Rather His Own Man

by Geoffrey Robertson

  I was driving home – I was booked to fly to Singapore the next day to defend some detainees – when I heard the six o’clock BBC news. The Northern Ireland Secretary, the alleged target himself, had proposed to abolish the right of silence (i.e. the right that my defendants had just exercised, to say nothing and to have no inference of guilt drawn from their silence) because IRA terrorists were using it to get themselves acquitted. Then on came the loquacious Lord Denning, even more of a menace since he had been forced to retire, explaining that every defendant in an IRA trial who claimed the right to silence must for that reason be guilty. The media the next day was so massively prejudicial that I cancelled my flight and returned to court, demanding the right to re-address the jury. Permission was granted, but it was an uphill task to explain to them that Lord Denning knew nothing about criminal law (which was in fact the case – he was a great civil lawyer). The three were convicted and jailed for twenty-five years. It was heartening, however, that the Court of Appeal, having recognised how prejudicial the publicity had been, quashed the convictions.2

  That might be why I was instructed to defend Dessie Ellis. His fingerprints were all over the circuit boards of the bombs that had caused civilian casualties in England and killed many soldiers and policemen in Northern Ireland. So dreadful had been the consequences of his conduct that the Irish Republic had given him up: he was the first Irishman ever extradited to face ‘British justice’ – a phrase which many in Ireland had regarded as a contradiction in terms. I did not see how Ellis could be defended – the evidence against him was overwhelming, the right to silence would do him no good, and I did not fancy a long Old Bailey trial challenging what in this case seemed accurate scientific evidence. But I usually tell clients that ‘the truth will set you free’ – and Ellis told the truth. He had indeed made most of the IRA bombs. He had done so in a remote part of the Republic, where he was told – and believed, otherwise he would not have made them – that they would be used to kill only policemen and British soldiers in Northern Ireland. In other words, his intention was to hit military targets in Northern Ireland, but he had no intention to kill anyone in England, and he believed his bombs would not be used there. This was a defence in law, but how to put it before an English jury unlikely to credit the distinction, or to believe it should avail a man responsible for so many deaths?

  I had to call the defendant into the box. I called Bernadette McAliskey, who as Bernadette Devlin had won worldwide fame for leading Catholic protests in the North: she explained to the jury the mindset of Republicans like Dessie Ellis. They saw themselves as soldiers in a war of liberation, entitled in that war to kill their enemies, British soldiers and Protestant police. Civilians, other than informers, they regarded as off limits, and they were opposed to extending the war to the English mainland. That was Ellis’s belief (although not shared by other factions in the IRA) and it supported his testimony. For complicated jurisdictional reasons concerned with his extradition, he could not be tried for those Northern Ireland killings, although the jury must have hated him for it. All they were called upon to consider was whether he intended or knew that other IRA factions would use his bombs for explosion in England, in which case he would be jailed for life.

  All I can say is that the jury found him ‘not guilty’ – the most extraordinary acquittal, given all the prejudice against him, even in his own country. He had been acquitted not because he was morally innocent – his hands were steeped in blood – but because he did not have (or may not have had) the criminal intention to kill people in England. The verdict must have astonished those ‘people in Dublin’ who were the shadowy paymasters of the IRA. It would be too much to suggest that it restored their faith in British justice, since they had never had any faith in the first place, but it did show others in the Republic that the traditional enemy could at last give them a fair trial.

  Dr Samuel Johnson – the chambers I shared with John Mortimer were named after him – had a pretty good grasp of human nature. ‘There is,’ he asserted, ‘a proof to which you have no right to put a man. You know, humanly speaking, there is a certain degree of temptation, which will overcome any virtue.’ This problem has exercised every criminal justice system since Adam was arraigned in the Garden of Eden: whether to punish a person who has been talked into committing an offence. Eve was not framed – she was the first dupe of the state serpent. It lost its power to stand upright as punishment for using her as a honey trap, inveigling Adam into crime.

