Public Servant, Secret Agent

by Paul Routledge

  The American judges were more difficult to fathom. Initially, Neave found Francis Biddle, the senior of the two, sardonic and frightening, but came to respect his formidable inquisitorial style. Biddle nursed his own private secret during the trial: an affair with Rebecca West, the British writer and long-time lover of H.G. Wells. He had known West for twenty years and became what she described at the time as ‘certainly my last lover’. She was then fifty-three and was briefly but ‘gloriously happy’ with Biddle at Nuremberg while reporting the trial for the Daily Telegraph.8 She also enjoyed Neave’s company. Her biographer, Victoria Glendinning, says: ‘The best friend she made among the British delegation was the future MP, Airey Neave’,9 though given the twenty-four-year age difference it is unlikely that they were anything more than good friends.

  Biddle’s alternate, Judge John J. Parker, offered something of a parallel to the British pair: alongside his brilliant, distinguished and sophisticated senior, he cut a large and warm figure, reminding Neave of the homely judges of Hollywood’s imagination. ‘He symbolised those Christian values which the Nazis had so ruthlessly destroyed,’ recorded the young major. The French judges disappointed him with their inscrutable inactivity throughout the trial, whereas the Soviet judges and prosecutors fascinated him. Neave had more than a jurist’s interest in them. As he freely confessed in his record of Nuremberg, he was there not only as a legal officer of the court, but as a spy reporting back to London. Neave described the senior Russian judge, Major-General of Jurisprudence I.T. Nikitchenko, Vice-President of the Supreme Court of the USSR, as a man of sharp intelligence who was principally there to carry out Moscow’s instructions. Nonetheless, he was friendly and civilised towards Neave ‘when the secret police were out of the way’. Nikitchenko won the admiration of other Allied lawyers for his liberal views, not to mention his phenomenal capacity for vodka. He had a genuine legal background, having graduated from Moscow University and lectured on criminal law at the Military Jurisprudence Academy. The same could not be said of Colonel Alexander Federovich Volchkov, the Soviet alternate judge. Volchkov ‘was said’ to be People’s Commissar for Justice and Professor of International Law, yet he refused to take his turn in the chair at a private session in the absence of his superior, pleading lack of qualifications. ‘The intelligence services of the Western world, whose representatives at the trial included myself, made reports on him,’ wrote Neave (author’s italics). ‘That he was close to the secret police is certain. Perhaps he had been appointed to watch Nikitchenko.’10 Volchkov was uncommunicative and rumour had it that he was an officer of the NKVD. Not only that, it was also suggested that he was commandant of a Soviet concentration camp in eastern Germany – based in Colditz castle. Neave offered no further evidence for this extraordinary suggestion. His own reports on the Russians, and perhaps on the other Allied powers’ representatives, presumably went back to his old employers, MI6. They were interested in anything he could glean about intelligence and security organisations, and particularly concerned to know about what information was going back to the USSR from Nazi records on the Eastern Front. Much post-war intelligence of the east derived from Luftwaffe aerial photography. The records might also yield information of possible German/Soviet collaboration in the use of agents against the Allies at the beginning of the war, before Operation Barbarossa. MI6 had an omnivorous appetite.

  The trial opened promptly at ten o’clock on the morning of 20 November. Earlier optimism among the American legal team that they would be home for Christmas had by then evaporated. The proceedings would go on for 284 days before Hitler’s henchmen were finally brought to book. On the first day, Neave sat below the judges’ bench to hear Lawrence in his opening statement describe the trial as unique in the history of jurisprudence and of supreme importance to millions of people all over the globe. It would carry a ‘challenge of hope to posterity’. But the main part of Neave’s work was now over and he was, frankly, bored. The defendants had cheered up considerably since he had served the indictment on them, realising that it was a genuine trial, and that some might get off, or at least avoid the gallows.

