Handsome Brute: The True Story of a Ladykiller (45 page)

The notion of a murderer being set free caused a public outcry, so the House of Lords asked a panel of judges what they felt about the Lord Chief Justice’s directive. In essence the judges agreed that in order to establish a defence on the ground of insanity it must be proved that at the time of the act, the accused was labouring under such a defect of reason that he did not know the nature and quality of the act he was doing, or if he
did
know it, he did not know what he was doing was wrong. Despite advances in the study of psychology since the turn of the century, the M’Naghten Rules remained the statute by which all insanity cases were assessed.

Casswell was to call only four witnesses. Usually the defence would be at pains to prevent the jury from hearing about any other crimes relating to the accused, but in a departure from normal practice, Casswell referred to Heath’s chequered history in some detail – his thefts, frauds and court martials as well as introducing the details of the murder of Doreen Marshall. Casswell stated that the case for the defence was that of ‘partial insanity’ and suggested that in view of the fact that the injuries inflicted on the second victim were far more severe than those inflicted on Margery Gardner, Heath’s was a case of ‘progressive mania’. He tried to make clear that there would be no inconsistency in the jury finding that the charming and self-possessed young man in the dock was capable of insane behaviour at the time of the two murders when normal restraints had given way. He called Dr Crichton McGaffey to discuss the nature of the injuries to Doreen Marshall and requested that the jury examine the distressing scene-of-crime photographs: ‘Rather unpleasant, I’m afraid.’

Casswell also called Frederick Wilkinson, the night porter from the Tollard Royal, to indicate how normally Heath had behaved after committing the murder, climbing into bed and falling asleep. The onus was on the defence to prove that Heath was insane, rather than for the prosecution to prove that he was not. Though he felt that his case was weak as far as the law went, Casswell believed that he might be able to persuade the jury of Heath’s partial insanity, if their star medical witness could convince them from the witness box.

Dr William Henry de Bargue Hubert was a major authority in the world of psychiatric medicine and seemed an extremely credible witness. It was to be on his evidence that the case for the defence – and Heath’s life – would rest. In discussion with Casswell in preparation for the trial, Hubert said that he was prepared to say that Heath ought to have been diagnosed as a mental defective from an early age and that at the time of the murders he probably knew what he was doing, but was so mentally abnormal that he didn’t know that what he was doing was wrong. From 1934 to 1939 Dr Hubert had worked as psychotherapist at Wormwood Scrubs and had collaborated with the respected Dr Norwood East in a psychological study of the prevention of crime for the Home Office in 1938.
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Hubert was also the assistant psychiatrist to St Thomas’ Hospital for Children and had previously been psychotherapist at Feltham Prison and Broadmoor. During the war, he had served in the army as a specialist in psychological medicine and latterly as adviser in psychiatry to the Middle East with the rank of lieutenant colonel. He seemed the ideal expert witness and was certainly more experienced and better respected than the two doctors that the prosecution were to call.

However, what was not known at the time was that Hubert was a drug addict. This affliction was to prove disastrous. When he arrived at the Old Bailey that day, Hubert told Casswell that he had been involved in a taxi accident, so was in an extremely nervous state. But shortly afterwards, having taken the drugs to which he was addicted, Hubert appeared confident, happy and on ‘a cloud of drug-induced euphoria’. He was then ready to enter the witness box.

Initially questioned by Casswell, Hubert stated that he had interviewed Heath several times and that he was, in his view, certifiably insane. Throughout his evidence, which was to last an hour and thirty-three minutes, Hubert was hesitant in manner and paused frequently, ‘sometimes for quite a long time’, already giving the jury the impression that he was unsure of his own opinion. But it was his confused and inconsistent performance under cross-examination that Casswell thought ‘quite ghastly’.

Anthony Hawke, with his ‘customary bland courtesy and softly spoken voice’, dramatically undermined Hubert’s testimony with biting irony, alerting the jury to the weaknesses in Hubert’s testimony by the repeated use of the killer phrase ‘with great respect’.

‘I take it from your evidence that at the time Heath murdered Margery Gardner he knew that he was doing something that was wrong?’

‘No.’

