And Is There Honey Still For Tea?

by Peter Murphy

  ‘But Baxter led me to believe,’ Julia continued, ‘that even if not admissible as evidence in court, the information might be of value to the Service. You don’t have to concern yourselves with technicalities such as the Rule against Hearsay.’

  ‘That is true,’ Dick confirmed.

  ‘He also led me to believe there is information the Service could put at our disposal which might be admissible in court.’

  She stood and refilled the glasses. From below there were muted sounds of items of furniture being restored to their proper places, and china being put away to the accompaniment of laughter and snatches of conversation in French.

  ‘That is also true,’ Dick replied, ‘and we are prepared to help in principle, as long as certain conditions are in place. But I should say that I don’t know how much weight the court would give to the evidence we have. It is what I believe you would call circumstantial evidence. It enables us, within the Service, when taken together with other material, to draw conclusions to a degree of probability which is acceptable for some purposes – some, but not all, purposes of intelligence work – but I can’t guarantee that a court would be prepared to draw the same conclusions for the purposes of your case.’

  ‘That is a risk we will have to take,’ Julia replied. ‘At this point, the weight of the evidence is almost a secondary consideration. We have no admissible evidence, and the other side are about to apply to strike out our Defence, at which point Hollander goes down in flames.’

  ‘Any evidence is better than none,’ Dick smiled. ‘Yes, I see that, of course.’

  He paused.

  ‘Baxter was instructed to make it clear that our release of this evidence depends on certain conditions being put in place.’

  Julia nodded. ‘Yes.’

  ‘The reasons for the conditions should be obvious enough when you see and understand the evidence. In the case of any leak, not only could our national security be affected, but the lives of certain people working in our national interest would be endangered.’

  ‘See and understand the evidence?’ Miles asked.

  ‘The most significant parts are encrypted,’ Dick explained. ‘You will need the help of an officer who can decrypt it. Baxter can do that for you.’

  ‘What are the conditions?’ Miles asked.

  ‘First, everyone who sees the evidence must sign the form for the purposes of the Official Secrets Act, confirming that they understand that they can be prosecuted for any unauthorised disclosure.’

  ‘I would have expected that, of course,’ Miles said.

  ‘It goes without saying that there will be no disclosure except to the parties and essential members of their legal teams. We can talk about what we mean by essential members. We will make Baxter available to both sides, separately.’

  ‘Understood,’ Miles said.

  ‘Finally, the judge must be asked to order that the trial be held in camera, so that the public and press are excluded, and the trial must be before the judge sitting alone, without a jury.’

  Miles and Julia exchanged glances.

  ‘I know’ she said. ‘I told Baxter I wasn’t sure about that.’

  ‘Is that a problem?’ Dick asked.

  ‘It might be,’ Miles replied. ‘It will probably be easy enough to persuade the judge to sit in camera while this evidence is dealt with. That is common enough in cases involving sensitive intelligence or diplomatic information. But if you are suggesting that the entire case should be tried in camera, that is a different matter. All proceedings in our courts are open to the public and the press, unless there is a very good reason to exclude them. It is a fundamental principle of the administration of justice in this country, especially in a case of libel.’

  ‘I understand that, Miles,’ Dick said, ‘and my Service supports that principle in general, because we are here to serve an open, democratic society. But unfortunately there are cases in which too much openness places our democratic society at risk, and this is one of them.’

  Miles took a long sip of brandy and thought for some time.

  ‘To have any chance at all, I would need a certificate from the responsible Minister, explaining to the court why this rather drastic step is needed,’ he said eventually.

  ‘That will be no problem,’ Dick replied.

  ‘As for the idea of the action being tried without a jury,’ Miles continued, ‘that is even more difficult, I’m afraid.’

  ‘Surely that would be for the judge to decide?’ White asked.

