by Peter Murphy
‘Yes,’ the judge replied.
‘In this case, the period allowed by the law is six years. My Lord, I concede at once, of course, that my point doesn’t apply to Emily Marshall’s case, which is still well within the limitation period. But Audrey Marshall complains of events she says occurred during the period between 1940 and 1945. She is clearly out of time – and her case illustrates the importance of the limitation rule perfectly. It is unfair to ask any defendant to defend himself against allegations based on what he is said to have done more than thirty years ago; and it is especially difficult for defendants such as Lord AB and Sir CD when there are medical reasons for their inability to remember such remote times in the necessary detail.’
‘I think I indicated during the criminal proceedings that I wasn’t unduly impressed by the medical reports,’ Mr Justice Roberts replied.
‘Your Lordship made that very clear. But with respect, that doesn’t matter now, because this is a civil case, and if the case is time-barred, then it’s time-barred. I mention the medical reports again only to emphasise the fact that the period of limitation is not a mere technicality, but a rule of law that serves a very worthwhile and important purpose.’
The judge nodded. ‘What do you say about that, Mr Schroeder?’
Ben stood slowly.
‘My Lord, I’m afraid my learned friend omitted to mention the most important point about the limitation period, namely the point from which the period starts to run. He assumes that the period runs from the moment when the wrongful act is committed. But that’s not what the law says. The law says that the period begins to run when the plaintiff is aware that a wrongful act has been committed, and aware that she has a cause of action because of that wrongful act. In most cases, of course, the plaintiff is aware of all that immediately – but not necessarily. There are many cases where that’s not true.
‘The classic case is where the defendant destroys or conceals evidence of his wrongful act, for example in a case of fraud, so that the plaintiff has no opportunity to find out about it until it’s too late. There are cases where the plaintiff is abroad and out of touch when an act of fraud is committed against her in England. There are cases where the defendant assaults the plaintiff so severely that she’s in a coma for many years, or where the full extent of the injury she has sustained doesn’t reveal itself for many years. And my learned friend failed entirely to mention one very important point: that in the case of a minor, the period doesn’t begin to run until she achieves her majority. That’s especially important where the minor is also an orphan. So in Audrey Marshall’s case, the period couldn’t possibly have begun to run until she turned twenty-one, in October 1954.’
‘That’s still longer than six years, Mr Schroeder,’ the judge pointed out. Henderson was smiling and nodding.
‘Yes, I’m aware of that, my Lord. But it is an important point, nonetheless. During the first criminal trial, my learned friend Mr Norris went to great pains, when he cross-examined Mrs Marshall, to suggest that she must have remembered what happened to her during her remaining time in school. But when she left school in 1951, the period had not even begun to run. What happened between 1940 and 1954 is irrelevant. If your Lordship accepts Mrs Marshall’s evidence, then she was unaware of any claim against the school or the other defendants until 1972, which is within the period of six years.’
The judge turned inquiringly to Henderson.
‘My Lord,’ he replied, ‘that doesn’t follow at all. If Mrs Marshall had some memory at that earlier time, between 1940 and 1954, it makes it very hard to accept that she then forgot all about it until 1972. But in any case, in my submission, none of that matters.’
‘Not even if she had no memory at all of the events until 1972?’ the judge asked.
‘Not even then, my Lord: not in this case.’
‘That would be rather a harsh rule, wouldn’t it?’
‘There are those who believe that the statute of limitations is always a harsh rule, my Lord,’ Henderson said. ‘But it’s equally harsh to a defendant to make him liable when the facts of the case can’t be determined with any certainty. When Mrs Marshall says that she “recovered” her memory in 1972, what she’s really saying is that her memory had faded – faded in a particularly serious way, of course – but faded nonetheless: which is exactly why we have the limitation rule.
‘In addition to that, my Lord – as my learned friend Mr Norris said in the criminal proceedings – the defence doesn’t accept the premise. We don’t accept the validity of this so-called “recovered memory”, and if your Lordship is against me today, I would invite your Lordship to adjourn the proceedings so that we can retain an expert witness to deal with that question.’
Ben sprang to his feet immediately.
‘That would simply cause further delay and further unnecessary costs,’ he protested. ‘If my learned friend had wanted to consult an expert, he’s had ample opportunity already.’
‘My Lord, it’s not my practice to advise my clients to pay for expensive expert witnesses in cases which are clearly time-barred,’ Henderson replied. ‘That wouldn’t be a responsible use of their funds, and frankly, I’m surprised that I have to argue the point. But if your Lordship were to have any doubt about the limitation period, you would first have to resolve the question of whether Mrs Marshall’s claim of “recovered memory” is a proper basis for excusing her failure to bring her action in a timely fashion. That means that she will have to give evidence, so that we can all cross-examine her –’
‘She gave evidence in front of Judge Rees,’ Ben intervened, ‘and was ably cross-examined by my learned friend Mr Norris. Your Lordship and my learned friends have the transcript of her evidence. There is no need to put her through it again.’
