And Is There Honey Still For Tea? (29 page)

‘And one member of the Committee,' Mr Justice Lancaster added, ‘if he may be permitted a short concurring judgment, would like to wish them well.'

‘Two members,' Mary Faulks said. ‘Two members would like to wish them well.'

‘Thank you,' Bernard Wesley said, as they rose to leave.

‘If I might just add one thought, George,' Miles Overton said. ‘The approach of dealing with each case on its merits may lead the Committee to make some very fine distinctions. If I might offer a modest word of caution, Bernard and I are by no means sure that the present rule could survive a properly framed legal challenge.'

‘Legal challenge?' Kenney spluttered. ‘No barrister is going to sue his Inn of Court, and no member of the Bar would act for him if he did.'

Overton shrugged.

‘You might be surprised, George,' he replied. ‘Times are changing.'

* * *

‘A quick cup of tea?' Overton suggested, after they had left the Parliament Chamber, and Ben and Ginny had thanked them at some length before departing to give their partners the good news.

‘By all means,' Wesley agreed.

They walked slowly to the Queen's room and sat by the window, looking out into the Garden past the top end of the Parliament Chamber.

A waiter brought tea and fruit cake. Wesley raised his cup in the air.

‘Well, here's to Walter and Jane.'

Overton raised his own cup in response.

‘May they live long, happy lives, and have lots of children.'

‘And may Kenney see them whenever he wishes.'

Overton put his cup down and leaned forward confidentially.

‘Bernard, while I've got you here … I don't suppose there has been any movement on Digby's part, has there? The case is about to come on; we have the pre-trial hearing on Wednesday, and we go to trial a week from tomorrow.'

‘Digby has not moved at all,' Wesley replied. ‘He is adamant that Hollander has destroyed his good name, and he wants his day in court.'

Overton nodded slowly.

‘Just between the two of us,' he said, ‘I can't really say I blame him. The so-called evidence our friends at MI6 produced is not going to persuade Mr Justice Melrose that he has justified his article.'

‘That is our view also,' Wesley replied.

They drank tea in silence for some time.

‘I don't understand Hollander,' Wesley said. ‘Of course, you know him and I don't, but he must surely be a bright enough man. Doesn't he realise the position he is in, or doesn't he care?'

‘He realises the position he is in,' Overton replied. ‘The difficulty is that he is suffering from the delusion that MI6 are going to bail him out before he goes down for the third time.'

‘How exactly are they going to do that?'

‘God only knows,' Overton said.

‘Well, whatever they are planning to do,' Wesley commented, ‘they had better get a move on, hadn't they?'

48

Wednesday, 6 October

‘May it please your Lordship,' Bernard Wesley began, ‘as your Lordship knows, I appear with my learned friend Mr Schroeder on behalf of the Plaintiff, Sir James Masefield Digby QC. My learned friends Mr Overton and Miss Castle appear for the Defendant, Professor Francis R Hollander. My learned friend Mr Roberts appears on behalf of the Home Secretary.'

‘Yes, Mr Wesley,' Mr Justice Melrose said.

‘My Lord, the parties come before you today in chambers, as your Lordship ordered at the last hearing. The trial is fixed for next Tuesday, the 12th October. The purpose of the hearing today is for the parties to address your Lordship about their readiness for trial, and to enable your Lordship to give whatever directions he may feel necessary for the trial of the action.'

He opened a heavy dark grey file folder on the desk in front of him, loosened the metal clasp which held the thick pile of documents in place, and turned to the first page, which was a table of contents.

‘My Lord, the Plaintiff stands ready for trial. If I might draw your Lordship's attention to the trial bundle we have submitted which, of course, has been served on the Defendant and on the Home Secretary …'

He allowed the judge time to reach for the file and open it.

‘At the beginning, your Lordship will find the table of contents. The first three dividers contain the pleadings. Your Lordship has the Plaintiff's Statement of Claim; the Defence served by Professor Hollander; Requests by both parties for further and better particulars, with the particulars supplied; and a brief Reply by the Plaintiff. Beneath the next divider are all the orders made by your Lordship in the course of the case. I would like to return to that a little later, if I may.'

Wesley turned over a number of pages.

‘The issues which your Lordship is to try are quite straightforward. I am not aware of any matters of law on which we need your Lordship's ruling before the trial begins. The Plaintiff contends that the article published by the Defendant is a libel of an extraordinarily serious nature. The attack on the Plaintiff's reputation is explicit and as damaging as could possibly be imagined. The Defendant admits publication and seeks to justify the libel. In other words, he continues to assert that what he says is true – that Sir James Digby is, and has for many years been, a Soviet spy. It is hard to imagine a more deliberate exercise in character assassination.'

