‘Hard cases make bad law’ is a saying generally related to decisions which err on the side of sympathy, or which seem to bend legal doctrines to exonerate people who have acted reasonably. It is not heard much these days in Britain, where a Human Rights Act permits judges to interpret the law with due regard to humanity and civil liberty. Before that reform in 1998, I did find a number of cases ‘hard’ in other ways. The first marked the only occasion in my career when I have been criticised by an appellate court – for doing something in defence of a madam that it was said no ‘experienced’ counsel would have done, other than Rumpole, who would have gotten away with it. But the hardest cases, in terms of the toll they took on defenders of the sometimes innocent, were the ‘terrorist trials’ of Irish men and women suspected of IRA atrocities. Then there is a story about the perennial dilemma of what Americans call ‘the fruit of the poison tree’ – whether to proceed against citizens whom agents of the state have tempted to commit crime. And then the case on my conscience, where I failed to convince a jury (although I convinced half of them) that my client was not guilty of murder. Finally, my own case, when I was hauled before a disciplinary committee to face an allegation from a powerful newspaper.

* * *

I started as a barrister by grubbing around magistrates’ courts and mitigating after ‘guilty’ pleas at the Bailey. The brief to plead for Cynthia Payne, when it arrived on my desk, seemed unexceptional and uninteresting. She was a middle-aged madam, charged with ‘keeping a disorderly house’ in the genteel south London suburb of Streatham. It had been surveilled over the months by a team of fifty local police, who noted descriptive details about her male customers caught in flagrante (and allowed to leave) when they raided the house to arrest Cynthia. She had all sorts of medical problems but had drawn a severe judge, and I would have to extricate whatever mitigating features I could find in the facts, and make a final speech that might induce him to mercy. The facts suggested only one line of mitigation – her clients were all middle-aged and upper-middle class. The police had observed them:

Man in dark suit, 45–50

Man, 60, bald, blue blazer

Middle-aged man, black suit, white shirt and tie

Very smart elderly man

Man, 50, white Rover car

Man in trilby hat, briefcase

Man in smart-looking suit, smoking pipe

Clearly, they all knew what they were getting up to. And the house (as the prosecutor had to admit) was anything but disorderly: ‘It was a large and well-run house, run by an experienced and able brothel-keeper.’ She shared it with a former RAF Spitfire pilot, decorated for his war service, who lived there in return for being allowed to work as her ‘slave’. They held party nights, on which men who paid £25 were given a luncheon voucher that entitled them to mount the stairs and the ladies waiting in the bedrooms. Surely, I thought, with my law school criminology course fairly fresh in my mind, this was not a crime that merited imprisonment for Cynthia? The women were not all in it for the money – there was a sub-postmistress from Glamorgan, for example, who said she came to Cynthia’s parties for fun. As the prosecutor explained, ‘I emphasise that there was no question of any of the girls being forced or coerced into prostitution … they could, without being facetious, be described as amateurs taking part to raise money for Christmas.’

The day before the hearing I was visited by Cynthia and some leaders of her trade union – the English Collective of Prostitutes. They explained that Cynthia’s services were not only to middle-aged and elderly men, but to the women, by providing them with a safe place to work, with classy clients and an ex-squadron leader to keep order. The English law on prostitution forced women in that profession to work without male company (or else that male would be guilty of ‘living off immoral earnings’) and alone, in cramped, unattractive flats, where they were prey to abusive, drunken or violent customers. The alternative was to work on the streets, which was worse, because it was even more probable they would be assaulted, and easier for police to accost and blackmail them.

I had no experience of English (or Australian) prostitutes, but the law certainly seemed an ass, at least for sex workers. The men, who had instigated the crime, were always allowed to walk away. I wondered who they were. The police had at least taken their occupations, so the next morning before court I had a whispered conversation with the superintendent in charge of the case. When he gave evidence, I asked some questions:

The press reporters scribbled furiously, and one or two left to phone in their copy for the evening papers. I made my mitigation pitch to the judge, with words that I naïvely thought might move him to mercy:

Your Honour, by the plea of ‘guilty’ to these offences, Cynthia Payne recognises that the party is over and she, and she alone, is picking up the tab. The fifty men who flocked to Ambleside Avenue have escaped punishment, as men always do in this class of offence. The Wolfenden Committee, reporting in 1957, pointed out that if there were no customers, there would be no prostitutes. That is true today and has always been true.

Cynthia Payne was called upon to provide those men with good times … endless parades of suburban male respectability beating a path to the door, queuing on the stairs, waiting for a vacant room. Had the police not raided, the men would have donned their trilbies, picked up their briefcases, adjusted their ties and gone off to their otherwise respectable lives. Now their hostess is in peril of imprisonment. They took their pleasures and departed, and she stands alone in the dock.

… It is easy for barristers to condemn frailty and wish that people were better behaved. In view of the evidence in this case, that would sound rather smug. All I can ask is that Cynthia Payne receive a measure of mercy for her misbehaviour, frivolity and immaturity, and some understanding of the pressure on her from her own social circle and the eager demands of her male customers, recognising ultimately that without those customers there would be no prostitutes.

