Closed material procedures, Rudi Dutschke and King’s

Nicholas Mulder’s piece ‘Closed Trials and Open Wounds’ unknowingly served to bring back to mind the part played by Ken and Rosemary Polack and King’s in the cause celebre of the Rudi Dutschke affair of 1970 and the seminal part it played in the abolition of the first ‘special appeals procedure’ which allowed for the secret consideration of evidence.

As a junior barrister of two years’ call, I was astonished, one autumn evening in 1970, to return to Chambers from some dingy London magistrates’ court to find Ken Polack, my erstwhile Director of Studies while at Cambridge, and his wife in the waiting room. They were not, thankfully, in search of some long overdue essay which I had failed to provide for a supervision.

Rosemary Sands, (Mrs Ken Polack) was there in her professional capacity as Instructing Solicitor for a consultation with my head of chambers, Basil Wigoder QC, in the matter of Rudi Dutschke.

Rudi was the most prominent spokesman for the German Student Movement of the 1960’s. He had escaped from East Germany on the day before the Berlin Wall was erected in August 1961 and had enrolled in the Free University of Berlin where he studied under Löwenthal and Meschkat. There he developed his theory of creating radical change from within government and society by ‘the long march through institutions,’ that is developing democracy through the revolutionary process – a process which for Rudi incorporated Third World liberation principles.

In April 1968, Rudi barely survived an assassination attempt. Stigmatised by the Springer press as an enemy of the State, Rudi was shot by a young anti-communist house painter whilst he was waiting outside a chemist’s shop to collect medicine for his baby son. He was shot three times at point blank range and suffered brain damage.

In December 1968, Rudi and his American wife, Gretchen, were admitted to the UK for Rudi to receive medical treatment. The Home Secretary, James Callaghan, required an undertaking from Rudi that he would not engage in political activity. Callaghan extended the ‘landing condition’ on the same terms in July 1969 and January 1970.

By May 1970, when the permission was extended for a third time, the government had changed and Ted Heath was the new Conservative Prime Minister.

The Home Secretary of the day, Reginald Maudling, was approached by Michael Foot MP and asked if he would consider enlarging the conditions because a Swiss Foundation had provided the financial backing to enable Rudi to study at Oxford or Cambridge.

I have always understood that King’s College, Cambridge, had offered Rudi a research studentship although the legal reports suggest that, of the several offers made to him, Rudi accepted a research studentship at Clare Hall. On August 25th 1970, Reginald Maudling refused to enlarge Rudi’s landing conditions for him to accept any offer ‘in the interests of national security and on grounds of a political nature.’

Enter Rosemary and Ken Polack and Basil Wigoder. Basil was then one of the two most fashionable criminal Silks of the day and did not come cheap. The method of appealing against a Home Secretary’s exclusion order in security and political cases was prescribed by the newly enacted Immigration Appeals Act 1969, s9 and the attractively entitled Aliens (Appeals) Order 1970 Article 8.

Rudi’s case and the arguments presented in his appeal by Basil Wigoder with the support of Ken and Rosemary Polack and Bob Hepple (later Professor Bob Hepple QC, Master of Clare College, Cambridge) failed to prevent Rudi’s deportation but destroyed the credibility of the process. The ensuing outcry and the unanimity of the condemnation of the result by academic and practising lawyers forced the Government to abandon any repeat use of the procedure and to abolish the legislation in 1971.

The ‘process’ set out in the 1969 Act was for the Lord Chancellor and the Home Secretary to appoint a ‘special panel’ of the Immigration Appeals Tribunal to hear the appeal. Since the subject of the appeal was the correctness of the decision of the Home Secretary himself, the right of the Home Secretary to select the members of the appellate tribunal was one aspect which drew criticism. The panel which he jointly nominated was distinguished by its eminence and by its conservatism. Most were the product of a small selection of private schools and Oxbridge colleges.

The tribunal comprised the president, Sir Derek Hilton, solicitor and former President of the Law Society (Rugby School and Trinity Hall, Cambridge); the vice-president Mr Paul Dalton, former High Court judge in Kenya, (Downside School and Trinity, Cambridge); two former heads of the diplomatic service, Lord Garner (Highgate School and Jesus, Cambridge) and Lord Gore-Booth (Eton College and Balliol, Oxford) and a former vice chair of the Defence Staff, Lieutenant General Sir George Cole (Wellington College and the Royal Military Academy Woolwich).

The appeal was heard between the 17th and the 22nd December 1970. The central issue was the application of the order under Article 8, by which the Home Secretary had certified that evidence must be considered by the tribunal, not merely ‘in camera’, with the public excluded, but in the absence of the both the appellant and his legal team.