Seeing that Miles Overton was about to object, Wesley quickly moved on.

‘Behind dividers five to twenty-one are brief summaries of evidence of the Plaintiff's good reputation, to be given by a number of witnesses who are well qualified to do so: among them a Bishop; three other members of the House of Lords; a member of the Cabinet; two Queen's Counsel; and two of the country's leading chess experts – in addition to various men who knew him at school, at university, and so on. We anticipate that this evidence will show the Plaintiff to be a man of excellent and blameless reputation.'

This time, Miles Overton rose to his feet. ‘Perhaps my learned friend would be kind enough to defer his opening speech until the proper time, at the start of the trial.'

‘I am drawing your Lordship's attention to the evidence,' Wesley replied, ‘because of a submission I wish to make to your Lordship in a few moments.'

‘We have been given no notice of any submission to be made,' Overton objected.

‘If my learned friend will bear with me,' Wesley replied, ‘he will see that I refer to an obvious submission which must be made at this time.'

‘Well, let's continue with your trial readiness, Mr Wesley,' the judge suggested, ‘and talk about submissions later, shall we?'

‘Certainly, my Lord. Divider twenty-two contains evidence disclosed to the Plaintiff on behalf of the Defendant some time ago. I will return to that in a moment also.'

Wesley flicked through the remainder of the bundle.

‘My Lord, I think the rest of the bundle is self-explanatory. The Plaintiff is ready for trial.'

He paused, very briefly.

‘My Lord, before I defer to my learned friend, it may be convenient for me to outline the submissions I propose to make to your Lordship, so that both my learned friends, for the Defendant and the Home Secretary, can reply to everything I have to say.'

Overton and Roberts both nodded their assent.

‘I am much obliged,' Wesley began. ‘My Lord, I submit that it is your Lordship's duty, on the present state of the evidence, to strike out the Defence and to give judgment in favour of the Plaintiff on the issue of liability. A hearing to determine the appropriate measure of damages can then be held in due course.'

Wesley did his best to suppress a smile as he saw Overton's indignant reaction out of the corner of his eye.

‘And if your Lordship is against me on that,' he continued, ‘I submit that your Lordship should now reverse his previous rulings, namely that the trial should be held
in camera
and that the action should be determined by your Lordship sitting alone without a jury.'

Overton leapt to his feet, followed a second later by Roberts.

‘Really, my Lord, I must object; and I see that my learned friend Mr Roberts is also concerned. We have not been given notice of these applications, and it is quite improper of my learned friend to make them now, without any advance warning at all.'

The judge looked inquiringly at Wesley, who feigned surprise.

‘My Lord, they are such obvious applications that I cannot imagine that my learned friends, with their great experience of these matters, have not anticipated them. The matter is not at all complicated, and I am sure that my learned friends will be able to respond – if indeed, there is any response to make. May I suggest that I outline my argument for your Lordship, and if my learned friends need further time to respond, it can be taken up on another day?'

Mr Justice Melrose nodded.

‘Yes, very well, Mr Wesley. Let us proceed on that basis.'

‘I am much obliged. My Lord, my first submission is very simple. In the absence of any evidence of bad character or bad reputation attaching to the Plaintiff from any other source, the Defendant has, in effect, the burden of proving that what he said in the article is true, or at least substantially true. We are a week away from trial. The Defendant has disclosed no evidence capable of justifying the article which rises to the level of proof on the balance of probabilities. If the position remains unchanged in ten days from now, your Lordship would be obliged to direct the jury to find for the Plaintiff.'

‘There is the evidence disclosed by the Defendant, behind divider twenty-two,' the judge pointed out.

‘Yes, my Lord. Let me return to that,' Wesley said, opening his file at divider twenty-two. ‘I have spent some time, with the assistance of my learned junior and those instructing me, trying to understand in what way this evidence tends to justify the libel. I have been unable to do so, and I anticipate that your Lordship and the jury will encounter the same difficulty.'

He turned over a number of pages rapidly.

‘The evidence falls into two parts,' Wesley continued. ‘The first part is simply a record of Sir James Digby's annual visits to Russia, to attend the Soviet Chess Championship between 1948 and 1960 in his capacity as an occasional journalist writing articles and reports for chess magazines. That evidence need not be adduced. Sir James admits that he attended the Soviet championship each year. Indeed, there are so many witnesses to the fact, so much evidence of it, that it would not be possible for him to deny it, even if he wished to. He does not wish to. He has never made any secret of it at all, and he invites your Lordship and the jury to find that he did so.'

The judge nodded and made a note of what Wesley had said.

