Kid Gloves Read online

  I absolutely did not want to explore my sexuality, even before Dr Reuben told me that it was a territory of undifferentiated debasement.

  The men in the cartoon, though, with their long hair and narrow chests, had a different reaction. When they had reached their favourite bit (‘homosexual encounters are always about the penis, never the person’), the biggest joke in the whole hilarious book, they laid it aside and moved into a tender embrace. That stayed with me as an image, bigotry refuted with a smooch.

  I wonder if the echo of Dante’s Paolo and Francesca was intentional, with the morality reversed. Quel giorno più non vi leggemmo avante. That day we read no more … In Paolo and Francesca’s case a book inflamed adulterous desire, but for Mike and Ralph (to give them names) a single kiss was enough to quench the calumny of print.

  I hadn’t actually read Dante, but was familiar with the passage by way of an eccentric source. Tim and I got a kick out of reading The Plain Truth, an eccentric religious magazine to which Dad subscribed. Possibly ‘subscribed’ is too active a verb, failing to convey his helpless struggles to escape the flypaper of a fantastically adhesive mailing list.

  The Plain Truth once ran an article deploring sexual explicitness in literature, in which Canto V of the Inferno was cited as an example of good practice. No specifics of the adulterous act, something more along the lines of three tactful dots on the page or a cinematic fade, with no detail to pass on arousal by contagion. Hard to see, all the same, how this particular strategy, however admirable in its tact, could be rolled out across modern culture, displacing The Godfather and any number of other books from their places on the shelf.

  There was particular pleasure, for disaffected sons leafing through their father’s copies of The Plain Truth, in reading the columns written by its founder’s son, Garner Ted Armstrong. What a toady to follow in the moralizing trudge of his father’s footsteps! Except that as time went by there was trouble in televangelist heaven, with Garner Ted described by his father as being ‘in the bonds of Satan’ and relieved of his role in the church. There were allegations of adultery, gambling, even assaulting the stewardess of his personal plane.

  Dad didn’t have a radio station or a magazine to promote his views, but he didn’t go short of lionizing. The only accolade a judge is unlikely to receive in court is an actual ovation. Dad hungered for that, and luckily there were opportunities to put himself in applause’s way. He had been playing the guitar since his teens, and sometime in the 1930s had made a non-commercial recording, with a band, of a tune he had written himself (‘Fellow Take the Floor’). He sang as well as played. The 78-rpm record was still in his possession, though his tenor voice, surprising light in his young days before his vocal cords developed the authority necessary to command a court, hardly made its way through the surface noise and scratches.

  Twice during the 1970s he put on a show in Gray’s Inn Hall after dinner, to an audience that included students as well as his fellow benchers. The programme was announced as ‘Master Mars-Jones Makes Music’, and Dad played a handful of pieces by Sor and Tárrega. He put in a certain amount of practice before the show. A certain amount, but perhaps not enough.

  The drawback about having a career in a hierarchical profession (and actually living in its parochial stronghold), in terms of self-awareness, is that the hierarchical element, being constant, becomes invisible. It was never on the cards that he would be booed or slow-handclapped by the company of colleagues, but an acute ear for the timbre of applause might have detected something perfunctory and even resentful about it. Sheila to her sorrow, inconspicuous in the audience, saw and heard a student give a little shake of the head and murmur to a neighbour, ‘power mad’.

  The concert was successful enough for Dad to repeat it the following year, but on this occasion the response was more perfunctory, the rapture very moderate. Dad was presenting himself, after all, not as a guitarist among others but as a guitar-playing judge. This was essentially a novelty act, and novelty dare not risk repeating itself. He would have needed to raise the stakes somehow, to swap his Spanish guitar for a more crowd-pleasing instrument, assaulting the crowd with shards of feedback or pouring lighter fuel, to cries of alarm, onto his beloved vintage Gibson, which though not electrified from birth had been fitted with a pick-up in its early adulthood.

  On the bench, the unstuffiness of an amateur guitarist was a more dependable weapon. One of Dad’s proudest moments presented itself during a case involving some Hendrix tapes that had been remastered for posthumous release. I think the original bassist and drummer (who would be Noel Redding and Mitch Mitchell) were suing for a share of royalties on the basis that they had been part of the recorded performance, co-creators who couldn’t be cut out of the financial side of things just because a later decision had been taken to get other musicians to redo their parts. At one point a barrister started to explain to him the function of a particular piece of kit, and Dad (mindful of the ubiquitous myth of the judge as being all at sea in the modern world) was able to interrupt him with a plausibly tetchy ‘I know perfectly well what a wah-wah pedal is!’ It was no bluff – he had bought one for Matthew the previous Christmas.

  It wasn’t clear that Dad admired Hendrix’s playing. He didn’t have much time for gadgetry or electronics. Hendrix would certainly never depose Django Reinhardt, let alone Segovia, in his personal pantheon. He admired the way Django overcame the disadvantage (to put it mildly) of having two fingers paralysed as a result of a caravan fire when he was eighteen.

