Over and Out

by Michael Gilbert

  ‘Surnames?’

  ‘No. They were never formally introduced. When they’d had enough he put them on a tram, which they assured him, would take them to near their home. I asked Bernardin if he could help to locate them. He said he’d do his best, but seeing that there were, he guessed, ten thousand Pierres and ten thousand Maries in Béthune he couldn’t hold out a lot of hope.’

  ‘What about the people in the zoo?’

  ‘The men on the gate said they’d had several hundred people through, mostly with children. The men on duty in the zoo were equally vague.’

  ‘A great pity they turned down the elephant ride. The man in charge would surely have recollected them.’

  ‘He might have done. But the trouble with a vague general alibi like that is that if you push it too hard—employing enquiry agents, or advertising for witnesses—you tend to get a mass of unreliable evidence that falls to pieces when you come to court. Better to leave it to the common sense of the jury. Do they really believe that Trench, if he had been in the pay of German Intelligence, would have selected an occasion, when he was very much in the public eye, to visit one of their agents?’

  ‘But he was seen—’

  ‘Yes. They’ve got a witness. His word against Trench’s. Not a really satisfactory position for the prosecution or the defence.’

  ‘Gripping stuff,’ said Joe. ‘Can you get us in?’

  ‘You could come as solicitors’ clerks. Mainprice and Waring are acting for us. I’ll get you an authority from Teddy Waring.’

  ‘We shall have to dress the part. What do solicitors’ clerks look like?’

  ‘Black beetles,’ said Tom. ‘We start on Monday week. We’re in front of Fred Westall. He’s very sound.’

  Luke discovered three things almost at once: the first was that the Crown was not pulling its punches; that it was determined to win. The attorney general was heading the prosecution, supported by two senior juniors, both practised performers.

  The second was that the case had developed, even before it reached the High Court, into the sort of class struggle that the public relished.

  Them against us.

  On the one side, the big guns of the establishment; on the receiving end, a popular man, with a good war record, who had already angered the powers-that-be by championing serving soldiers who were being denied a fair share of the few jobs that were going.

  The fact that his own union had succeeded in retaining more men than most, had not dented his popularity. The treasurer and the secretary of the union had both volunteered to give evidence on his behalf.

  The third thing that Luke discovered was that the wheels of the law turn slowly.

  The whole of the first morning, and most of the afternoon was spent in empanelling the jury. The Crown objected to the inclusion of a notable trades unionist, who was removed after lengthy argument. The defence retaliated by demanding the exclusion of a military man who had appeared in court with a row of miniature medals on his jacket.

  Further arguments in camera.

  These happenings behind the scenes served only to whet the appetite of those members of the public who, by influence or by patient queuing, had gained the few seats allotted to them in court.

  It was three o’clock in the afternoon before Mr Justice Westall indicated that he, and the jury, were ready for the prosecution to present its case.

  By the lunch interval on the third day, most of their case had been presented. Luke and Joe, who had left the court for a quick sandwich and a glass of beer, had returned in the nick of time to repel an attempt on their seats by two reporters who had been shuffled off the crowded Press benches.

  ‘Thin stuff,’ said Luke. ‘It all depends on how well their star witness stands up to cross-examination.’

  ‘So far, nothing but a crowd of frogs,’ Joe agreed. ‘Can’t believe a word they say.’

  This was an unfair reference to the five members of the Deuxième Bureau who had been permitted, with some reluctance, by their masters, to give evidence about Racouf and his activities.

  All of this was, in a sense, ancillary to the main charge, since no one now doubted that Racouf was a German spy.

  The difficulty that faced the prosecution was to link him with Trench and, so far, this point had not been tackled squarely. It is true that, among the agreed bundle of documents found in Racouf’s lodgings there were a number that must have originated from an English source. But there was no single document that could be shown, except by implication, to have come from Trench. They were documents which could have been available to him.

  That was all.

