Closed material procedures, Rudi Dutschke and King’s

Nicholas Purnell QC
March 22, 2013

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.


All by
Nicholas Purnell QC