  ‘Unfortunately not,’ Miles replied. ‘It’s not just a matter of practice. There is a statutory right to trial by jury in libel cases. I won’t bother quoting you chapter and verse, but take it from me, that is the case. Parliament decided that someone whose reputation has been attacked publicly should have the right to ask a jury of his peers to decide whether the attack is justified, and whether he is entitled to have his reputation vindicated.’

  ‘Then, that presents a serious problem,’ Dick said.

  ‘Jurors can be made to sign Official Secrets Act forms,’ Miles pointed out. ‘It has been done before.’

  ‘I am sure my predecessors have allowed that on a case-by-case basis in the past,’ Dick agreed. ‘But I would be very reluctant to do so in this case.’

  ‘I don’t see why not,’ Miles said. ‘The jurors are not allowed to take information away with them from court.’

  ‘Except in their heads.’

  ‘Yes, but we are talking about evidence which has to be decrypted before they can even make sense of it,’ Miles insisted. ‘There would be very little risk of a leak. And you could have your people vet the jury panel before the jury is selected.’

  Julia laughed. Miles smiled reluctantly.

  ‘Well, yes, I know you’re not supposed to, but we all know it has happened.’

  He sat up in his chair.

  ‘Frankly, Dick, I’m not optimistic. Even if we succeeded in persuading the trial judge, the other side would not let it rest there. Bernard Wesley would take it to the Court of Appeal, possibly even the House of Lords, before the case even comes to trial.’

  ‘Well,’ Dick replied slowly. ‘We might disclose the evidence to the parties before the judge decides on the mode of trial. Who knows, it may have some effect before you get near the courtroom.’

  ‘That would be the ideal solution, of course,’ Miles agreed.

  ‘But if that doesn’t happen, we will have to confront the question eventually,’ Julia said. ‘Look, God knows, late evening after a dinner party is not the ideal time to be discussing the law. But, Miles, isn’t there an exception to the right to jury trial? Something to do with evidence that would be too difficult for a jury to understand?’

  Miles nodded.

  ‘Yes, I think you are right,’ he replied. ‘I can’t remember exactly what the Act says now – as you say, Julia, not the ideal time to be doing our legal analysis – but Virginia and I will look into it next week and see what we can come up with. But I don’t want to get anyone’s hopes up. There is an obvious and easy argument for having a jury in this case, and Bernard Wesley will be screaming bloody murder about it, if I know him.’

  ‘Then, Miles,’ Dick said, ‘you will have to scream even louder, won’t you?’

  25

  Sir James Digby

  I graduated from Cambridge with a First Class degree in modern languages in June, 1934. My passion was still chess, and in an ideal world I would gladly have devoted myself to the game, but it was obvious to me that the only way to eke out some kind of living as a chess player was to become a journalist, and even then it would have been a sparse, hand-to-mouth existence, and other part-time work would have been needed to make ends meet. I could have chanced it. I often wonder why I did not, what I thought I had to lose by giving it a go, at least for a year or two. I would still have been young enough to cha
nge direction if it hadn’t worked out. Perhaps it was a preoccupation with worldly comforts. Perhaps it was a feeling of obligation to Bridget, now that she had accepted my proposal of marriage. Perhaps it was a feeling that being a professional chess player would be looked down on, certainly by my family – not the done thing, not for the Digbys of Lancashire. Perhaps it was all of those things. In the end, I don’t really know why I abandoned my passion without any real fight. It might have been that my enthusiasm for chess was not all I thought it was. Or it might have been a simple case of moral cowardice.

  Whatever the reason, or reasons, I decided to pursue my original plan of a career at the Bar. My father had a good friend, Lester Carville, who was a Silk at the Chancery Bar and a Bencher of Lincoln’s Inn. I went to London to see him in July. It was the legal vacation, and he had time to spare. He met me in his chambers in the Inn, took me to lunch, and encouraged me to join Lincoln’s and to consider Chancery work as a career. I took his advice, submitted my papers to become a student member of the Inn that afternoon, and made arrangements to start on the twenty-four dinners in hall which every aspiring barrister must attend before being called to the Bar. There was also the question of two terms of intensive legal education at the Inns of Court School of Law, followed by the Bar examinations. The course was to start in September. It was tempting to take some time off before plunging into this new world, but I wanted to get started as soon as possible, and Lester had hinted that there might be a pupillage available in his chambers if I passed my exams by the following July.