  ‘They can’t do it,’ said Tom. ‘If they’d found a single paper that ties Trench to the charge they’d have produced it. The papers they have produced show that Racouf was a bad hat, but nothing more.’

  ‘In that case,’ said Joe, ‘it means that the only actual evidence that Trench had anything to do with Racouf is the character who saw him visiting him that afternoon.’

  He was looking at a list that Teddy Waring had given him. ‘Only three that haven’t performed so far. Must be one of them. Marchand, Bergson or Merrick.’

  Luke said, ‘What?’ in such a distraught voice that it attracted disapproving looks from his neighbours.

  ‘Give me that list.’

  He snatched it from Joe’s hand, looked at it quickly, and said, ‘See if you can have a word with Tom. You can catch him as he comes back from lunch. Tell him he’s got to put off cross-examining Merrick until I get back. I don’t care how he does it. Set the court on fire, shoot the judge. Anything.’

  These last words were shouted, over his shoulder, as he pushed through the crowded court, treading on toes, shoving people out of the way, until he reached the exit, muttered something to the policeman on duty, and disappeared.

  ‘Well,’ said Joe out loud. ‘What’s got into him? Never seen him like that before.’

  He went to look for Tom.

  Chapter Nineteen

  His Majesty’s Attorney General, Sir Layman Scoones had a round and rosy-cheeked face, and the general appearance of a sweet, if rather petulant, child. The colour in his cheeks was not, as he used to maintain, the result of a healthy lifestyle, but was due, according to his enemies, to over-indulgence of port. Whether this was true or not, no one questioned that he was a first-class lawyer and a formidable opponent in court, who had learned to tread the difficult path between being head of the English Bar, and a member of the government.

  He was also a bully, specialising in trampling on nervous opponents. When, as in this case, he encountered someone who could not be bullied he exhibited the other side of his character, becoming nauseatingly polite.

  Martin Brayne, KC, MP, was six foot three inches high and weighed sixteen stone. With such measurements, he had inevitably been christened Tiny by the Inns of Court Regiment in which he had commanded a squadron. The nickname had followed him to the Bar. He had played rugby football for the Territorial Army and had earned a broken nose boxing for his regiment.

  On the fourth day of the hearing at the Central Criminal Court, the attorney general and Brayne were sitting at the opposite sides of a table in the private room of Mr Justice Westall, of whom it need only be said that if the judges of that time had been ranked in order of merit he would have been at or near the head of the list.

  Apart from the three men the room was empty. The judge’s marshal had been stationed outside the door.

  On the table was a long envelope, that had been opened, together with two folded pages of paper, crossed and filled by lines of handwriting.

  The judge said, ‘Before I come to any decision as to the admissibility of this document, I’d like to be clear about its provenance.’

  Brayne said, ‘As I understand it, the document is in the handwriting of a certain Sergeant Robert Britain. He wrote it when in custody, charged with the offence of treason, contrary to the Act of 1351. He sealed it in this envelope and handed it to an officer in the In
telligence Corps, Lieutenant Pagan.’

  ‘And Pagan, having been handed the document, did what with it?’

  ‘He lodged it for safe-keeping with Hoares Bank, one of the two banks with which he maintained an account. His normal account was with Barclays, but he felt that the additional prudence of an old City bank would be preferable in this case.’

  The judge, who was making his own careful notes, said, ‘Slowly please.’ And then, ‘Yes. Go on.’

  Brayne looked at the attorney general. He knew that the ice at this point was thin. He said, ‘I should add that Pagan had been given the document with a strict proviso: he was not to use it—not even to read it—unless the man named in it was called on to give evidence in court.’

  The judge said, ‘I have read the paper, and must assume that the man concerned was Lance-Corporal Merrick?’

  ‘That is correct, sir.’

  ‘And are these preliminary points accepted by the prosecution?’

  The attorney general hesitated. He, too, knew that the ice was thin.

