by Peter Murphy
‘That’s all very well in theory,’ Henderson interrupted, ‘but in practice you can’t expect a group of twelve people with no legal training to take that on board. They’re bound to be affected by what’s going on all around them.’
‘My learned friend seems to have little faith in juries,’ Andrew said.
‘That’s quite correct, my Lord,’ Henderson smiled. ‘I don’t. Jurors are only human. Even for those of us with the training, putting information one is exposed to out of one’s mind is a difficult exercise – as your Lordship, I’m sure, knows only too well. For those without training, I venture to say it’s effectively impossible.’
‘I venture to say,’ Andrew replied, ‘that if my learned friend’s practice had brought him into contact with the criminal courts more often, he might have a more enlightened view. Jurors do this all the time, both in very serious cases such as this and in less serious cases throughout the country, in which there may have been local press coverage. Our experience over the years has been that jurors, almost without exception, are extremely conscientious men and women, who take their responsibilities seriously and listen carefully to directions from the bench.
‘Mr Schroeder and I have dealt with any number of high-profile criminal cases – as have some other learned counsel on the defence side in this case – and in each of those cases, the trial judge gave the jury the directions I have suggested. In each case, the jury followed those directions and returned verdicts in accordance with the evidence. I’ve had a number of such cases in which the jury returned verdicts of not guilty, so I have every confidence in the ability of jurors to be fair and impartial, even in high-profile cases.’
The judge nodded. ‘They certainly were in the Welsh case,’ he observed.
‘In this case, it would be very dangerous,’ Henderson protested.
Andrew shook his head. ‘If my learned friend is right, paradoxically, it would prevent any prosecution in the most serious cases of all; because the more serious a case is, the more attention it attracts from the press. It can’t be right that the most serious cases can never be prosecuted because of press coverage.’
He paused.
‘Frankly, my Lord, if we can’t trust juries, it brings our system of criminal justice to a standstill. If that were the case, I submit that Parliament would have noticed before now, and there would have been a radical change in the way in which we try criminal cases. That has not happened, and I’m not aware of any plans to make any such change.’
The judge considered for some time.
‘I agree, Mr Pilkington. Mr Henderson, are there any other submissions you wish to make?’
Henderson stared at the judge for some seconds, and then glanced questioningly across at the other defence counsel, who, with one exception, shook their heads in unison. Anthony Norris tried to get his attention, but without success.
‘No, my Lord.’ He sat down, apparently deflated.
‘Does anyone else wish to be heard on the defence side?’
Norris stood. ‘Yes, my Lord,’ he said. ‘I do.’ He looked dismissively at Mark Henderson. ‘Since no one else has mentioned it, I suppose I will have to.’
‘What is your point, Mr Norris?’ the judge asked.
‘My point, my Lord, is that there is one aspect of this trial no one has yet mentioned which will make it entirely impossible for my client to receive a fair trial, and, I suspect, may do so in the cases of Lord AB and Sir CD also – though that’s a matter for my learned friends who represent them: for whatever reason, the point hasn’t been raised on their behalf.’
‘Then you’d better enlighten us, Mr Norris, hadn’t you?’ the judge said, to smiles around the courtroom.
‘I fully intend to do so, my Lord,’ Norris replied. He picked up a document he had in front of him on the bench.
‘My Lord, following the usual procedure, all four defendants were interviewed by the police. Three chose to exercise their right to remain silent, but one – the Right Reverend EF – treated the police to a detailed account of what he claimed to have been going on in Father Gerrard’s library during the war years, between 1940 and 1945. Much of his statement confirms accounts given by the prosecution witnesses, and if true, directly incriminates Lord AB, Sir CD and Father Gerrard – and, indirectly, EF himself. I understand that the prosecution intend to place this statement in front of the jury as evidence.’
‘We certainly do, my Lord,’ Andrew said, smiling and rising halfway to his feet.
‘In that case, my Lord,’ Norris said, ‘I invite your Lordship to stay the proceedings unless my learned friend gives a clear undertaking not to do so.’
‘But why?’ the judge asked. ‘Are you saying it’s inadmissible for some reason?’
‘It’s a point of law that arises every day in the criminal courts, my Lord – which, I assume, is why it didn’t occur to my learned friend Mr Henderson…’
‘Oh, really, my Lord…’ Henderson protested.
‘That will do, Mr Norris,’ the judge said. ‘Please avoid personal slights on other counsel, and make your submission as succinctly as you can.’
‘As your Lordship pleases. The rules of evidence are quite clear. A statement made to the police by one defendant, in the absence of the others, may be admissible as evidence against the defendant who makes the statement, but it is not evidence against any other defendant who may be implicated by it. I can show your Lordship the authorities in Archbold.’
Andrew stood.
‘That’s not necessary, as far as we’re concerned,’ he said. ‘The prosecution accepts that is the law, of course. As my learned friend rightly says, it’s a point that arises in criminal courts, day in, day out.’
‘Yes,’ the judge agreed.
‘And what happens in criminal courts day in, day out, is that the judge explains that rule to the jury and directs them to regard the statement as evidence only against the defendant who made it. It all works perfectly well. As I said in reply to my learned friend Mr Henderson a few minutes ago, it is something juries are perfectly able to cope with.’
