by Peter Murphy
‘He was still trying to salvage the case in the Court of Appeal,’ Andrew said, ‘even after everyone knew that it was hopelessly compromised. The Director asked me to deal with it. I told the court that I couldn’t support the conviction, and that was the end of it. Roberts was hugely embarrassed – as he should have been – and I’m sure he’s never forgiven either of us.’
‘We never knew whether he was in on the deception,’ Ben said, ‘or whether he just had no idea what he was doing. It obviously didn’t do him any harm, because he was appointed not long afterwards. But, as Andrew said, I don’t think he’s forgiven us.’
‘We’ve lost Ginny for the time being, as you know,’ Andrew said. ‘She’s got a long civil case in the High Court starting tomorrow. She’s been booked for over a year. So, it will be Ben and me, and we’re stuck with Roberts whether we like it or not.’
‘Couldn’t you ask him to recuse himself,’ Julia asked, ‘hand it over to another judge?’
Andrew shook his head. ‘Because we think he might have a grudge against us? Judges are supposed to be above that kind of thing. It would only make things worse.’
‘We could remind him that he doesn’t know any more about crime now than he did during the Welsh trial,’ Ben grinned.
‘Be my guest, Ben,’ Andrew replied. ‘I’ll be happy to sit and watch.’
42
Monday 9 September 1974
‘May it please your Lordship,’ Andrew began. ‘I appear to prosecute this case with my learned friend Mr Schroeder.’
They had assembled in court three at the Old Bailey at ten thirty. It had already been a busy morning: checking that arrangements for the witnesses were complete and in place; making sure that all the defence teams had received the papers they needed; ensuring that copies of all the documents had been made for the jury. It was as if they had done half a day’s work before the court day even began. In addition, they were apprehensive: approaching unknown territory, a difficult case, now with four defendants, in front of a difficult judge. Until the proceedings finally got underway, Andrew and Ben were nervous. They sat quietly, side by side, in counsel’s row, with John Caswell and Julia Cathermole sitting, equally tense, behind them.
‘Yes, Mr Pilkington. The Court of Appeal was the last time I had the pleasure of seeing you, wasn’t it?’
Andrew bit his lip. ‘Yes, my Lord: some considerable time ago.’
‘Yes, indeed. Still speaking Welsh, are we, Mr Schroeder?’ It was said with a smirk from behind the familiar pince-nez glasses, still held in place by the thin gold chain. The tall, thin figure and the man’s superior, patronising manner brought back instant memories of how unpleasant Evan Roberts had been at the bar. His appointment to the High Court bench seemed to have done nothing to improve his demeanour. Something to do with leopards and their spots, Ben thought to himself as he made his way, deliberately, only halfway up to his feet.
‘I think your Lordship is confusing me with my head of chambers, Mr Morgan-Davies,’ he replied.
The judge smiled thinly, but said nothing. Out of the corner of his eye, Ben saw Geoffrey, the usher, roll his eyes. Evidently what he had just witnessed was not the first display of judicial temperament the court staff had been obliged to put up with since Evan Roberts had come to sit at the Old Bailey.
‘This is going to be fun,’ Ben muttered to Andrew as he sat down.
‘My Lord, the defendants are represented as follows. My learned friend Mr Norris represents Father Desmond Gerrard.
‘My learned friends Mr Henderson and Miss Richardson represent Lord –’
‘We shall continue to refer to him as Lord AB,’ the judge said.
Andrew exchanged glances with Ben. ‘My Lord, the defendants are not entitled to anonymity at this stage. The prosecution and the investigating officers used initials as a courtesy until their arrest, but –’
‘And we will continue to accord them that courtesy until your opening speech, Mr Pilkington – assuming that the case goes as far as an opening speech.’
Andrew felt every eye in the courtroom on him. He felt a momentary temptation to tell Evan Roberts to make at least some effort to behave like a judge, but he closed his eyes, took a deep breath, and resisted it.
