by Peter Murphy
‘May it please your Lordship,’ Miles Overton was saying, ‘I appear for the Defendant, Professor Francis R Hollander, with my learned friend Miss Castle. My learned friends Mr Wesley and Mr Schroeder appear for the Plaintiff, Sir James Digby QC. My learned friend Mr Roberts appears for the Intervener, the Home Secretary.’
Bernard Wesley jumped to his feet.
‘I am sorry to have to interrupt my learned friend,’ he said. ‘We have had no notice of an intervention. I submit that the proper procedure would be for the Home Secretary to give notice of his intention to intervene, and to serve a pleading indicating the grounds of the proposed intervention and the specific issues with which the Home Secretary is said to be concerned. This is a private lawsuit in which the Home Secretary has thus far demonstrated no such interest as would entitle him to intervene.’
The judge looked inquiringly at Evan Roberts. Roberts was a tall, thin man, who looked down on the world over a pair of gold pince-nez spectacles, which he wore around his neck on the thinnest of gold chains, and lifted on to his nose when reading from a document. His face was friendly and bore a very faint, though permanent, suggestion of a smile. His manner was very calm, and he gave no indication of being either surprised or thrown off balance by Wesley’s interruption.
‘My Lord, I do concede that we could have been quicker off the mark in applying to intervene,’ he said. ‘I am quite willing to undertake to serve the proper pleadings within twenty-four hours. But I would ask your Lordship’s leave to be heard today in connection with the application to be made by my learned friend Mr Overton. It is the Home Secretary’s view that there are matters here in which the Government has a strong interest. I believe that will become clear once my learned friend has begun to explain the matter to your Lordship.’
Mr Justice Melrose nodded.
‘There is one more thing, my Lord,’ Roberts continued. ‘I think my learned friend was going to begin by making this application to your Lordship. But, as I am on my feet, I will do so. The application is that your Lordship should sit in camera to hear this application.’
Wesley sprang to his feet once more.
‘My Lord, this is outrageous,’ he protested. ‘If I understand correctly, the very reason we are before your Lordship today is because my learned friend Mr Overton wishes to apply for all further proceedings in this case to be held in camera. To have that application itself heard in camera would mean that no part of this case is to be heard in open court. This Defendant has libelled the Plaintiff in the most public of ways, and yet he wishes to hide from the public when called to account for his actions. My Lord, the Plaintiff has been libelled in public and he is entitled to seek redress and the restoration of his good name in public. It is especially objectionable that the Home Secretary should try to assist the Defendant in his goal of secrecy before he has even justified his position to your Lordship.’
The judge smiled.
‘I hear what you say, Mr Wesley,’ he replied. ‘But it is important that all parties should be able to address me freely. I must do the Home Secretary the courtesy of assuming that he would not seek to intervene without having some proper reason. I think the wisest course, out of an abundance of caution, is to accede to Mr Roberts’s suggestion for now. However, if it later transpires that there is no need to remain in camera, I will resume sitting in open court at that time.’
Wesley inclined his head briefly.
‘As your Lordship pleases.’ He sat down.
The judge’s associate stood.
‘The court will sit in camera until further notice. All members of the public, and all those not involved in the case, please leave the court.’
The only person affected by this pronouncement was a formally-dressed elderly journalist who had intended to report the proceedings on behalf of The Times. He seemed disgruntled, but made no protest as the usher shepherded him out of court before affixing to the door a notice that the court was closed.
Miles Overton stood again.
‘My Lord, the Defendant’s application is that the trial of this action should take place in camera, and that the action should be heard by your Lordship sitting without a jury.’
Bernard Wesley turned around briefly to exchange glances with Ben Schroeder.
