One Law For the Rest of Us

by Peter Murphy

  On this occasion, to Baxter’s private amusement, Julia had imposed her own tradecraft on the meeting. At her insistence, they had met on Hampstead Heath, ignoring the odd spot of rain falling from cloudy skies. It was a good choice, he noted, with professional satisfaction. In this weather they had the Heath almost to themselves.

  ‘Well, who was it then? Five?’

  ‘No. For God’s sake, Julia, times have changed. We’re not at war any more. We don’t go around knocking people off because it seems like a good idea. I’d be the one for the chop if I even suggested it. C would throw me off the roof personally – not to mention that we have the minister and his minions following every move we make. I’m sure the same applies over at Five.’

  ‘Well: who, then?’

  ‘I don’t know. Perhaps nobody. Perhaps the police got it right the first time. He took his own life. God knows, he had enough on his conscience.’

  Julia shook her head. ‘So, what you’re telling me is that Gerrard commits suicide using potassium cyanide. Potassium cyanide, Baxter? It’s one of the oldest service clichés in the book.’

  ‘Yes, it is. But for suicide, too. We’ve had many agents take that way out over the years. You know that. Besides, Desmond Gerrard had a wide range of contacts, Julia. If he wanted it, he would have had access to any poison you care to name.’

  ‘And within an hour John Singer is in his rooms, sorting through his papers and getting ready to have them away and make a bonfire of them.’

  ‘Singer would have done that if Gerrard had been run over by a bus. He must have known that there was material there he wouldn’t want to see the light of day.’

  ‘And then, when the police take custody of the papers, Special Branch are at Parkside police station within hours to remove them; and not content with that, they raid the offices of Treasury counsel, and my office, in case anyone else may happen to have a copy. Who set Special Branch on us, Baxter?’

  ‘Well, it wasn’t us, Julia. I know that, because if we had, we wouldn’t be having this conversation.’

  She stopped in her tracks and looked him in the eye without speaking.

  ‘If I had to guess,’ he continued, turning his eyes away from her gaze, ‘some high-level amateur panicked and went off the reservation.’

  ‘Panicked?’

  Baxter shrugged. ‘You’ve seen the documents, Julia: I haven’t. But from what I hear, they could cause a number of people high up in government some serious embarrassment, and these are people who have the power to pull certain strings. It’s not the wisest thing to do, because the strings will have their fingerprints all over them, and in the end it will come back to haunt them. In the end they’ll give themselves away. But amateurs don’t think like that, and I could give you a long list of people who could get Special Branch mobilised if they put their minds to it.’

  They resumed their walk. Baxter smiled.

  ‘But why bother? I’m sure you’ll put the copy you still have to good use.’

  She couldn’t resist returning the smile. ‘I hope you’re not implying that I haven’t cooperated fully with Special Branch.’

  ‘Come off it, Julia. You’re forgetting: I spent more than enough time in Vienna working with your dad. I know exactly what you’re capable of.’

  They laughed together.

  ‘Seriously, though: what are you going to do with it? I can’t see any easy way.’

  ‘Neither can I,’ she replied.

  57

  Tuesday 1 April 1975

  ‘The parties having been unable to come to any resolution,’ Mr Justice Evan Roberts began, ‘I now have to decide whether I should allow the case to proceed to trial, or whether I should find that it is time-barred because of the statute of limitations. I have not found it an easy question. The allegations made against the defendants are extremely serious, and they are men prominent in public life; but on the other hand, if there is any truth to these allegations at all, both plaintiffs, one of whom is not yet ten years of age, have suffered terrible abuse. One of the parties to the case has died in mysterious circumstances, though the action continues against his estate. The stakes are very high for all the parties. I am very grateful to Mr Schroeder and to Mr Henderson, who have made the question I have to decide as clear as it could be. It remains, nonetheless, a difficult one.

