A reckoning for justice

Thomas Grant’s “Court Number One” reveals the changing values of the society which the criminal justice system ultimately exists to enforce

Books
Maude Allan as Salome: Accused of being a lesbian and German conspirator (LIBRARY OF CONGRESS)

John Mortimer once wrote that “high among the great British contributions to world civilisation, the plays of Shakespeare, the full breakfast, the herbaceous border and the presumption of innocence, must rank our considerable achievement in having produced most of the best murder trials in the long history of crime.” Thomas Grant’s first-rate Court Number One: The Old Bailey Trials that Defined Modern Britain contains an account of seven such cases, together with four other criminal prosecutions which took place in the country’s most famous court.

It is in the nature of all court cases that if you weren’t actually present on the day, you will never really understand how it went and why. The ephemerality of even the greatest advocacy, the deadness of the printed transcript, the intensity of the participants’ focus as compared with that of the most attentive reader after the fact—these all mean that the anthologist must do more than retell the court-room story in order to repay our curiosity. This Grant amply succeeds in doing.

The book’s subtitle conveys his real subject-matter, which is not just the criminal justice system but more particularly the changing values of the society which the system ultimately exists to enforce: “Through the criminal trials that have occurred in Britain’s foremost court there can be traced at least one version of the history of social and moral change over the last century.”

Take Elvira Barney, a member of the “bright young people” set who was charged with murder in 1932. She responded to the police’s suggestion that she might accompany them to the station to provide a full statement by slapping their faces: “You foul swine! When you know who my mother is, you will be more careful in what you say and do to me.” It is unlikely that this reaction would be countenanced today.

For reasons of space, the author omits from Court Number One well-known trials—Stephen Ward’s, Lady Chatterley, Bodkin Adams—written about elsewhere. But he does not put a foot wrong in any of his widely contrasting accounts of human fallibility and frailty; and despite a minor confusion over John Amery’s Christian name, one has to wait until the endnotes for an error—though when it comes, it is worth the wait: the participants in the 1975 debate at the Oxford Union on the Common Market are said to have been Jeremy Thorpe, Edward Heath, Peter Shore . . . and Barbara Cartland. How history might have been altered if the belle lettriste of the bodice-ripping novel had indeed contributed to the argument about the merits of EEC membership.

Any perspective on the past is restricted by the inescapable local prejudices of the present. Take the case of R v Pemberton Billing, a criminal libel trial which took place in May 1918. This astonishing episode of hysteria, xenophobia and homophobia provided, in Grant’s analysis, a platform for the propagation of outrageous lies and smears, and a brazen attempt to whip up popular frenzy.

The complainant was a dancer, Maude Allen, star of Oscar Wilde’s play, Salome. Her brother had many years before killed two people in a ritualistic murder in their native Canada. Drawn into the continuing row over Wilde’s legacy, Allen had fallen out with the dreadful Lord Alfred Douglas, whose dubious parodies of Pope, denouncing German Jews as one of “two fogs [which] blot out thy light/The German and the sodomite”, illustrated the bizarre link made in the popular mind during the Great War between Prussian brutality and homosexuality. 

Enter Noel Pemberton Billing, a die-hard Independent MP and editor of the weekly The Imperialist, where he attacked international communism, Jewish big business and homosexuality. Billing published an article by an invalided Secret Service officer called Harold Sherwood Spencer, who claimed to have seen a “black book” compiled by German agents containing the names of 47,000 sexually deviant Britons in high places. All were supposedly being blackmailed by German conspirators.

Spencer’s article, “The Cult of the Clitoris”, clearly implied that Allen was a lesbian and possibly (it seemed to follow in Spencer’s mind) a German conspirator. A prosecution of Billing ensued and the trial caused a sensation. (Lord Albemarle was reported asking fellow members of the Turf club who “this Greek chap Clitoris” was they were all talking about; it is unlikely that many members could have enlightened him). Billing, who had trained as a barrister, represented himself, and was awarded a monstrous degree of latitude by Mr Justice Darling. He was permitted to cross-examine Allen about the murders committed by her brother on the basis that there was a hereditary link between lesbianism and a tendency to murder. Billing was also allowed to invite the jury to conclude that Allen must be a lesbian because she knew what a clitoris was; and imply that Allen was conducting an affair with Margot Asquith, the wife of the former prime minister. From its first day, the trial teetered on the edge of farce; once Billing began to call his mendacious and deranged witnesses, it descended into the pit.