  Police waging the ‘war on drugs’ in London rarely ‘solved’ crimes by detection work, but they had no hesitation in using agents provocateurs to set up defendants in sting operations, tempting them to break the law. This power could be abused for corrupt purposes by police who had a hold over informants who were also drug dealers – they sold the drugs on behalf of police, who took their share of the profits. The police even supplied the informant dealers with drugs to sell, taken from those seized in other busts. This is an account of one Old Bailey trial which exposed the racket and pushed the law about unfair provocation a little further in favour of the wisdom of Dr Johnson.

  Let me set the scene. Two young men are playing frisbee on the green in front of Holland House in wealthy Kensington. Rafi, a fly Indian, has not a care in the world: he has a wealthy girlfriend, and does bits of import–export when he needs to boost his self-esteem. His friend is working class, from Newcastle upon Tyne, hip and generous – in fact, he has provided the line of cocaine they have just snorted to put them in the mood for a game. Rafihas been easily charmed by this new acquaintance, Cornelius Buckley, and calls him, affectionately, ‘Con’. This nickname is appropriate in a way Rafidoes not suspect, for Con works with a police team in Notting Hill, conning new acquaintances into drug deals, in the course of which they get nicked. Con is rewarded for his efforts – officially, by a modest £150 per arrest from the Scotland Yard informants’ fund. Unofficially, he receives a proportion of the cannabis seized at each bust, which he recycles in the streets and pubs of Notting Hill Gate, returning a share of his profits to the police. He has already notched up twenty-four arrests and today he is hoping to set up another. So after the game he tells Rafithat he has a friend who owns nightclubs in Birmingham, who ‘has a lot of bread’ (money, for younger readers) and is desperate to obtain 20 kilograms of hash.

  Rafi is at first unwilling to help, but over the next few weeks Con works upon him, persuading him into the joint enterprise out of friendship and the promise of easy profit. (The purchasers are offering £14,000, a lot of money in 1975.) Rafiis not, and never has been, a drug dealer: he smokes pot, enough to think the law an ass and to make him less worried about breaking it. After several weeks of dangling conversation, Rafisuccumbs and approaches a dealer, who is willing to obtain this large amount of cannabis as long as Rafiwill take the risk of delivering it to the buyer. Rafihas been persuaded by Con that there is no risk at all – the nightclub owner is a close and trusted friend.

  This was how Rafiand the dealer came to drive with a suitcase containing 20 kilograms of hashish to meet Con and his trusted friend in room 7068 of the Kensington Hilton, just off the Shepherd’s Bush roundabout, regularly used by resting or adulterous aircrew after long flights to Heathrow. The dealer waited with the suitcase in the car while Rafiwent up to the appointed room. Con opened the door and introduced two men, who swore loudly and behaved as coarsely as Birmingham nightclub owners might be expected to behave. They placed a large bag crammed with bundles of £20 notes on the table, withdrawn that morning from Scotland Yard’s special vault of used banknotes, to the sum of £14,000, and invited Rafito count the money. Having quickly done so, he returned to the car, collected the suitcase from the dealer and brought it to the room so the nightclub owners could inspect the 100 cannabis bricks inside it, each in a linen wrapping, stamped with a special blue-ink seal in Arabic lettering to indicate the batch and date. (These seals were used by Middle East producers to denote the origin of commercially grown cannabis
, for an international black market which had become brazen enough to label its product like wine.) At this point, the police officers dropped their pose and handcuffed Rafi, while outside a police team arrested the dealer. Con slipped away into the bathroom, scooping up a dozen or so slabs of cannabis as he went. It was only later, when Rafiwas formally charged with being in possession of only 14 kilograms of cannabis, that he realised he’d been set up.