  ‘It is well known that the statute of limitations serves an important purpose in civil cases. The more time elapses between a cause of action arising and the plaintiff commencing proceedings, the more danger there is that the court will be unable to reconstruct the facts of the case with any degree of confidence. Witnesses may have died, or become unavailable; documents and other evidence may have been lost or destroyed. The dangers are obvious. The limitation period for actions for intentional wrongful conduct in the nature of sexual assault is, and has at all times material to this case been, a period of six years. In the case of Audrey Marshall, that is obviously a live issue, because in her case the abuse is said to have occurred during the period between1940 and 1945.

  ‘In the case of Emily Marshall, no such issue arises, because any abuse that occurred in her case must have occurred in or after the year 1972. But there is another issue in her case, which may or may not arise, depending on my decision in her mother’s case; I shall return to that matter later.

  ‘Mr Schroeder submits that the statute of limitations can’t apply to Audrey Marshall’s case. He points out, quite correctly, that the period does not begin to run, firstly, until a plaintiff attains her majority – which in Mrs Marshall’s case would have been in 1954 – and secondly, until she is aware of the facts and circumstances giving rise to her claim – which, Mr Schroeder says, would have been in 1972, when she recovered her memory of the abuse. Mr Henderson agrees with that statement of the law in principle, but he argues that it breaks down because it would not be safe for the court to rely on evidence of recovered memory.

  ‘It is an odd – and in my view, unsatisfactory – feature of this case, that until I adjourned the case a month ago, no one appears to have thought it necessary to enlist the help of the experts in trying to determine whether or not a court can safely rely on recovered memory as evidence. I observe in passing that an entire criminal trial at the Central Criminal Court before Her Honour Judge Rees took place without any reference to expert opinion: not surprisingly, the jury proved unable to agree on a verdict. At the same time, having now received the report of the two experts, Dr Sutherland for the plaintiffs and Dr Howlett for the defendants, I must say that the question seems almost as impenetrable as it did without their report. That is not meant as a criticism of the doctors: apparently, this is a matter in its infancy in scientific terms, and one on which the experts find it difficult to reach any meaningful common ground. So I must do my best with what I have.

  ‘It is very much in Mrs Marshall’s favour that her evidence in the criminal trial was precise and detailed, and that much of it is so similar to the evidence of her daughter, and to that of an independent witness referred to as Woman B, that it is difficult to write it off as a coincidence. It is also true, however, as Mr Henderson points out, that on their own account of it, Mrs Marshall and Woman B talked about what had happened at the time, with each other and with other pupils of the same age. Mr Henderson also says that any similarity to Emily’s evidence is concerning, for the same reasons. Despite that, the similarity is compelling.

  ‘On the other hand, there is much force in Mr Henderson’s argument, reflecting Mr Norris’s cross-examination in the criminal trial on behalf of Father Gerrard, that it is difficult to see how Mrs Marshall could have spent a further six years at Lancelot Andrewes School after the alleged abuse stopped, without being reminded of it continually – by the walk up and down the staircases, passing by Farther Gerrard’s private library, and by the continuing scenes in her dormitory when a girl was taken away at night. Those matters, and the
tragic event of her sister’s death, Mr Henderson argues, could not have failed to act as a constant reminder. I confess that I find that argument a difficult one to refute.

  ‘Turning to the experts, both agree that in theory, there is no scientific reason why memory should not be lost and later recovered. Indeed, both experts were aware of cases in which that had happened: for example, a person involved in a serious accident may suffer from retrograde amnesia for some time, and may recover his memory when he is exposed to a photograph, or something said by another person involved in the accident. Both experts were also aware of cases in which soldiers returning from war appear to have suffered very prolonged bouts of amnesia, only for memories to return years later. Both doctors agree, therefore, that Mrs Marshall’s account of her recovered memory is not scientifically impossible. Indeed, Dr Sutherland would go further. He believes it to be inherently credible. Dr Howlett, though he is sceptical, believes that, even if her evidence is inaccurate, it is not necessarily dishonest in any way: it may simply be her imagination taking the place of a failed memory of the relevant years.

