The Justice Game

by Geoffrey Robertson

  It is the right of every Englishman to say ‘J’accuse’ in a court of law without being sued for defamation – Norman Scott had blurted out his accusation against Jeremy Thorpe in similar circumstances a few years before – and the publicity brought Ron what he had really needed from the outset, namely a good lawyer. Ruth Bundey, a Leeds solicitor who can handle difficult cases and (importantly in this case) difficult clients, obtained legal aid to challenge Gill’s interpretation of the law. In July 1982, the Court of Appeal upheld the challenge and directed that an inquest be held immediately.

  I was asked to act for Ron Smith at the inquest in November 1982. It would not have taken place at all had this ‘cantankerous bastard’ (Ron’s self-description) believed what officials had told him. The Leeds authorities had earmarked £50,000 to pay for lawyers for any witnesses prepared to come from abroad: most of it went towards Dr Arnot’s choice, the ostentatious criminal solicitor Sir David Napley, who reportedly charged a whopping £1,000 a day. There was no money made available for Ron (and there is no legal aid for lawyers at inquests) so I bunked down on Ruthie’s couch while my adversary, Sir David, was deposited by his gold Rolls-Royce at a suite at the Queen’s Hotel. No sum of money, however, could compensate for the frustration or reward for the privilege of representing Ron Smith. We spent days in his house, listening to the endless tapes he had made over the past three years of people theorising about how Helen met her death, and reading his paper mountain of newsprint. It would have been useful to read all the evidence gathered by the police, but the coroner refused point-blank to let us see it. He would not even tell us which witnesses he was going to call, or in what order.

  I had more faith in the forensic pathologists. As readers of Patricia Cornwell will appreciate, their art is to imagine what might have happened once their scientific findings are fed into the known facts. In Britain their role is often underplayed, although they solve more murder mysteries than do police or self-promoting ‘psychological profilers’ like TV’s Cracker. Keith Mant, Professor of Forensic Medicine at Guy’s Hospital, was their exemplar in 1982, and it was to him I turned for help. The other pathologists – Dalgaard, Usher and Green – had been, in a sense, too close to the body. They had produced evidence for blows about the head and forcible sex, and for patterns of injury which precluded a fall from a height, but they had not been able to interpret all this in the context of the factual mysteries of the case: the broken sun-bed, the fractured sternum, Otten’s missing trousers (and the fact his passport had been found a hundred yards down the road) and the scratches on Helen’s face and indentation in her forehead.

  Professor Mant looked and talked like Leo McKern. He sat in his large laboratory, surrounded by skeletons and skulls and glass containers which held odd bits of human anatomy – a finger here, a bone there, the kind of relics you can see in Catholic churches in Europe, although his came from sinners rather than saints. I sat down next to a glass containing a tough piece of tissue in the shape of a flange, seemingly unscrewed from a corpse (it dawned on me after a while that it was a pickled anus) and played Watson to the Sherlock Holmes of this ebullient professor. How could he explain the break in the sternum? By an accident in the mortuary days after her death? ‘No, the pathology showed it had occurred just after the time of death.’ Could it have occurred at the moment of the impact from a fall? ‘No, she would have had to fall on her face, which would have been flattened and the whole pattern of frontal injuries would have been much more serious.’ How then do sternums get fractured? ‘In different ways, most commonly in car accidents when the steering wheel shaft impacts on the chest. We do see cases where it occurs in heart-massage – you punch, in a desperate attempt to resuscitate the heart.’ Do you? I didn’t know that. ‘Look at this.’ Mant wheezed to his feet and took hold of the nearest skeleton, tapping its ribs. ‘The girl had rib fractures – here and here, seventh and ninth ribs closest ribs to the sternum. Probably from the same punching. She’s lying, in fact dead, someone with first-aid knowledge, who thinks she might be alive and wants to save her, frantically punches the heart.’