  What he did not volunteer, understandably, was how many kilos of the drug had actually been in his possession. People rarely do volunteer the fact that they are more guilty than charged. That was the beauty of these sting operations. The victims were caught, red-handed, and were happy to plead ‘guilty’ to the lesser amount, in the hope of a reduced prison sentence. The missing slabs, their labels intact, would stay in Con’s shoulder bag until he sold them on the street, at street prices, and handed the proceeds to the detectives. Everyone profited and nobody complained. And the best thing was that the actual evidence went up in smoke. All except for the Arabic seals, which Con, as a cannabis connoisseur, kept, in the way others collected stamps. His role as an informant who participated in the offence would never be disclosed, because judges in this period routinely refused to order the identification of police informants, believing that this was ‘not in the public interest’. Indeed, no trials were ever expected to take place: men like Rafiwould all plead guilty, make their excuses and go to prison. Being conned by an agent provocateur was not a defence in English law.

  In the US, if defendants admit they have committed a crime but satisfy the court that they would not have done so without the ‘creative activity’ of the police or their agents, they are entitled to acquittal. In the words of American Supreme Court Justice Felix Frankfurter:

  The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than to detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.

  ‘Entrapment’, as it is called, is not an easy defence to run, because the court will draw a line between the trap for the unwary innocent and the trap for the unwary criminal, and will readily infer that far from being a lamb led to the slaughter, the defendant is a wolf snared on the prowl. Nonetheless, an entrapment defence would have succeeded for Rafi, who was not a drug trafficker and would not have become involved in a big drugs deal had it not been for Con’s persistent persuasion and the temptation of a promised suitcase full of cash.

  But we were not in the US; we were in the Old Bailey. Rafi’s choice of counsel, however, led to a remarkable coincidence, which gave the makings of an admissible defence. I happened to have been briefed not only for Rafibut for a defendant in another drug bust carried out by the team of police officers who were using the services of ‘Con’. My instructions mentioned, in passing, that the charges seemed to relate to less cannabis than the defendant had actually supplied. ‘How interesting,’ said Mike Mansfield, the barrister who was acting for the dealer, Rafi’s co-defendant. ‘I’ve just had a brief in another case where exactly the same thing has happened – same informer, same mysterious shrinking cannabis.’

  There might not have been an entrapment defence, but there was a thin but discernible line of legal authority to the effect that every trial judge has an inherent power to exclude evidence ‘obtained by conduct of which the Crown ought not to take advantage, even though tendered for the suppression of crime’. The moral imperative – ‘ought’ – seemed to open the window, at least a crack, to the full blast of an argument about the immorality of the state itself creating the crimes it was meant to be prohibiting. It would not be a defence which could be laid before a jury, but we might just prevail upon a fair-minded judge, before the trial commenced, to throw out evidence obtained by a flagrant agent provocateur. Nonetheless, no one would regard our suspicions, although based on similarities in four different cases, as proof. We needed Con. Not the smooth-talking Con, who had duped all these dopes, but a reformed and repentant Con, willing to tell the truth under oath in the witness box.

  ‘Turning’ Con to this extent was beyond the power of any defence solicitor, who would first have to find him somewhere in the basements of Notting Hill. I thought the media was our only hope. The Sunday Times under my friend Harold Evans was a newspaper with the resources to uncover injustice and its ‘Insight’ team had recently hired David May, formerly of Time Out, who did not need a compass to find his way around Notting Hill basements. He tracked Con down just as the trial was about to start, and demanded an interview. Con ran for his life. But the next day he turned up at the Sunday Times with an unusual request. He wanted protection, not from all the people on whom he had informed, but from the police officers who controlled him with their threats to put him behind bars if he didn’t hand over the profits from selling ‘their’ drugs. David was careful not to offer Con money: he wanted the truth, on tape. It was the only way, he explained to Con, that he could free himself from the clutches of Scotland Yard. Con said he would think the matter over.