  It took junior members of the Allied prosecution two days to read out the full indictment, more than 20,000 words long. Under the lash of its chilling detail, some of the monsters on trial hung their heads, while others breathed defiance. For Neave, who was free to come and go as he pleased, the indictment seemed to have no end. ‘I could not sleep that night for thinking of a myriad corpses,’ he recorded. Next day, all twenty defendants in the dock (Kaltenbrunner was in hospital) entered a plea of ‘not guilty’. Neave had instructed them how to plead. He was unimpressed by the way some of these vain men gilded their plea with appeals to God. Their defence lawyers had a near insuperable task, faced with the damning testimony that followed. Any sympathy they might have had dissolved after the showing of film of terrible scenes of suffering uncovered by the advancing Allied forces. Neave was tortured by that experience. On the day he looked in vain for signs of remorse for these heinous crimes. ‘They wept for themselves, not for the dead,’ he noted. More than thirty years later, he still suffered bad dreams.

  Rudolf Hess, for whom Neave had felt sorry when serving the indictment, sought through his counsel, Dr Gunther von Rohrscheidt, to demonstrate that he was unfit to plead, on grounds of total amnesia rather than insanity. Neave listened intently to the prosecutors’ arguments that Hess was fit to stand trial, and detected a growing restlessness on the part of Hess, who was alone in the dock during this hearing. Hitler’s co-author suddenly stood up and admitted that his loss of memory had been a tactical sham. He would henceforth accept responsibility for all his actions. Neave noticed that he was ‘extremely pleased’ at the sensation his little pantomime had caused, while accepting that some of Hess’s amnesia was not in doubt. ‘With me, he was always lucid, courteous, even witty, but definitely abnormal,’ Neave added. And when von Rohrscheidt fell on the ice and broke his leg, Hess sacked him and turned to Neave for advice. He insisted on defending himself, and ‘fenced amiably’ for hours with Neave, who finally persuaded him to accept another German lawyer. This experience drew the old soldier – politician and the young major close together. ‘He seemed to understand and confide in me,’ Neave wrote. ‘I think he did not want to be bothered with reading trial documents but preferred his novels.’ The lawyer Neave found, Dr Alfred Seidl of Munich, still represented Hess decades later, when he was the lonely prisoner of Spandau.

  Britain’s turn to confront the Nazis came on 4 December 1945, when Sir Hartley Shawcross, the new Labour government’s Attorney-General, made his speech for the prosecution. The cultured British lawyer cut a commanding presence and Neave listened to his ‘persuasive and deadly’ arguments the whole day. Shawcross met and demolished the key argument of the defence: that they had only been acting under orders. It was no excuse for a thief to say he had been told to steal and the principle held good even where the crime was mass murder. Political loyalty and military obedience might be fine things but they did not justify wicked acts. Neave concluded that the British prosecutor’s ‘lethal moderation’ unnerved the defence.

  After the four opening speeches of the Allied powers, Neave had little business inside the court. He had to look after the many practical difficulties thrown up by the efforts of the German defence counsel, including the discovery of witnesses among the confusion of the Occupied Zones. He took some well-deserved Christmas leave at home with Diana and in the New Year of 1946 returned to work promoted to Lieutenant-Colonel in a new post with a commission supportive of the Nuremberg legal process. This body was charged with gathering evidence to defend those charged with membership of Nazi organisations ‘deemed to be criminal’. It was an enormous task, as Article 9 of the Charter under which the accused were charged gave the Tribunal power to declare criminal any group or organisation. On the face of it, this catch-all provision could have several million members of the Nazi Party and its allied organisations in the dock. His burden
was greatly eased by the Tribunal’s decision that membership alone should not be grounds for prosecution. It was still a daunting task for a thirty-year-old middle-ranking officer.

