And Is There Honey Still For Tea? (30 page)

‘Really, my Lord,' he said, ‘that is an extraordinary suggestion.'

The judge was smiling.

‘No, it's not,' he said. ‘Mr Overton, Mr Roberts, I need not trouble you on the Plaintiff's application for judgment. On the procedural applications, if you wish to add anything to your earlier arguments, I will hear you, of course. But there is no need to repeat them.'

‘In that case, my Lord, I have nothing to add,' Overton replied.

‘Nor do I,' Roberts said.

‘Then, let me give my views on the applications,' the judge said. ‘Firstly, I am not prepared to give judgment in the Plaintiff's favour today. Despite what Mr Wesley has said, it seems to me that there is an issue to be tried. The Defendant, as well as the Plaintiff, is entitled to his day in court.

‘Secondly, having seen the evidence, I am no longer satisfied that the entire action should be tried
in camera
, but I will sit
in camera
for the purpose of dealing with the encrypted evidence, whenever reference is made to it during the trial.'

He paused to consult his notes.

‘As far as the question of the jury is concerned, I am persuaded by Mr Wesley's submissions that, whatever my own views may be, I have no power to dispense with a jury. The Plaintiff has a statutory right to trial by jury, and I am not persuaded that the volume of documents is such that a jury could not deal with it. Indeed, I am quite sure that they could do so without difficulty. The jurors will complete and sign the necessary forms under the Official Secrets Act, and I will direct them carefully about their obligations. Lastly, as I have said before, my judgment, with any necessary redactions, will be delivered publicly in open court, and may be reported. If Sir James prevails, his reputation will be fully vindicated in public. Mr Overton…'

Overton stood.

‘Mr Overton, I do not wish to be misunderstood. I have not given judgment for the Plaintiff today. But Mr Wesley's submissions about the state of the evidence have a good deal of merit. If the state of the evidence remains the same when the trial begins, my decision is likely to be different. You have a week.'

Roberts got to his feet.

‘My Lord,' Roberts said, ‘may I make one thing clear on behalf of the Home Secretary? Your Lordship has the Home Secretary's certificate about the evidence. He is prepared to make the evidence available for trial only if the conditions he specified are in place. Your Lordship's rulings mean that those conditions are not in place.'

‘My Lord, I may need to go to the Court of Appeal,' Overton said. ‘Obviously, if the Home Secretary withdraws his permission for the evidence to be used, the Defendant's case is hopelessly compromised.'

The judge nodded.

‘You may have leave to appeal against my rulings, if you need it,' he said. ‘I give the same leave to the Home Secretary, should he wish to take the same course. But may I suggest to you both that you do so on an emergency basis? I see no reason to adjourn the trial.'

49

Thursday, 7 October

‘I spoke with the Minister this morning,' Dick White said, once Baxter had installed himself in a chair in front of his desk. ‘He reminded me, in that rather direct way he has, that the trial in the case of
Digby v Hollander
is due to begin next Tuesday, before Mr Justice Melrose and a jury.'

‘And his mind is still troubled?' Baxter asked.

‘That would be putting it mildly,' White replied. ‘He wanted to know what we were doing about it. I had to tell him, of course, that the evidence we have provided to the parties thus far has failed to bring about a settlement; or even to persuade Mr Justice Melrose to sit without a jury. The Minister thinks that we need to do more.'

‘We only have five days, sir. I can't see the case settling in that time, whatever we do. In any case, what does he mean by more? What does he want us to do?'

‘He wants us to give them more evidence.'

Baxter shifted uncomfortably in his chair.

‘Sir, as far as I know, the only other evidence we could give them is “Gawain”,' Baxter said. ‘Is the Minister aware of what that would involve?'

‘No, at least, not in any detail. I told him that there might be some further information we could supply, but that I would be reluctant to do so unless it is really necessary. He asked why. I told him that it might compromise an important source. He didn't press me for details and I didn't offer any.'

Baxter nodded.

‘Does he even know anything at all about Gawain – the details, I mean?'

‘Good God, no. The Minister knows we have one or two assets in this area of course, but he doesn't know any details, and he wouldn't want to.'

‘I am sorry if I seem unduly nervous about this, sir,' Baxter said. ‘But Gawain is an asset we can't afford to compromise, as you know; not least because the Americans think they have as much right to him as we do – and they are probably correct.'

‘There is no doubt about that,' White agreed. ‘Gawain's security is of the highest importance. But at the same time, the Minister is adamant that we must do all we can to prevent the trial from taking place.'