  Meanwhile, in the courtroom the crunch had almost come. I had persuaded the judge to hold an inquiry, before a jury was sworn, into whether the evidence – seventy-seven slabs of cannabis, piled high on the exhibits table – had been obtained so unconscionably that the prosecution ought not to take advantage of it. The police officers were outraged by the suggestion. Con was a reliable and trusted informer, they swore, whose behaviour gave them no reason to suspect that he was acting as an agent provocateur. They knew nothing about any missing cannabis, and treated my cross-examination with practised derision. The senior cop turned to the judge: ‘I have no idea what counsel is talking about.’ The judge nodded grimly, as if to indicate that his patience was wearing thin. I put Rafiinto the witness box to explain how he had been persuaded to commit a crime he would otherwise never have contemplated, but the judge seemed unconvinced.

  I told David May we had run out of time: unless Con told the truth that evening, Rafiwould have to plead guilty. At 2.40 am David woke me with a call to say that Con had just confessed, on tape, to everything we had suspected. I subpoenaed him to repeat his taped confession in court. Unless prosecuting counsel could shake him, this case would die of shame.

  He came to the Old Bailey nervous and subdued, casting frightened glances at the police officers he was about to accuse. He told a disconsolate story, of drifting to London and becoming a persistent if minor criminal in the Notting Hill area. He was terrified of prison: his petty criminal father had hanged himself rather than face a custodial sentence. So the police team had a strong hold on him. ‘You will go away for a very long time,’ he was told, unless he did them some favours. That meant informing on accomplices, and providing regular ‘drinks’ for the police out of his reward money and earnings from drug deals. So he went to work, specialising in drug busts. He had pursued Rafitenaciously because he saw the possibility of a lucky break – a big deal, from which he could make a lot of money. ‘Rafiwanted to back out of the deal, he was trying to lose me, but I was holding on. He trusted me. The police told me to encourage him, so I tried to make him feel at ease – I tried every trick in the book.’ At the time of the bust in the Hilton, he had snatched some cannabis bricks before he was pushed into the bathroom, where, he said, the police officer met him afterwards to ‘put a little present’ – more cannabis bricks – in his shoulder bag. The police would want their share of the proceeds: ‘Where’s my drinks money?’ was their routine greeting. Why had he finally agreed to tell his story to the Sunday Times? ‘An innocent man is in the dock because of me.’ The remorse in his voice sounded genuine.

  The prosecutor had prepared his first question carefully. ‘I put it to you, Mr Buckley,’ he said confidently, ‘that you have not one scrap of evidence, not one scrap, to support the story you have been telling us.’

  There
was a long silence, Con’s face crinkling with the effort of some internal memory scan. ‘We-ell,’ he said eventually, ‘as a matter of fact, I do.’

  It was not the answer the prosecutor had expected. ‘And where is this evidence, Mr Buckley?’

  ‘It’s in me mum’s flat up in Stoke-on-Trent. It’s under me bed, actually, in an old shoebox.’

  The stout barrister valiantly tried to avoid collapse. ‘And, Mr Buckley, what evidence would we find in this shoebox to support your story?’

  ‘It’s me box of cannabis seals. I’ve kept them all, you see. The labels of the cannabis I was given to sell. I’m sure some of the seals from this load are there.’

  The judge called an early adjournment: arrangements would be made to retrieve the shoebox and bring it, unopened, down to the Old Bailey on the morrow.

  The next morning, while we awaited the dispatch rider, Con was invited to inspect the seventy-seven slabs of cannabis – that part of the load at the Hilton which had made it into police custody. ‘Just tell us, Mr Buckley, which of these ink seals do you have in your shoebox?’ As the coverings of the bricks were handed to him, Con’s eyes lit up. He sniffed them as if they were the corks of vintage wine. Finally he selected eight different seals, which he said would match those from his bedroom collection.

  The shoebox duly arrived and was solemnly handed to Con as he stood in the witness box. Eight seals from the Hilton haul were laid out like playing cards on the desk in front of him. He opened his shoebox and produced one matching label, then another. ‘Snap’ – eight times. It was a wholly convincing performance. His hobby had produced the evidence which proved that Con had been in possession of blocks from the same shipment as the Hilton cannabis: the only reasonable deduction was that they had come from the same bust. How were the police to explain this?