  A picture came into frame. Very grainy, of someone desperately trying to revive Helen, just after she died from bleeding into the brain, minutes after the blow to her head. Then someone else, clearing away all traces of Helen and Johannes Otten, spectacles and handbag and the all-important trousers (as someone runs up the street to throw them in a culvert, a passport drops from a pocket). Professor Mant rewound the fuzzy video in my mind’s eye with his parting comment: ‘You know, this pattern of injuries to the girl. She could not have fallen from the fifth floor. She could – well, she could simply have fallen down the stairs. But I see there was a lift in the apartment.’ There was, and the residents complained it was always broken. And so were the lights in the stairwell. I imagine Helen Smith, running downstairs in the dark – from someone? Towards something? Urgently, fearfully, then losing her step and falling, on the right side, and cracking her head.

  I soon had reason to be grateful to Keith Mant. The inquest began with the forensic evidence, and the broken sternum was at the forefront of the coroner’s mind. He seemed convinced that she had fallen alive from the Arnot’s apartment and that her chest must have hit a lamp on the wall as she fell. This was an erroneous theory, which Alan Usher helped to demolish.

  Q: If the chest hit the lamp?

  A: You would have wounds in the chest.

  Q: There was no sign of that sort of chest injury sustained while alive?

  A: There was not.

  Q: The sternum can fracture with a very heavy punch, sometimes seen in violent heart resuscitation?

  A: Very heavy.

  Q: The left-side rib fractures are not associated with a right-side fall. But they could be associated with a vigorous attempt to resuscitate Helen Smith, which could have caused the sternum to fracture.

  A: Yes, this is a much more convincing explanation for the sternum fracture.

  Q: Given by someone with some medical knowledge? A: Yes.

  Q: And the reason there is no blood or bruising is that Helen Smith was already dead at the time?

  A: Yes.

  One of the books about the Helen Smith case noted that ‘Professor Usher looked at Robertson as if he was a very bright student in a tutorial group’. Since he was really looking at Professor Mant, this was hardly surprising. The truth about barristers is that like all players of professional sport, they need a good coach.

  The inquest had opened on 18 November 1982 in the council chamber of Leeds Town Hall. Over a hundred reporters had gathered: they were exiled to the public gallery, but permitted to leave a super-sensitive tape-recorder by the witness stand to catch any evidence they might miss – and as it turned out, much more besides. The lawyers sat in a semicircular row, facing the coroner, with the jury watching the proceedings over our shoulders to the right. What these solid Leeds citizens made of it I do not know, although they would not have looked with much favour on Sir David Napley’s Rolls, its petrol consumption paid for by their rates. Coroner Gill was pernickety and pin-striped, with an undertaker’s pallor. His duty was to examine how, where and when Helen Smith had met with death, and we were all here to help him. Stephen Sedley (for the rest of the Smith family) and myself (for Ron) would probe for evidence of unlawful killing, while Napley (for Arnot) and the other lawyers (for the FO and the party guests) would suggest it was an accident, but since no one was on trial we should all have the luxury of being seekers after truth. To this end, I began by politely requesting copies of the evidence amassed by the West Yorkshire Police. Gill refused once again: other coroners might be prepared to make such material available, but not him: we would only hear what he chose to make public, from the witnesses he chose to call.

  We began with the pathologists, whose evidence cried foul play. Not as loudly as in the tabloid headlines (HELEN: SHE WAS BEATEN! SHE WAS RAPED!), but with sufficient clarity to prove that Helen had been in a fight, that the sex had been vio
lent, that she had died from a blow on the left side of the head and that if she had fallen at all it was from nothing like a fifth-floor balcony. And, as Usher agreed, someone had probably made a desperate attempt to resuscitate her. David Napley confronted them with sound-bites about forensic science being an ‘inexact art’ and ‘requiring speculation’. (This is simplistic: the science part should admit of no mistake, while the art lies in speculation which accounts for the other known facts.) All the pathologists were satisfied that the bruises and lesions they had found on the body were not the phantom marks which can develop in mortuaries and mislead novices (so-called ‘post-mortem artefacts’). The local pathologist who did an autopsy on Helen twelve days after her death was an unimpressive witness, who had made many mistakes and had been content to certify death as accidental after having been told by the police that she had fallen flat on her face. Since the undamaged condition of her face made this an impossibility, his conclusion was illogical. He did certify the cause of death correctly, as the haemorrhage in the brain from the blow to the head. The Baksh Hospital’s own pathologist testified that from his view of her body, Helen could not have fallen at all and that it was most likely she had been murdered.