‘I am not sure that is possible, sir,' Baxter said. ‘Unless the Minister agrees to allow Hollander to use the evidence we have already given him, he has no case. Digby has no reason to settle. I thought Miles Overton was appealing against the judge's rulings?'

‘He is, but they can't convene a panel in the Court of Appeal to hear it until Monday. Evan Roberts will support the appeal on the Minister's behalf, but Julia tells me they don't hold out much hope. The judge has seen the evidence, and if he doesn't agree that he needs to try the entire case
in camera
, the Court of Appeal is unlikely to interfere. Julia thinks that they are especially weak on the jury question. Digby has a legal right to a jury.'

Baxter shook his head in frustration.

‘Why is the Minister so adamant that the case should be settled?' he asked. ‘Why not let nature take its course? If Digby wins the trial by default, there is no real security risk.'

‘The Minister doesn't agree,' White replied. ‘As he sees it, it is not just a question of the trial itself. He feels that it would be difficult, if not impossible, to keep a lid on it after the trial. If Hollander loses the case – which seems almost inevitable unless we come to his rescue – it would be impossible to shut him up. There is no telling what he might come out with once he gets back to the States.'

‘That's true whether Hollander wins or loses,' Baxter pointed out. ‘Actually, if he were to win, it might be even harder to control him.'

‘Precisely. That is why the Minister insists that there must be no trial. We need the case to settle. Gawain should be enough to accomplish that – even in five days. Don't you think so, really?'

Baxter nodded slowly. ‘In any rational world, you would think so. Yes. But the question is: how to disclose Gawain to the parties without compromising him.'

White smiled disarmingly.

‘That will be your job, Baxter.'

Baxter returned the smile. ‘Thank you, sir.'

‘Any thoughts?'

Baxter considered this for some time.

‘Well, I would begin with the ground rule that under no circumstances will Gawain give evidence for either side in court, and no information he provides may be used or referred to in court in any way. We can't allow Gawain to become evidence, given the judge's rulings.'

‘I agree,' White said with a smile. ‘But perhaps there is no need to tell the parties that at this stage? Perhaps that could be left slightly ambiguous, shall we say?'

‘I agree, sir. It's likely to be more effective if we leave the threat hanging over their heads.'

‘Good. What else?'

‘I am against asking Gawain to travel to this country.'

‘I agree again,' White said. ‘Too risky by far.'

‘Which means,' Baxter continued, ‘that we have to take the parties to Gawain. I don't think they would be satisfied with a written statement, and I wouldn't want to give them one – too much risk of a leak. If Gawain is going to be as effective as we need him to be, he has to make a personal appearance.'

White nodded thoughtfully.

‘How would you arrange that?'

‘I am inclined to ask our friends in Gawain's neighbourhood to make a safe house available to us for a meeting urgently, over the weekend. Lawyers only – there is no question of letting either Hollander or Digby anywhere near Gawain, and even as far as the lawyers are concerned, the fewer the better. I would prefer to restrict the meeting to one legal representative from either side, unless you think that would not have enough impact. I only want to do this once, so we have to make sure that Gawain makes a big enough impression on both legal teams.'

White turned in his chair, and stared out of the window of his office for some time.

‘I think one per side would be enough,' he replied at length. ‘But if so, it should be a barrister rather than a solicitor. Barristers can be rather funny about accepting advice from solicitors. They see it as their role in life to give advice, rather than receive it. In any case, much as I love and adore Julia Cathermole, as we all do, I'm not sure I would want her too close to Gawain.'

He paused.

‘Hollander's junior counsel, what was her name, Castle …?'

‘Yes.'

‘She leans rather to the left, I seem to remember.'

‘Yes, sir. But we did a thorough check. She came up white as snow.'

‘In that case,' White said, ‘I would take both junior counsel and leave the Silks at home. The Silks will have the last word, and I want to offer them the protection of having to rely on the reports they get from their juniors. With any luck, Gawain will persuade the juniors that there is only one recommendation they can make.'

He turned back to face Baxter and leaned forward in his chair.

‘What other ground rules do you suggest?'

‘Nothing will be provided in writing,' Baxter replied, ‘and no notes will be taken during the meeting. Questions will be permitted only for clarification, and Gawain will be instructed not to answer until I have approved the question. Once the meeting is over, that's it. Gawain is gone.'

White nodded.

‘Very well,' he said. ‘Let's go ahead. This is your responsibility now, Baxter. I want you to take personal charge of this. Don't delegate. Understood?'

