And Is There Honey Still For Tea? (19 page)

‘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 raising 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.

‘I appreciate your mentioning it, Miles,' he replied eventually. ‘As you say, that is all over with now. I have no reason to be prejudiced against Mr Smart. He was only representing his client, wasn't he? Let's see if we can put an end to this nonsense for Ben and Virginia.'

30

‘I have had the opportunity to look at the evidence, Mr Wesley,' Mr Justice Melrose said. ‘Not in the kind of detail I would have to if the case goes to trial, but just enough to understand the basic thrust of it. May I make it clear that, having done so, I have returned the evidence to the officer.'

‘I am obliged to your Lordship,' Wesley replied. ‘But your Lordship has the advantage of me.'

The judge nodded.

‘Yes,' he agreed. ‘My impression, Mr Wesley, is that there is a great deal of force in Mr Roberts's submissions. If I understand the evidence correctly, there are compelling reasons to do everything possible to ensure that the information contained in the documents does not become publicly known.'

Wesley inclined his head.

‘I am not sure there is anything I can say about that, my Lord,' Wesley replied. ‘Your Lordship has seen the evidence and I have not. In those circumstances, may I invite your Lordship to agree to hear me on another occasion, when I have had the opportunity to see the evidence, if I wish to re-open the matter?'

‘Certainly, Mr Wesley,' the judge replied at once. ‘That would only be fair.'

‘I am much obliged. And perhaps I may be permitted a few moments now to outline the concerns I have?'

‘Of course.'

‘Again, I am obliged. First, my Lord, I would be grateful if your Lordship would make it clear to the Home Secretary that, if he is going to intervene in the public interest, he has a duty to remain neutral between the parties.'

Roberts was on his feet immediately.

‘I am not sure what that is supposed to mean,' he said.

‘My learned friend knows exactly what that means,' Wesley replied. ‘If he has evidence with which he is concerned, the proper course is to inform both parties at the same time, rather than take one side into his confidence but not the other, as happened here. It creates a suspicion about the Home Secretary's impartiality.'

‘That is an outrageous suggestion,' Roberts protested.

‘No, Mr Roberts,' the judge replied evenly, ‘it is not. I will tell you candidly that in my view, the Home Secretary would be well advised to avoid the appearance of taking sides. I am sure that the Home Secretary is quite impartial with respect to this case. But he would be well advised to make that abundantly clear, and one way of doing that, if he decides to communicate with the parties, would be to communicate with both of them in the same manner.'

‘I will convey your Lordship's advice to the Home Secretary,' Roberts replied icily.

‘The second matter, my Lord, is this,' Wesley continued. ‘If the Home Secretary has evidence relevant to the case, he has a duty to produce it to the parties. It is not for the Home Secretary to withhold evidence from the court, or to dictate to the court the terms on which he agrees to produce it.'

Roberts leapt to his feet again.

‘That is quite wrong, my Lord,' he insisted. His habitual air of calm seemed to be wearing rather thin. ‘My learned friend knows perfectly well that the minister has, not only a right, but a duty to protect evidence which might compromise national security. The House of Lords said so in so many words in
Duncan v Cammell Laird
.'

‘
Duncan v Cammell Laird
had to do with the plans for a submarine,' Wesley replied immediately. ‘I have not seen the evidence, but I doubt it falls into that category.'

‘That's not the point …'

‘And in any case,' Wesley continued, ‘the proper procedure is for the minister to put the evidence before the court so that the court can decide whether it is protected by Crown Privilege, not simply to bargain with the parties about the terms on which it is to be disclosed.'

For a moment Roberts seemed poised to come out for the next round. But then he suddenly resumed his seat. Ben Schroeder told Bernard Wesley later that he was sure he had seen Roberts exchange a look with Julia Cathermole.

Wesley paused deliberately to allow calm to be restored.

‘My final point, my Lord,' he said, ‘is that my learned friend Mr Overton's application is overbroad. Perhaps there may be occasions during the trial when the court would need to sit
in camera
to discuss some of the evidence. But to say that the entire trial must be
in camera
, and that we can have no jury, is going too far.'

The judge nodded.

‘I will keep all those points under review, Mr Wesley,' the judge said. ‘I take it you have no objection to the Home Secretary intervening, as such.'

‘My Lord,' Wesley replied, ‘if the Home Secretary chooses to afford himself the advantage of Mr Roberts's presence each day, how could I possibly object?'

Looking across to his right, Wesley saw Miles Overton hastily take the red and black spotted handkerchief he wore in the top pocket of his jacket and hold it to his mouth, turning his head away.

The judge was also smiling. ‘Then I will grant the Home Secretary's application to intervene, subject to the filing of a proper pleading within twenty-four hours. I will direct that any future proceedings be held
in camera
until further order.'

‘My Lord, as far as the question of the mode of trial is concerned,' Wesley continued, ‘I will say no more for now except to remind your Lordship that the Plaintiff has a statutory right to trial by jury in a libel case, under section 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933. The mode of trial in cases such as this is not a simple matter of practice. Your Lordship is bound by that provision, and is not entitled simply to ignore it, as my learned friends apparently suggest he may.'

‘There are exceptions to that rule,' Roberts pointed out.