‘In general, that may be true,’ Norris replied. ‘But there are cases in which the prejudice to other defendants is such that the court shouldn’t allow it. One can hardly overstate the impact this statement will make on the jury. But Bishop EF is not obliged to give evidence, and unless he does, we can’t cross-examine him. Father Gerrard is entitled to confront his accuser, but if your Lordship allows this evidence, he can’t.’
‘He has other witnesses he can cross-examine,’ the judge pointed out.
‘Perhaps so, my Lord, but he’s entitled to cross-examine all the witnesses.’
Andrew shook his head. ‘Father Gerrard has had every opportunity to defend himself, my Lord, but so far he has chosen not to do so. He could have given the police his account of events, and he could have given evidence at the first trial. He did neither of those things. But he will have a further opportunity to give evidence in this trial.’
‘He can’t be compelled to give evidence,’ Norris retorted.
‘I didn’t suggest otherwise,’ Andrew insisted.
‘But you did. In effect, you’re compelling him to give evidence because of the overwhelming prejudice of a statement that isn’t even admissible evidence against him.’
‘My Lord,’ Andrew said, ‘I don’t deny that there are cases in which the strength of the prosecution case makes it advisable for a defendant to give evidence. This may be one of them, it may not. That’s a matter for my learned friends to consider with their clients. It’s not a matter for the prosecution.’
‘Then, I apply for Father Gerrard to be tried separately from the Right Reverend EF,’ Norris said.
‘The Crown strenuously opposes that application,’ Andrew replied firmly. ‘The Crown’s case is that all four were involved together in conspiracies and the commissio
n of acts of sexual abuse, and it is right that they should be tried together. Your Lordship will explain to the jury that the statement is only evidence against EF, and not against the others, and the jury will deal with it accordingly.’
‘That’s an exercise in wishful thinking,’ Norris complained.
‘I don’t regard the rules of evidence as involving wishful thinking,’ Andrew replied.
The judge held up a hand.
‘All right. I’ve heard enough.’
He consulted his notes.
‘I haven’t heard anything which leads me to think that this trial can’t proceed in a manner which is fair to all four defendants. They will have every opportunity to challenge the evidence, and to draw the jury’s attention to any weaknesses in the evidence, and I am sure they will do so very effectively. I will direct the jury very carefully about all the matters counsel have raised, and as Mr Pilkington has said, I have every confidence that the jury will follow my directions. If anything arises during trial that casts doubt on the view I have formed, then I will reconsider, but for now, I’m quite sure that this trial can, and should proceed. The prosecution’s applications for a stay of the proceedings as an abuse of process are dismissed, as is the application that Father Gerrard should be tried separately.
‘If Lord AB – or Sir CD, who I believe suffered a stroke recently – need to take breaks during the trial, either for medical reasons or to consult with counsel, then of course, I will afford them every consideration.
‘Mr Pilkington, I understand that you propose to arrange for the young girl, Emily, to give evidence tomorrow, in view of the uncertainty about how long we would need for legal submissions today?’
‘Yes, my Lord. She gave evidence within half a day in the first trial, and it is our view that she should be allowed to do so again, so as to reduce the strain on her as far as possible.’
The judge nodded. ‘She will give evidence tomorrow morning, and we will finish with her before lunch.’
‘I’m much obliged.’
‘My Lord, I can’t guarantee to finish with her in that time,’ Henderson protested, rising to his feet.
‘We will finish with her before lunch,’ the judge repeated. ‘You’ll have overnight to prepare, Mr Henderson, and I expect you to confer with other counsel, to avoid any repetition. I don’t want to have her answering the same questions more than once. I’m sure, given the experience of counsel, it won’t be a problem.’
The judge conferred briefly with his clerk, Lewis.
‘I will rise for a few minutes until a jury panel can be brought down to court. We will empanel a jury and have the Crown’s opening, and we will then adjourn until tomorrow morning.’
After the judge had left the bench and returned to his chambers, Andrew and Ben stood and turned to John Caswell and Julia Cathermole, who were shaking their heads.
‘Well, it just goes to show,’ Andrew said with a broad smile. ‘I may have to take back everything I said about Evan Roberts. He started out as if he meant to give us a hard time, but in the end, he went with us on everything.’
‘I couldn’t believe my ears,’ Julia agreed. ‘What on earth has come over him?’
John shrugged. ‘People do change when they go on the bench.’
‘Perhaps so,’ Ben said, ‘but I’m going to wait to see how he handles the trial before I start singing his praises.’
‘You’ve been burned before,’ Andrew said, smiling.
‘Yes, I have.’
44
Tuesday 10 September 1974
Ben and Julia left the secure witness room, where they had been talking with Emily and Audrey. Emily seemed cheerful and in good spirits, and not at all intimidated. She had brought some school work to do, and was apparently quite happy to sit and do it until she was needed. Audrey, too, was composed, though she was pale and looked tired. Ben had calculated that they would not get beyond Emily and Audrey that day, and indeed, it was unlikely that Audrey’s evidence would be concluded. He had advised John Caswell not to ask any other witnesses to attend, though Mary Forbes was on call at her hotel, in case the evidence planned for the day did not last as long as anticipated. They arrived in court just before ten thirty.