‘That’s not acceptable, my Lord,’ Henderson replied at once. ‘This is a different case. My client wasn’t involved in that trial, and neither was Sir CD or Bishop EF. We are all entitled to cross-examine her in this case, and in addition, we are entitled to call an expert witness to prove that what she’s claiming is, in scientific terms, pure nonsense.’
The judge nodded. ‘You said you had a second point, Mr Henderson?’
‘Yes, my Lord.’
Anthony Norris stood. Ben glanced in his direction and noted that his face was white.
‘I’m terribly sorry to interrupt, my Lord,’ Norris said quietly. ‘But before my learned friend continues, I must tell your Lordship that I have just received some very bad news.’
50
Ben glanced at Ginny and then turned to look behind him. Julia was staring grimly ahead. Audrey was pale, and was holding her face in her hands.
‘I must ask for an adjournment, my Lord,’ Norris was saying. ‘This is an action that can be continued against Father Gerrard’s estate, and of course, the school’s position is directly affected by his death. I need some time to advise my instructing solicitors, and Mr Dixon, on where we go from here.’
Ben and Ginny exchanged looks. She nodded.
‘I can’t object to that, my Lord,’ he said, ‘as long as my learned friend is not proposing a lengthy adjournment.’
‘I would ask for two weeks, my Lord,’ Norris said.
‘If I may, my Lord,’ Henderson intervened, ‘we will need longer than that. My learned junior, Miss Richardson, has just pointed out to me that, even if your Lordship is with me about the statute of limitations, Audrey Marshall will still have to give evidence – in support of Emily Marshall’s case. We will be obliged to discredit Mrs Marshall’s evidence in any event. We’re going to need an expert witness, whichever way your Lordship rules.’
‘That just goes to show that my learned friend should have anticipated the need for such a witness much earlier,’ Ben replied. ‘It’s not right for him to keep the plaintiffs waiting for their day in court at this late stage, when he should have acted before. The plaintiffs
have been kept waiting quite long enough. This is their third attempt to go to trial. It’s not good enough.’
‘I’m surprised that my learned friend was prepared to go to trial without an expert of his own,’ Henderson said. ‘It must be clear now, even to him, that he can’t. He needs time, just as much as I do.’
‘I don’t accept that,’ Ben replied at once.
‘I think we should all take some time, in the circumstances,’ the judge replied, holding up a hand. ‘I haven’t decided how to rule on the matter of the statute of limitations, but it may well be that scientific evidence would assist me: and I agree that it would be helpful when we go to trial – as we will in Emily’s case, whichever way I rule.’
He paused for some time.
‘I will adjourn the case for four weeks. That will have to be enough for both sides to instruct their experts. I’m sure one expert witness will do for all the defendants. That expert must confer with the plaintiff’s expert, and they must provide the court with a statement indicating the matters on which they agree, and on which they disagree, not less than seven days before the adjourned date.’
‘I’m obliged to your Lordship,’ Henderson replied. ‘I’m sure my learned friend Mr Norris is anxious to confer with his instructing solicitors and with Mr Dixon. But if your Lordship will indulge me, I did mention that I have a second point to make, and it may be convenient to make it now, so that your Lordship can consider everything together during the coming four weeks.’
‘Yes, very well,’ Mr Justice Roberts said.
‘My Lord, before I proceed, I must do two things. First of all, I must invite my learned friend Mr Chapman to come into court; he is waiting outside, I believe. Secondly, I must invite your Lordship to close the court to the public.’
Ben turned around quickly. Julia was scribbling him a note. It read, ‘Harry Chapman? He is standing counsel for MI5, sometimes acts for MI6.’
‘May we know why, my Lord?’ Ben asked.
‘I will explain, once the court has been closed to the public,’ Henderson replied. ‘There are matters of national security involved.’
The judge shook his head. ‘In a case involving sexual abuse, Mr Henderson? That’s a bit far-fetched, isn’t it?’
‘No, my Lord. If I may remind your Lordship, the Attorney General based one part of his nolle prosequi in the criminal proceedings, the part relating to Bishop EF, on the national interest. That remains true, and Father Gerrard’s unfortunate death – although my learned friend Mr Chapman doesn’t know about it yet, as far as I’m aware – makes it all the more important.’
‘You’ve lost me completely, Mr Henderson,’ the judge replied. ‘But I suppose I will have to try to get to the bottom of it.’
‘I’m sure my learned friend and I can assist with that,’ Henderson replied evenly. ‘Perhaps your Lordship would be good enough to rise for five minutes, to allow me to bring Mr Chapman up to date?’
‘Very well,’ Mr Justice Roberts replied. ‘But let’s not take too long about it, shall we?’ He stood and left the bench abruptly.
‘So now,’ Julia said, ‘we have counsel for the Home Office and counsel for the security services putting their heads together. I have a bad feeling about this.’
‘Would someone please explain to me what’s going on?’ Audrey asked.
No one replied immediately.
‘Your cue, Julia, I think,’ Ben said.
Julia nodded. ‘It’s all to do with the German man. But it’s all nonsense.’
‘The man who molested Mary?’
‘Yes.’
