by Peter Murphy
‘Indeed?’ Digby sounded almost indignant. ‘And what exactly did he say about that?’
‘He said that you talked about your bitterness about not being free to play chess professionally; your concerns about the lack of social justice in Britain; and about the death of your brother Roger in Spain; that these were all reasons you gave him for being willing to work for the Soviets.’
‘Anyone could have told him about those things,’ Digby insisted. ‘I have never made any secret of any of that.’ But he had taken a little too long to reply; his moment had passed. A long silence ensued. Herbert Harper eventually broke it.
‘Bernard, I suppose there is no reason why we couldn’t ask for the Soviet passport to be examined by an independent expert?’ he suggested. ‘I know Customs and Excise have experts who examine passports all the time. They must see Soviet passports regularly enough.’
Wesley nodded, as if to indicate that he did not disagree with what Harper had said, but he did not reply.
‘Or we could ask that they allow James to be confronted with this man,’ Harper added.
‘I think it was fairly clear from what Baxter told us,’ Ben said, ‘that they would not allow that.’
‘They will have to allow it if Hollander calls him as a witness,’ Harper replied.
Wesley shook his head.
‘I think not’ he said. ‘They have already persuaded Mr Justice Melrose that he has a duty to conduct the trial in camera while any sensitive evidence is given. This afternoon, Miles may persuade the Court of Appeal that he ought to hold the whole trial in camera. In any case, I assume that the judge would have no difficulty in allowing sensitive witnesses to give evidence from behind a screen of some kind.’
‘That would not preclude having him properly identified,’ Harper pointed out. ‘Perhaps we should apply yet again to re-open that question.’
‘Perhaps,’ Wesley said. ‘What do you think about that idea, James?’
The question was asked sharply, abruptly. Harper looked expectantly at his client. But Digby bowed his head again and did not reply.
‘Well, would you at least care to deny what this man, whoever he was, told Ben?’
Digby sat up in his chair, raised his head, and looked away, in an apparent attempt to suggest that denying such allegations was beneath his dignity.
* * *
‘I see,’ Bernard Wesley said quietly.
For a considerable time, no one spoke.
Barratt Davis stood and walked slowly to the window to the left of Wesley’s desk.
‘I would like to put forward a suggestion about where we should go from here,’ he said. ‘I don’t think it goes too far outside my role of keeping an eye on things from a criminal point of view.’
Wesley spread his arms out in front of him above his desk.
‘By all means,’ he said.
‘I think Ben is correct in saying that Baxter is trying to send us a message – on behalf of those he works for, of course,’ Barratt began. ‘What we have to do is to make sure we interpret that message correctly. I don’t believe that they have any interest in the outcome of the case as such, in terms of whether there is a settlement or not. I believe that what they are agonising over is whether they want to try to prosecute James. They may be less assured about their ability to keep it all quiet in a criminal court, and they may be uncertain about whether they have enough evidence. There may even be questions from on high about whether this kind of prosecution is desirable at all. It seems to me, from the way they are dealing with this, that they are balanced on a knife edge, and are waiting to see how the civil case ends before they make a decision.’
Wesley nodded. ‘Go on.’
‘If we look at what has happened recently,’ Barratt continued, ‘it would be possible to argue that the policy of prosecuting everyone ruthlessly, as in the cases of Lonsdale, Blake and Vassall, has been counter-productive, except for the satisfaction of putting them behind bars. We know that those prosecutions have led to a further loss of confidence in the intelligence services. The Government may well be feeling that the satisfaction of putting spies behind bars is not worth the price of falling confidence.’
‘Are you suggesting,’ Herbert Harper asked, ‘that if we were to abandon the case, it might influence the Government not to prosecute?’
‘It might,’ Barratt replied. ‘In any case, I don’t see that we have anything left to lose. I agree with Ben; it is very unlikely that this new evidence is all a huge fraud by MI6; that they have spent all this money and gone to all this trouble for the sole purpose of sowing the seeds of doubt and confusion in our camp. I think we flatter ourselves if we believe that. The strong probability is that Viktor Stepanov is alive and well and that he has told them all about it.’
He paused.
‘Hollander has his evidence. This case has slipped away, gentlemen. It is time to accept that it is no longer a case we can win. The only remaining question is how badly we are going to lose. It is time to focus on a way of limiting the damage, a way of salvaging whatever we can from the wreckage.’
‘I agree that we must do all we can to prevent James from being prosecuted,’ Bernard Wesley said, after a long pause. ‘But I am reluctant to commit myself to throwing our hand in without knowing more. Unfortunately, I don’t see any way of testing the waters except by opening up a direct line of communication with someone very high up in the Home Office. That would be a very dangerous thing to do, because if they are minded to prosecute, we would be playing into their hands, and there would be no way back.’
‘I agree,’ Barratt said. ‘But I think there may be another approach.’
Every eye in the room turned to him.
‘Consider the case of Kim Philby,’ he said.
Digby looked away into space.