‘The judge wants to see us in chambers – counsel only,’ Andrew said as they were about to take their places.
Ben was taken aback. ‘What about?’
‘Lewis didn’t say: just that we were to let him know when everyone was here. We’re just waiting for Norris; I think I’ve seen everyone else. You haven’t seen John, have you?’
‘No. He wasn’t with us when we went to see Emily. We assumed he was getting the evidence together. I wonder what the judge wants?’
‘Let’s hope he hasn’t had second thoughts about abuse of process overnight,’ Julia said.
‘I wouldn’t have thought so,’ Ben replied. ‘Roberts has always struck me as the kind of man who doesn’t budge once he’s made his mind up.’
‘Perhaps he wants to warn everyone to behave themselves when Emily’s in the box,’ Andrew suggested. ‘It’s the kind of thing most judges would say in open court with the jury present, but he hasn’t been in the job all that long, so perhaps he thinks it’s better said outside court.’
‘Well, we’ll soon know,’ Ben said. ‘Here comes Norris now. I’ll tell Geoffrey, and he can tell Lewis we’re ready.’ He walked away to where the tall silver-haired usher was standing by the jury box. Geoffrey nodded and walked away towards the judge’s chambers. He returned a few moments later with the court clerk.
‘Come with me, please,’ Lewis said grandly.
Andrew and Ben led the way, defence counsel following closely behind. Lewis knocked on the door of the judge’s chambers. They heard a ‘come in’ from inside. Lewis opened the door, stood back as they entered, and took a seat near the door. Ben noticed the judge’s face immediately, and stared at him. The cheeks were red, the eyes dark, and the lips were drawn angrily together. It was an expression Ben had seen before, and the reminder was uncomfortable. It was the expression he had seen on Evan Roberts’s face when he and Gareth Morgan-Davies had first confronted him about the deception of the jury in the Welsh case; and in the Court of Appeal, when Ben had told the judges that it was their duty to consider the possible involvement of everyone involved with the prosecution. It was an expression that didn’t bode well. The judge was obviously not in the mood for pleasantries. There were not enough chairs for everyone to sit down: most judges would have made some light comment about it, perhaps promising not to take too much time over whatever he had to say to them. Evan Roberts said nothing, and left it up to counsel to find a place to sit or stand. Most of the barristers remained standing.
‘I’ve called you in this morning,’ he began tersely, ‘because within the last half hour I have received some information which calls into question the future of this case. Pilkington, have you received any word from the Director’s office?’
Andrew looked at the judge blankly. ‘Word, Judge? No. Word about what?’
‘Word about this,’ Evan Roberts replied, extending a hand in Andrew’s direction. The hand contained a document. Andrew took it from him. He read it, and sat down abruptly in a chair that happened to be vacant to his left.
‘What is it?’ Ben asked. Andrew handed the document to him.
‘For the benefit of those who can’t see it,’ the judge said, ‘I have received an order of nolle prosequi from the office of the Attorney General. I’m no expert in criminal law, as yet. But unless I’m very much mistaken, this means that he is ordering me not to allow the case to proceed.’
Andrew nodded. ‘Nolle prosequi is an order made by the Attorney General prohibiting the court from proceeding with a particular case. It’s an order which can be issued at any time before judgment – in other words, before the passing of sentence.’
‘Andrew, s
ince we can’t all see it, would you mind reading it?’ Henderson asked. Andrew nodded. He took the document back from Ben.
Order of Nolle Prosequi relating to the case against Desmond Gerrard and three other defendants known as Lord AB, Sir CD, and the Right Reverend EF, now proceeding in the Central Criminal Court.
Having regard to the powers and discretion vested in me as Her Majesty’s Attorney General; and
Having regard to the duty imposed on me to protect the national interest and to ensure fairness to defendants charged in criminal proceedings; and
Having considered representations made to me by learned counsel on behalf of Lord AB and Sir CD, and certain medical reports referred to in those representations; and
Having considered representations made to me on behalf of Her Majesty’s Government; and
Having considered all the facts and circumstances of the above case:
I find that –
(1) Lord AB is physically or mentally unfit to stand trial;
(2) Sir CD is physically or mentally unfit to stand trial;
(3) In the case of the Right Reverend EF, it would be against the national interest to allow the case against him to proceed;
(4) In the case of Desmond Gerrard, having regard to the decisions I have reached in the case of the other three defendants, and to the fact that he has been tried on indictment in respect of the alleged offences on an earlier occasion, on which the jury were unable to agree on verdicts, it would be unfair to proceed against him further.
In the light of the above findings, I have concluded that the right course is to exercise my discretion and to issue an order of Nolle Prosequi, requiring the Central Criminal Court and the Prosecution not to proceed further against the said defendants.
‘It’s signed on behalf of the Attorney,’ Andrew concluded.
Glances were exchanged, but no one spoke for a full minute.
‘I think you might have told me you were asking the Attorney to intervene, Mark,’ Andrew said quietly.
