The Sovereign Weapon

Thomas Grant’s​ Court Number One tells the stories of 11 prominent trials heard in Court One of the Old Bailey between 1907, when it opened, and 2003. His aim is to use these stories as illustrations of ‘British sensibilities and preoccupations over the last hundred years … Through the criminal trials … there can be traced at least one version of the history of social and moral change over the last century.’ This might be thought a trite observation, but the scholarship and depth of evidence Grant employs give it substance.

Criminal trials are conducted out loud. They turn on what people say and the way they say it. Every word is recorded. Grant skilfully shows how modes of speech capture attitudes. He quotes Sir Edward Marshall Hall QC, ‘doyen of criminal advocates, in the defence of Madame Fahmy, on trial in 1923 for the murder of her Egyptian husband in the Savoy hotel’:

She discovered for the first time that he had not only the vilest of vile tempers, but was vile himself with a filthy perverted taste [i.e. anal sex]. From that day onwards to the very night, within a few moments of the time when a bullet sent that man to eternity, he was pestering her … she will tell you that Fahmy kept a black valet to watch over this white woman’s suite of rooms, conditions that really make me shudder, [placing her] in that state of obedience which a black man wants from a woman who is his chattel.

No one objected, though nowadays such a speech would get an advocate disbarred. Madame Fahmy was, on her account, a victim of domestic violence and what the law now recognises as controlling and coercive behaviour. In 1923 she had no defence in law and was at risk of being hanged. In capital cases like this the best defence advocates stretched what they could get away with to the limit, hoping to save their clients’ lives – that is the only possible justification for Marshall Hall’s deliberately inflammatory rhetoric. And it worked. As Grant says, ‘for all its formality, the court is not a hermetically sealed space, divorced from the values and prejudices of the world outside. The language of the courtroom is as much saturated in ideology as any other medium.’ It changes with the times. Recent research into so-called ‘rape myths’ by the criminologist Cheryl Thomas has shown that jurors in such cases no longer believe, for example, that a woman who wears provocative clothing is putting herself in a position to be raped. A defence advocate who made such a suggestion would be reprimanded, and would almost certainly lose the ear of the jury, and the case.

In 1918 Noel Pemberton Billing, a fascist rabble-rouser, MP and all-round chancer, went on trial for the now defunct offence of criminal libel. He had published in a magazine called Vigilante, which he edited, a wholly fictitious story that 47,000 prominent British people were included on a list of sexual perverts in a (non-existent) Black Book compiled by Prince Wilhelm of Wied and were being blackmailed by the Germans. As well as politicians, literary and senior military figures, the list supposedly included a fading dancer and actress called Maud Allan, who had recently appeared in two private performances of Oscar Wilde’s Salome: enough to generate moral fury in Pemberton Billing and his gang. He was prosecuted for alleging Allan’s involvement in an article in Vigilante called ‘The Cult of the Clitoris’. The trial involved a close and hilarious (mis)reading of parts of Salome, with the prosecuting barrister asking one witness whether an orgasm was ‘some unnatural vice’. In Grant’s account, Pemberton Billing represented himself with great skill, turning his trial into a soapbox for his conspiracy theories and populist attacks on the establishment. Running a homophobic and irrelevant line of defence, he called Lord Alfred Douglas as a witness, who said of Wilde: ‘I think he is the greatest force for evil that has appeared in Europe during the last 350 years … he was the agent of the devil in every possible way.’ Pemberton Billing shouted, heckled the judge, ignored warnings about his behaviour and ran the show. The establishment, in the shape of a weak judge, Charles Darling, could not control him, even when Pemberton Billing accused Darling of being on the list himself.

Pemberton Billing, riding on a wave of wartime anti-German sentiment, conspiracy and overheated populist rhetoric, was acquitted. Ten thousand people celebrated the verdict at the Albert Hall – an analogue version of the digital crowds that feast on the malicious nonsense on social media produced by the Pemberton Billings of our day. Courts today forbid jurors from researching online anything to do with their trials, for fear that they will be prejudiced by evidence that is not given and tested in court – this is an imprisonable offence – but it’s impossible to prevent it completely.