‘Details are hard to come by,’ Barratt continued, ‘but over the years, they had their eye on Philby. We all know that. Yet, all the signs are that he was allowed to disappear from Beirut rather than being taken into custody. It may be that the information he provided satisfied them; or it may be that they didn’t have the stomach for another trial. I come back again to the fact that James has not been arrested, despite the evidence we know they have, whether that evidence came from Stepanov or from anyone else.’
Wesley stared down at his desk for some time.
‘So, you are proposing that we abandon the case in an effort to deflect a prosecution? I take it you are not suggesting that James should offer to talk to the authorities?’
‘I do wish you would stop talking about me as if I am not here,’ Digby protested, but without conviction. The others in the room ignored him.
‘No,’ Barratt replied. ‘Without knowing what the Government’s intentions are, that would be far too risky. I am proposing that we throw our hand in, but in very specific circumstances. I take it that the trial is still listed to begin tomorrow morning at 10.30?’
‘Yes.’
‘Then,’ Barratt said, ‘I suggest that we abandon ship at 10.30 tomorrow morning, and not a moment before.’
‘I don’t understand,’ Herbert Harper said. ‘If we are ready to concede, surely it would be better for me to call Julia Cathermole without delay. Why …?’
Barratt did not reply. He smiled grimly in the direction of James Digby, who met his gaze for some seconds before turning away abruptly.
‘Am I mistaken, Barratt?’ Digby asked slowly, deliberately avoiding Barratt’s eyes. ‘Or am I hearing the gentle strains of the Nunc Dimittis?’
‘I have said as much as I want to say, James,’ Barratt replied. ‘What you hear is a matter entirely for you.’
58
Tuesday, 12 October
‘I regret to say, My Lord, that I am unable to answer your Lordship’s question.’
Bernard Wesley was standing before Mr Justice Melrose in t
he Silks’ row in his courtroom at the Royal Courts of Justice. A notice attached to the outside door of the court informed the reader that the trial in the case of Digby v Hollander, the Secretary of State for the Home Department Intervening was taking place within, but that the trial was closed to the public, and that no one who was not involved in the case was permitted to enter. Despite the private setting, Mr Justice Melrose had ordered that robes be worn as usual. He was brightly arrayed in the red robes and white ermine of a judge of the Queen’s Bench Division of the High Court. Ben Schroeder sat behind Wesley in the row reserved for junior counsel. Behind Ben sat Herbert Harper and Barratt Davis, wearing dark suits. To Wesley’s left, Miles Overton sat, with Ginny Castle behind him and, behind Ginny, Julia Cathermole and Professor Hollander, wearing his usual academic uniform, a brown suit with a polka-dot bow tie. Between Ben and Ginny sat Evan Roberts, and behind him two dark-suited men, with official black briefcases bearing the Royal Coat of Arms on the floor at their feet. No one else was present except the Judge’s associate, who acted as court clerk, and a court reporter.
Mr Justice Melrose had just asked Bernard Wesley why his client, Sir James Masefield Digby QC, was not present for the scheduled start of the trial at 10.30. It was a question to which Wesley had no answer of his own personal knowledge, and about which he was not prepared to speculate for the benefit of the court.
‘There is no reason known why Sir James is not present?’
‘There is no known reason, my Lord. I last saw Sir James yesterday morning, when we had our final consultation before trial. My learned junior and my instructing solicitors were present also. Sir James was, of course, well aware of the date and time fixed for the trial. My instructing solicitors have been in contact with the clerk at his chambers, and with his home address, but with no success.’
‘Are you applying for an adjournment for a short time to permit further inquiries to be made?’
‘No, my Lord.’
Mr Justice Melrose was visibly perplexed. Litigants and witnesses often ran late for a variety of reasons – they might be held up in traffic, they might have problems with public transport, occasionally they might be taken ill; the delays that resulted were frustrating but were an inevitable part of the life of any court, and the court would accommodate them to a reasonable extent. If, on the other hand, a party or witness deliberately absented himself from a trial, the court’s attitude was necessarily very different, and the results were likely to be unpleasant. The judge had expected Bernard Wesley to ask for an adjournment, at least until later in the morning and, if further information came to light, perhaps until later in the day, or even the following day. The fact that Wesley made no such application could only mean that he did not expect Digby to attend, or had no reason to think that he would. But that did not make sense. It was an extraordinary situation. Hollander’s article had made the gravest of allegations against Digby. Digby’s action for libel had been his only possible remedy, and today was to be his day in court. The judge had the uncomfortable feeling that he was not being told the whole story. For a judge, that was a feeling which was not exactly unknown; indeed, it came with the territory. But this was an extraordinary case by any standards. He felt he had to make at least one more attempt.
‘Are you quite sure you do not want to make any application, Mr Wesley?’ he asked, trying his best, not altogether convincingly, to sound menacing.
‘Quite sure, my Lord.’
Wesley sat down. The judge looked towards Miles Overton, who stood immediately.
‘Mr Overton, do you have any application?’
‘I do, my Lord,’ he replied immediately. ‘As the Plaintiff has failed to appear to pursue his case at the time appointed for trial, and as your Lordship has been offered no prospect that he is likely to appear, I ask that the Statement of Claim be struck out and judgment given for the Defendant.’
Wesley stood.
‘I do not oppose the application, my Lord.’