  ‘Both doctors, however, have some hesitation in saying the court should rely on Mrs Marshall’s evidence in legal proceedings. That, of course, is quite a different matter from believing her account for normal social purposes, when there are no consequences. In any legal proceedings, accepting evidence has very clear consequences for other parties, and this case is no different. Dr Howlett counsels against accepting evidence of this kind in any legal proceedings in the present state of scientific knowledge, and urges the courts to wait until there have been further scientific developments suggesting that it is sufficiently reliable. Dr Sutherland, on the other hand, believes that evidence of recovered memory can safely be left to the judgment and common sense of a judge or jury; he points out that the failure of the jury in the criminal trial to agree on a verdict is not necessarily logically related to the evidence of Mrs Marshall. In Dr Sutherland’s view, many kinds of evidence pose problems for judges and juries, and this is just one more example: the evidence should be scrutinised with the utmost care, but not rejected out of hand. He adds that the evidence should be considered on a case-by-case basis; and that the presence or absence of corroborative evidence may be an important factor.

  ‘These arguments have caused me considerable anxiety. At the end of the day, I have reluctantly concluded that I must err on the side of caution. In the present state of scientific opinion, I am not persuaded that it would be safe to rely on recovered memory in legal proceedings, or at least that it would be safe to do so in this case. I stress that I do not find that Audrey Marshall’s evidence is in any way dishonest. There is nothing to suggest that she has not acted throughout in the utmost good faith, sincerely believing her recovered memory to be an accurate recollection of what went on at Lancelot Andrewes School in the 1940s. I have considered carefully to what extent the evidence of Woman B and that of Emily corroborate her memory. In my judgment, the discussions that took place at the time make it dangerous to rely on them for that purpose.

  ‘The irony is that, but for the statute of limitations, Woman B would undoubtedly have been entitled to maintain an action against each of these defendants. Although that does not help Woman B – or Mrs Marshall – I hope it will be enough to deter any of the defendants from thinking, or saying, that they are leaving court without a stain on their character. But for the reasons I have given, the action brought by Mrs Marshall must be dismissed as being time-barred, and judgment entered for the defendants accordingly.

  ‘Emily’s case has also caused me great anxiety. While there is no issue as to the statute of limitations in her case, there is a question of corroboration. In a civil case, in which the judge sits without a jury, issues of corroboration play a far less significant role than in a criminal case, in which the judge must direct a jury of lay people about matters of law. In civil cases, a judge can take into account the presence or absence of corroboration, among all the other relevant factors, in deciding whether the evidence of any given witness is sufficiently reliable. I am quite satisfied that I will be able to do so in this case. For that reason, I have concluded that there is no reason why the case on behalf of Emily Marshall cannot proceed to trial. I order that her case be fixed for trial accordingly. I emphasise that if Mrs Marshall and Woman B wish to give evidence in that trial, in addition to any other witnesses, there is no reason why they should not do so.’

  The judge quickly left the bench.

  ‘I told you they should settle while they had the chance,’ Mark Henderson whispered to Julia on his way out of court. ‘The offer is still open for Emily.’

  ‘Oh, do fuck off, Mark,’ she whispered back.

  Audrey, standing nearby, heard. Julia was about to say something, but Audrey gently placed a finger over her lips. Without saying a word, she hugged Julia, Ben, and Ginny, and turned to go.

  ‘We’ll take the offer,’ she said as she left.