  I found a small flat to rent in Holland Park, and returned to spend what was left of the summer at home. Roger had returned from South America just before Christmas, and was now spending most of his time on the estate, working with my father. Consequently, I had not seen much of him, and it was good to talk to him again for hours on end as we used to; walking around the estate, going into the village; spending an hour or two in the King’s Arms; sometimes picking up fish and chips to eat from a newspaper during the walk home, as dusk was falling along the quiet country lanes. He looked fit and tanned, and had an endless fund of stories about his travels in South America, during which he had encountered everything from revolutionary priests to homicidally inclined llamas – he professed himself unable to decide which was the more dangerous animal – and he had learned to speak and read Spanish well. He had come to regard South America as a likely breeding ground for socialism because the people had been oppressed for so long – living in so much poverty, denied any proper education, indoctrinated by a Church, at the service of the State, to accept a life lived under almost feudal conditions – yet he felt they still had an unbroken, resilient spirit. He spoke of going back one day to help them in their struggle for freedom and dignity. He had obviously been deeply moved by the people he had met. I was surprised by his depth of feeling, and it was the first time I knew for certain that we shared a belief in an active socialism as an antidote to fascism and oppression.

  Bridget was home from Bristol, too. Both families understood now that we were informally engaged, and both seemed to be genuinely pleased about it. Of course, as the younger son, my romantic life was scrutinised with far less anxiety than Roger’s. I am sure that my parents were concerned for my happiness, but it was Roger’s duty, not mine, to produce an heir to perpetuate the Digby line and inherit the Baronetcy in due course. Perhaps, for that reason, Roger was always shy and skittish about the subject when it came to his own love interests, and deftly avoided our parents’ gentle questioning over dinner. He was never very specific about his love life, even with me, though when I got him alone late one evening, he did drop a hint that there was a certain young lady in London who had come to his notice. Relieved of that kind of pressure, Bridget and I spent a lot of time in each others’ houses, and were able to sneak away to hideaways for more intimate purposes from time to time. We were very careful.

  * * *

  In September, Bridget returned to Bristol and I went down to London to begin my legal studies. I knew within a matter of days that my decision to try for the Chancery Bar was right. Chancery barristers spend a good deal less time in court than those in other areas of law. Much of their practice is advisory. This, I calculated, would give me a better chance of making time to play in enough chess tournaments to do myself justice. I felt it was also better suited to my talents. I had no illusions about having any great abilities as an orator, thundering away at a jury, but I was quite confident about my ability to absorb the kind of law I would encounter in Chancery practice, and to explain a case to a judge with the same background. Many of my contemporaries had a pathological dread of land law, wills, and trusts. The Rule against Perpetuities alone induced panic attacks in some of my friends who were destined for the criminal or personal injury Bars. But I knew exactly what I was dealing with from the first day, and it made perfect sense to me once I made one fundamental discovery. This was that the law dealing with land, wills, and trusts was the product of a centuries-long game of chess, the object of which was, not to checkmate the King, but to avoid paying tax to the King to the maximum extent possible without provoking the King to order your client to be beheaded or abjure the Realm. Medieval lawyers had pondered tax-avoidance schemes for hundreds of years, hunched over candles in cold, draughty chambers, exactly as lawyers do today in warm, comfortable offices with electric lighting. All the arcane kinds of interests in land, formulations of complicated trusts, and obscure testamentary provisions, which students find incomprehensible as abstract rules of law divorced from the real world, yield up their secrets with little resistance when you ask yourself the simple question of how they helped to reduce the client’s tax bill, or that of his heirs and assigns. And you could not help but marvel at the ingenuity of those lawyers so long ago. Legal acumen is not a modern invention, however superior we may like to think ourselves to be today.