  The ‘witnesses of fact’ came next, although very few facts emerged. The divers came from Germany to testify that they had left the apartment some time between 2.30 a.m. and 3.30 a.m. They gave the impression that they had been attending something akin to a vicarage tea-party, and we were not allowed to cross-examine them or any other witness. ‘You are here at the invitation of the court,’ the coroner would say emphatically. ‘Do not indulge in cross-examination. Advocates are allowed only to ascertain information, not to challenge anyone.’ No witness could be reminded of a previous inconsistent statement and asked to explain it, or have an answer contradicted or closely examined, although this is one of the best forms of assistance that barristers can offer. The other – a final speech which would make sense of all the evidence – was excluded by inquest rules in any event. The Foreign Office witnesses came and went without challenge: when the FO later issued a statement to the effect that it had not been criticised at the inquest, it knew very well that no one would have been allowed to make the attempt.

  At one point, these proceedings to find out how Ron Smith’s daughter had died were turned into a trial of Ron Smith. The lawyer acting for the Germans sought to read out a letter Ron had written making accusations against them; I objected, saying that what he might once have written was irrelevant, at which point Ron mumbled, ‘I’m not accusing the German divers. I’m accusing Richard Arnot of murder, and Texier.’ I spun round, to whisper, ‘Ron, please. You are making my task quite impossible.’ Ron mumbled back, ‘I’m sorry’. The coroner said, ‘This is a good time to adjourn. We can perhaps settle this when we return from lunch.’ Nothing further was said that day about Ron’s ‘mumble’, because no one appeared to have heard it apart from myself. But the tape recorder picked it up, as the journalists discovered when they replayed it. That evening’s television news, and the morrow’s papers, were full of Ron’s accusations. Sir David Napley was on his feet the next morning, demanding retribution for the ‘gross contempt of court’ which nobody had noticed at the time. I thought it had been a spontaneous reaction rather than a deliberate provocation, but the coroner was full of righteous anger and imposed a fine to punish Ron for murmuring in court. A day or so later, he announced that the reporting of what he now termed ‘Mr Smith’s outburst’ had caused Texier’s elderly mother to suffer a heart attack. This announcement caused everyone in court to look daggers at Ron: he was responsible for risking the life of a dear old French lady. That was how the coroner announced it, but unbeknownst to him his information turned out to be incorrect. It had come from the FO, which had mistranslated an idiomatic French phrase for experiencing a shock (‘coup de coeur’) as if it literally meant ‘heart attack’.

  There was in fact no accusation made against either man named in Ron’s ‘outburst’, but at least the publicity given to it caused Texier to change his plans and to come to the inquest. He told of seeing Helen and Otten kissing, in silhouette on the balcony, and of asking Penny Arnot (who could not have welcomed his unexpected request) to sleep on her couch in the main room. At 5 a.m., he said, her cries of orgasm were loud enough to wake him from a deep sleep. He joined Penny and Tim for coffee on the balcony, when Penny looked over the rail and screamed again. There was panic, and Arnot came on the scene: his only thought, said Texier, was to get rid of the alcohol. Texier on this point contradicted Arnot himself, who had already told the inquest he had rushed downstairs first to check Helen for signs of life. Sir David Napley mounted an aggressive cross-examination of the bespectacled Frenchman (‘How good are your eyes?’ was his first question), and the coroner on this occasion allowed cross-examination – which was fair enough given the direct conflict between the two witnesses, although Sir David’s efforts provoked Texier to insist even more firmly that the doctor was more interested in hiding the whisky than in attending to Helen.