‘Understood, sir.'

‘Make sure that our sister service explains the situation fully to Gawain. It is vital that we have his willing cooperation. He must be made to feel that we are not pressuring him, or putting him at risk in any way. Does he have any direct contact with the Americans?'

‘Not that I know of. He's not supposed to. But then again, you never know with the Americans.'

‘He must be made to understand that he must not discuss this with anyone else, whoever they may be. It could be dangerous for him.'

‘Yes, sir.'

‘Presumably you want to keep the nature and purpose of the meeting secret until it takes place? Have you thought of how you will approach the barristers, what you will tell them?'

Baxter smiled.

‘That's a tricky one, sir. I will have to give that some further thought.'

‘Well, don't take too long about it,' White commented. ‘We are running out of time.'

50

Friday, 8 October

The Devereux, a favourite haunt of the Bar just outside the Middle Temple's famous Little Gate, is always busy at 6 o'clock on Friday evenings. On this particular evening, a throng of barristers of all ages, the vast majority men, still formally dressed in dark suits and stiff collars, had gathered for their weekly ritual. It was time to let off steam at the end of a hard week; time to boast of their victories and bemoan their defeats in court; time to praise or complain about the judges who had understood the points they were trying to make – or not; time to raise their spirits for the weekend ahead. They were loud, and there was a constant stream of movement throughout the pub – which was exactly what Baxter had been hoping for.

Ben Schroeder pushed and jostled his way through the crowd until he saw the person he was looking for. Virginia Castle had found a relatively quiet space at the far end of the bar, and was maintaining possession of it against all comers, nursing a glass of white wine. Ben forced his way through an unyielding group of four young barristers arguing over the merits of a judge's decision to grant summary judgment, and purposefully inserted himself next to her.

‘Sorry to take so long, Ginny,' he said, almost shouting to be heard above the din. ‘I was in conference. I came as soon as the clerks gave me your message.'

She stared at him blankly.

‘What message?' she asked.

‘You sent me a message,' he said uncertainly, ‘saying that you needed to see me urgently about the
Hollander
case, and asking me to meet you here as soon as possible.' She continued to stare. ‘Didn't you?'

‘No,' she replied. Her voice betrayed some irritation. ‘What are you talking about? It was the other way round. I got a message that
you
wanted to see
me
urgently. I've been waiting for almost half an hour. I was nearly ready to give up and go home. What's going on?'

‘I have absolutely no idea,' Ben replied.

Baxter had timed his entry to perfection. With a bland apology, he strode right through the middle of the exponents of summary judgment and approached.

‘I am very sorry,' he said. ‘This is all my fault. I would like to explain, if I may. But can we go outside so that I can hear myself think?'

For a moment they were both taken aback. Then, with a glance at Ben, Ginny left her glass on the bar and followed Baxter as he genially pushed and negotiated his way through several groups of drinkers and cleared a path to the front entrance of the pub. Ben followed. Baxter led the way through the Little Gate into the peace and quiet of the Middle Temple. The long bench by the fountain was unoccupied, and he ushered them to it, gesturing to them to sit with him.

Ginny stared at Baxter. ‘Is this your doing?' she asked. ‘Are you responsible for bringing us here like this?'

Baxter smiled sheepishly.

‘I'm sorry, Miss Castle. Yes, I did send messages to you both via your clerks. It was a bit presumptuous of me, I admit, but I didn't know what else to do. I needed to get you both together at the same time to talk about the case, and I didn't know how else to go about it. The important thing is that you are both here.'

Ginny felt her temperature rising.

‘Well, we may be here now,' she said. ‘But we are not going to stay here to discuss a case with you outside chambers on a Friday evening in the absence of our clients and our instructing solicitors. If you have something to say, and assuming we are allowed to hear it, you need to contact our instructing solicitors and arrange for a joint conference of some kind in chambers. You obviously don't understand how things are done at the Bar.'

Baxter was nodding.

‘As a matter of fact, Miss Castle,' he replied, ‘I do understand how things are done. I understand only too well. That's why I had to engage in this silly charade. I need to speak to you, and I'm afraid I don't have time to play by the rules. It's an urgent matter, and if we don't talk about it now it will be too late.'

Ginny shrugged and pushed herself to her feet.

‘Well, that's your problem,' she said.

Baxter stood and faced her.

‘Actually, it's your problem as well,' he replied. ‘And if you will listen to me for five minutes, I think I can make that clear to you. If you won't, then, of course, there is nothing I can do; you are free to leave whenever you wish. But I strongly advise that you give me a few minutes of your time.'