It goes without saying that Billing was acquitted—but the unfairness of this trial is dwarfed by the injustices perpetrated in others described by Grant. A saddening theme in Court Number One concerns the wretched lot of many women, ensnared in what used to be the overwhelmingly masculine world of the criminal legal system. Edith Thompson, unhappily married to a dullard, had begun an affair with a much younger man, who eventually stabbed the husband to death. Both wife and killer insisted that the latter had acted alone, but Thompson was convicted as an accomplice to the murder. Her letters to her lover, which are touching in their honesty, did her no good at the trial: she wrote of her husband’s unwelcome sexual advances, “he has the right by law to all that you have the right to by nature and love”. Yet Mr Justice Shearman in his summing-up referred to Thompson’s sentiments as “nonsense . . . I have no doubt that the jury and every proper-minded person is filled with disgust by such expressions”. Thompson was hanged. It is hard to disagree with Grant’s conclusion that “few cases reveal the narrowness and mercilessness of the processes of the law more starkly” than this one.

In 1955, Ruth Ellis—famously—became the last woman to be executed in Britain. The wretched catalogue of abuse which she suffered at the hands of her eventual victim Derek Blakely is re-told in the book. Her counsel was Melford Stevenson, subsequently one of the most odious judges ever to hold office. The conduct of her defence—which was to allege provocation—proved entirely ineffectual, with Melford’s “tea table” manners occluding the reality of the dreadful abuse Ellis had suffered. His cross-examination was feeble, his examination-in-chief of his client disastrously unsympathetic. Presented with such flimsy evidence, Mr Justice Havers ruled that there was no case of provocation to go to the jury, whereupon Melford declined to make any closing speech whatever on behalf of his client—a defendant on a capital charge. The whole trial passed without anybody testing how it was that Ellis had come to be in possession of the murder weapon, or how she had got to the scene of the murder. Grant refers to the case as an Aeschylean tragedy, rightly implying thereby an echo of Tess of the d’Urbervilles.

One case where justice palpably was done, the Soham murders trial (R v Huntley & Carr) nonetheless revealed a thought-provoking picture of Britain. Grant contrasts the overwhelming concentration of the public mind on the personalities of Holly Wells and Jessica Chapman, with the softer focus on, even indifference shown towards, the victims of earlier, equally tragic murders. No rose was named after Lesley Ann Downey or Pauline Reade, two of the five child victims of the Moors murderers between 1963 and 1965; nor were their families consoled with visits to a royal residence. Emily Dimmock, the victim of the 1907 Camden Town murder, was “forgotten almost as soon as the case ended”. But Suttons Seeds will sell you a bare root Soham rose for £10.99, and the website promises that it “always looks fresh and appealing with its abundant pearly blush blooms”. In 2003, the families of the murdered girls became involuntary celebrities; 10 days after the discovery of the bodies, Holly Wells’ parents were invited to Old Trafford to watch a football match and to be introduced to David Beckham and Alex Ferguson. An invitation to tea at Sandringham followed. A Princess Diana-style wave of sentimental and factitious emotion—necessarily completely vicarious—gripped large parts of the nation. The local vicar, who had caused justifiable upset by allowing photographs to be taken at a vigil service, was inexplicably awarded an MBE. Almost everybody connected with the case was in due course offered counselling. Grant draws a contrast with the 1966 Aberfan landslide in which 116 children were killed: no mental health support was sought or offered; the school reopened just two weeks later. 

One of Grant’s main themes is the importance of the principal professional actors at the trial, and the extent to which their methods reflect the prejudices of the age. It comes as no surprise that, at least where juries are concerned, barristers—good and bad—can change the outcome of cases. Nor does this book only chronicle the feats of the great names of the Bar. Malcolm Morris’s flaccid performance in defence of Timothy Evans, the supposed Rillington Place murderer—the apologetic way in which counsel asked the real murderer and prosecution witness John Christie about his convictions for dishonesty; his failure to pursue important forensic evidence—helped to hang an innocent man. Melford Stevenson’s perfunctory and squeamish defence of Ruth Ellis has been noted already.