‘May I take it that he knew what he was doing?’

‘Yes.’

‘That he knew that he had bound and tied a young woman lying on a bed?’

‘Yes.’

‘That he knew when he inflicted seventeen lashes on her with a thong that he was inflicting seventeen lashes with a thong?’

‘Yes.’

‘He knew all those things?’

‘Yes.’

‘But he did not know that they were wrong?’

‘He knew the consequences.’

‘I did not ask that, you know, with great respect.’

‘He did not consider it wrong, no.’

‘
Did not consider
is not the question I asked, with great respect. I asked you whether he knew.’

‘No.’
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Hubert argued that Heath felt that his sadism was an expression of his sexuality and that he therefore felt it right to practise it.

‘Are you saying, with your responsibility, standing there, that a person in that frame of mind is free from criminal responsibility if what he does causes grievous bodily harm or death?’

‘At the time, yes.’

‘His criminal responsibility does not arise at a particular time. I asked whether, with your responsibility, you say that a perverted sadist who knows perfectly well what he is doing when he satisfies his perverted instinct is free from criminal responsibility because he finds the necessity to satisfy it?’

‘My answer is “yes”, because on questioning sexual perverts they appear to show no regret or remorse quite frequently.’

‘Would it be your view that a person who finds it convenient at the moment to forge a cheque in order to free himself from financial responsibility is entitled to say that he thought it was right, and therefore he is free from the responsibility of what he does?’

‘He may think so, yes.’

‘Do you say that the person who has been proved to commit forgery for the purpose of improving his financial stability is entitled to claim insanity within the M’Naghten Rules as a defence?’

‘I think he does it because he has no strong sense of right and wrong at all.’

‘With great respect, Dr Hubert, I did not ask you what
he
thought. I asked you whether
you
thought he was entitled to claim exemption from responsibility on the ground of insanity?’

‘Yes, I do.’
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Hubert had fallen straight into the trap that Hawke had carefully laid for him. He had forgotten that he was supposed to be arguing that Heath didn’t know what he was doing was wrong. In the end he had admitted that Heath could just not help himself, the doctrine of ‘irresistible impulse’ that was completely unacceptable in law. This point was not lost on Heath himself. Throughout the trial he had been sending notes to Casswell (twenty-two in all), observations and questions about the witnesses. At this point he sent a note to Casswell via the court usher:

It may be of interest to know that in my discussions with Hubert,
I
have never suggested that I should be excused or that I told him I felt I should because of insanity. This evidence is Hubert’s opinion – not what I have suggested he say on my behalf.
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Hubert had posited an indiscriminate licence to commit crime. If the criminal thought his acts were right – however modest or extreme – then they must be so. Years later, in his memoirs, Casswell detected a note of special pleading in Hubert’s testimony. In seeking to justify Heath’s behaviour in this way, perhaps he was attempting to exonerate himself for his own sins? Less than a year after the trial, Hubert was found dead in the bathroom of his house in Old Church Street in Chelsea. He had taken a lethal cocktail of barbituric acid and chloral hydrate. Whether his suicide was related to his performance at Heath’s trial was never confirmed.

Under further cross-examination, Hubert suggested that Heath might be suffering from ‘moral deficiency’ or ‘moral insanity’. The prosecution was quick to pick him up on this. Was he saying that Heath was a ‘moral defective’? Hawke was keen to push this line of questioning as he was about to bring up a point of law. In the Mental Deficiency Act of 1927, a ‘moral defective’ must have exhibited criminal propensities before the age of eighteen. Asked if Hubert knew of any evidence from Heath’s youth in which he had displayed vicious or criminal traits, Hubert said he had none. Hawke concluded that in that case, Heath could not possibly be a moral defective as outlined in the law. Outmanoeuvred, Hubert was stumped, admitting, ‘It is difficult to prove.’
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Casswell was relying on Hubert to introduce evidence from Heath’s past that might have relevance to the indictment. If Hubert raised the incident with Pauline Brees at the Strand Palace Hotel, the jury could be made aware that Heath had previously practised consensual sado-masochistic sex with no serious consequences. By doing so, he might also have raised the issue that the incident with Margery Gardner might have been consensual, too. When Hawke asked Hubert if he had any evidence that Heath had exhibited any cruelty in the past, Hubert said that there was.