Ginny shook her head, and was about to walk away, but Ben took her arm.

‘Wait a minute, Ginny,' he said. ‘We both know who Mr Baxter works for, and we both know that the people he works for have already made some material available to us.'

‘Which has made no difference at all,' Ginny observed, ‘particularly as the Home Secretary won't let us use it in court.'

‘Perhaps not,' he replied. ‘But I don't think we can ignore the fact that Mr Baxter has gone to great lengths to speak to us. You have nothing to lose by listening to what he has to say.'

He turned to Baxter. ‘I assume this is all off the record?'

‘It is completely off the record, believe me.'

After several seconds Ginny allowed Ben to guide her back to her seat. He sat down alongside her. Baxter took his seat no more than two feet away from them. He took a deep breath.

‘My superiors authorised the release of the evidence regarding Digby's travel to the Soviet Union, and the damage sustained by our agents behind the Iron Curtain as a result …'

‘Supposedly as a result,' Ben said. ‘It hardly merits the term “evidence”. It is pure speculation.'

Baxter nodded.

‘Fair enough,' he said. ‘Let's say “allegedly as a result”. That doesn't matter. The point is this. We released that information because we hoped it might result in a resolution of the case without trial. That didn't work. So be it. My superiors have, therefore, decided to release some further information to both sides.'

He looked pointedly at Ben and Ginny in turn.

‘This new information,' he added authoritatively, ‘is almost certain to have the desired effect.'

Ben sensed that Ginny was about to snap at Baxter again. He took her hand and squeezed it gently before releasing it.

‘Can you tell us why you think that?' he asked.

‘No,' Baxter replied. ‘The information can be released only under very specific circumstances. When it is released, the answer to your question will be obvious immediately. But I can't jump the gun.'

‘But why not go to our instructing solicitors?' Ben asked. ‘It's their job to gather evidence. We are not allowed to go digging on our own. Miss Castle is right about that. There are rules.'

Baxter leaned forward.

‘The information in question,' he replied, ‘is extremely sensitive. Actually, that is something of an understatement. You must understand that there is more involved in this than the lawsuit, however important the lawsuit may be to the parties. The national interest is involved, and the life of at least one person may be in danger. I know you may be sceptical about what I'm saying, but I must ask you to give me the benefit of the doubt. My superiors are not fooling around. They have better things to do, believe me. They are not involving themselves in a piece of private litigation for fun. They need this case to end, and they want to work with you to make that happen.'

He sat back up again.

‘To answer your question frankly,' he said, ‘we decided to approach you as members of the Bar, because we believe that you are less of a security risk than your instructing solicitors. The need for security far outweighs professional rules in this instance. We will see to it that you are protected against any criticism.'

Ben looked at Ginny for some seconds.

‘Give us a moment,' he said.

They stood and walked slowly together for a few yards towards Fountain Court, stopping at the entrance to the building.

‘This is complete nonsense,' Ginny protested. ‘We don't know who he is, or what he wants. We could get disbarred for this, Ben. I say we walk away now, report the matter to our instructing solicitors and our leaders, and call his bluff.'

Ben shook his head.

‘I'm not so sure,' he replied. ‘They are going to an awful lot of trouble to make this case go away. Look, Hollander is losing as things stand now. Let's be honest. With the evidence as it is now, Digby will win, no contest. The judge has already told us that.'

‘Which means that you have no obvious interest in any further evidence he may be interested in peddling,' Ginny said. ‘So why are you so keen to listen to him?'

‘Because I can't afford not to,' he replied. ‘I can't afford to be blindsided, and risk Digby being taken by surprise at trial. We can't afford to take chances with this, Ginny. The stakes are too high.'

‘But how do we know any of this is genuine?'

‘We don't, for sure,' Ben conceded. ‘But I don't think Baxter would be so protective of his evidence if he wasn't genuinely worried about the security implications. I think we ought to give him the benefit of the doubt, as he put it. I think I can justify what we are doing, as long as we are doing it together.'

Ginny reflected for a long time.

‘All right,' she said eventually. ‘I will go along with it for now. But if there is any sign that we are being set up in some way …'

‘We cut and run,' he said. ‘Agreed.'

They walked back to the seat by the fountain.

‘Assuming that we accept what you tell us,' Ben said, ‘how would you propose to make this information available to us?'

Baxter smiled.

‘I was waiting for you to ask me that,' he replied. ‘I'm afraid it is not altogether simple. I hope you didn't have plans for the weekend.'