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 might be thought that any half-decent writer can write a book about celebrated trials. The raw material – the dramatic framework and the spoken lines – are already provided, and where a sentence of death is the consequence of a guilty verdict, the reader’s interest is surely guaranteed. The truth is however more complicated. 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. Grant has said elsewhere that “books about historical crimes should evoke the patina and preoccupations of the period that spawned them”. Here he writes: “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”; and again that “there are, occasionally, cases that epitomise a historical moment so perfectly that it can seem in retrospect that, far from emerging from a maelstrom of human contingency, they involve some element of collusion between the participants, as if all were engaged on a collective endeavour to hold a mirror to their age”. For example Elvira Barney, a member of the “bright young people” set who was charged with murder in 1932, responded to the police’s suggestion that she might accompany them to the station to provide a full statement by slapping their faces and pulling rank in these imperious terms: “You foul swine! When you know who my mother is, you will be more careful what you say and do to me.” This sort of reaction would be unlikely to occur now.
Grant can turn an excellent phrase, referring for example to “chirruping debutantes”, or noting that an Edwardian euphemism for prostitutes was “butterflies of the streets”; he is alert to extract the richness of the mordant humour in his material, reporting that an apparently grand lady of Mayfair was “the daughter of a toothpaste salesman from the Wirral”; we also learn that Lord Haw-Haw’s term for his wife’s periods was “Mrs Thing”. Grant relates of Barney that “she was involved with an epicene youth… whose own brush with productive activity – he at one time styled himself as a “dress designer” – had been rendered otiose by Elvira’s financial independence.” He has access to a broad cultural hinterland (not a given among members of the Bar): numerous literary ghosts walk his pages; Walter Sickert executes a series of paintings reflecting the Camden Town murder; trials are attended by Arthur Wing Pinero, Rebecca West and Sylvia Plath. Although most of the chapters concern murders, there is a well-judged variation of tone, and Grant provides a scherzo movement, in the form of the prosecution of Randle and Pottle a full 25 years after they had helped George Blake escape the savage 42-year term of imprisonment for betraying secrets to the Russians which had been imposed by Lord Chief Justice Parker.
The author has had to exercise selectivity, and has omitted from Court Number One well-known trials written about elsewhere. Given his eye for telling detail and his understated sensitivity to the bigoted, the unjust and the grotesque, one cannot help wishing that he had included the trial of Stephen Ward (not least to expose once more the “corrupt, contemptible” behaviour, directly contributing to Ward’s death, of the same Lord Parker, which is described in chapter 10 of An English Affair by Richard Davenport-Hines); the Lady Chatterley trial for its evergreen absurdity (but see Bernard Levin’s The Pendulum Years); or the Bodkin Adams prosecution (as to which the trial judge’s account Easing the Passingis required reading). The author does not put a foot wrong in any of his widely contrasting accounts of human fallibility and frailty. A minor confusion over John Amery’s Christian name apart, one has to wait until the endnotes for an error – but 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. Modern liberal orthodoxy may seem attractive to us, but it is in truth as impermanent as any other point of view. Given however that one must proceed from somewhere, four inter-related themes may be said to emerge from Grant’s book. The first is the disturbing extent to which the portrait in the mirror held up to the age appals even those who expect to find in it an unflattering image of 20thcentury mores. The detail here matters, and it is as well to dwell on it for a moment. 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 was described by one contemporary newspaper as “a Mad Hatter’s tea party”; in Grant’s analysis, it was a platform for the propagation of outrageous lies and smears, and a brazen attempt to whip up popular frenzy. The complainant was Maude Allen, a dancer serious enough to have commissioned Debussy, and whose only fault (apart from being an Edwardian sex symbol) was to play the title role in Oscar Wilde’s harmless if overwrought play Salomé. Her brother had many years before killed two people in a ritualistic murder in their native Canada. She had fallen out with the dreadful Lord Alfred Douglas, and thus become drawn into the continuing row about Wilde’s legacy conducted between Douglas and Robbie Ross. The former’s campaign was exemplified by dubious parodies of Pope, denouncing German Jews as one of “two fogs [which] blot out thy light/The German and the sodomite”. It is sometimes supposed that there was something merely genteel about British anti-Semitism during this period, but we are disabused by Grant, who records that the German-Jewish treasurer of the fund raised to finance Scott’s 1910 Antarctic expedition emigrated to America after furious mobs provoked by his ancestry had besieged his home. (Indeed, a constant and independent character in the book is the mob – whether baying at an acquittal like the crowd celebrating the relief of Mafeking, or hurling insults at Ruth Ellis and Maxine Carr, its will in the latter case vicariously expressed by press disregard of the Attorney-General’s urgings not to prejudice a fair trial – which is redolent of the fickle populace that plays such a large part in Julius Caesarand Coriolanus.)