  Dad’s tip for the future of a truly popular music was always the return of that swinging, big-band sound. Nevertheless he had admiration and sympathy for singer-songwriters, creators as well as performers, even if he would pause by the television during Top of the Pops just long enough to mark Kris Kristofferson or John Denver down for using a ‘capo’, which allowed them to transpose music without refingering. According to Dad this was a cheat, and the sure sign of the dabbler. If I’d known more at the time about musical history I might have pointed out that the ‘capotasto’ was already in use early in the seventeenth century, with the word itself attested from 1640, so that this cheat’s device can claim to be older than the guitar in its modern form – but perhaps on the whole it’s a good thing that I didn’t.

  He presided over one significant case, O’Sullivan & Another v. Management Agency & Music Ltd & Others (1982), in which a downtrodden singer-songwriter took on his oppressive management company. It seemed to Dad that Gilbert O’Sullivan’s innocence had not just been taken advantage of by MAM Ltd but positively mocked. At one point in early 1974, O’Sullivan was advised by his manager, Gordon Mills, that he must leave the country at once for tax reasons. He went to Portugal, a poor choice since revolution broke out there almost at once. He took refuge successively in Spain, Italy, Spain again and finally Holland. In October he was told it was safe to return to British soil. How much had these complicated manoeuvres saved him? Not a penny. They were pushing him around in the most obvious way, pushing him around the map.

  It had been shrewd of O’Sullivan to project a gormless image at the start of his career – like an overgrown Bash Street Kid with his flat cap, pudding-basin haircut and long grey shorts. It had certainly got him noticed. But that was as far as his shrewdness went. He had signed a management contract without taking independent advice, and was being exploited in any number of ways. He was being paid a very modest allowance even after becoming a successful recording artist. For a long time he idolized Gordon Mills, occasionally even acting as babysitter for his daughter Clair, whose name he commemorated in one of his best-selling songs. An emo
tional dependence made him slow to act on his suspicions even when evidence of wrongdoing began to pile up around him.

  The question for the judge was whether it was right to compensate this innocent for his self-inflicted financial wounds. He had signed a contract, and if he was foolish enough not to read it or ask for it to be assessed by a qualified third party then you could argue that he had forfeited the right to any intervention by the law. It could almost be a proverb: the tightrope walker who cuts up his safety net in order to make a string vest should not be surprised to hit the ground with great force.

  O’Sullivan couldn’t get out of his obligations as neatly as a much cannier musician, Arthur Lee of the 1960s’ San Francisco group Love, who was able to flourish his birth certificate and instantly invalidate the contract he had signed as a minor.

  All that seemed to invalidate Gilbert O’Sullivan’s contract was its monstrous unfairness, which doesn’t necessarily have legal force. An agreed set of operations must be carried out before a resolution can be reached. A judge is a sort of weaver bird, picking through the twigs of statute and precedent offered by the advocates for the parties involved, masticating them intellectually then gluing them together to build the nest in which he will lay the egg of his judgment.

  The aspect of the law which seeks to ‘mitigate the rigour’ of common law is equity, and this was the paper in his Bar Finals that had won Dad his highest marks. As far as I understand it, which is hardly at all, common law and equity are like the complementary cerebral hemispheres of legal decision-making, with right-brain equity continually modifying the inhumanely precise discriminations of left-brain common law.

  For his judgment in O’Sullivan & Another v. Management Agency & Music Ltd & Others Dad relied heavily on Lord Denning’s codification, in Lloyds Bank Ltd v. Bundy (1974, reported 1975), of the various exceptions to the rule that signatories to a contract can’t just walk away.

  There are cases in our books in which the courts will set aside a contract … when the parties have not met on equal terms – when the one is so strong in bargaining power and the other so weak – that as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall.

  This seems both promising and slightly empty. When does the individual ever meet an institution on equal terms? Whether it’s a customer approaching a bank or a writer signing up with a publisher, bargaining power is so unevenly distributed that the word ‘power’ itself seems comical, even if this crazy-golf playing field goes by the name of ‘the ordinary interplay of forces’.

  Nevertheless Denning proposed that there was such a thing as an ‘unconscionable’ transaction. An individual so placed as to be in need of special care and protection might in the event be exploited by stronger agencies. Undue influence might be a consideration in deciding whether this was so. He was careful to stipulate that undue influence was possible without active wrongdoing. Self-interest was enough. In deciding whether a transaction was unconscionable it would be relevant to determine whether independent advice had been sought. Independent advice can’t guarantee a balanced transaction, but the lack of it offers unfairness an opportunity.

  It was a poignant moment to be recapitulating Denning’s defence of the individual against institutional pressure. The day Mars-Jones J gave reasons for his judgment in O’Sullivan & Another v. Management Agency & Music Ltd & Others, 22 July 1982, was only a week or so before the near-legendary Denning’s own last day in court. He had announced his retirement as Master of the Rolls, not exactly a voluntary departure from office but a political necessity after the Society of Black Lawyers took exception to questionable assertions in his book What Next in the Law. There was no question of his retirement going unmarked. He made a farewell speech to a court full to bursting with his colleagues (there were three hundred of them). A historic stepping-down, ripe in honours, with a hint of slow-motion defenestration.