‘The government was involved with him in some way?’ Ginny asked. ‘How?’
‘I’m sorry. I can’t tell you any more –’
‘Julia…’
‘I’m sorry. I can’t. But I will say this: in my mind, it’s got nothing to do with the case, or certainly shouldn’t have anything to do with it. At least, I assume that’s what they’re talking about. There’s no other connection I know of. If it’s anything else, we will have to wait to find out about it from Chapman.’
Audrey shook her head.
‘How do we fight these people?’ she asked. ‘How does anyone ever find the strength?’
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‘My Lord,’ Harry Chapman began, after Henderson had introduced him to the court, ‘it has come as something of a shock to hear of the death of Father Gerrard. I didn’t know about it before I came to court. I’ve taken the time your Lordship kindly gave me to consider very carefully. I’ve concluded that it doesn’t affect the submissions I have to make to your Lordship.
‘I propose to provide your Lordship with a general account of the matter that concerns the security services. I propose to do so in closed court, so that the parties and their counsel will be able to hear everything I am going to say, although the public will not.’ He paused. ‘I am also going to take an additional step, a step I take reluctantly when I take it at all. I’m going to ask your Lordship to read an affidavit from a senior officer of the domestic intelligence service, MI5. I regret that it will not be made available to the parties, or to their counsel. It provides your Lordship with further information of an extremely sensitive nature, the disclosure of which the heads of the security services, and the relevant minister, would see as damaging to the national interest.’
Ben stood at once. ‘My Lord, I must object in the strongest terms. It’s not the practice in this country to hold secret trials. If my learned friend is going to make submissions that affect my clients’ rights, he should do so openly, so that we can all understand what the minister and the security services are worried about, and have the chance to respond.’
The judge held up a hand.
‘I’m not going to permit any secret trials, Mr Schroeder. But I do have some experience in representing the government in sensitive matters, and during my time at the bar I had to make submissions to the court similar to those Mr Chapman is making. I have a duty to allow the government to say whatever they wish to say. That doesn’t mean I’m going to agree with them. I’m afraid you will have to trust me on that, Mr Schroeder.’
‘’I have every confidence in your Lordship’s sense of fairness,’ Ben replied, surprised to find himself speaking those words to Mr Justice Roberts, ‘but the principle on which the courts work in England is that justice must not only be done, but must be seen to be done. That principle is meaningless if part of the proceedings takes place in secret, behind closed doors.’
‘I have every intention of ensuring that justice is seen to be done,’ the judge replied. ‘Your point, please, Mr Chapman.’
‘May the court be closed to the public for a short time, my Lord?’
The judge nodded. Chapman waited for the usher to ask the several journalists and members of the public to leave court, which they did with a show of reluctance, and to place a notice in the door of the court indicating that access to the public was temporarily restricted.
‘My Lord, when the Attorney General referred to the national interest in relation to Bishop EF, he was referring to the fact that, during the war, the security services had an interest in the Bishop, and indeed in Father Gerrard – which is why I’ve had to consider my submission to your Lordship very carefully since learning of his death. The services also had an interest in a German man, who was known to Bishop EF, and who was seen with the Bishop and Father Gerrard at Lancelot Andrewes School – among other places.’
Ben turned around to glance at Julia, who raised her eyebrows. ‘Other places?’ she mouthed silently.
‘As your Lordship knows, when Bishop EF was interviewed by the police, he gave a partial account of his activities at that time – I think everyone here has copies of the transcript. I say a partial account, because the Bishop declined to answer a number of questions, saying that he was not at liberty to do so. He was right to take that course. If his st
atement were to be used as evidence, or if Bishop EF were to be advised to give evidence himself in these proceedings, questions might well be asked about the subjects he was not at liberty to disclose to the police. My Lord, although much of this material is now of purely historical interest, there are some aspects of it which might bring to light the detailed activities of the secret services, and the identities of certain persons whose personal safety might, even now, be compromised. It might, in certain circumstances even lead to the loss of life: and I will tell your Lordship frankly that I am concerned, in addition to being shocked, by the death of Father Gerrard, for exactly that reason.’
‘But Mr Norris indicated that Father Gerrard had taken his own life,’ the judge replied. He, too, sounded shocked.
Anthony Norris stood. ‘My Lord, that is the information my instructing solicitors received from the police. But there will be a post-mortem and an inquest, and it’s not beyond the realm of possibility that the police’s initial conclusion might be called into question. One simply doesn’t know at this stage.’
‘If I may, my Lord,’ Chapman added, ‘I will hand up the affidavit I referred to and ask your Lordship to retire to chambers to read it. Your Lordship understands that I will have to take it back immediately afterwards?’
‘Yes, very well,’ the judge replied. ‘I will read it now.’ He left the bench abruptly.
When the judge had gone, Chapman approached, his hand extended.
‘Hello, Julia. Nice to see you again. How are you?’
She took his hand. ‘Hello, Harry. I didn’t expect to see you here in this case.’
‘I didn’t expect to be here. I was consulted about the Attorney General’s order in the criminal case, of course, and I thought that had put an end to it all.’