Basil Wigoder argued that the Tribunal was entitled to consider the actual material and weigh the merits of the Home Secretary’s classification of it before ruling on whether to exclude the appellant and his lawyers.
The Tribunal ruled against him. They ruled that the Home Secretary’s certificate was sufficient to determine the status of the material and as a result the exclusion of the appellant and his team was mandatory.
This was contemporaneously described by Alan Watkins in the New Statesman as establishing an unilateral proceeding. How could the appellant contest evidence of which he was entirely unaware?

The appellant called ten witnesses. Ken and Rosemary had marshalled, in addition to Rudi’s own evidence, the support of the Mayor of West Berlin, Professor Gollwitzer from the Berlin Free University, and Professors Barnes and Pippard from Cambridge.

In the absence of the appellant and his lawyers, Sir Peter Rawlinson QC, Attorney General (Downside and Christ’s, Cambridge) on behalf of the Home Secretary called James Callaghan to outline for a full day to the Tribunal the secret material which he had considered and which led him to impose the conditions on Rudi’s entry under which he undertook not to engage in any political activity.

The Attorney General conceded that the exercise upon which he was engaged was ‘alien to those whose upbringing had been bred within the experience of the common law and English Court procedure.’ On the 8th January 1971, however, the Tribunal was comfortable that it was able to uphold the Home Secretary’s decision to exclude Rudi whilst keeping ‘ in the forefront of its mind the rules of natural justice …’

Rudi never was allowed to take up his Cambridge research studentship. Instead he was put on board a ship bound for Denmark, where Professor Johannes Sløk offered him a post at the University of Aarhus. Nothing in the information that had been supplied to the University in Denmark by the British Government in any way precluded him, in Sløk’s judgement, from such an academic career.

In 1979, Rudi died at Aarhus by drowning in his bath during a seizure caused by the residual effects of the injuries suffered in the shooting in 1968. His central role in the student movement of the 60’s and the ‘Great Unrest’ is widely commemorated in the political literature of the period, by his part in the foundation of the Green Party in Germany, his memorial plaque in the Kurfurstendamm in Berlin and by the street named after him in Berlin. By a curious irony, the section of the Kochstrasse from Checkpoint Charlie to the start of the Oranienstrasse has become Rudi-Dutschke-Strasse and connects with Axel-Springer-Strasse, the road commemorating the offices of the very publishing group which at the time of the shooting ran the campaign against him.

Putting Rudi on the boat to Denmark carried a resonance to Basil Wigoder’s closing address to the Tribunal in which he reminded the panel of Prince Kropotkin’s words in his ‘Memoirs of a Revolutionist’ published in London in 1899. After he had escaped from prison in St Petersburg, Kropotkin made his way to Sweden where he boarded a ship:

As I went aboard the steamer, I asked myself with anxiety under which flag would she sail … I saw the Union Jack, the flag under which so many refugees of all nations had found asylum. I greeted that flag from the depth of my heart.

In the summer of 1971, the Immigration Act 1971 abolished the special appeals procedure and Article 8 of the Aliens (Appeals) Order 1969. The process under which Rudi’s case was considered and he was deported was never used again. Subsequent developments have created the ‘special advocate’ system for evaluating secret evidence and to bring UK proceedings sufficiently within the requirements of the fair trial provisions of Article 6(1) of the ECHR.

Even today Rudi’s case, and a Kingsman’s perspective on it, are brought to bear on the need to comply with the European Union guarantees of human rights.

In her important ‘Opinion of the Advocate General delivered on 14 July 2011 in the case of French Republic v People’s Mojahedin Organisation of Iran (EU Case C-27/09), Eleanor Sharpston writes:

Cases involving allegations of involvement in terrorist activities often arouse visceral emotions. The terrorist after all appears to have no scruples about disregarding the sacred canons of civilised society. It may be difficult to avoid, even subconsciously, a public perception that we should, in turn, relax our ordinary commitments to a fair trial … so the argument runs, they are worthy of a lower degree of legal protection than those accused of more mainstream offences.

Any temptation to fall into that trap must be avoided. It is in fact precisely the marginal, the outsiders and the rejects who require the protection which the judicial system affords and who have the greatest need of it …

In order for the requirements of the Convention to be satisfied, it is necessary for as much information about the allegations and evidence against each applicant to be disclosed as is possible without compromising national security or the safety of others … to enable him to give effective instructions to the special advocate … this represents the irreducible minimum requirement …

this core structure addresses the absurdity and blatant absence of rights of defence typified by Dutschke v Secretary of State for the Home Department which became a cause celebre amongst lawyers in the United Kingdom some thirty years ago.

Perhaps the important issues so clearly raised by Nicholas Mulder in his article should be assessed against these principles as enunciated by Eleanor Sharpston and the determined efforts of Ken and Rosemary Polack forty years ago to achieve fair treatment for Rudi Dutschke.