When Mr Justice Rainer took his seat on the bench after lunch, Ben remained standing.
‘Yes, Mr Schroeder,’ the judge said.
‘My Lord, I’ve asked for the jury to be kept out of court so that we can deal with a question of law.’
‘Yes, very well.’
‘My Lord, the point is this. Susan Lang was represented in the family proceedings in front of Mr Justice Wesley by a solicitor, Miss Turner, and counsel, Miss Fisk. Both Miss Turner and Miss Fisk have made witness statements, which my learned friend has seen. May I invite your Lordship to read them?’
Geoffrey took the statements from Ben and handed them to the clerk, who in turn passed them up to the judge. Ben did not sit down entirely, but leaned against the back of counsel’s row while the judge read. It did not take him long. He nodded to indicate that he had finished.
‘My Lord, this evidence is clearly relevant. Mr Lang says that he was threatened with violence by Daniel Cleary, and that was why he took the knife with him on 28 April. The prosecution dispute that. The independent evidence of Miss Fisk and Miss Turner is that Daniel Cleary was making threats against Mr Lang on behalf of Susan Lang. That is bound to assist the jury in deciding where the truth lies.
‘The difficulty I face is that when Susan Lang said these things to Miss Turner and Miss Fisk, they were acting as her legal representatives, and on the face of it, whatever she said to them is privileged. I concede that the privilege between lawyer and client does not come to an end automatically if the client dies. But I submit that there are two reasons why your Lordship should rule that the privilege must be set aside in this case, to allow this evidence to go before the jury. I have handed up a copy of Cross, with the relevant passages flagged up. If I may take your Lordship through them –’
The judge shook his head.
‘There’s no need, Mr Schroeder. I did my homework during the lunch break. You say, firstly, that there can be no privilege because the statements Susan Lang made were in furtherance of a crime – namely threatening violence with the intention of improperly influencing the outcome of the family proceedings. Secondly, you say that I should make new law and hold that the privilege cannot be maintained where it would deprive a defendant accused of a serious crime of evidence relevant to his defence. Is that correct?’
Ben smiled. ‘I couldn’t have put it better, my Lord.’
‘Yes,’ the judge said. ‘Well, I should have thought that both those arguments were plainly right. Let me hear what Mr Pilkington says about it.’
Andrew stood slowly.
‘My Lord, the privilege between lawyer and client is a strong one, and there is no authority that a court can set it aside merely because it may be convenient to the parties in other proceedings.’
‘Even when the evidence may be necessary in the interests of a fair trial for a man accused of murder?’ the judge asked.
Andrew hesitated.
‘There is no authority that allows the court to set the privilege aside.’
Mr Justice Rainer nodded.
‘What do you say about the argument that the statements were made in furtherance of a crime?’
‘The statements may have indicated that Mrs Lang was involved in a crime, my Lord, but the statements she made to her lawyers weren’t in furtherance of a crime. In fact, quite the contrary. Telling the lawyers made it likely that something would be done to discourage her from continuing with her plan to commit the crime.’
Andrew sat down.
Ben was about to rise, but he saw the judge shake his head. It wasn’t necessary for him to reply to what Andrew had said.
‘I can deal with this question quite shortly,’ the judge said. ‘The prosecution say that I have no power to allow relevant evidence to go before the jury, even though it may make a decisive difference to the way in which the jury view the case. I would have to be given a very strong reason to keep from a jury evidence that may assist the defence in a case of murder, and I have been given no such reason.
‘Mr Schroeder argues that the statements were made in furtherance of a crime, and therefore, are not privileged in the first place. Mr Pilkington agrees that the privilege would not arise if that were correct, but he says that for Mrs Lang to tell her lawyers what she had done would not have been in furtherance of the crime. Firstly, a crime was certainly involved. If the evidence is correct, it suggests that both Mrs Lang and Mr Cleary were committing the offence of blackmail and perhaps other offences, such as perverting the course of justice. Secondly, for Mrs Lang to take her lawyers into her confidence about it, perhaps hoping to persuade them to conduct the proceedings in a certain way, or perhaps to persuade them to cover up for her, seems to me to be clearly in furtherance of crime. For that reason, I do not need to set a privilege aside. There was no privilege to begin with.
‘If I am wrong about that, Mr Schroeder argues that I should make new law and hold that the privilege must be set aside when it would prevent a jury from hearing evidence relevant to the defence of a man accused of a serious crime, such as murder. I am clearly of the opinion that, if that is not already the law – and it seems from a perusal of Cross and Archbold that there is at present no rule to that effect – it certainly should be the law. Professor Cross, an eminent authority on the law of evidence, seems to support that view.
‘Quite apart from that, this man Daniel Cleary – or “Danny Ice”, as he likes to call himself – has hung over this trial like a black cloud, and it is time to let some light back in. Cleary has an appalling criminal record for offences similar to the one he threatened to commit against Henry Lang, and it cannot be doubted that he is a wicked and dangerous man. It would be outrageous to prevent the jury from hearing independent evidence that Cleary drove Mr Lang to desperate measures at the instigation of his wife. It might very well lead to a miscarriage of justice.
‘It is important to note that Mrs Lang – the client and the beneficiary of the privilege – is dead, and can have no continuing interest in the privilege. Whether the law should be the same where the client is still alive, I need not decide today, and I leave that question open. But in this case, I declare the law to be this: that, where privileged information is relevant to the defence of a man accused of a serious crime, and where it may make a difference to the jury’s determination of the question of guilt or innocence, the legal privilege cannot be allowed to stand in the way of the evidence being presented to the jury. I will allow the defence to present the evidence. Let’s have the jury back.’
‘I’m much obliged,’ Ben said.
Andrew stood again.
‘My Lord, while the jury are still out, with some reluctance, I ask your Lordship to discharge the jury and order that this case begin again in front of a different judge.’
Mr Justice Rainer smiled.
‘Why, Mr Pilkington? Because I have ruled against you?’
‘No, my Lord. Before lunch, your Lordship intervened to question the points I was making to Mr Lang in cross-examination, in such a way as to suggest that your Lordship was taking sides. The prosecution is just as much entitled to an impartial judge as the defence.’
‘I was simply drawing attention to the obvious,’ the judge replied.
‘Your Lordship was doing it in such a way as to discredit my cross-examination,’ Andrew said. He paused. ‘In addition, I am disturbed that your Lordship was able to anticipate, not only the application my learned friend Mr Schroeder was going to make this afternoon, but also the arguments he was going to present, to such an extent that your Lordship was able to research them over lunch.’
There was a silence.
‘I am disturbed that your Lordship was able to do all that before he was even shown the witness statements in question. It implies that your Lordship has been receiving input into this case from some outside source, rather than relying on counsel, which, with respect, is improper.’
‘Andrew…’ Ben whispered.
Mr Justice Rainer did not reply immediately.
‘Mr Pilkington,’ he said, ‘I am not going to be drawn into an unseemly argument with you. I strongly advise you to be cautious before you address a judge of the High Court in the manner in which you have addressed me. There is no basis for discharging the jury, and your application to do so is refused.’
Ben saw Andrew opening his mouth to respond.
‘Andrew,’ he repeated, this time loudly enough to make sure he was heard.
Andrew looked at him sharply.
Ben shook his head vigorously.
‘No.’
Reluctantly, Andrew sat down.
‘Jury, please,’ the judge directed.