by C. J. Driver
All I was concerned about was the business of the signal, though I didn’t think I was going to get far with Mrs. Hamper. She had the look of a person who has not suffered doubt for at least forty years. I did my best with her—to try to make her say that the fighting was not a necessary consequence of the words Buckleson had shouted—but I got no distance at all, except perhaps in that she was a little too certain, a little too firm-minded. It’s never easy to tell how witnesses will seem to juries, but I thought she might have come across rather badly in the end—she wasn’t exactly sympathetic. Indeed, Draper re-examined her, I think simply to make her seem nicer.
Two more eye-witnesses, who added nothing material either way, and the prosecution closed its case and it was close enough to four for the court to adjourn. I was delighted, because I had by then decided I would call only one witness for the defence: Edward Herford, M.P. I had told Peale not to bother him to come in for the first day, because I had been certain we would not reach my main defence.
I went back to chambers, phoned Peale and warned him I would need Herford’s services first thing next morning; he promised to see that he was there. I said too that I didn’t really think he need bother to get his eye-witnesses for the defence. “The case is just about over, Mr. Peale,” I said. “I doubt very much if they can get the second charge to stick—there was a lovely muddle with one of the police witnesses.”
“My clerk told me.”
“Oh God, it’s been so easy; it’s years since I’ve seen anyone briefed so badly as Draper. In a way, what’s most interesting is that they brought the case at all; they must really be looking very hard for a way to get Buckleson.”
“That’s the impression I got too. Time will tell; I get the feeling I might get some more business from this young man before many years have elapsed.”
I wasn’t going to discuss future business over the phone with Peale, when I had two or three of my fellows in the room with me. “Quite so,” I said and, after a little more chat, rang off.
True to his secretary’s promise, Herford was outside the court next morning, though he did not look as if he was enjoying the experience much. I wasn’t allowed to talk to him, of course; I waved across the lobby and he flipped an impatient hand at me. But the law grinds on, and the rigmarole before we got down to business again—the checking of the jury, the entry of the judge, the bowing and politenesses—took nearly ten minutes; Herford, when I called him after what must be one of the shortest opening statements by a defence counsel on record, looked even more impatient than he had been before. But the moment he was in the box and facing the court he relaxed completely and was once more the polished and performing politician.
I suppose I wanted him there above all to establish that the demonstration was a perfectly respectable one, whatever the Free People might have done, and that John Buckleson was, in his way, respectable too. Herford answered my questions coolly and correctly, never at a loss for a word, never hesitating. Yes, he had been one of the organisers of the meeting—he preferred that term to the emotive term ‘demonstration’. Yes, he had been responsible for the Action Group’s inviting Buckleson to speak from the platform. Yes, Buckleson was considered a significant political leader of the young, partly by virtue of his role within the Free People, partly because of himself. He was a clever, sincere, and constructive young man. No, he had not had a chance to make a formal speech at the meeting, because the police had arrested him in the crowd.
“Do you know why he was arrested at that particular point?”
“He had gone down into the crowd from the platform to try to break up the fighting.”
“Did he say anything before he left the platform?”
“He didn’t say anything to me. From where we were sitting we had a good view of what was going on. I could see there was trouble developing, and then Buckleson jumped up, shouted something into the mike, and rushed down towards the Free People.”
“Do you remember what that ‘something’ was?”
“I’m not sure of the exact words; it’s nearly four months ago, of course—but it was something about stopping the police behaving as they were.”
“You can’t remember the exact words?”
“I think it was something like ‘Get off our backs’, you know, meaning ‘leave us alone’.” He was being very useful, even if he is a pompous ass.
“Mr. Herford, may I be absolutely clear about this? You took Buckleson’s cry or shout from the platform to be one of protest against the police?”
“Yes, of course.”
“Do you think that protest was justified?”
“It is inevitable when you get large-scale police surveillance of a demonstration, particularly when one body of policemen seems to mass itself next to a group known to be militant, you will get protest. I disapprove of the fact some demonstrators may have used violence in retaliation against the police action; but I cannot approve of the way police handled their side of things. I stress that from the platform I had a very clear view of what happened.”
After a couple more questions, I sat down; Archie and Rumbold then had their turn, but Herford was not able to do much for the other four, since he neither knew them nor had seen them. There had been fighting, he knew that, and while he believed a lack of foresight by the police was partly the cause, he was not prepared to call the police action deliberately provocative. He had, he said, too much respect for the usual skill and foresight of the police to say that.
Draper cross-examined. If anything Herford looked better under attack than he had looked under my sympathetic questioning.
“Mr. Herford,” said Draper, “would it be accurate to say you are a left-wing member of the Labour Party?”
“I am a member of the Parliamentary Labour Party, and the whip has never been withdrawn from me.”
“But you are left-wing?”
“In relation to the Conservative Party, yes; in relation to the Labour Party, no.”
“The Action Group which organised this demonstration,” asked Draper, “does it include some communists?”
I was on my feet to object, but Kinglake did the job for me. “Mr. Draper, I am concerned,” he said in his most judicial voice, “to keep questions of political beliefs out of this court. These charges are not a question of political beliefs, surely? Do you think your question is strictly material?”
