The Tyrannicide Brief (Chatto & Windus, £20) is a life of the 17th-century lawyer John Cooke - remembered now, if at all, for leading the prosecution of Charles I in 1649. Robertson came across Cooke in 1999, when invited to dispute a paper presented by Justice Michael Kirby on the 350th anniversary of Charles's trial. Kirby took what Robertson calls "the traditional line - that the king's trial left much to be desired in fairness." On reading the transcripts, Robertson concluded that "the consideration with which the king was treated was unique for the times: times when those who didn't plead were usually pressed to death with large stones, and trials were completed within a couple of hours, and jurors were locked up without fire or water in order that they should bring back verdicts quickly."
By contrast, Cooke's own trial for regicide, following the Restoration, was carefully choreographed, with normal rules of evidence discarded, in order to reach the required verdict. After it Cooke was hanged, drawn and quartered - in effect, torn to pieces while he was still alive.
On further investigation, Robertson came to see Cooke as not simply an accidental player in a great historical drama, but a farsighted reformer who would have earned a place in legal history even without Charles's trial. Among other things, Cooke argued against imprisonment for debt (a reform that had to wait for Charles Dickens), for the restriction of the death penalty to murder and treason, and for the exclusion of Latin and Norman French from legal proceedings. He also linked poverty to crime, and proposed free medical treatment for the poor - anticipating the National Health Service by 300 years.
Well worth a biography, then: but he had to wait a year or two longer. Two more books intervened. The Justice Game was Robertson's jaunty memoir of his life as a high-profile radical barrister, from the Oz trial in 1971 through the Matrix-Churchill arms-to-Iraq case. Then came two editions of Crimes Against Humanity - a polemical history of conceptions of "human rights" and international law.
When he finally did settle to researching Cooke, it had to be fitted in between trial work and regular stints as an appeal judge for the UN war crimes tribunal in Sierra Leone: "It does require me every month or couple of months to go a circuitous route to Freetown, or outside Freetown, and get a Ukrainian helicopter to go to a war crimes court and dodge malarial mosquitoes."
By contrast, he says, "There is a great pleasure in receding into the bowels of the British Library." He loved working among the Thomason Tracts, a collection of 17th-century pamphlets that line the walls of one room of the BL (though "It's the sort of print that made Milton blind"). He adds: "Of course, one reads lots of books that have been published about the period afterwards - the groaning shelves of Civil War history."
Still, with a wife - the pun-addicted novelist Kathy Lette - who understands the demands of writing, Robertson's difficulty was not so much finding the time as finding the right gear. "If I go and do a trial for two months and then come back to John Cooke and the Civil War period," he says, "I've got to do a week's reading before I'm back in a mental framework to remember where I've left off. So I think in future I would recommend that those who try to combine writing history with a day-job should perhaps try to take nine months off the day-job."
The fact that he is a spare-time historian does show in The Tyrannicide Brief. He has clearly done his reading around Cooke, but the context often has a tossed-off feel, as if rehashed from secondary sources. I imagine academic historians won't take kindly to his lack of objectivity, a determination to put Cooke's actions in the best light, which at times leads into what amounts to special pleading. He says, "The wonderful thing about writing history, as opposed to writing law, is that you look forward to having your mistakes pointed out". I'll bet historians of the period will be itching to oblige.
But he does write very readably, and what he offers that few historians can is a lawyer's eye for Cooke's own subject: "I recognise in him a certain fellow-feeling albeit, over 350 years, obviously attenuated." Robertson admires his morality: "He believed passionately that lawyers served a purpose. And he was trying to define that purpose, and trying to give them a sense of ethics that would enable them to fulfil that purpose and not become the butt of jokes about their greed and their corruption."