Curiously to modern eyes, a link was made in the popular mind during the Great War between Prussian brutality and homosexuality; there was widespread paranoia that a homosexual fifth column threatened to sap the British nation’s moral fibre and drain its martial spirit. This reached a climax in spring 1918, when Germany launched the Ludendorff offensive and appeared not unlikely to win the war. Enter Noel Pemberton Billing, a die-hard Independent MP, who had spent much of the war agitating for the development of a proper air force. He combined this sensible advice with violent attacks on international communism, Jewish big business and, needless to say, homosexuality. He then met an invalided Secret Service officer called Spencer, who claimed to have seen a “black book” compiled by German agents containing the names of no fewer than 47,000 sexually deviant Britons in high places who were being blackmailed by German conspirators. In his weekly paper, Billing reported (amid accounts of British confectionery being poisoned and British soldiers being sexually infected by Germans) that the black book contained “a précis of general instructions regarding the propagation of evils which all decent men thought had perished in Sodom and Lesbia [sic] … details were given of the unnatural defloration of children who were drawn to the parks by the summer evening concerts. Wives of men in supreme positions were entangled. In Lesbian ecstasy the most sacred secrets of state were betrayed.” (Before we smile too patronisingly at this, we ought to acknowledge the pre-echo of the ravings of Carl Beech, recently imprisoned for 18 years).
Ahead of two private performances of Salomé, Billing published in his paper an article by Spencer revealingly entitled The Cult of the Clitoris, which 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. Grant can as usual see the comical side of all this, reporting that during the trial Lord Albemarle was asking fellow members of the Turf club who “this Greek chap Clitoris was they were all talking about”; it is doubtful whether many of his fellow members could have enlightened him. But the trial itself was a shambles. Billing (who had trained as a barrister) represented himself, and was awarded a monstrous degree of latitude by the feeble-minded Mr Justice Darling (at one time the acting Lord Chief Justice). Thus it was completely out of order for Billing to be permitted to cross-examine Allen about the murders committed by her brother on the basis that there was a hereditary link between lesbianism, or at least the sadism depicted in Salomé, and a tendency to murder. Or for him implicitly to invite the jury to conclude that Allen must be a lesbian because she knew what a clitoris was (clearly no chap would). Or that he was permitted to imply that Allen was conducting an affair with Margot Asquith, the wife of the former prime minister. Even on its first day, the trial had teetered on the edge of farce, but it descended into the pit once Billing began to call his mendacious and deranged witnesses. These claimed that they had seen the black book, and that not only was Asquith’s name in it, but so was Darling’s. Ludicrous allegations were made that prosecuting counsel too knew all about the contents of the book; Spencer explained to the jury how “an exaggerated clitoris might even drive a woman to an elephant”, while both the judge and prosecuting counsel revealed their ignorance of the meaning of word “orgasm”. Not to be outdone in exaggeration, Douglas described Wilde as “the greatest force for evil that has appeared in Europe during the last 350 years”, while declining to answer one of the few sensible questions put in cross-examination: “When did you cease to approve of sodomy?” Whilst of course this is all extremely amusing a century on, this trial should remain an embarrassment to anyone involved in the English legal system, even though the unfairness – it goes without saying that Billing was acquitted – is dwarfed by the injustices perpetrated in other trials mentioned by Grant.
One case where justice palpably was done, 85 years later, was the Soham murders case described in the final chapter of Grant’s book. Above criticism as the trial process in R v Huntley & Carr was, the looking-glass held up to British society as at 2003 shows a thought-provoking picture nonetheless. There is an interesting contrast between the overwhelming concentration of the public mind on the personalities of Holly Wells and Jessica Chapman, and the softer focus or even indifference shown in relation to the victims of earlier, equally tragic murders. No rose was named after Lesley Ann Downey or Pauline Reade, two of the five children who died at the hands of the Moors murderers; nor were the families consoled with visits to a royal residence. Emily Dimmock, the victim of the 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”. The families of the murdered girls became involuntary celebrities; ten days after the discovery of the bodies, Holly Wells’ parents were invited to Old Trafford to watch a football match and 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 disaster in which 116 children were killed, no mental health support was sought or offered, but the school reopened just two weeks later and the community healed itself remarkably well. He quotes Nicci Gerard: emotion “is our new religion… filled with its own rapidly evolving rites, everyday liturgies and a mediaeval irrationality”. The Soham murders, Grant concludes, were one of the new religion’s inaugural conclaves.
