And Is There Honey Still For Tea? (18 page)

Yet I fear it is not so, and I must accept that you will be an eternal loss and source of grief to all of us, and in particular, to your most humble and obedient servant and devoted brother,

Jas Boswell

I left the church feeling cold and alone, with a void in my heart which could never again be filled. Much later, after the reception, when the friends had dispersed, and my parents were resting, I walked in the garden, and said a more personal goodbye to Roger, in the far left-hand corner of the second lawn, the site of one of our greatest victories against the Roundheads. I am sure he would have enjoyed the irony.

28

Thursday, 29 April

‘I see we have company,' Ben Schroeder said confidentially to Bernard Wesley, as they arrived in front of Mr Justice Melrose's courtroom in the Royal Courts of Justice at 10.20.

The gothic qualities of the building, with its high vaulted ceilings, arched pillars and heavy stone floors, made many of the corridors veritable whispering galleries, and those barristers and solicitors who appeared there regularly had learned to keep their voices down outside the courtrooms. Ben had indicated the ‘company' by a slight nod of the head. They had expected to find Miles Overton and Virginia Castle, with Julia Cathermole and Professor Hollander, and indeed they were huddled together a few yards away. They did not expect to find another member of the Bar standing outside court. But there he was, giving every appearance of readying himself to appear before Mr Justice Melrose, and accompanied by three men wearing dark grey suits and carrying soft leather briefcases bearing the Royal coat of arms. The list on the courtroom door suggested that
Digby v Hollander
was the only case scheduled to come before the judge before lunch. Wesley had gestured to Herbert Harper and Sir James Digby to take seats on the bench against the wall of the corridor.

‘I don't know him,' Ben said. ‘Do you?'

‘Evan Roberts, Civil Treasury Counsel,' Wesley replied. ‘Unless I am very much mistaken, that means that the Government is starting to take an active interest in the case.'

‘How can they do that?' Ben asked. ‘The Government is not a party to the action.'

‘They can ask to intervene,' Wesley replied, ‘if they think there are matters to be discussed which will affect the national interest.'

‘But surely they can't just show up unannounced,' Ben protested. ‘We haven't been given notice of an intention to intervene.'

Wesley nodded. ‘We will complain to Melrose about that for the record, but it won't do any good. The relevant minister is always entitled to intervene if he can show that he has a legitimate interest. The only thing we can do today is listen, and gather as much information as we can. Melrose will give us time if we need to respond. He knows we have been taken by surprise. So we will have a good grumble about it and see where the land lies. It's Miles's application today. I have a nasty feeling that the Government may be supporting him. Let's go and have a word with Roberts.'

They walked towards the dark-suited men with briefcases who were whispering animatedly to Evan Roberts, but before they could say anything they were interrupted by a black-gowned usher, who threw open the double doors of the court with a dramatic flourish.

‘All parties in
Digby v Hollander
, please make your way into court,' he announced loudly.

Ben turned towards Herbert Harper. But Harper and Digby had already jumped to their feet and were heading towards the doors of the courtroom. Ben made his way into court and took his seat behind Bernard Wesley. Harper and Digby slid quickly into the row behind Ben. To Ben's immediate right, Evan Roberts was arranging his papers. Beyond Roberts, Ginny Castle was leaning forward, talking to Miles Overton in the Silks' row in front of her. There was a sharp rap on the door leading on to the bench. The judge's associate, who sat in front of the bench, stood.

‘All rise,' he said.