Of course it is total nonsense, the non-political line; but judges like to play the game that way. Draper re-phrased, “Would you describe the accused Buckleson as a communist?”
I was half-way to my feet again, but Herford’s reply sat me down again. “Certainly not,” he said scathingly. I could have objected to the question, but perhaps it was worthwhile stretching the point. Kinglake seemed prepared to let it go, anyway; so I would too. Draper continued, “Can you, as a professional and expert politician, give us a description of his political position?”
“I would say he was a syndicalist anarchist, strongly influenced by the New Left.”
“For the benefit of the jury, would you please explain those terms?”
“I could refer members of the jury to some books, but I really don’t think it would be possible to explain even one of those terms fully unless you were prepared to have me in this box for the rest of the week; and I am not a theoretical politician. You would be much better advised to call an expert.”
“Mr. Herford,” said the judge, “I’m afraid you must leave the prosecution to decide for itself whom to call, though I do appreciate your difficulty in explaining such complex terms; I have to do so myself fairly regularly.”
“Sorry, My Lord,” said Herford.
“Mr. Draper, having heard Mr. Herford warn that to explain these terms,” and he referred to his notes, “syndicalist, anarchist, the New Left, would take a great deal of time, and having heard him doubt his competence to do so, do you wish to pursue this line of questioning?”
Hurriedly, Draper consulted the Yard solicitor, then said, in
the circumstances, it was perhaps wiser to concentrate on the specific charges. Would Mr. Herford say whether or not Buckleson believed in revolution?
“If you mean by ‘revolution’ a simple Marxist-Leninist notion of the proletariat rising up to destroy the bourgeoisie, I would say he did not; if you mean by ‘revolution’ that he believes there are a great many things in our society which need change, yes.”
“In this search for change, would the accused Buckleson be prepared to use violence?”
I stood up. “My Lord,” I said, “interesting though this discussion is, it is plainly conjecture; we are not discussing whether my client would be prepared to use violence, but whether he did use violence—and whether he conspired to make an affray. I cannot see these questions have any relevance, even—if I may say so—to the alternative charges which the other accused face.”
“I am rapidly approaching that view,” said Kinglake. “Mr. Draper, could you avoid questions which require the witness to answer in terms of conjecture?”
“As it pleases you, My Lord,” said Draper. He consulted the solicitor again, and I could see him shaking his head. After a moment Draper said, “I have no more questions for this witness, My Lord.”
Herford stood down, and I got to my feet again. “The defence rests, My Lord,” I said. Draper looked slightly indignant and again turned to his solicitor. I suppose they were both certain I would call eye-witnesses and so on: but I reckoned that, given Collins’s mistake, the prosecution case was so flimsy that calling other witnesses would simply weaken Buckleson’s case. There just wasn’t enough to convict him on either the first or the second charge. They’d get the others on the third, but I was sure John would be safe.
Archie and Rumbold were more cautious; they called their witnesses to testify that the police had acted with unnecessary enthusiasm in making arrests, that the Free People had not been very effective street fighters, that strawberry jam was used in the film and the theatre to simulate blood, and so on and so on. Draper seemed to have lost heart by the time he came to cross-examine, and his questions sounded nothing but slightly vindictive. By noon, Archie and Rumbold had finished, and the counsel summed up.
Draper first. In his final speech, he made great play of the fact that the police would not have sent such a large body of men to the demonstration if they had not had good information that trouble was to be expected. “And does not the fact that the Free People, of which organisation all five of the accused are acknowledged members, and in at least one case, an acknowledged leader, took with them to the demonstration a variety of offensive weapons in itself sufficient evidence they had conspired together to make an affray? There is also clear evidence they did fight the police; their defence has been that the police provoked them, in other words, they were, if not defending themselves, at least reacting to deliberate provocation by the police. Yet we have also heard one of the leaders of the demonstration, a Member of Parliament to boot, insist that the police were not provocative, even if he felt they may have been over-enthusiastic in their initial reaction.”
He then dealt with the question of John’s words from the platform and his words when arrested. “Is it not clearly proven,” he said, “that the moment Buckleson rushed forward to seize the microphone, and shouted out, ‘Get those pigs off our backs’, his followers, including the other four accused, produced their weapons and attacked? Members of the jury, you are here as representatives of common sense, and does not common sense tell you if a man shouts out an instruction to his followers to ‘get the pigs off our backs’, and they immediately begin fighting with a variety of weapons they have carefully brought with them, that is a pre-arranged signal? Is there any doubt in your minds that if Buckleson had not been arrested by Sergeant Collins before he reached the fighting, he would have joined in the fighting with as much vigour as his followers showed? He signalled for the affray to begin; he went towards the area to join in the fighting—the actual moment of his arrest is immaterial.”
Finally, he dealt with the second and third charges as they concerned the other four accused. “They had offensive weapons; no evidence has been offered which disputes the evidence of the police. The defence has argued that polythene bags of strawberry jam and red paint are not offensive; but the defence has not argued that razor-blades and marbles and stones are not offensive. Indeed, how could they?” And so on and so on.