To his own amazement, Mr Justice Melrose heard himself make an order in the terms Overton had proposed.
‘I further ask that the Plaintiff be ordered to pay the Defendant’s costs,’ Overton added.
‘I cannot resist that application,’ Wesley replied.
The judge bowed to counsel and retired to his chambers to contemplate how odd life on the bench could sometimes be, and to reflect on the far less interesting case the list office would doubtless find for him now that the exotic case of Digby v Hollander, the Secretary of State for the Home Department Intervening had ended.
* * *
‘Thank you, Mr Overton, thank you, Miss Castle,’ Hollander said, offering his hand to each in turn. ‘I will always be in your debt.’
They were standing, with Julia Cathermole, next to a large Gothic pillar in the hallway outside the courtroom.
‘Well, I’m not sure we really did very much,’ Overton smiled. ‘You seem to have had – what is it you say in America? – all the bases covered.’
Hollander laughed. Julia thought he already looked five years younger, now that the weight of the case had dropped from his shoulders.
‘That was Julia,’ he said, ‘and her friends in the intelligence services. Nothing to do with me. I came here with no evidence at all.’
‘But you always believed the evidence would come, didn’t you?’ Ginny asked. ‘Why was that? What gave you that confidence?’
Hollander shrugged.
‘I believed implicitly what Stepanov had told me. Look, I don’t really know anything about intelligence work. But I have spent some time behind the Iron Curtain in connection with chess, and behind the Iron Curtain you just get a feeling for certain things. Stepanov was desperate to defect. I have had hints dropped on other occasions. It’s not unusual when you are around Russians. So many of them want out. But it’s always by innuendo – how beautiful they have heard America is; do you consider yourself fortunate to have been born in America? – that kind of thing; always indirect, nothing that could come back to haunt them.’
He leaned back against the pillar.
‘But not this guy. This guy drags me out of the tournament to some crummy bar, in God only knows what district of Varna – it reminded me of some joint on the South Side in Chicago, but without the glamour. That in itself was crazy. The Soviets had minders everywhere, as they do at every international event. Just talking to foreigners can get you into trouble unless there is a clear reason related to chess. Stepanov didn’t care about any of that. Maybe he took steps to shake the minders off – I guess he must have done– but he got me on my own in a bar, and there was nothing indirect about it. This guy was not dealing in hints or innuendos.’
He paused for a moment, shaking his head.
‘He came right out and told me that his life was in danger and he wanted to defect. He explained why. He told me the whole story of his involvement with Digby, from day one, when he recruited him in The Hague. You didn’t have to be an intelligence officer to know that he was deadly serious. He had not only come out and asked me whether I could help him to defect. He had entrusted me with almost everything he had to bargain with. I have to think that was because he knew the CIA would be interested and, in all honesty, I think he believed it was the only chance he had.’
‘And when Francis had duly delivered the message, the CIA didn’t even have the decency to tell him that Stepanov was alive and free,’ Julia added in disgust.
‘Baxter said there were security reasons for that,’ Ginny said. ‘It does make sense.’
‘Until the operation had been carried out, absolutely,’ Julia replied. ‘Of course, you wouldn’t breathe a word until then. But once Stepanov was free, they could have told him. They wouldn’t tell him where he was or what name he was using, obviously. There would be no question of Francis meeting Stepanov again. But to keep him in the dark – especially after Stepanov’s death had bee
n reported – there was no call for that.’
‘You assumed that the Russians had done him in, of course?’ Overton asked. ‘You didn’t believe the heart attack story for a moment, I imagine?’
Hollander shook his head.
‘It was one coincidence too many,’ he replied. ‘That’s what made me feel so badly about it and, I suppose, what put the idea for the article in my head.’
‘You felt the world should know?’
‘I was angry that Digby had got so many people killed, and now, for all I knew, he had added Stepanov to his list of victims. So I decided to put it out there.’
‘You always believed that the truth would come out, didn’t you,’ Julia asked, ‘despite everything?’
‘Yes. I knew you had contacts with the British intelligence services, and I had to believe that my article could not go unnoticed on both sides of the Atlantic. I didn’t go into all the detail, of course. I didn’t want to tip Digby off that I knew about the code with the chess board and pieces. I figured that might be a useful detail to come up with later.’
‘How right you were,’ Overton smiled. ‘But apparently Viktor Stepanov beat you to it.’
‘Knowing he is alive is even better than winning the case,’ Hollander said.
He looked at Julia for a few moments.
‘I suppose there really is no chance that I could …?’
She was shaking her head vigorously.
‘No. I guess not. I knew that. Well, I am glad it worked out for him.’
‘You knew that Digby wasn’t going to appear this morning, didn’t you?’ Miles Overton asked suddenly.
‘Let’s say I had a shrewd idea,’ Hollander grinned.
‘He was never going to come to court,’ Ginny said. ‘Not once he heard from Stepanov from beyond the grave.’
‘I told you,’ Hollander said. ‘It was Oscar Wilde all over again. The only difference is that Digby saw what was coming and bailed out before it hit him. If it wasn’t for that he would be playing chess in Reading Gaol pretty soon.’