‘I recognise that this application seeks to depart from the general principle that trials should take place in public and in open court,’ Overton continued, ‘and from the general principle that proceedings for defamation are to be tried by a jury. But we submit that both general principles may be departed from when there are circumstances which justify that course. I submit that there are such circumstances in this case. May I say at once that we do not seek to prevent the Plaintiff from attempting to restore his good name, and I anticipate that if he were to prevail in due course, your Lordship would give judgment in open court, referring to as much of the evidence as might be proper to deal with in open court.’
Overton paused for a sip of water.
‘That brings me to the ground of the application. Your Lordship will have seen from the pleadings a rather obvious connection between Professor Hollander’s article and the subject of espionage. To put it bluntly, he has accused Sir James Digby of being a Soviet spy, and he proposes to justify what he has written at trial. He cannot do so without adducing evidence which shows that Sir James Digby is indeed a Soviet spy, and has been so for a number of years. It will not surprise your Lordship to learn that some parts of that evidence are secrets of State of the highest possible sensitivity. I understand the Home Secretary to take the view that if they were to become public, there would be serious damage to our national security.’
‘You understand him to take that view?’ the judge asked.
‘Yes, my Lord. I chose the words with care. I have not seen the evidence as yet. Neither has my client, or any of those representing him. The Home Secretary takes the view that the evidence should be released to the parties only if your Lordship agrees with me that the orders I seek for the conduct of the trial should be made. It may be best if I defer to my learned friend Mr Roberts.’
‘It may indeed,’ the judge replied.
Roberts stood at once.
‘My Lord, now that we are in camera, I should tell your Lordship that, while I appear for the Home Secretary, I appear for him not only as a Minister of State, but also in his capacity of the minister having oversight of the Security Services. Professor Hollander’s article came to the attention of the Security Services shortly after it was published. I am sure your Lordship will understand at once that the article was of great interest to those Services, one of them in particular.’
‘Yes,’ the judge said quietly.
‘Once it was known that Sir James intended to bring this action against Professor Hollander, the Head of the Service in question decided to monitor its progress. In the course of so doing, he was made aware by his staff that the Service was in possession of certain evidence which might be relevant to the case. He brought that evidence – the general substance of it, not the detail – to the attention of the Home Secretary. They both agreed that, in principle, it should be disclosed to the parties. But they also agreed that this could be done only under strict conditions, conditions designed to make sure that the evidence should not come into the public domain.’
Roberts paused for effect.
‘My Lord, without going into detail, the Home Secretary believes it to be no exaggeration to say that if this evidence were to become public, it would not only have a serious effect on national security, but would also endanger the lives of a considerable number of people who are working on behalf of our national interest.’
There was a silence.
‘What conditions does the Home Secretary seek to place on the disclosure of the evidence?’ the judge asked.
‘My Lord, firstly that, as my learned friend has said, the action should be heard in cam
era and should be tried by your Lordship without a jury. Secondly, that the Home Secretary should be given leave to intervene for the purposes of the case generally and should be represented by counsel throughout. Thirdly, that the evidence should be disclosed only to the parties and their legal advisers, who are to be required to sign the appropriate form pursuant to the Official Secrets Act.’
The judge nodded.
‘Are you authorised to allow me to look at the evidence privately before making my decision?’ he asked.
‘If your Lordship would allow me a moment …’
He turned around to the dark-suited men and there was another animated conversation. It seemed to last for a long time, but the judge showed no sign of impatience. Eventually, Roberts turned back to face the court.
‘My Lord, yes. The only difficulty is that a good deal of the evidence is encrypted, and would be useful to your Lordship only with the assistance of an officer of the Service who is able to explain it. I am instructed that such an officer could be made available in about an hour. May I add that the same officer will be made available to the parties if and when the evidence is disclosed.’
‘I see,’ the judge said slowly. ‘Thank you, Mr Roberts. Mr Overton, is there anything you wish to add?’
‘No, my Lord,’ Overton replied. ‘Not at this stage. My learned friend has explained the background to this application. But may I reserve the right to reply once my learned friend Mr Wesley has addressed your Lordship?’