It was really a rather admirable summing-up Draper made, given the thinness of the evidence he had. By concentrating on common sense, he flattered the jury; and by asking for a judgement on the basis of what was obvious to an ordinary man he was playing his strongest card as well as he could.
It was my turn. “Members of the jury,” I said, “I am defending one man, John Buckleson, on two charges, that he conspired with others, including the other four accused, to unlawfully fight and make an affray. He is charged too with actually making an affray, with actually fighting the police—or at least with aiding the fight by making his way towards it.
“It’s very easy to look at the situation of this demonstration and say, ‘He must have conspired, because it wouldn’t have happened otherwise.’ But if you turn that statement around, and say, ‘Because it happened, he must have conspired,’ you can see the flaw in the prosecution’s argument. It is not my job to prove John Buckleson did not conspire; it’s the prosecution’s job to prove he did. You can only prove John Buckleson was guilty of conspiracy if you can say, ‘This happened as a result of Buckleson’s conspiring with others; we know Buckleson did conspire with others because …’
“Well, because of what? Because the police, in the person of Inspector Runicorn, say so? But Inspector Runicorn did not say he had evidence Buckleson had conspired; he said he had received information that trouble was expected. And we only have the Inspector’s word for this. Was it an informer? Or was it an intuition? If it was the former, was it someone who had a political stake in seeing there was trouble? We don’t know; we haven’t been told any of this in court; and because of this, I can’t see how you can possibly convict Buckleson on this charge.
“Take the words Buckleson shouted from the platform, the words the police assert were a signal. When I questioned Mrs. Hamper about those words, she made it clear she assumed those words meant one thing because they were followed by fighting. But she was making an assumption, since the fighting may have started whether or not those words were shouted, and those words may have been an attempt by Buckleson from the platform to prevent the fighting which he thought the police’s behaviour was bound to lead too. That is certainly the interpretation Mr. Edward Herford, M.P., placed on those words; and he after all was in much the same position as Buckleson to see what was happening down there, indeed, in an even better position than Inspector Runicorn himself. You have to choose between Mrs. Hamper’s assumption and Mr. Herford’s explanation.
“Assume Buckleson wanted to prevent the fighting when he shouted from the platform. When he jumped down and went off to where the fighting was going on, was he going to join in the fighting? Or was he going to try to stop it? One vital fact is that when he was arrested he did not have anything on him he could have fought with—he didn’t even have a bag of strawberry jam. Isn’t that fact alone enough to ensure his acquittal on the charge of conspiracy?
“You heard the evidence of the large Sergeant Collins. He arrested my client before he reached the fighting. Before. And Buckleson didn’t fight Sergeant Collins; he wasn’t even armed with what the prosecution has called ‘offensive weapons’. The prosecution asserts that he was on his way towards the fighting, that he was in effect aiding and abetting the affray which it also asserts he conspired to make. What evidence of this have we? None at all—we cannot know what intention my client had—his intention may have been (indeed, I assert it was) to prevent the fighting. The onus is on the prosecution to prove that he went towards the fighting with the intention of joining it; and, very simply, it has not done so. After all, the charge states that m
y client ‘unlawfully fought and made an affray’. Sergeant Collins himself told us, in effect, that my client didn’t.
“Oh, but, says the prosecution, when Buckleson was arrested, he shouted and swore and said, ‘You fucking bastards, next time it’ll be machine-guns.’ Which means, according to the prosecution, next time the Free People will bring machine-guns, not strawberry jam and marbles and a couple of harmless smoke-grenades. Marchine-guns which they’ll carry in their pockets? Isn’t it a better explanation of those words to think what one of you would do if, on your way to try to prevent a fight, you were suddenly drawn into the arms of a policeman as large as Sergeant Collins and arrested? Would you not shout and swear? Would you not accuse the police—particularly if you thought they had acted provocatively—even to the extent of saying they were capable of using machine-guns on demonstrators?
“My learned friend the counsel for the prosecution has asked you to consider these events in the light of common sense; and he has suggested that because I wish you to regard the events with enough wit to see possible ambiguities both in what was said and in what was done by Buckleson I am somehow trying to pull the wool over your eyes. Common sense, wit and an understanding of possible ambiguity are not exclusive; you can have one and the other at the same time. You are dealing here with the law; and the law says that a man is considered innocent until he has been proved guilty. The prosecution has managed to prove only that he may have been guilty. He may have been; I too may have been guilty of a thousand things. But he has not been proved guilty, and therefore I hope that you will find him innocent.”
As I expected, Archie and Rumbold concentrated on the second and third charges. I didn’t myself think there was much chance of John’s being found guilty unless the judge managed to sum up very badly; there simply wasn’t enough hard evidence. But the cleverest lawyer in the world couldn’t make much of the second and third charges against the others; they had fought, they had carried offensive weapons. Archie tried hard to show that the police had been unduly provocative in their arrests; he had a go against the whole concept of snatch squads in situations where violence was possible, but I did not think a jury, unless it was unusual, was going to say in effect that the police had been responsible for the whole state of things. Perhaps if the four hadn’t been carrying offensive weapons, it might have been different; but they came prepared to the demonstration, and that was really that.