A disturbing point illustrated by several chapters of Court Number One is how often professional conventions were broken or bent to enable defence counsel to triumph. A prime offender was the legendary Edward Marshall Hall, described by his sycophantic first biographer Edward Marjoribanks as “detective, showman, rhapsodist, actor, friend and even father confessor”. (A more recent biography by Sally Smith gives a more balanced picture, but acknowledges that “those who heard him in action were transported: observers reported unbearable tension, muffled sobs, breathless attention, hysterics and ecstatic applause.”) Grant calls things by their right name: Marshall Hall constantly broke the rules, made up evidence, denied he had said things he had, hammed, blustered, bluffed and bullied, in ways that are not merely unavailable to a modern advocate, but should be contrary to our instincts. He saved his clients’ lives by such techniques—so it may seem small-minded to insist on observing the rules. But he must have been subject to other influences and motivations: when your (unfair) opening speech in a capital murder case is greeted by spontaneous applause from the public gallery, and when a juror faints at the end of your closing speech, when the actress Mrs Beerbohm Tree announces the verdict in mid-performance on stage—these are tests of character which few of us could perhaps withstand.

No modern advocate can read Marshall Hall’s speeches without incredulity bordering on disgust. This is not just a matter of changing styles; it is a question of the extent to which unprofessional means were deployed to justify desirable ends. It is therefore a relief to move on in Court Number One from Hall’s antics to the more recognisable forensic techniques of Sir Patrick Hastings, one of the great public defenders. His weapons were understatement, rigour and detachment. Present day barristers can recognise and admire Hastings’ focused, closed questions in cross-examination, which required no bullying, because they had been fashioned to leave no legitimate room for the witness to give an untruthful answer. Grant finds space to illustrate his hero Jeremy Hutchinson (of Lady Chatterley fame) using the same techniques. Most good cross-examiners still do.

Advocates like to think that they are seekers after truth, but Grant demurs, and on the evidence of this book it is impossible to disagree with him. It would be nice to report that in the modern forensic world they operate within a far more constrained set of rules, and that judges are far more alert to ensure that witnesses are not treated unfairly. However, this depends on the judges. George Carman’s bullying cross-examinations and “brazen” submissions in the Jeremy Thorpe case obscured the fact that Peter Bessell and Norman Scott were telling the truth. A less biased judge than Mr Justice Cantley would have ensured that Carman did not get away with it. But as Grant writes: “Carman started taking liberties . . . what is always impermissible is rudeness or gratuitous abuse. And yet when an advocate attains mastery over the court then rules somehow become more flexible and the power of the judge to dictate the course of the proceedings seems to wither. Carman was now the master of this court, the judge his meek vassal.”

Grant observes the frequent complicity of the legal establishment in the popular sentiments of the time, and its failure to rise above them. The trial of William Joyce, “Lord Haw-Haw”, illustrates the point. Joyce was an American citizen and an active Fascist who had fraudulently obtained a British passport. He renewed it in 1939 for a year, with a view to fleeing Britain and living in Germany. Once he had reached Germany, there was no evidence that he ever intended to use it again, and he may have thrown it away. But at the end of the war, Joyce was put on trial for treason. His defence counsel’s observation, that “of all the cases which have disfigured our legal history, trials for treason are the worst,” held true, and Joyce was executed—to popular acclaim. “Some trials,” writes Grant, “perform a function that goes beyond the simple ascertainment of guilt or its absence. They can involve a form of reckoning, a ritual in which the perceived public desire for justice is satisfied . . .”  The prevailing modern view is that Joyce’s execution was an act of judicial lynching.

No one can lay down Court Number One without a sense of disquiet. With whatever vexation of spirit the moderate cons-
ervative thinker may react to certain contemporary attitudes—virtue-signalling politicians, “woke” journalists, incomprehensibly distorted arguments on transgender issues, unjust denunciations of mainstream opinion as “gammon” or worse—it should not be imagined that the standards of the past were any better. Let us by all means fight the nonsenses of the present day on their own terms; but we cannot do so by appealing to the contrast of a former halcyon age in which common sense and robust English values prevailed. It never existed.

 

Court Number One:
The Old Bailey Trials that Defined Modern Britain
By Thomas Grant
John Murray, 448pp, £25