The second main theme discernible in the book 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 10 Rillington Place murderer – the apologetic way in which counsel asked the real murderer and prosecution witness Christie about his convictions for dishonesty; his failure to pursue important forensic evidence – helped to hang an innocent man. To Melford Stevenson’s perfunctory and squeamish defence of Ruth Ellis we will return below.
At the other end of the spectrum, 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 “not merely counsel [but also] “detective, showman, rhapsodist, actor, friend and even father confessor”. A more recent biography by Sally Smith gives a more balanced picture, but as she records: “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. Of course, he saved his clients’ lives by such techniques, and in those circumstances 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.
An insight into Marshall Hall is afforded by his 1923 triumph defending a former Parisian prostitute who had became the wife of a much younger Egyptian “prince” (in fact playboy). Her married name, Madame Fahmy, strains credulity, but a union that might merely have provided the opportunity for an adequate, if off-colour joke about nominal determinism turned into something much nastier, for she shot him three times in a corridor of the Savoy hotel while he was crouching, his back turned, in the act of summoning her lapdog. Since Fahmy was dead, he was in no position to deny that the acute piles from which his wife was then undoubtedly suffering were caused, as she claimed, by his retrospective attentions to her.
Marguerite Fahmy and Marshall Hall turned her husband’s supposed predilection into the corner-stone of her defence, and it was he who provided the necessary social context. This was that Orientals or blacks or “the Turk in his harem” (all were conjured indifferently by counsel) were perverts: they were pedicated by their elders (in this case, it was groundlessly suggested, the principal prosecution witness) and, having lured foreign women into their clutches, treated them likewise. Grant sets out the unapologetic racism without comment; none is necessary. Thus, Marguerite was said to have been at the mercy of her husband and “his entourage of black servants… She could not go anywhere without these black things watching her.” Her husband “kept a black valet to watch over this white woman’s suite of rooms, conditions that really make me shudder.” Marshall Hall said that his client had made “possibly the greatest mistake any woman can make: a woman of the West married to an Oriental”; in his closing speech he also performed what Marjoribanks was pleased to call “the most wonderful physical demonstration of his forensic career; he imitated the crouch of the stealthily advancing Oriental”. That this was a complete invention, contrary to the clear evidence of a disinterested night porter, does not seem to have bothered either barrister or hagiographer. The speech concluded: “Let this Western woman go back into the light of God’s great Western sun.” Following the acquittal, the public gallery broke into thunderous stamping and applause, which continued for five minutes.
No modern advocate can read this and other speeches by Marshall Hall without incredulity bordering on disgust. This is not just a matter of changing styles (one thinks of how unwatchable Olivier’s Hamlet is in many modern eyes); 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 Marshall Hall’s antics to the more recognisable forensic techniques of Sir Patrick Hastings, who successfully defended Barney. Hastings, whose weapons were understatement, rigour and detachment, was nauseated by the fashionable presence of elegantly-dressed women in the public gallery, whereas Marshall Hall had played to them with grandiloquence and passion. 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 using the same technique. 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.”
More of Cantley later, but whilst is not surprising that bad judges can change the course of criminal cases, what is depressing is that they can be bad in so many ways. In the Billing case, Darling inexplicably refused to allow a short adjournment in order to enable the prosecution to call the Director of Naval Intelligence to rebut the defence’s nonsensical and unforeseeable evidence. His total loss of control of the case is not merely a criticism of hindsight: the Daily Mail referred at the time to the proceedings as “bedlam… Nothing less than a libel on the nation… Scenes were enacted of such grotesque unseemliness that the court resembled a madhouse.” In the Fahmy case, Mr Justice Rigby Swift crucially but perversely ruled that questions could not be asked about the defendant’s seamy past, even though defence counsel had already suggested that the principal prosecution witness had made the murder victim his catamite. The trouble was that the judge was already half in love with Madame Fahmy (although at least that court was spared the embarrassing performance later returned by another amorous judge, Mr Justice Caulfield, in the 1987 miscarriage of justice involving the Jeffery Archer libel suit: “Has she [Lady Archer] elegance? Has she fragrance?”) Grant’s book contains other instances of judicial perversity but, happily too, the recent case of outstanding trial management already touched on: Mr Justice Moses’ exemplary conduct of the Soham murders case.