‘As your Lordship pleases. My learned friends Mr Henderson and Miss Richardson represent Lord AB.
‘My learned friends Mr Wallace QC and Mr Weatherly represent Sir CD.
‘My learned friends Mr Moss QC and Mr Laud represent the Right Reverend EF. My Lord, I understand that my learned friends have a number of applications before we proceed to empanel a jury. I will defer to my learned friend Mr Henderson.’
The judge nodded, and smiled graciously in Henderson’s direction. Ben shook his head. The sight of Mark Henderson in a criminal court was almost as much a rarity as it had been in his own case, but its significance was not lost on the judge, or on anyone in the courtroom. Henderson was a member of the judge’s former chambers, and when Roberts had been appointed to the bench Henderson had in effect taken over his practice as civil Treasury counsel, representing government departments, often in sensitive cases involving classified materials. Given that the judge had only just been assigned to the case, Ben reflected, and that his assignment had not been announced in advance, the choice of Henderson to represent Lord AB was either very fortuitous or very nicely calculated by someone.
‘My Lord,’ Henderson began, ‘I have three applications to make to your Lordship, in all of which I shall suggest that your Lordship should stay these proceedings as an abuse of process. One is concerned specifically with the case of Lord AB, and I propose to begin with that. The other two applications are common to all four defendants, and my learned friends have been good enough to invite me to make those applications on behalf of them all, which if it has no other merit, at least has the merit of saving the court’s time to some extent.’
Mr Justice Roberts smiled. ‘Very proper, Mr Henderson. Saving time is always something the court appreciates, of course. Please proceed.’
Ben felt a tug on his gown. He turned around, and felt Julia squeeze a folded up scrap of paper into this hand, with a look that said, ‘For your eyes only’. The note read: ‘Oh God, I hope they don’t actually have sex in court. Destroy after reading.’ Ben smiled at her, screwed the note up into a tight ball and carefully placed it in his jacket pocket for later destruction. Andrew looked at him inquiringly. He shook his head: nothing.
‘I’m much obliged, my Lord. My first application relates to the state of Lord AB’s health. Has your Lordship had the opportunity to read the medical reports prepared by Dr Laslo and Dr Frank? My instructing solicitors have served those reports on the Director of Public Prosecutions, so my learned friends for the Crown should have them.’
‘We have received them, my Lord,’ Andrew confirmed.
‘I’m much obliged. ‘Your Lordship will see from those reports,’ Henderson began, ‘that both doctors –’
‘Both doctors,’ the judge interrupted, ‘appear to think that Lord AB is getting older. I’m sure they’re right.’
Andrew glanced at Ben, raising his eyebrows.
‘My Lord?’
‘Lord AB is getting older, Mr Henderson. Isn’t that what the reports tell us?’
Henderson seemed momentarily taken aback. ‘They tell us rather more than that, my Lord.’
‘They speak of a certain physical infirmity, difficulty in getting up and down flights of stairs, and so on.’
‘My Lord, they also speak of a rapidly declining memory. They provide numerous examples of –’
‘Of Lord AB forgetting appointments, having to write notes to remind himself of what he has to do today.’
‘Exactly, my Lord.’
‘Well, we all get to that stage eventually, don’t we?’
Henderson hesitated. ‘My Lord, perhaps we do. But
it gives rise to concern about his ability to remember, and, in the context of this case, it puts him at a significant disadvantage. The case against him calls into question his conduct more than thirty years ago, in the 1940s. If his memory is unreliable, he is at a great disadvantage in the eyes of the jury when he is asked to account for the evidence of witnesses who say that they remember. I daresay many of us would struggle to remember what we were doing on a particular day in 1941 in any degree of detail.’
‘I think most of us would remember whether or not we had sexually molested a schoolgirl, Mr Henderson, even in the 1940s, wouldn’t we? That’s the kind of thing that might well stick in one’s memory, isn’t it?’