As those in court stood, Mr Justice Melrose entered and took his seat on the bench. Today, he wore the bright red robes of a judge of the Queen's Bench Division. Ben, however, had a vivid recollection of the judge looking rather different, wearing the black robe of a judge in the Court of Criminal Appeal. Mr Justice Melrose had been a member of the court which had dismissed the appeal of his client Billy Cottage, with the consequence that Cottage had been executed not long afterwards – one of the last men to suffer that fate before the abolition of the death penalty and before the decision had been made that any further outstanding death sentences would be commuted. It had been a matter of time, so little time. The hearing had been a traumatic one for Ben. The pronouncement of the death sentence at the Huntingdon Assize had been bad enough. The dismissal of the appeal had felt like a second, and final, death sentence, as it had indeed turned out to be. All three members of the court had thrown questions at him constantly as he argued the appeal, but those asked by Mr Justice Melrose had been the most pointed, and most clearly conveyed a sense of foreboding about the outcome. It was a dark cloud which had a silver lining. His romance with Jess had blossomed when she took him away to her aunt's home in rural Sussex to recover, as soon as they had listened to the announcement of Cottage's death on the BBC's radio news. That had helped a great deal. But there were still nights when he woke in the small hours, with the words of the death sentence ringing in his ears. He found himself staring at the judge, and dug the nails of his right hand into the palm of his left to make himself concentrate on the case at hand.

‘May it please your Lordship,' Miles Overton was saying, ‘I appear for the Defendant, Professor Francis R Hollander, with my learned friend Miss Castle. My learned friends Mr Wesley and Mr Schroeder appear for the Plaintiff, Sir James Digby QC. My learned friend Mr Roberts appears for the Intervener, the Home Secretary.'

Bernard Wesley jumped to his feet.

‘I am sorry to have to interrupt my learned friend,' he said. ‘We have had no notice of an intervention. I submit that the proper procedure would be for the Home Secretary to give notice of his intention to intervene, and to serve a pleading indicating the grounds of the proposed intervention and the specific issues with which the Home Secretary is said to be concerned. This is a private lawsuit in which the Home Secretary has thus far demonstrated no such interest as would entitle him to intervene.'

The judge looked inquiringly at Evan Roberts. Roberts was a tall, thin man, who looked down on the world over a pair of gold pince-nez spectacles, which he wore around his neck on the thinnest of gold chains, and lifted on to his nose when reading from a document. His face was friendly and bore a very faint, though permanent, suggestion of a smile. His manner was very calm, and he gave no indication of being either surprised or thrown off balance by Wesley's interruption.

‘My Lord, I do concede that we could have been quicker off the mark in applying to intervene,' he said. ‘I am quite willing to undertake to serve the proper pleadings within twenty-four hours. But I would ask your Lordship's leave to be heard today in connection with the application to be made by my learned friend Mr Overton. It is the Home Secretary's view that there are matters here in which the Government has a strong interest. I believe that will become clear once my learned friend has begun to explain the matter to your Lordship.'

Mr Justice Melrose nodded.

‘There is one more thing, my Lord,' Roberts continued. ‘I think my learned friend was going to begin by making this application to your Lordship. But, as I am on my feet, I will do so. The application is that your Lordship should sit
in camera
to hear this application.'

Wesley sprang to his feet once more.

‘My Lord, this is outrageous,' he protested. ‘If I understand correctly, the very reason we are before your Lordship today is because my learned friend Mr Overton wishes to apply for all further proceedings in this case to be held
in camera
. To have that application itself heard
in camera
would mean that no part of this case is to be heard in open court. This Defendant has libelled the Plaintiff in the most public of ways, and yet he wishes to hide from the public when called to account for his actions. My Lord, the Plaintiff has been libelled in public and he is entitled to seek redress and the restoration of his good name in public. It is especially objectionable that the Home Secretary should try to assist the Defendant in his goal of secrecy before he has even justified his position to your Lordship.'

The judge smiled.

‘I hear what you say, Mr Wesley,' he replied. ‘But it is important that all parties should be able to address me freely. I must do the Home Secretary the courtesy of assuming that he would not seek to intervene without having some proper reason. I think the wisest course, out of an abundance of caution, is to accede to Mr Roberts's suggestion for now. However, if it later transpires that there is no need to remain
in camera
, I will resume sitting in open court at that time.'

Wesley inclined his head briefly.

‘As your Lordship pleases.' He sat down.

The judge's associate stood.

‘The court will sit
in camera
until further notice. All members of the public, and all those not involved in the case, please leave the court.'