A third and 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. We have already seen how Maud Allen was tormented before an all-male cast about the implications of her knowledge of female anatomy. Two other examples will further illustrate the point. Grant reminds us that shortly after Madame Fahmy was acquitted, Edith Thompson was hanged. Unhappily married to a dullard, she had begun an affair with a much younger man, who eventually stabbed the husband to death. Both the wife and the killer insisted that the latter had acted alone, but Thompson was convicted as an accomplice to the murder. The letters that she had previously written to her lover did her no good at the trial. They are touching in their honesty; of her husband’s unwelcome sexual advances, she wrote: “he has the right by law to all that you have the right to by nature and love”. We may greet with a disbelieving shake of the head the comments of Mr Justice Shearman in summing-up: “If that nonsense means anything, it means that the love of a husband for his wife means nothing because marriage is acknowledged by law. I have no doubt that the jury and every proper-minded person is filled with disgust by such expressions”. On the contrary, Grant suggests, her character is as fully realised in those fatal letters as that of Mrs Dalloway or Molly Bloom. It is hard to disagree with his conclusion that “few cases reveal the narrowness and mercilessness of the processes of the law more starkly than” this one. It was no consolation to Thompson that, after she had screamed her innocence on the scaffold, she metamorphosed over the decades from the siren of the early 1920s (dubbed in the press without irony as “the Messalina of Ilford”) into a haunting victim of injustice, as well as what Grant calls an exemplar of female autonomy and self-fashioning.
It is well known that the last woman to be hanged in Britain was Ruth Ellis. The wretched catalogue of abuse which she suffered at the hands of her eventual victim Derek Blakely is re-told in the book. As stated, 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 – was entirely ineffectual. Melford’s “tea table” manners occluded the reality of the wretched abuse she had suffered. His cross-examination was feeble, his examination-in-chief of his client disastrously unsympathetic. Not surprisingly given the state of the evidence, a baffled 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, and although he does not invoke her directly, a poignant phantom hangs over Ellis’ execution (during which her father sat at home playing a threnody on his cello): we are reminded of one of those occasions when Thomas Hardy’s fury got the better of his sense of literary balance: ““Justice” was done, and the President of the Immortals (in Aeschylean phrase) had ended his sport with Tess.”
The fourth and final theme in Court Number One is implicit in the first three: it is the frequent complicity of the legal establishment in the popular sentiments of the time – a failure to rise above them – and its slowness to acknowledge that things have gone wrong, even though it has long become apparent to the sceptical non-legal observer that they have. Here again, Grant is on hand with examples. Of the trial of William Joyce “Lord Haw-Haw”, he writes: “Some trials 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.… Some crimes involve more directly an affront to the public at large, and it is in trials of such offences that questions of proof seem to become secondary to a larger goal.” Joyce was an American citizen and an active Fascist who had fraudulently obtained a British passport by pretending to be a British subject when he was not (an offence for which the maximum penalty was then a £2 fine). 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. The decision after the Second World War put him on trial for treason was greeted with incredulity by Sir Donald Somervell, then Home Secretary and a future Law Lord.
The prosecution was led by Sir Hartley Shawcross, whose second-best known nick-name was conferred by Joyce (“Hotcross Buns”). Although the indictment was cast more widely, the best chance of a conviction lay in the novel argument that the mere possession of a British passport imposed on Joyce a duty of allegiance to the Crown until its expiry in July 1940, albeit that it had been obtained by someone who was and continued to be a non-British subject but had deceitfully pretended the opposite, and whether or not it had been discarded. Mr Justice Tucker treated this question as a purely legal one (i.e. he did not let the jury decide it) and held that Joyce did owe such a duty. The case went to the House of Lords, where the circularity of the entire prosecution case was expressed by Shawcross’ submission that it would be “an unthinkable outrage if the crime of treason was held not to be committed”. More telling from the present-day perspective was defence counsel’s observation that “of all the cases which have disfigured our legal history, trials for treason are the worst.” Joyce’s appeal was dismissed; to his credit, Lord Porter dissented, albeit on the narrow ground that the question whether the possession of a passport entailed a continuing duty of allegiance ought to have been left to the jury. The popular press expressed the opinion that Joyce’s execution was richly deserved; the Manchester Guardian, in company with George Orwell, demurred. The prevailing modern view is that this was a judicial lynching. The notion that Joyce ever owed any duty of allegiance to the Crown now seems a fairly obvious case of pulling oneself up by the bootstraps. But that did not trouble the judges.