  PART FIVE

  58

  Audrey Marshall

  When I received Julia’s invitation to dinner, my first reaction was to find a polite excuse for declining. The sense of numbness and hopelessness I’ve felt ever since my case was dismissed has taken over my life. Our GP, Linda Gallagher, is prescribing me anti-depressants. The settlement we received in Emily’s case hasn’t helped. It wasn’t ungenerous: in fact, we won’t have to worry about school fees for the rest of her career at the excellent boarding school in Norwich she’s now happily attending. But our voices have been stopped. Our lips have been sewn tightly together. We’re not allowed to disclose the amount we received, and the settlement was made on the express basis that neither Lancelot Andrewes School, nor its board of trustees, nor the estate of Father Desmond Gerrard, nor Lord AB, nor Sir CD, nor the Right Reverend EF makes any admission of guilt or liability. It’s all without prejudice. We, on the other hand, have been prejudiced to our core. I hated to accept it. Deep inside me I longed to emulate Julia, and just tell Mark Henderson to fuck off. But that would have made it be all about me. It would have been an indulgence that made me feel better for five minutes: but it wouldn’t have been fair to Emily. I’ve put Emily through enough. It was time to let it go.

  Now that I’ve thought it through, I realise that I’ve never really said thank you to Julia, or to Ben and Ginny: I mean, I have, but I didn’t thank them right at the end, not when it really mattered. Once again, I have to stop it being all about me. I will go and have dinner with them, because I owe it to them to thank them properly. But it’s not just that. Almost without my knowing it, they’ve become my friends as well as my trusted advisers. I’ve come to know them. Julia, with her exotic background, her manic social persona, her occasional need for isolation; and her special friends, always younger, and really beautiful and really clever and really funny, like Julia herself. Ben and Jess, so happy with their new son. They’ve called him Joshua, after Ben’s grandfather, whom they both adore and who’s very fragile now. Jess is fretting about whether to continue practice or take a break until he starts school. Ginny is sad that she can’t be like Jess: she told me so tearfully, one afternoon, when we were waiting for something to happen at court – I forget what, and it doesn’t matter; so she and Michael are thinking about adopting. In a strange way, I’ve had a window into their families, just as they’ve had a window into mine; and we’ve looked into each other’s lives compassionately, and affectionately. We’ve walked a long, hard road together.

  So yes, of course I will go, to say thank you and tell them in my own way that I love them, and will always love them, very much. The dinner will be a wake: I know that. But wakes have their purpose. Perhaps this one will lift the cloud hanging over my head, and help move my process of grieving along, towards its completion.

  59

  Friday 2 May 1975

  Julia welcomed Audrey and Ken into her dining room. They were the last to arrive. The circular oak dining tab
le was formally set with Julia’s best green and white Wedgwood dinner service and Waterford crystal wine glasses. Jean-Claude and several helpers were putting the final touches to the candelabras and floral arrangements, and a delicious aroma of French country chicken in gravy was wafting into the room from the kitchen. On the far side of the room, Ben and Ginny were talking to two men Audrey didn’t recognise.

  ‘Sorry we’re late, Julia: trains, you know.’

  Julia kissed both visitors on the cheek.

  ‘You’re not late. You’ve timed it just right. Make yourselves at home. How’s Emily?’

  Audrey smiled. ‘Feeling left out. She wanted to know why she couldn’t come with us, and have dinner with the grown-ups. She said it wasn’t fair because we’re always telling her she’s a big girl now, so why shouldn’t she?’

  ‘Why indeed?’ Julia said, laughing. ‘Of course. Look out, Ken, you may have another lawyer in the family.’

  ‘It wouldn’t surprise me,’ Ken replied. ‘She’s growing up so fast.’

  ‘Well, next time, I’m going to invite her as well,’ Julia said. ‘Come through.’ As they did, Valérie, wearing her black suit and white apron, stepped forward smartly and offered glasses of champagne and orange juice. They chose the champagne.

  ‘Come on, I’d like you to meet two American friends of mine,’ Julia said, ushering them forward with an arm gently around Audrey’s waist.

  ‘Ken and Audrey Marshall, this is Simon Lester.’

  ‘Nice to meet you.’ He was thirty-five, with a friendly face, but keen, inquiring eyes, self-assured in a dark blue jacket and a white open-necked shirt. His accent was unmistakably New York, but softened by an extra layer, the result of wide travel and exposure to people in many different places.

  ‘Simon Lester,’ Audrey said, looking at Julia. ‘I’ve heard your name before, haven’t I?’