‘The second part consists of a large number of pages of coded information, which is
said
' – Wesley carefully emphasised the word – ‘to show that at various times between 1948 and 1960, persons
said
to be western agents behind the Iron Curtain were arrested, tortured, killed, or banished to inhospitable parts of Russia. Your Lordship will not find any express statement to that effect in the documents, because the entire text consists of letters, numbers and symbols of different kinds, which are
said
to represent those events taking place between certain dates. So the documents themselves have no meaning, except that which may be assigned to them by an officer of the Security Services.'

‘But if such an explanation were to be given …' the judge began.

‘It would consist of hearsay upon hearsay, speculation upon speculation,' Wesley replied at once. ‘It could only be the result of intelligence gathered in the field, so the officer giving evidence would have no personal knowledge of the matters he is dealing with at all.'

The judge was nodding.

‘But, my Lord, let me assume, for the purposes of this application, that the information contained in these documents is true. I do not concede it for one moment, but let us assume it to be true. What, I ask rhetorically, has that to do with Sir James Digby? Apparently, the Defendant believes that the fate suffered by the agents is in some way related to Digby's visits to the Soviet Union. To put it bluntly, it is claimed that Digby in some way betrayed these agents. What evidence is there to support that belief? None at all. It is the purest speculation. It is the oldest logical fallacy known to man:
post hoc, propter hoc
. There is no basis for the inference the Defendant invites your Lordship and the jury to draw from the evidence.'

The judge nodded again.

‘If I may turn to my second application?'

‘By all means, Mr Wesley.'

‘My Lord, if your Lordship is against me on my application for judgment, I nonetheless submit that there is no justification for departing from the usual practice in libel cases: namely that the action should be heard in open court, and should be tried by a jury. The Defendant and the Home Secretary persuaded your Lordship on an earlier occasion that it was necessary to sit
in camera
and to dispense with a jury, on the basis that there would be such a volume of sensitive evidence that national security might be compromised if your Lordship allowed the usual practice to be followed. It is now clear that there was no basis for any such concern. The only evidence provided is the evidence behind divider twenty-two to which I have already referred. My Lord, every page of that evidence could be published in
The
Times
tomorrow without having any adverse effect on national security at all. It is incomprehensible in your Lordship's file and it would be incomprehensible in the columns of
The Times
.'

He paused for effect.

‘My Lord, the principle that actions should be tried in open court is an important one in a democratic society. The administration of justice should not take place behind closed doors. In a case of libel, that principle is even more important than in other cases. The Defendant has made a very public attack on the Plaintiff's reputation. The Plaintiff must be allowed to reclaim his reputation in an equally public forum.'

‘But if the contents of the documents were to be explained by an officer, as you have suggested,' the judge pointed out, ‘there would be bound to be some sensitive information, wouldn't there?'

‘Perhaps, my Lord,' Wesley replied. ‘But there would be no need for names. No personal details of the agents would be given, and the Plaintiff would undertake not to ask any questions calculated to identify them. Even if some sensitive information had to be given, the court could easily sit
in camera
for a short time for that limited purpose, and then go back into open court.'

‘What about the jury?' Mr Justice Melrose asked.

‘They would be directed not to divulge any details of what was said during the proceedings
in camera
,' Wesley replied. ‘If necessary, they could be asked to sign the Official Secrets Act form. I have done so, as has my learned junior, and my instructing solicitors. Why not the jurors, too? If the law trusts jurors to try a case of this kind, as it does, there is no reason not to trust them with important information.'

He paused.

‘May I respectfully remind your Lordship also 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. Your Lordship cannot simply dispense with a jury for reasons of practice. I must add, my Lord, that if your Lordship were to be against me on that point, I would be obliged to ask for an adjournment of the trial for the purposes of an interlocutory appeal to the Court of Appeal.'

Roberts sprang to his feet.

‘The section to which my learned friend refers has two exceptions,' he insisted, ‘in cases in which there would have to be a prolonged examination of documents, or where a scientific or local investigation has to be made which could not conveniently be made with a jury.'

‘Neither of which has any application to this case,' Wesley rejoined at once.

‘I disagree with my learned friend,' Roberts said. ‘Your Lordship would be quite entitled to find that there would be a prolonged examination of documents.'

‘Your Lordship has the documents in front of him,' Wesley replied, ‘and I am sure your Lordship can easily see how long it would take the jury to examine them. Even with the necessary assistance in decrypting them, it could surely not take more than half a day of trial time.'

He turned towards Roberts.

‘And, as far as any question of risk is concerned, I am sure that the Security Services would be quite capable of vetting the jury panel in case it contained anyone who posed an unacceptable security risk.'

Roberts pretended horror.