  Despite his reputation as the people’s judge, Denning faced two ways. He was both liberal and illiberal. Perhaps the office has this Janus element inherent in it, there being no consistent way of resolving the conflict between individual rights and the imperatives of polity.

  That’s why I have my doubts about Geoffrey Robertson’s full-throated paean to Dad (‘a red-robed angel of mercy’) in The Justice Game, however much I welcome it personally. As he sees it:

  A, B and C were free, not as a result of their own courage (which was a precondition) or of their campaign (which gave them courage, but did not help the courtroom battle): they owed their release to a judge robustly indifferent to the State. Other judges, it is true, might not have recognized the oppressiveness of the indictment, or have called a halt to the case in the same way or at all. But for an era which is remembered for wrongful convictions and the liberties taken by the security services, the action of Mars-Jones is worth remembering, and worth celebrating. It says something for a system when the State, with all its power bent on conviction, cannot intimidate the courts or make prosecutors flinch from the duties of fairness.

  I feel the need of a ‘necessarily’ before ‘intimidate’ in that last sentence, at the risk of taking some of the shine off it.

  It’s true that Denning could be very concerned with the protection of ordinary citizens, but he was also capable of arguing (in 1980) against those imprisoned for the Birmingham pub bombings being allowed to challenge their convictions. His reasoning was that if an appeal failed, a lot of money had been wasted, while if it succeeded,

  it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous … That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’

  No mention of individual rights accompanied either outcome. There was just a calculation of the damage done to the public balance-sheet and the public confidence. It would be bad for the national mood if malpractice was exposed – but this was not Dad’s view in matters of public probity.

  By the same ignoble logic, it would have been wrong to prosecute the Obscene Publications Squad in 1976, since the proceedings would reveal they had been bought by the smut-merchants they were paid to keep down. It was as if rats had taken over the board of Rentokil and replaced the poison in traps across the country with multivitamins. This news might very well upset the company’s shareholders, but how was that an excuse for keeping them in the dark?

  When giving judgment in O’Sullivan & Another v. Management Agency & Music Ltd & Others, Mars-Jones J relied on Lord Denning for the chords (so to speak), but he had to make sure the tune of this particular case fitted them. In what sense was Raymond O’Sullivan, professionally known as Gilbert O’Sullivan, ‘an individual so placed as to be in need of special care and protection’? (There exists no general duty of care, and no general principle of enforceable fairness, just a special dispensation in exceptional circumstances.) A standard type of this individual would be the ‘expectant heir’, someone who has assets he or she is unable to realize in time of need, but can transfer to someone else – greatly below their eventual value, as it may be – in exchange for ready money. O’Sullivan’s talent as a writer qualified him as an expectant heir, entitled to be rescued from the consequences of his own decisions.

  O’Sullivan was certainly unworldly, happy just to be making music, to be selling records, to be getting a reputation. He was given £10 a week spending money and lived in a cottage on the grounds of a substantial p
roperty owned by his manager. Somewhere in all this lurks the idea that Gilbert O’Sullivan was the child-man of his early image-making, not yet ready for long trousers, technically old enough to sign a contract but still a minor in psychological terms. He was being treated more like a ward of court than an autonomous adult.

  The Bash Street Kid image actually seemed to suit him, certainly in terms of his bony face, better than the approximation to a hunky look that followed it. Fluffed-out hair doesn’t work for everyone. He alternated unconvincingly between cosy jumpers and shirts open to the waist. No-one seemed to know if he was cuddly or sexy or not much of either, as he went through the available permutations of styling.

  Having determined that the contracts should be put aside as void and unenforceable, Mars-Jones J directed that the master recordings be delivered to the plaintiff. Then he assessed the appropriate damages, and here he was in danger of going too far. He had already said that O’Sullivan had been ‘fleeced’ by Gordon Mills. Now he ruled that MAM should pay back all the profit made from the singer and his songs, with compound interest. A. J. Bateson QC, counsel for the plaintiffs, referred him to a ruling of Lord Denning’s from 1975 (it’s Wallersteiner v. Moir, if you’re hungry for a reference) in which he stated that ‘in equity, interest is never awarded by way of punishment. Equity awards it whenever money is misused by an executor or a trustee or anyone else in a fiduciary position …’ Mars-Jones J accepted this, saying, ‘I have found there was a fiduciary relationship here’.

  He seemed to be equating a management company with a trustee, who would not be entitled to profit from the monies he handled. MAM, though, was in business to make money from the representation of its clients (who included Tom Jones and Engelbert Humperdinck). Mars-Jones J’s directions did not recognize any legal element of profit. If the damages awarded weren’t explicitly punitive, it wasn’t easy to understand them in any other spirit.