  Neave was appointed Chief Commissioner of the new legal entity and in mid-May began the mammoth task of hearing evidence. He sat in a room reminiscent of a London magistrate’s court and a steady stream of witnesses culled from internment camps and the bombed-out cities of Germany appeared, under armed guard, to give testimony. In June, it was clear that sitting alone he would never complete the task of interviewing several hundred witnesses and four assistant commissioners from each of the Allied powers were appointed. A second commission began work. Neave considered that his mission went to the heart of the Nazis’ ‘only obeying orders’ defence. He was not a soft touch. He rejected all defence grounds for being a member of outfits such as the SS except physical intimidation. Neave had no legal precedents to guide him, only the wording of the Charter under which the Tribunal operated. He had to sit through many hours of vexatious pleading from German lawyers, seeking to prove that the Nazi Party, or the Gestapo, or the SD, were not actually engaged in a criminal conspiracy as defined in the Charter. Neave thought most of the defence submissions were bogus or worse, and the Tribunal shared his view, expressed in what came to be known as the Neave Report, delivered to the court in August 1946. He was particularly sickened by the lies and excuses offered by defence lawyers acting for former SS officers, among them that prisoners in Auschwitz, Buchenwald and Dachau were well fed and guards were forbidden to strike them. ‘There was a ghastly humour about the proceedings in my little courtroom as if I were acting in a little horror film,’ he remembered.11

  However, when it came to the German High Command, things were very different. Was the General Staff a criminal conspiracy? Neave took evidence from the top military figures, including six field marshals. He observed these formidable figures curiously, noting how they retained an authority despite being stripped of their uniforms and decorations. Yet some of it was mere show. Under questioning, Field Marshal von Brauchitsch banged the table and told Neave, ‘You do not know what a military genius Hitler was!’ With yet more banging, he insisted that only someone who had known the Führer could understand his hold over others. An angry Neave told him to shut up and he apologised for his lack of composure. In his report to the Tribunal, Neave summarised the case for the defence: officers belonging to the High Command and General Staff did not form a defined group in the sense alleged by the prosecution. They had not conspired with Hitler to plan an aggressive war, had not influenced the Nazi leadership and had mostly kept clear of politics. They had not conspired with the Gestapo or the SS to commit war crimes or crimes against humanity, and particularly after 1941 could not have resigned their commands without fear of serious consequences for themselves and their families. The Nuremberg judges decreed that the German General Staff and High Command were not a ‘group’ or an ‘organisation’, a verdict with which Neave agreed. But four categories of officers could be indicted, chiefly the heads of the three services. They, along with the other criminals of the Nazi state, heard Sir Hartley Shawcross tear their defence to pieces in the prosecution summing up in late August 1946. Neave thought it was ‘a great speech’.

  During a month-long recess to consider their verdicts and sentences, the judges decided that only the most heinous of the Nazi organisations – the Gestapo, the SD, the SS and the Corps of Political Leaders – were ‘criminal’. To the fury of Stalin, the Reich Cabinet, the General Staff and High Command and the SA were excluded from this category. The otherwise intelligent and honourable Nikitchenko, under pressure from the Kremlin, set forth a dissenting judgement. The stress showed plainly. He appeared drunk at dances. The Western Allies looked the other way but Neave recollected ‘a clear vision of Nikitchenko with his maroon and gold epaulettes, staggering round the room’. London was no doubt informed. He was not heard of again after returning to the Soviet Union.

  In the afternoon of 1 October 1946, the judges filed back into the courtroom to hand down their verdicts. To their disbelief, three – Fritzsche, Schacht and von Papen – were acquitted. Sentence of death by hanging was delivered on Goering, von Ribbentrop, Keitel, Kaltenbrunner, Rosenberg, Frank, Frick, Streicher, Sauckel, Jodl, Seyss-Inquart and Bormann (in absentia). Hess, Funk and Raeder got life, Speer and von Schirach twenty years, von Neurath fifteen years, and Doenitz ten years.

