeated in Gambaccini’s case for over a year. In Gambaccini’s case, each re-bailing was leaked to the media before he or his solicitor were informed. One consequence of this was that it ended any possibility that the scandal would simply fade away: it was regularly and very publicly stoked. And this publicity also carries the risk that it may lead other people – fantasists, people interested in selling their story, or deluded individuals who actually believe they were abused by a particular person – to make further allegations.

Gambaccini’s story, together with that of Lord Brittan, Lord Bramall and, a little earlier, Sir Cliff Richard, lead me to wonder whether presumption of innocence can survive in a legal system which permits the police and the media to destroy a person’s reputation in advance of any trial. Paul Gambaccini is a man with many advantages of wealth, fame, intelligence, reputation and extraordinary courage and resilience. If this can happen to him one wonders how a less favourably situated individual could possibly survive.

On March 3rd, 2015, Gambaccini gave forty-five minutes of evidence to the House of Commons Home Affairs Committee. A fortnight later the committee advocated major reforms of the police bail system. More important to Gambaccini, it affirmed his innocence and instructed the Crown Prosecution Service “to write and apologise to Mr. Gambaccini explaining why the case took long when the original police investigation was dropped for insufficient evidence a month before he was even arrested”. The reforms they propose are set out at the end of Gambaccini’s book. They include a strong assertion of a suspect’s right to anonymity, on the need for any police communication to the media to be formally done, and on the need for there to be “zero tolerance on the police leaking information on a suspect in an unattributed way”. Whether the committee’s recommendations will have any significant effect of course remains to be seen.

Miscarriages of justice on a mass scale have historically been linked with periods of public hysteria, such as the Salem Witch Trials, the McCarthyite persecutions in the United States, the decades of show trials in the Soviet Union or the cases of the Birmingham Six, the Guildford Four and the Maguire Seven at the height of the hysteria generated by IRA violence in Britain. There is evidence that well-informed opinion in Britain is appalled by the excesses of Operation Yewtree. On January 19th, 2016, the warden of Wadham College, Oxford, Sir Kenneth McDonald QC, who is also a former director of public prosecutions in England, reacted to the case of Lord Bramall as follows:

The police need urgently to face up to the shameful possibility that in their concern to atone for past mistakes they have allowed themselves to be fooled by manipulative fantasists.
The alternative is there for all to see: the cruel, public humiliation of an impeccable old warrior and mealy-mouthed apology from a police force unable to see that it has done anything wrong.

A few days later, on January 21st, 2016, the journalist David Aaronovitch in the London Times gave a detailed explanation of the murky origins of many of the Yewtree allegations. He concluded:

I have no doubt that criticism of the authorities over cases such as Janners’s [Greville Janner, a long-time Labour MP] and Jimmy Savile has led to the police losing a sense of perspective and sometimes even basic commonsense, and to some journalists thinking that any public figure – alive or, preferably dead – is fair game so long as they can find someone – anyone – prepared to make an accusation.

The police bail system has no equivalent in Ireland: if the gardaí wish to re-arrest a person for questioning they must get a court order to do so. (See section10 of the Criminal Justice Act, 1984. The detention periods may be “suspended” until another date in the case of certain Theft and Fraud offences under Part 2 of the Criminal Law Act 2011). This does not, of course, prevent leaking. But one would have thought it hard to imagine that a well-known person in Ireland could have the fact that allegations had been made about him leaked to the media before he was even questioned.

Despite the grim subject matter, and the numerous personal and professional humiliations which Gambaccini recounts, the diary reads well, like the production of a person who manages to maintain both his dignity and his cheerfulness in very difficult circumstances. The dominant themes are those of total conviction of innocence, coupled with terror, bewilderment and a massive sense of injustice at how he has been treated. He reiterates several times his love for England, a love which perhaps only a migrant can feel so intensely. But he concludes:

Imagine how much I loved this country. Imagine my disappointment when it betrayed, psychologically tortured and abandoned me. My unqualified love for Great Britain has been qualified … There is a greater loss. I have lost my faith in the British justice system.

Against that background it is inspiring to read that at his very darkest moments he took comfort in WE Henley’s poem “Invictus”, which also consoled Nelson Mandela and other victims of injustice. He sets it out in full, commencing:

Out of the night that covers me,
Black as the pit from pole to pole
I thank whatever gods may be
For my unconquerable soul.

In the fell clutch of circumstance
I have not winced nor cried aloud.
Under the bludgeonings of chance
My head is bloody, but unbowed.

Most readers will hope they could do so well.

1/2/2015

Adrian Hardiman is a justice of the Supreme Court of Ireland.

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