  He said, ‘We can accept that this document is in the handwriting of Sergeant Britain, since we have the testimony of the sergeant in charge of the guard, Sergeant Whaley, who actually saw him writing it.’

  The judge said, with a slight smile, ‘I’m glad we do not have to rely on the testimony of handwriting experts, which I have so often found unconvincing. Very well. If it is accepted that this document was written by Sergeant Britain, then the only point I have to decide is whether it can be produced as evidence in this matter. Mr Brayne?’

  ‘My contention, sir, is that it can. The rationale was stated in 1789 in the case of Rex against Woodcock. The judge explained that the religious awe inspired by the approach of death was deemed fully equal to the sanction of a judicial oath. What was necessary was to show that the writer had “a settled, hopeless expectation of death”. At the time that he wrote this document, Sergeant Britain stood sentenced to death by shooting. The sentence was to be carried out six days later.’

  The attorney general intervened smoothly, ‘I must point out that the sentence was, in fact, stayed by order of the commander-in-chief who offered the prisoner the alternative of a life sentence, which, it was clear, would not long outlast the ending of the war.’

  ‘He was offered his life on a condition that, as he had clearly intimated, he was unable to accept.’

  ‘And in the event,’ said the attorney general, ‘the sentence was not carried out.’

  ‘That is correct. But being firm in his intention—an intention which he had clearly announced—he preferred to take his own life.’

  The judge thought about this for a long two minutes, in complete silence. Then he said, ‘It has often been stated that a court cannot probe into what goes on in the mind of a man. His thoughts must be judged by his actions. We have here a declaration by Britain that he would not assist the authorities. As long as he persisted in this it was clear, was it not, that he would be shot?’

  Brayne nodded. The attorney general said nothing.

  ‘Very well. In these circumstances I am prepared to accept this document on the same basis that I would accept a formal deposition made by a third party, who is not in front of the court, and subject to the same strict rules.’

  He turned to the attorney general.

  ‘If you decide to call this witness, the defence may put to him the facts in this document, but no questions may be asked that go beyond these facts. If the witness denies them or any of them, his denial must stand unquestioned.’

  The attorney general said, ‘Nonetheless, the jury will have heard these so-called facts. A result which I must regard as extremely unfortunate.’

  ‘You could avoid this result by refraining from calling this witness. But I must point out that in the absence of his testimony, he being the only witness to any direct connection between the accused and Racouf, it would almost certainly be my duty to advise the jury that there was no case to answer.’

  Between the devil and the deep sea, thought Tom.

  After a further interval and discussion with both his juniors, the attorney general elected for the deep sea.

  When Merrick entered the witness box, Luke, seeing him for the first time, understood how the theory could have been propagated that he was Colonel Fleming’s boyfriend. He had a snub nose, a wide mouth and blue eyes behind lashes that would not have disgraced a girl. He gave his evidence clearly, and without hesitation.

  Yes. He had been in Béthune, on an afternoon pass, on the date in question. A friend had recommended a curio shop in the rue Gambetta, a small street behind the market. It was whilst he was looking for it that he had noticed the accused proceeding up the pavement, on the other side of the road. He recognised him, since he had attended the meeting at the Co-operative Hall in Béthune, at which Trench had spoken. He saw him knock at the door of number 25. He was not, at that time, aware that Henri Racouf lived at that address. His attention had been drawn to the prisoner by the fact that he was keeping to the shady side of the road, and seemed anxious to avoid recognition.

  When Brayne rose to cross-examine the witness, it was observed that he was looking down at a folded sheet of paper which he held in his hand. The judge and the attorney general seemed to be holding a similar paper, which they, too, referred to from time to time.

  Brayne said, ‘There are two matters of which I would like to remind you. First, I would like to recall to your memory a man called Robert Cecil Britain. He was a sergeant in the 3rd Regiment of His Majesty’s Bedfordshire Fusiliers, against whom a charge of treason had been preferred. You remember this man?’

  ‘Yes, sir.’