Grant devotes a chapter to the 1979 trial of another 20th-century chancer, the Liberal leader Jeremy Thorpe, who was tried for his role in the botched shooting of his blackmailer and former lover, Norman Scott. The press had long protected Thorpe – Grant describes him as the ‘beneficiary of a culture of journalistic restraint towards the powerful’ – but once he was acquitted, the floodgates opened, and there was a story-buying spree. After reporters bought information from jurors in the case, the Contempt of Court Act was passed in 1981, banning jurors from disclosing what went on during their deliberations.

The interaction between the court and the press is a persistent theme in the book. All the trials Grant describes were big news. Sensational trials sold papers. There was no legal aid before 1949 so the top echelon of lawyers was out of reach to all but the rich. The papers themselves would pay the fanciest barristers, like Marshall Hall, to act for chosen defendants, and would then buy the defendants’ stories after the trial (if they were acquitted). The availability of legal aid and the abolition of the death penalty took much of the public interest out of murder trials, and perhaps criminal trials in general, except the most horrible, such as the Soham murders of two ten-year-old girls, or those involving well-known public figures like Thorpe. Horrible cases remain the daily fare of criminal courts, of course, pre-eminently at the Old Bailey, but few get much coverage, and the decline of regional newspapers has led to a reduction in the reports of mundane cases, which were once their staple.

The book charts the evolution from the stagey antics of Marshall Hall and the cold cruelty of the judge who passed the death penalty on Timothy Evans in 1950 for the murder of his baby daughter, who had in fact been killed, as had Evans’s wife, by the serial killer John Christie – Evans would now be recognised as a vulnerable defendant – to the more humane spirit in which trials are conducted today. There is still rhetoric, but the register of persuasive speech is more often conversational than grandiloquent (although I have heard an eminent QC refer to a gun as ‘the sovereign weapon’, a term Marshall Hall would have been proud of). In sentencing Ian Huntley and Maxine Carr for the Soham murders in 2003, Mr Justice Moses said: ‘there is no greater task for the criminal justice system than to protect the vulnerable.’ It is a task in which the system can claim only limited success.

Grant’s contention that the language and conduct of trial are emblems of societal attitudes could be extended. The end of the period covered in the book saw a decline in the quality of attention given by policymakers to criminal justice. You can see it in the buildings themselves. Court One of the Old Bailey is a template of Edwardian civic grandeur: a solemn, austere place intended to instil a sense of continuity and order, far removed from the stinking disorder of Newgate prison, which stood on the same site. In the last three years more than 150 court buildings, those on profitable sites, have been sold off to fund other parts of the system, in the absence of proper new investment. When the government builds courts now, it builds them cheap and puts them on ring roads. They rapidly fall apart and do not get repaired. In 2017 a prisoner died of heatstroke in the unventilated cells at a Central London magistrates court. The rotten state of the buildings represents a wider neglect.

In 2011-12, the Crown Prosecution Service (CPS) prosecuted 895,000 cases; in 2018-19, 495,000 – a drop of 40 per cent. Over the same period the CPS’s budget has been cut by 30 per cent, and it has lost 25 per cent of its staff – down to six thousand from eight thousand. The Ministry of Justice has had its budget cut by 40 per cent. Criminal lawyers are on the verge of strike action over shrinking fees, which in many cases have fallen below the minimum wage if the hours spent preparing cases are taken into account. The police services have endured similar cuts: they lack sufficient staff to investigate cases, so that some never reach the CPS for charging decisions or are abandoned at that stage because the information contained is incomplete. The seven ministers of justice since 2010 have been variously indifferent, clueless, hostile, or have spent too short a time in office to defend the publicly funded legal system from the Treasury’s depredations. And yet some things have improved. We have today fewer advocates who bully their way to victory; judges mostly do their best to be fair; the frailties of young and vulnerable witnesses and defendants are better recognised; juries are robust; we do not execute people for their crimes. For all this at least we can be thankful.