‘There are,' Wesley replied, ‘but they do not apply to this case.'

The judge interrupted.

‘I am not going to decide that point today,' he said. ‘We have time before trial. I will decide rather nearer the time.'

‘As your Lordship pleases,' Wesley replied. ‘May I ask, however, that your Lordship does not delay the decision for too long. We are provisionally set for trial in early October, when term will just have begun. I am sure your Lordship will understand that I intend no disrespect when I say that, if your Lordship were to be against me on this matter, I would wish time to take the matter further.'

The judge nodded.

‘Duly noted, Mr Wesley. I think that is all for today.'

* * *

As the judge rose, Evan Roberts rushed out of court without a word, closely followed by the Home Secretary's dark-suited representatives. Ben's party followed them out at a more leisurely pace, by which time they were nowhere to be seen. Ben, Wesley, Harper, and Sir James Digby stood together in the corridor outside court. Miles Overton and his entourage had not yet emerged from the courtroom.

‘Well, that's rather rude of Roberts, isn't it,' Wesley smiled, ‘to rush off like that without wishing us good morning?'

‘Treasury Counsel are not used to being spoken to like that, Bernard,' Harper said. ‘I sense that you may have ruffled a few feathers.'

‘The judge ruffled a few for me,' Wesley replied. ‘That's probably what upset Roberts more than anything else. Now he has to tell the Home Secretary that he may have won his point for today, but he is going to have to behave himself in the future. There will have to be at least the appearance of neutrality.'

‘Yes,' Harper agreed. ‘But that's all it is – the appearance – isn't it?'

‘Yes, that's all it is,' Wesley replied.

He turned to face Digby, then shepherded the group away from the court to the far wall of the corridor, where they huddled behind a gothic pillar.

‘James, I have some concerns,' he said. ‘It's all very well for us to get indignant at Evan Roberts, and the rather crass way the Home Secretary has handled the matter has bought us some limited sympathy from the judge. But that only goes so far. We have to face the fact that the Home Secretary has, or at least thinks he has, some evidence which hurts your case. Not only that, that evidence is significant enough to cause him to take sides against you. Now, I can deal with that in the courtroom, but that is not where the real battleground is. What are we dealing with? What evidence are we going to be confronted with in one or two days' time?'

Digby was silent for some time.

‘I can't think what it could be,' he said. ‘Whatever it is, it can't implicate me directly, can it? If it did, I would have heard about it before now.'

‘That was the point Barratt made at our first conference,' Ben reminded him. ‘But now we know that they are afraid of making the evidence public for reasons of national security. That could be the reason why you haven't heard about it yet. Is there anything at all you can think of?'

Digby shrugged in apparent frustration.

‘I don't know. I worked with some pretty shady characters during the War,' he said, ‘when I was working with the Security Services doing interrogations.'

‘What do you mean by “shady characters”?' Ben asked.

‘Informants, people whose names came up during interrogations,' Digby replied. ‘I must have met a few Soviet agents during that time. Towards the end of the War, there were lots of Russians in London, most of them doing their best not to be sent back to face whatever fate awaited them at home. They were trying to expose all kinds of people to us as German spies. They were peddling all kinds of information, which they hoped to exchange for the right to stay in this country. Rubbish, mostly, though once in a while we got something useful. We knew the Soviet Embassy was doing its best to infiltrate any groups it saw as a threat. Some of the people I dealt with must have been Soviet agents.'

‘I don't see why that would turn the Home Secretary against you,' Wesley said. ‘I am sure everyone knew what was going on then.'

Digby looked down and took a deep breath.

‘All right,' he said. ‘I was occasionally asked to pass information to suspected agents.'

Ben and Wesley exchanged looks. Digby noticed.

‘No, no, it's not what you are thinking,' he protested. ‘It was nothing of any real value – at least, that's what I was told. It was either to make the agent think we were interested in him, or it was material MI6 wanted to find its way to Moscow. It was all so chaotic then – so many people running in different directions – and the right hand never knew what the left hand was doing. I doubt anyone kept records of it all. Perhaps they have some record of my passing information to those people, and they have put two and two together and made five.'

Wesley removed his wig, and ran his hand through his hair several times before replacing it.

‘Perhaps,' he said, ‘but if it was information of no real value, why would they go to such lengths to keep it out of the public domain all these years later?'

‘I have no idea,' Digby replied.

‘Perhaps it is because you knew Burgess and Maclean, and Philby,' Ben suggested. ‘It would hardly be surprising if they have been rummaging through the archives for anyone with a connection to those men since Philby disappeared.'

‘That would make sense,' Digby agreed.

Wesley nodded.

‘Well, there it is,' he said. ‘We will know in a day or two. Herbert, I imagine Miles will contact me to make the necessary arrangements for the disclosure of the evidence. I will let you know as soon as that happens.'

They all shook hands. Harper and Digby walked away. Ben and Wesley looked after them for some time.

‘Do you believe that?' Ben asked.

‘Unfortunately, I'm not at all sure I do,' Wesley replied. ‘Come on, let's go back to chambers. There is another matter I want to talk to you about – the Middle Temple committee against touting, and its nefarious activities.'