‘What evidence?’ asked Hawke.

‘That similar acts without such consequences have occurred before, yes.’

‘When?’

‘At different dates in the past.’

‘Could you give me them?’

‘No.’
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Though he was certainly aware of the incident at the Strand Palace Hotel, Hubert seemed to have forgotten all about it. After re-examining him, Casswell declared that that was the case for the defence. Anthony Hawke then called two medical witnesses in answer to Hubert’s testimony. Dr Grierson and Dr Young were both respected in their field as senior prison medical officers at Brixton and Wormwood Scrubs respectively, but neither had the qualifications and clinical experience that Dr Hubert had and neither were specialists in psychiatric medicine. But with the destruction of Dr Hubert’s testimony by the prosection, far from being debated, proved or disproved, the issue of Heath’s insanity was barely even discussed.

On the third day of the trial, there were few witnesses left to question. As it appeared that a verdict would be expected later that day, Heath chose not to wear his RAF tie ‘at the last “knockings”’ – as if wearing it whilst the death sentence was passed would in some way be an insult to the service. At the beginning of the day, Rosemary Tyndale-Biscoe, one of the two female jurors, submitted three questions that she felt had not been raised so far. The questions were very perceptive and give the only indication we have (the jury’s discussion process being completely private) of the debate that took place within the jury room. None of the issues raised by these questions had been touched on in the trial. Was Heath financially embarrassed? Had he been drinking on the night of the two murders? And, crucially, was there anything in Heath’s present mental condition that might have affected his brain recently?
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The questions were perfunctorily dealt with, Mr Justice Morris attaching little importance to them. But each of these issues was extremely relevant to Heath’s behaviour in the days before the murders. With no money he had conjured the scheme to fly Harry Ashbrook over to Copenhagen – a journey he surely had no hope of making. He then proceeded to drink his way through his £30 fee until he was paralytically drunk. Each of these steps surely indicated that Heath had reached the end of the line. He didn’t care what happened to him. He had developed psychological problems throughout the war years, exacerbated by baling out of his plane over Venlo and brought to the fore by his divorce. Fielding-Johnson’s evidence had not been heard;
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consequently there was no probing investigation of Heath’s past and how it might have had an impact on his actions.

Cross-examining Dr Grierson, Casswell suggested that he had failed to secure Heath’s trust when interviewing him and that as a consequence, Heath had held back his true feelings. He suggested that Heath might have felt distrustful because he was aware that a document headed ‘Confidential and Medical’ had been confiscated by the prison authorities – the document he had written about his past life which referred to various losses of memory and the incident at the Strand Palace Hotel. Casswell may well have been trying to introduce the contents of the document as evidence, but when Grierson was presented with it, he said he’d never seen it before and simply handed it back. Warning Casswell as politely as possible, Justice Morris made clear that he was not permitted to submit any new evidence as the defence had already rested their case. Consequently, the incident with Pauline Brees at the Strand Palace Hotel was completely lost on the jury in a series of cryptic references and Heath’s claim to losses of memory and blackouts was never aired in court at all.

In his closing speech, for the first time, Casswell touched, almost in passing, on the issue that might have been one of the root causes of Heath’s violent behaviour – his experiences during the war.

He is one of thousands of young men who has taken his life in his hands and risked one of the most painful of deaths, by burning, on your behalf and mine. You may think that the life which has been led by a young airman is just the sort of life that might bring to the surface a defect of reasoning which had been hitherto hidden in his life. That is the only reason I refer to that. The human frame was not built to fly in machines and be fired at. The human frame and human people have had to put up with shocks and risks and dangers which were unknown up to the present generation . . . The human frame and the human mind were not intended to meet with such awful shocks as they have had to meet with in the past few years, and it may be that they have not yet evolved such an immunity as to leave them normal after they have gone through those sorts of experiences. You may yourselves come to the conclusion that that kind of experience may have something to do with the outburst, the admitted outbursts, of sadism in this man after the war was over.
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