‘Mr Wesley, it seems to me that I ought to look at the evidence, so that I can be fully informed before hearing your argument on the application,’ the judge said.
Wesley stood.
‘Yes, I am sure that would be of great assistance to your Lordship,’ he replied. ‘It is to be regretted that I will have to address your Lordship without having the advantage of knowing what your Lordship and my learned friend Mr Roberts know. But there it is. I will reserve any further matters until your Lordship is ready to resume the hearing.’
‘Very well,’ Mr Justice Melrose said. ‘I will rise now. When the officer is available, please inform my associate, and I will review the evidence in my room with the officer’s help.’ He smiled. ‘Do you want me to sign the form too, Mr Roberts?’
‘We would be grateful, my Lord.’
The judge left court without replying.
29
As the parties dispersed in their different groups on leaving court, Bernard Wesley took Miles Overton aside and walked him some way down the corridor to a quieter space.
‘Miles, is that right? They haven’t shown you the evidence?’
Overton shook his head.
‘Not until we sign the form,’ he replied. ‘You heard what Roberts said. Even the judge has to account for himself.’ He chuckled. ‘I don’t think Melrose liked that very much, do you?’
‘That’s not the point,’ Wesley insisted. ‘The point is that, somehow, you or your solicitor knew that this evidence was on offer. We knew nothing about it at all. Roberts told the judge they had evidence “relevant to the case”. If so, why not tell both sides about it? The Home Secretary is not intervening in a neutral sense to protect the public interest, is he? He is joining the fray on Hollander’s side, and asking the judge to sit in camera to cover his tracks.’
‘I hardly think that’s fair, Bernard,’ Miles replied. ‘I will be candid with you. Based on the limited information I have been given, I do expect the evidence to be favourable to Hollander’s case. I am sure that is the reason why they approached Julia Cathermole, who then instructed me to make the application that the court should sit in camera. But I promise you, Bernard, I have no idea what the evidence is, or how favourable it will be.’
Wesley shook his head.
‘Bernard, look,’ Overton continued, ‘we have to face certain realities. Melrose is going to let the Home Secretary dictate the terms. He has no choice. Neither do we. There is nothing either of us can do until we see the evidence. At that stage, we will both have to decide whether it makes a difference to the case. I would suggest that we bide our time today and see what the Home Secretary has to offer. You can always re-open the question of sitting in camera and sitting without a jury if you want to.’
He paused.
‘Assuming that we both still feel, having seen the evidence, that the case should go to trial,’ he added with a smile.
Wesley made as if to walk away, but Overton extended an arm and stopped him.
‘Bernard, wait a moment, if you would,’ he said, rather uncertainly. ‘There is another matter I want to talk to you about, nothing to do with this case. It is a matter in which we have a common interest, I think.’
Wesley stopped and turned back to face him.
‘It concerns the Middle Temple committee looking into allegations of touting for work. I believe young Schroeder has been caught up in it.’
For a moment, Wesley was speechless.
‘How do you know about that?’ he asked. ‘You’re not a member of the committee, are you?’
Overton laughed.
‘No. Quite the reverse, I assure you. I’m not even sure all the members have been selected yet, though I believe that George Kenney is to be the chairman.’
‘Lord Justice Kenney?’ Wesley asked. ‘Well, that’s not a good start, I must say. Miles, all this is supposed to be confidential. If it gets around that Ben is under investigation it could have serious consequences.’
‘It is confidential,’ Miles replied. ‘I only know about it because I am in the same boat as you are – as Head of Chambers, I mean.’
‘Oh?’
Overton took a deep breath.
‘Virginia Castle is living out of wedlock with a solicitor,’ Overton said. ‘The Inn notified me that the committee will be looking into her situation also.’
‘I see,’ Wesley replied slowly, after some moments. ‘Well, that’s rather a …’
‘Coincidence? Having both our juniors being accused of touting for work? Yes, you could say so.’