Henderson again seemed taken aback. ‘Lord AB denies that he ever behaved in that way.’
‘In that case, he must remember perfectly well, mustn’t he, at least for the purposes of this trial?’
‘With respect, my Lord, it’s not just a matter of remembering whether or not he molested girls. Of course, he remembers that. But to deal with the evidence, he has to account for his movements in some detail, when he went to Lancelot Andrewes School, and for what purpose.’
‘Mr Henderson, are you saying that he doesn’t remember whether he went to Lancelot Andrewes School?’
‘No, my Lord. Lord AB did go to the school from time to time, in connection with the work of the school. He was one of the school’s trustees. But as to the dates when he went there, his memory is understandably vague.’
‘As I read the medical reports,’ the judge said, ‘especially Dr Laslo, it seems to me that any problem Lord AB has is with his short-term memory. He can’t remember what he is supposed to be doing today, what he had for breakfast, why he went into a particular room of his house, and all the rest of it.’
‘Yes, my Lord.’
‘Yet, here he is at court today, having answered to his bail.’
‘I’m sure this is one appointment his solicitors reminded him of, my Lord.’
‘I’m sure they did. But that’s quite different from his long-term memory isn’t it? I don’t see anything in the reports to suggest that he has any difficulty in remembering the distant past. Of course, we all have some difficulty in remembering the distant past, but that’s a different thing, isn’t it?’
‘Dr Frank’s report also suggests that he has some difficulty in concentrating for any great period of time – something which, if your Lordship will allow me to mention it, my instructing solicitors had also noticed. That, of course, will also cause him considerable difficulty in defending himself against a criminal charge in your Lordship’s court.’
‘In what way, Mr Henderson?’
‘It’s unlikely that he will be able to focus on the evidence throughout the court day, and give me proper instructions about it.’ He paused. ‘My Lord, Lord AB is in court, and he hears me say this, but say it I must. The reports do not suggest that Lord AB is senile at this point, but sadly, they do suggest that his mind has made a certain degree of progress down that road.’
Mr Justice Roberts leaned back in his chair.
‘I daresay we’ve all made some progress in that direction, Mr Henderson, certainly those of us who are getting older.’
‘My Lord…’
‘I take it, Mr Henderson, that you read The Times, as we all do?’
‘Yes, my Lord.’
‘In which case, you may well have noticed a report, two or three weeks ago, of a speech made by your client in the House of Lords on the subject of trade union rights, the right to strike, the question of picket lines, and so on. Of course, I make no comment from the bench on the merits of what Lord AB said, but it was referred to in The Times’s leader for the day; and if the report was accurate, I have to say that his speech seemed to me to be the very model of lucidity.’
Henderson took a deep breath. ‘I regret to say that your Lordship has the advantage of me. I did not read that particular report.’
‘And I should have thought that a man who is capable of making such a lucid and persuasive speech in the House of Lords is well capable of following the proceedings in this court.’
‘My Lord –’
‘Shall we move on to your next point, Mr Henderson?’
Andrew scribbled in his notebook and pushed it towards Ben. ‘Do I detect a shift in the wind?’ Ben scribbled two question marks underneath the note, and pushed the book back.
43
‘My next point, my Lord,’ Henderson continued, ‘is made on behalf of all four defendants. The point is that the prosecution has already tried the case once with only one defendant, namely Father Gerrard. They failed to prove the case then, and there is no reason to suppose that the evidence is any better now that they have four to contend with.’
The judge looked puzzled. ‘But retrials happen all the time, don’t they, Mr Henderson? The prosecution is allowed a second bite at the cherry, surely.’