  Ron Smith disliked Richard Arnot, from the moment they first met in a Jeddah police station and the doctor had said what a ‘soopah party’ it was and how Helen was a ‘soopah girl’. His case against Arnot was on a father-to-father level: he was the senior surgeon who had invited the young nurse, who was the only available woman at a drunken party with a number of men she did not know, and he had gone to bed without seeing her home. But I did not believe for a moment that Richard Arnot was a murderer, or guilty of any kind of crime: he was asleep at the time, because he was on operating duty at 6 a.m. He was himself convinced that the deaths were accidental. He had sat through all the forensic evidence and yet he refused to credit its implications. He told of observing Otten’s post-mortem erection, as if it were proof the couple were having sex as they fell. (Keith Mant had chuckled at the notion that a man could hold an erection while falling five stories to certain death. ‘Injuries to the spinal column frequently cause an erection after death.’) For Richard Arnot the ‘one great mystery’ was the disappearance of Otten’s trousers, which he assumed had been pulled off his legs by a thief.

  Tim Hayter we did not meet in the flesh, although he grimaced unpleasantly into the television camera from a hotel suite in Amsterdam, the closest he was prepared to come to the jurisdiction of the English courts. He said he hated Ron Smith and had told the interviewer that at one point in Ron’s campaign he wanted to ‘put a contract on his head . . . to hurt him, maybe he has a problem walking from then on’ but later, he came to recognise the force of the evidence that Helen had been murdered. When first approached by the West Yorkshire Police, in September 1980, Hayter had refused to say a word on the grounds that he might ‘incriminate’ someone. He was offered every inducement to come to Leeds – fare, expenses, lots of spending money. He temporised and then refused, although he had no difficulty in going to Holland the week before the inquest, to talk to Thames Television and the News of the World.

  Penelope Arnot, the other crucial absentee, had said she wanted to spend the time with her children in Virginia, and had nothing to add to her statement to the police. In that statement, she claimed to have seen Helen and Otten ‘silhouetted on the balcony’ about 3 a.m. She denied having sex with Hayter, saying it was the false alibi she used when accused by Saudi police of involvement in Helen’s murder. Tim Hayter had no doubt of receiving Mrs Arnot’s erotic attentions (he relived them lubriciously for the News of the World). At the inquest, Richard Arnot pronounced himself a cuckold, and when Texier told of being awoken by Penny’s orgasmic cry, that seemed to put the matter beyond doubt, for everyone but myself. I could not quite credit this well-bred wife and mother letting go so loudly in a room close to the bedrooms of her children and her husband (they might have emerged at any moment), let alone in the somnolent presence of a Frenchman she had not met before that night. If Tim and Penny were bent on having sex, the logical place to have it would be on the sunlounger bed on the ba
lcony, sealed off by closed doors and heavy curtains and the internal noise of the air conditioning, before the dawn’s early light. But the balcony may already been occupied by another couple.

  One reason why this case gripped the public imagination – it was reported in detail and throughout the world – was its prurient appeal, and not just to tabloid readers. ‘Page Three’ of The Sun is a familiar phenomenon – less so page three of the Daily Telegraph, which reproduced the salacious evidence down to the last genital bruise. The serried ranks of lawyers and the procession of witnesses were almost all male; David Napley’s constant insinuations about Helen’s wild sex life (something which was taken for granted but never proved and would have been of no relevance anyway) added to an atmosphere which bordered on contempt for women generally and the deceased in particular. There was, additionally, ‘the class thing’: the upper-class consultant and the Oxbridge classicists at the Embassy and the Foreign Office, ranged against the nurse and her Northern working-class father. And how to explain the Arnots’ hospitality to drunken, sweaty divers? Other than a literal nostalgie de la boue, the media’s theory was a British intelligence interest in what lay behind the top security at the port of Jeddah. Ron Smith’s battle against the British establishment, from the coroner Coverdale to the Foreign Office gave the case a political edge, taken up by crusading journalists like Paul Foot. But to most people, I suspect its appeal was its real-life conformity to the classic murder mystery. People come and go in a set of rooms at night. By dawn, two of them are dead. There was no butler to serve the whisky, so whodunit?