The other thing he finds "fascinating" about Cooke is that "he's so concerned with the nuts and bolts of law"; much of his 1646 tract The Vindication of the Professors and Profession of the Law is concerned with technical issues such as the fusion of statute and equity law, "which obsessed him. Only a lawyer who has ever practised in an unfused system can see what he was getting at." He also proposed a national land registry, and the reform of conveyancing. Most of his ideas have been taken up: the exceptions are a suggestion that lawyers should devote 10 per cent of their time to pro bono work ("No legal profession in any country that I'm aware of has adopted that as an ethic," Robertson says), and that parliament set legal fees - with lawyer MPs excluded from voting. No surprises there, then.
It's in the prosecution of King Charles, though, that Cooke's work seems to relate most directly to Robertson's. Discussing this, Robertson's initially bluff, ingratiating manner falls away: he is more engaged, serious and, to be frank, more likeable. His passionate interest in international law is obvious.
Before the Civil War, the presumption had been that, since the king was the source of law, prosecuting him did not even make sense. Robertson's view is that Cooke's masterstroke was to include the word "tyrant" in the charge - tyranny being the one crime of which a ruler, and only a ruler, could be guilty. Through his scrupulous conduct, Cooke established for the first time that a head of state can be held accountable for his actions, though the idea has taken a while to root.
"In Cooke's brief," says Robertson, "you've got this wonderful passage where 'impunity' - the word 'impunity' which you hear so often from Kofi Annan and Amnesty International today as something that we must end - is used, I think for the first time in its modern meaning, as the freedom a tyrant should never have to live happily after his tyranny". The Nuremberg trials, and the prosecutions of Pinochet, Milosevic and Saddam all owe something to Cooke's pioneering work.
Echoes of Charles's trial won't die away: Milosevic's refusal to recognise the UN Tribunal on Former Yugoslavia at the Hague replays Charles's disdain towards his accusers. Robertson thinks Milosevic has blundered by joining in arguments in court, "Which will mean that the court will be able to come to a considered conclusion". Again, "When Saddam Hussein was brought before his judge on that televised occasion, the words he used were exactly, in translation, what Charles had said: 'By what authority do you try me?'"
Charles's principal crime had been to use prerogative powers to lead the country into war - which leads me to wonder whether his trial might set a precedent worrying for our own Prime Minister. After all, such eminences as Michael Mansfield QC have called for Tony Blair to be prosecuted for war crimes.
Robertson doesn't think this is a runner. "As a legal precedentist, you clutch on to precedents and build slowly," he explains. "At the moment, we have got to the stage where those who mass-murder their own people can be put on trial by international law. No one suggests that, as yet, Mr Blair is in that category." In fact, he sees the relationship between Cooke and Blair in an altogether more positive light. The tribunals on Yugoslavia and Rwanda were set up, he thinks, as "PR exercises. They never envisaged that they would do anything, and they didn't, until - and this is where Mr Blair does come in, I think - until Labour was elected and suddenly Nato policy changed, and they arrested some concentration camp commandants and some generals, and international justice started to have real teeth."
That slant on the Blair administration is not universally popular these days. But in an age when international law really is beginning to have an effect, when dictators know that their past may well come back to haunt them, perhaps we can all accept that John Cooke's legacy needs thinking about, and celebrating.
Geoffrey Robertson QC was born in Sydney in 1946. After qualifying as a solicitor, he came to Britain on a Rhodes Scholarship in 1970, earning a BCL at Oxford, and being called to the Bar in 1974. His prominent cases have included the Oz obscenity trial, the Gay News blasphemy trial, the prosecution of Michael Bogdanov over The Romans in Britain, and the "ABC" official secrets trial. He is at present head of Doughty Street Chambers. Earlier this year, he was forced to step down as chair of the UN tribunal in Sierra Leone, following accusations of bias, but still sits there as an appeal judge. His books include Media Law (with Andrew Nicol, 1992), The Justice Game (1999) and Crimes Against Humanity: The Struggle for Global Justice (2000). The Tyrannicide Brief is published next week by Chatto & Windus. He lives in London with his wife, the novelist Kathy Lette, and their two children.Reuse content