  The dramatic sentencing process over, Neave flew back to England in Francis Biddle’s private Dakota. He was keen to pick up the traces of civilian life, after seven years in uniform, and resume his truncated career as a barrister. He was not present at the executions on 17 October, after appeals for clemency had been rejected by Western leaders, but he was amused to read in the Evening Standard that Goering had cheated the hangman by committing suicide with poison in his cell. In the controversial aftermath of the Nuremberg Tribunal, Neave never weakened in his conviction that it was right, for political and psychological reasons, to hold the trial. Unsurprisingly, given his own close involvement, he believed that the trial was fairly conducted. He also drew a general moral lesson from the experience. ‘The sight of these once-powerful Nazis,’ he wrote ‘will always be an illustration to me of the true dangers of authoritarian rule.’

  11

  Lawyer Candidate

  Returning to civilian life was an unsettling experience. Post-war Britain, with its shortages and a Labour government dedicated to state ownership, was for Neave a poor reward for the sacrifices he and those like him had made. He determined to enter politics but first he had to find a job to support a growing family. His daughter, Marigold Elizabeth Cassandra, was born in May 1944, at Chillington Hall, the home of his wife’s family. Neave appears on the birth registration as a major in the Royal Artillery and barrister-at-law, though he was not practising. Two sons followed: Patrick Richard was born in the same place in 1947 and William arrived in 1953. There was nothing of the Neave tradition in the boys’ first names: no Sheffield, no Airey, for the first time in three generations. The family still had the flat in Pimlico but also lived at Mill Green Park.

  Neave had been called to the Bar in 1943, though unable to practise because of the war. He found himself a pupillage with Gerald Thesiger, who later became a judge. Because of the extensive war damage, accommodation for young barristers in the Inner Temple was very scarce and Thesiger could not keep him after his pupillage. Looking around for an alternative berth he alighted on Frederick (later Lord) Lawton, who was also a casualty of the bombing. Lawton had been invalided out of the army in 1941 after an accident. The son of a prison officer, he was no stranger to politics, having flirted with Communism as a Cambridge undergraduate. He moved to the ultra-right on coming down, joining the British Union of Fascists and becoming prospective Mosleyite candidate for Hammersmith in the late thirties. Returning to the Bar, he found his chambers in Essex Court destroyed by the Blitz and its members dispersed. Lawton therefore became a wartime refugee in Norman Birkett’s chambers at 3 Temple Gardens on the understanding that when the other members of the chambers returned from the services he would move on. Lawton duly did so in 1946, setting up his own chambers with two young lawyers recently called to the Bar. They shared accommodation on two floors of 5 King’s Bench Walk, a listed seventeenth-century building situated in a quiet square between Fleet Street and the Embankment. Bomb damage had been roughly repaired, and the offices were ‘exceedingly primitive’, but it was an agreeable spot.

  Here was an opening for Neave. Lawton recollected: ‘One of the consequences was that for some time after the war I had more accommodation in my chambers than I could usefully fill. That got round, and when Airey finished his pupillage he asked me if I would take him in and I did.’1 He was to remain there until he became a junior minister almost a decade later. Lawton’s chambers were characterised by bright young men, including Robin Day, later to find fame as a broadcaster. Margaret Roberts, later to become rather better kno
wn as Margaret Thatcher, was one of the bright young women.

  The law in the late 1940s was not particularly lucrative for a young barrister making his way in the profession. Neave’s expenses in chambers were quite low, only £100 a year. Tradition required that tenants pay only a small contribution to the running of chambers, while the head made up the balance. But the income was also low. Neave might earn only four guineas for an appearance at the magistrates’ court, and seven guineas at the Quarter Sessions where more serious cases were tried. If he took on a case under the Poor Prisoners’ Defence Certificate scheme, he would receive only £3 5s 6d for a day in court, and if the case went on longer, no matter how long, another £2. ‘He was certainly not earning big money,’ said Lawton. ‘I doubt if he was earning a thousand pounds a year. He was not a great success as a barrister, and there were so many of them chasing a comparatively small amount of work.’ Neave did mainly criminal work, flogging around the courts prosecuting or defending petty crooks on the Eastern Circuit. Shoplifting cases were unduly prominent.