The only person affected by this pronouncement was a formally-dressed elderly journalist who had intended to report the proceedings on behalf of
The Times
. He seemed disgruntled, but made no protest as the usher shepherded him out of court before affixing to the door a notice that the court was closed.

Miles Overton stood again.

‘My Lord, the Defendant's application is that the trial of this action should take place
in camera
, and that the action should be heard by your Lordship sitting without a jury.'

Bernard Wesley turned around briefly to exchange glances with Ben Schroeder.

‘I recognise that this application seeks to depart from the general principle that trials should take place in public and in open court,' Overton continued, ‘and from the general principle that proceedings for defamation are to be tried by a jury. But we submit that both general principles may be departed from when there are circumstances which justify that course. I submit that there are such circumstances in this case. May I say at once that we do not seek to prevent the Plaintiff from attempting to restore his good name, and I anticipate that if he were to prevail in due course, your Lordship would give judgment in open court, referring to as much of the evidence as might be proper to deal with in open court.'

Overton paused for a sip of water.

‘That brings me to the ground of the application. Your Lordship will have seen from the pleadings a rather obvious connection between Professor Hollander's article and the subject of espionage. To put it bluntly, he has accused Sir James Digby of being a Soviet spy, and he proposes to justify what he has written at trial. He cannot do so without adducing evidence which shows that Sir James Digby is indeed a Soviet spy, and has been so for a number of years. It will not surprise your Lordship to learn that some parts of that evidence are secrets of State of the highest possible sensitivity. I understand the Home Secretary to take the view that if they were to become public, there would be serious damage to our national security.'

‘You
understand
him to take that view?' the judge asked.

‘Yes, my Lord. I chose the words with care. I have not seen the evidence as yet. Neither has my client, or any of those representing him. The Home Secretary takes the view that the evidence should be released to the parties only if your Lordship agrees with me that the orders I seek for the conduct of the trial should be made. It may be best if I defer to my learned friend Mr Roberts.'

‘It may indeed,' the judge replied.

Roberts stood at once.

‘My Lord, now that we are
in camera
, I should tell your Lordship that, while I appear for the Home Secretary, I appear for him not only as a Minister of State, but also in his capacity of the minister having oversight of the Security Services. Professor Hollander's article came to the attention of the Security Services shortly after it was published. I am sure your Lordship will understand at once that the article was of great interest to those Services, one of them in particular.'

‘Yes,' the judge said quietly.

‘Once it was known that Sir James intended to bring this action against Professor Hollander, the Head of the Service in question decided to monitor its progress. In the course of so doing, he was made aware by his staff that the Service was in possession of certain evidence which might be relevant to the case. He brought that evidence – the general substance of it, not the detail – to the attention of the Home Secretary. They both agreed that, in principle, it should be disclosed to the parties. But they also agreed that this could be done only under strict conditions, conditions designed to make sure that the evidence should not come into the public domain.'

Roberts paused for effect.

‘My Lord, without going into detail, the Home Secretary believes it to be no exaggeration to say that if this evidence were to become public, it would not only have a serious effect on national security, but would also endanger the lives of a considerable number of people who are working on behalf of our national interest.'

There was a silence.

‘What conditions does the Home Secretary seek to place on the disclosure of the evidence?' the judge asked.

‘My Lord, firstly that, as my learned friend has said, the action should be heard
in camera
and should be tried by your Lordship without a jury. Secondly, that the Home Secretary should be given leave to intervene for the purposes of the case generally and should be represented by counsel throughout. Thirdly, that the evidence should be disclosed only to the parties and their legal advisers, who are to be required to sign the appropriate form pursuant to the Official Secrets Act.'

The judge nodded.

‘Are you authorised to allow me to look at the evidence privately before making my decision?' he asked.

‘If your Lordship would allow me a moment …'

He turned around to the dark-suited men and there was another animated conversation. It seemed to last for a long time, but the judge showed no sign of impatience. Eventually, Roberts turned back to face the court.