Five years later, we encounter the deplorable conviction and hanging, already mentioned, of Timothy Evans (who had an IQ of 68) for the supposed (motiveless) strangling of his baby daughter at 10 Rillington Place – a murder which, among several others, had in fact been committed by his co-resident John Christie. Christie was subsequently condemned to death in the same court as Evans, by a judge the tears in whose eyes were perhaps due to the realisation that Evans could not possibly have committed the murder for which he had been hanged. Grant evokes the grim and squalid domestic world of post-war London as the background to a story of justice gone awry that cannot be told too often. But what is so striking is that a truth that was transparent to anyone who read Ludovic Kennedy’s 1961 book on the subject took the legal establishment until the 21st century properly to acknowledge. After Christie had been convicted of murder and had admitted strangling Evans’s wife, an official enquiry by John Scott Henderson concluded that Evans’ conviction for the murder of his daughter was safe, a conclusion which necessarily entailed the implausible conclusion that there were two murderers living in the same dismal West London house who happened to be killing people by the same modus operandi. Daniel Brennan’s 2003 report, deciding at last that Evans murdered no one, has to this day been withheld from publication.
One of those who resisted the self-evident innocence of Evans was the Conservative Home Secretary Sir David Maxwell-Fyfe, subsequently Viscount Kilmuir. Further blots on his escutcheon were his overriding of a recommendation for mercy in the case of Derek Bentley (“Let him have it, Chris”), a 19-year-old who had been in custody for 15 minutes by the time a policeman was shot by his associate; his keen persecution of homosexuals (“exhibitionists and proselytisers and a danger to others”); and his campaign against obscene literature (among books which were banned by magistrates were Madame Bovary and Moll Flanders.) If there is one man in this book who encapsulates the prejudices which the moderate liberal conscience repudiates, it is he. Yet we cannot appease our consciences by recourse to the fact that grotesques such as Kilmuir occupy the distant past. It was as recently as 2003 that an appeal against Ellis’s conviction, arguing that she was a victim of “battered woman syndrome”, was dismissed by the Court of Appeal with what Grant calls a tone almost of irritation. The better view, which is his, is that Ellis’s execution was an atrocity.
It is fitting to conclude by returning to the most familiar and in some ways the most extraordinary malfunction of all those described in Court Number One: the Thorpe case. John Preston’s book and a recent television dramatisation make it unnecessary to do more than highlight certain points. Even to the present writer, who was a Bar finals student at the time, there was a sense of something peculiar about the manner of the prosecution (a feeling subsequently augmented by the sight, after the trial was over, of Mr and Mrs Thorpe and prosecuting counsel Peter Taylor (subsequently Lord Chief Justice) enjoying Mozart together in a box at Covent Garden). Grant’s tactful way of expressing the point is that “there have been suggestions since the trial that Taylor perhaps showed too much respect for Thorpe’s position.” Auberon Waugh, who attended and wrote a book about the trial, had the sense that punches were being pulled. There was no alternative charge alleging a conspiracy to frighten Norman Scott, a serious offence which at least two of the four defendants had in effect admitted. Taylor’s closing speech began with a depiction of Thorpe as a character in Greek or Shakespearean tragedy, an invocation which one might have expected from counsel for the defence, and which bore little relation to the evidence given over the previous four weeks.
However, while there may be two views about the conduct of the prosecution, the judge’s conduct was nothing less than a disgrace. Cantley, a “sozzled old eunuch” (in Bessell’s later phrase), was for some reason complicit from the outset in undermining the prosecution case whenever he could. The most notorious instance during the evidence was when Carman put to Bessell that he had been telling “whoppers”; at 4.15pm, Carman inquired of the court whether it wished to adjourn for the day, to which Cantley replied (in front of the jury of course) “Oh no, Mr Carman, we’ve got time for one more whopper if you like”. This is the sort of judicial misconduct that makes any advocate burn with outrage. Cantley’s unashamedly anti-prosecution summing-up (which Grant rightly calls “offensive” and “a travesty of justice”) almost exceeded even Peter Cook’s powers of parody a few days later. In the interests of removing any lingering doubt, it should be mentioned that it was Cook, not Cantley, who described Scott as “a self-confessed player of the pink oboe” and who finished by telling the jury: “You are now to retire, carefully to consider your verdict of not guilty”.
No one can lay down Court Number One without a sense of thoughtfulness, even disquiet at these cases culled from a century of English criminal justice. Of course they are in many ways exceptional. It is true that much good or acceptable justice is done every day in the courts of the Old Bailey and other criminal courts by impartial judges, underpaid lawyers and conscientious jurors, although the Secret Barrister’s recent audit of the system indicates that even this may be too rosy and partial a picture. But the broader point is this. With whatever vexation of spirit the moderate conservative thinker may react to certain contemporary attitudes – virtue-signalling politicians, “woke” journalists, repetitious feminists, incomprehensibly distorted arguments on transgender issues, unjust denunciations of mainstream opinion as “gammon” or worse, and all this in an age where not one in 10,000 people even knows who Messalina was (or that she did not come from Ilford) – it should not be imagined that the values of the past were any better, different though they certainly were. 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.