‘The prosecution is taking several bites of the cherry, not just one. They could have proceeded against all four defendants in the first trial, but they elected not to. That’s a decision they must live with. It’s not right for them to add three defendants now in the hope that the numbers will make up for the lack of evidence. The evidence is the same now as it was in the first trial. The prosecution failed to prove the case against Father Gerrard last time, and the difficulties standing in their way – the need for corroboration and their reliance on this so-called recovered memory evidence – makes it almost certain that they will fail again.’
My Justice Roberts glanced at Andrew, who stood immediately.
‘My Lord, in the first place, as your Lordship rightly says, the prosecution is entitled to a retrial. It’s something that happens all the time in these courts. In the second place, the prosecution was fully entitled to proceed against Father Gerrard alone in the first trial, and is fully entitled to proceed against all four defendants now.’
‘Mr Henderson says that you can’t succeed because you’re relying on the same evidence again, and it was found wanting in the first trial,’ the judge said.
Andrew smiled. ‘That’s the whole idea of a retrial,’ he observed. ‘Otherwise, it wouldn’t be a second bite at the cherry. But in addition, my Lord, while we do have all the evidence we adduced at the first trial, we now also have a number of additional witnesses, one of whom identifies my learned friend’s client as one of the men who molested her.
‘We also have several witnesses who will give evidence that Lancelot Andrewes School engaged in a systematic attempt to sweep the abuse under the carpet in the 1940s and 1950s, by waiving school fees in the case of any girl who complained of the abuse for the remainder of that girl’s time at the school. That evidence has come to light since the first trial, and I venture to say that if the jury in the first trial had known about it, the result would have been very different. We fully expect it to be different this time.
‘There can’t be any prejudice to the defendants in any of this. They are represented; they will have the opportunity to challenge the evidence; and they will have the opportunity to address your Lordship on any points of law that may arise.’
The judge nodded.
‘Next point, Mr Henderson, please.’
Henderson exchanged frustrated looks with his colleagues on the defence side.
‘Finally, my Lord, I say that your Lordship should stay these proceedings as an abuse of process because it is impossible for these defendants to receive a fair trial, given the level of publicity the case has attracted. The press coverage began long before the first trial, when the rumour mill began its work, and the names of Lancelot Andrewes School and Father Gerrard began to be whispered abroad. Even at that early stage the names of the other three defendants were being bandied about in some quarters. It’s all been an open secret ever since.’
He paused.
‘That was alleviated to som
e extent, I concede, by the official use of initials instead of their real names. I understand that my learned friend Mr Pilkington not only agreed to the use of initials, but actually instigated it, and I express my appreciation to him for that.’
He turned to nod to Andrew, who returned the gesture.
‘But even before the first trial, the names of the other three defendants were mentioned in certain sections of the press – including the press in other countries – and when the first trial began, they were mentioned by their initials in evidence, in connection with the allegations they now face. My Lord, if they had been prosecuted in the first trial, they would have had the right to challenge the evidence against them. But as it is, the evidence in the first trial has been widely reported, without any challenge to it by three of the four defendants.
‘Given the saturation level of the press coverage, which continues even today – I’m sure your Lordship has seen the headlines this morning, as I have – it would be impossible to find a jury of twelve people who have not been following the case in all its gory detail for months. Anyone who has been exposed to the press coverage will inevitably have known the identity of all the defendants, and will inevitably have formed a view against them. The case has already been tried in the press, and it simply isn’t possible now to empanel a jury capable of giving the defendants a fair trial in your Lordship’s courtroom.’
Again, the judge turned to Andrew.
‘The publicity is a matter of some concern, Mr Pilkington, isn’t it?’
‘Yes, my Lord, it is,’ Andrew replied immediately. ‘But we often have high-profile cases in our courts, and we have protocols for managing them. It will be important for your Lordship to direct the jury firmly, at the outset of the trial, that they must put out of their minds whatever they may have read or heard about the case, and concentrate on the evidence given in court to the exclusion of everything else. Your Lordship must also warn them repeatedly, throughout the trial, not to follow coverage of the proceedings in the press, on the radio, or on television.’