  The work was demanding. I knew I would have to put chess in any form on hold for the year. But I managed to enjoy a limited social life – quite apart from the regular dinners in Lincoln’s Inn hall. Roger was as good as his word, and solicited a number of friends to propose me for membership of the Reform Club, to which I was elected in November. I ran into Guy at the Club once or twice, and Anthony quite frequently. He had decided to take a sabbatical year from his Fellowship; he was lecturing at the Courtauld Institute and had become the art critic for The Spectator. I told him of a letter I had received from Donald, which I had found rather odd. In it, he said that he was seriously considering a career in the Foreign Office. Of course his background in languages would be a great asset, but I was surprised that he would opt to go in that direction given his active involvement in socialism at Cambridge. That was how naïve I was then. Anthony smiled, and for a moment seemed poised to respond to what I had said, but then changed the subject with such ease and charm that I forgot about it until we had parted company at the end of the evening. I even found time to return to Cambridge once or twice for Apostolic meetings. And twice, once each term, Bridget came from Bristol covertly to spend the weekend with me. I passed my Bar exams, and was called to the Bar in February, 1935. Lester Carville offered me a pupillage in his chambers, to begin in late April, which I accepted immediately.

  * * *

  On the surface, things were working out well for me. But it was impossible to close my eyes to what was going on around me. It seemed that all the pessimistic predictions Donald and I had made over our pints of bitter after CUSS meetings were coming true, one after another. Italy remained in the grip of fascism under Mussolini. In Germany Hitler was systematically eradicating the last vestiges of democracy as he transformed the country from the Weimar Republic into the Third Reich. Portugal was drifting ever deeper into the grip of a dictatorship. And in Spain, the writing was already on the wall.

  26

  I daresay anyone who has lived for any length of time has, at various points, longed for the ability to put the clock back; for t
he ability to erase a certain moment from history; to start over again from a particular point in time; to make a story end more happily. For me, that moment was the year 1936.

  The King died on the 20th January, and was succeeded by Edward VIII. It was a heavy blow to my father, who had enjoyed the King’s personal friendship, in addition to respecting him as a monarch. He and my mother attended the funeral, and had a private meeting with the Queen, but my father never approved of the new King’s cavalier attitude to convention and apparent indifference to his constitutional responsibilities. As the year wore on, and the question of the new King’s relationship with Wallis Simpson threatened to destroy the monarchy and bring down Stanley Baldwin’s government, my father grew bitter and disillusioned. He seemed to lose interest in everything except the estate and his family, and Roger wrote to tell me that he spent long periods of time alone in his study, where he preferred not to be disturbed. That was not at all like my father, and I wondered whether his disapproval of the new King was the whole story.

  The war in Spain finally erupted in July. Before long, it became clear that Franco’s Nationalists were better equipped and enjoyed a huge military advantage over the Republican militias. Their newer, faster German and Italian fighters gave them superiority in the air, and they were able to carry out punishing air strikes almost with impunity. The Army of Africa had devastating heavy artillery and efficient modern rifles. The Republican militias were relatively poorly trained and lightly armed; the rifles they had were not always compatible with the types of ammunition available to them. The Nationalists were rapidly gaining ground, and at times it seemed that their victory would be a formality. Quite early in the war Madrid was threatened. Franco had declared it to be a priority to take the city, and he was spurred on by his German and Italian allies, who regarded it as a vital step and who never ceased to remind him how much he was in their debt for the personnel and supplies they had put at his disposal in the interests of creating a European fascist axis. The newspapers were reporting that Madrid was already experiencing siege conditions, and was likely to suffer shortages of food and medical supplies. I took an active interest in the news from Spain, partly because I also had a certain amount of inside information available to me.