  ‘At that time you were, I believe, a clerk in the regimental office?’

  ‘Yes, sir.’

  ‘Then you will be well aware of the matter.’

  ‘I saw most of the documents.’

  ‘Exactly. Then you can tell us about the third charge in that case.’

  For the first time the witness hesitated. Then he said, ‘I did know that there was a third charge.’

  ‘A charge which concerned a top-secret document alleged to have been abstracted and copied by Britain.’

  ‘I believe that is so, sir.’

  ‘Come, come. You can do better than that. Were you not the main witness against the accused on this charge? Yes. And that being so, had not the assistant advocate general taken you very carefully through your proof of evidence? You were, I believe’ – a glance down at the paper – ‘nearly two hours with him.’

  ‘Yes.’

  ‘And having taken this careful preview of your evidence, he decided not to proceed with the charge?’

  Merrick nodded.

  ‘Yes or no?’

  ‘Yes, sir. He did so decide.’

  The attorney general half rose, seemed to be on the point of saying something and sank back in his seat.

  The court was very quiet.

  ‘I must now ask you to cast your mind back even further. To a point some years before the war. You were, at that time, an assistant in the firm of Forrester and Hearn, Estate Agents. Was there not an occasion, in September 1913, when money was missed from the office and the head clerk, Alfred Berrings, was charged with theft. You remember the incident?’

  This switch had shaken the witness badly. The sound he uttered might have been taken equally as ‘yes’, or ‘no’.

  ‘Come now,’ said Brayne. ‘I’m sure you recollect the matter clearly. I have a note here that you gave evidence in the case before Mr Justice Davie at the assizes. Am I right?’

  The ‘yes’ that followed was almost inaudible. Without waiting for a reply, Brayne added, ‘By the way. What was your name at that time?’

  This final unexpected switch completed the discomfiture of the witness.

  After a long pause, the judge said, ‘If you feel unable to continue giving evidence I will adjourn for a short period.’

  But by that time the witness seemed to have got his br
eath back.

  He said, shrilly, ‘I’ve nothing to be ashamed of. My name at that time was Morganthal.’

  ‘Not a common name?’

  ‘It’s common enough in Latvia. Which is where my family came from.’

  ‘And it was at this point that you changed your name to Merrick?’

  ‘Yes.’

  ‘Formally. By deed poll?’

  ‘I did it properly.’

  ‘Involving you in paying solicitors’ charges’ – a quick glance at the paper – ‘of twenty pounds.’

  Everyone in court was anticipating that the next question would be, ‘Why did you take such a costly step?’ But Brayne had his eye on the attorney general, who was once more on the point of intervening, and he remembered the undertaking he had given.

  The matter had been raised. But it could not be pursued.

  He said, ‘Very well. Only one more point: was Mr Justice Davie openly critical of your evidence?’

  No answer.

  ‘I note that he is reported as having referred to you, in his summing up, as an unreliable witness who approached dangerously close to the borders of perjury.’

  ‘I don’t remember that.’

  Although Brayne was barred from asking the question that was now on everyone’s lips, the judge decided to come to his rescue.

  He said, speaking slowly, ‘Are we to gather that you changed your name because you had been publicly tarred by this comment?’

  The witness could produce no audible answer. But Luke noticed that the members of the jury had started to whisper to each other.

  ‘Highly satisfactory,’ said Luke. ‘Not guilty. Left the court without a stain on his character.’

  ‘A partial victory,’ said Tom.

  ‘Partial? When his fellow metal workers waited for him in the lobby and carried him out, shoulder high, into the street? What more did you want? Merrick—Morganthal to be strung up from a lamp-post?’

  ‘Merrick could see a lot of trouble coming from various quarters, and got out quick. He’s thought to have reached Latvia. No one’s going to bother to go after him. No. In a way it’s Fleming I’m sorry for. Clearly he was pushed into bringing that charge by the government, and now that it’s gone wrong the men who pushed him will back away quickly.’