Overton paused.
‘Bernard, I’m mentioning it because I feel an obligation to represent Virginia, to give her whatever support I can, just as I am sure you feel an obligation to help Schroeder. She hasn’t done anything wrong. The solicitor concerned was sending her work long before they began a romantic relationship. I am sure that is true in Schroeder’s case also. But still, it’s a tricky situation, and the consequences could be serious. So, I have a proposition for you. I suggest that we bury the hatchet and work together on their behalf. I suggest that we find a common strategy, and appear before the committee together. I’m sure we can arrange to have the two cases heard on the same occasion.’
Wesley nodded.
‘Agreed,’ he replied. ‘Two heads are better than one, and it may be that two cases are better than one, especially if we can show that there is no question of touting for work going on.’
‘My thought exactly,’ Overton said.
He paused again.
‘There is just one thing I need to tell you, though. It does not make any difference in principle, but I will understand if you prefer to keep your distance.’
Wesley laughed.
‘That sounds very mysterious,’ he said.
‘The solicitor with whom Virginia is living is Michael Smart,’ Overton said.
Wesley took two deep breaths.
‘I see.’
‘He was our instructing solicitor in the Dougherty divorce case,’ Overton continued. ‘He was the solicitor who instructed a private detective to follow a member of your chambers, Kenneth Gaskell, resulting in evidence that Gaskell had been committing adultery with his client while the case was going on.’
‘Thank you, Miles,’ Bernard replied. ‘I remember the case perfectly well, without your reminding me.’
‘I am not raisin
g the Dougherty case to score any points, Bernard,’ Overton said. ‘That case is over and done with. I thought it was only fair to mention it, because if you agreed to work with me on this, you would be bound to find out before too long, and I wanted to give you the chance of saying no if it was too unpalatable.’
Wesley was silent for some time. Overton pressed him.
‘Bernard, surely we can agree that Dougherty is water under the bridge. The case settled. The parties got their divorce. Gaskell escaped the consequences of his foolishness and married his sweetheart. I know we had some cross words in the course of it all, but my son returned to me, he is doing well in your chambers, and we all came out of it with no real harm done.’
Wesley smiled thinly. ‘Cross words’. Well, that was one way of putting it. The events at the end of the Dougherty case flooded back into his mind. Overton had blackmailed him – there was no other word for it – over lunch at their club. The public revelation that Kenneth Gaskell, Wesley’s former pupil, had been sleeping with his client during her divorce case would have meant the end of his career, and might well have brought Wesley’s chambers down with him. In return for suppressing the evidence of Gaskell’s indiscretion, Overton demanded a demeaning surrender in the divorce case. The few days that followed were the worst of Wesley’s life. He had been forced to admit what had happened to the instructing solicitor, Herbert Harper. He had barely slept or eaten as he searched desperately for a solution. In the end, he found one. It was not one he was proud of. He justified it because it was necessary, and because it was a proportionate response to being blackmailed by Miles. But it was an inescapable fact that he had blackmailed Miles in return. Wesley knew that Miles Overton had pulled strings to prevent the prosecution of his son, Clive, following the death of a fellow student as the result of a drunken escapade at Cambridge. In the course of securing his son’s release, Miles had compromised himself hopelessly. So Wesley had invited Overton to another lunch at the club, and made him a counter-offer of his own: in return for a far more reasonable settlement of the divorce case, he would assist Clive in returning to England from his exile in America, and in starting his own career at the Bar. It was a shameful story, one which gave Bernard Wesley palpitations even now when he thought about it. His relationship with Miles Overton had never been smooth. Behind the façade of professional civility they were bitter rivals, and the Dougherty case had done nothing to improve their relationship. The thought of working with him went against the grain. But the careers of two young barristers he believed to be blameless were on the line. Dougherty was, as Miles had said, water under the bridge. It was necessary to let it go.