This was a speech that produced aggravation rather than mitigation. It inflamed the judge, who gave Cynthia eighteen months in prison, as well as a massive fine. How dare I, an upstart Australian barrister, use the disposal of a brothel-keeper to expose British hypocrisy? Much of the fury I encountered from the three judges in a hastily summoned Court of Appeal was provoked by the fact that the story had been on the front page of all the newspapers – the luncheon-voucher brothel where the upper classes (and ‘several vicars’ – how the press loved that) took their pleasures, while the woman who provided them went to prison. The story flew around the world. There was a full-page essay on the case in Time magazine, taking as its text King Lear’s indictment of sexual hypocrisy: ‘Thou rascal beadle, hold thy bloody hand. Why dost thou lash that whore? Strip thine own back. Thy blood hotly lusts to use her in that kind for which thou whipst her.’ My mother telephoned from Sydney, having been alerted by a neighbour: ‘You have made it to the front page of Mr Murdoch’s Mirror, dear. Fortunately, they spelled your name wrongly.’

The legal establishment had never been more humiliated, and it had to act. Appeals usually took a year but something had to be done quickly – women had started to demonstrate outside courts, with awkward demands such as ‘Where are our women judges?’ (At the time, there was only one in the UK.) The Court of Appeal convened in record time – just two weeks. It was presided over by Fred Lawton, who had been a prominent fascist in the ’30s, marching through the Temple in his brown shirt as one of Oswald Mosley’s officers. As if to atone, he had become the most moralising of judges, and now he was apoplectic, my questions to the police officer being the object of his anger. ‘If you hadn’t asked these question, this case would have been reported in four lines in the Streatham Gazette!’

But if I had not asked them, my client would not be having her appeal heard only two weeks after her eighteen-month sentence was pronounced, and would certainly not be having that sentence cut by a year. That was the answer which went through my mind, in a Rumpole-like voiceover, but I did not dare to give it. I did not dare say anything, as another judge continued: ‘And there would have been no cartoons.’

‘Ahh – those cartoons,’ groaned Lawton, wincing visibly at the memory. The wittiest was on the front page of The Guardian. It showed a vicar in bed with a prostitute, confronted by a perplexed police officer. ‘I demand to see my solicitor,’ says the vicar, ‘who is in the next bedroom.’

Having remarked that the revelatory questions would not have been asked ‘by a counsel with more experience’ (in which case his client would have been disposed of without publicity or appeal), they reduced her sentence, and in a couple of months she was set free. Cynthia left prison in a Rolls-Royce, the toast of the tabloids, and was taken directly to the BBC, where she was interviewed on Newsnight. She was solemnly asked why she had refused to allow me to identify her famous clients. She paused, in deep thought. ‘Well,’ she eventually answered. ‘Me morals may be low, but me ethics is high.’ She had found a distinction that had eluded philosophers for centuries. Her future on the chat-show circuit was assured.

Some years later, after the inevitable book (An English Madam by Paul Bailey) came the inevitable film, Personal Services. Terry Jones, its ex-Monty Python producer, wanted it to end with Cynthia’s sentence being delivered by a judge whom we recognise, in the last frame, as her first client. I was asked to advise on the libel risks, and pronounced them obvious and enormous (although every prostitute I ever defended boasted of having had judges for clients – usually, I suspect, mistaking solicitors’ clerks for their more esteemed colleagues). Terry solved the libel problem creatively, with a last scene in which the camera panned around the court to reveal every male in it – judge, barristers, solicitors, clerks and ushers – as her former clients.

Too much public time and money was spent in those days on ‘vice’ in the courts, prosecuting and condemning it. ‘It’, as Elinor Glyn apostrophised, undoubtedly corrupted – the laws, and the police who corruptly enforced them. There is no solution to the problem of prostitution and pornography short of decriminalising the trade and treating those who ply it, like Cynthia Payne, as workers in a sex industry which should be regulated for everyone’s health and safety. The alternative is to prosecute the clients for the crime of paying for sex – a law that has now been introduced, with mixed results, in Sweden. The most piquant comment on Cynthia’s crime of ‘running a disorderly house’ came from her neighbour in Ambleside Avenue, the composer Carl Davis, who said that he had never heard any noise from next door. The old men queuing on her stairs clutching their luncheon vouchers were both sad and comic, but they did not spill out into the street to frighten the musicians.

* * *

There were much more serious, much harder cases. My early days at the Bar coincided with the resurgence of mainland violence by the IRA, which began with the bombing of the Old Bailey in 1973 and continued the following year with explosions in two Birmingham pubs that took twenty-one innocent lives. These atrocities put pressure on police to produce results. They did so by recording false confessions from suspects – the alleged perpetrators of the two pub bombings, who became known as the Birmingham Six, for example, served seventeen years in prison before the advance of science proved that police notes of their alleged admissions had been fabricated.

My concern was that pressure on prosecutors was also leading to rigged trials, and my first book, Reluctant Judas, told the story of Kenneth Lennon, a Sinn Féin supporter turned MI5 informant on the IRA. He had been caught with an IRA member surveying a prison that held three other members and was put on trial, together with his partner, charged with conspiring to break them out of jail. To preserve his cover, the evidence was rigged (with the approval of the DPP) to ensure his acquittal, while his partner was convicted. But the IRA saw through the ruse – why would the police give false but favourable evidence against an Irishman? Why would they tell the jury he had no Sinn Féin literature in his house, for example, when locals knew it was full of Republican pamphlets? A ‘hit squad’ from Ireland picked him up, convicted him after a private trial and executed him, dumping his body by a motorway leading to Gatwick Airport before making their escape to Dublin.

I held no brief for the IRA – they were murderous thugs – but I wanted to expose the way the authorities were bending the rules in this war on terror. Reluctant Judas was welcomed in Ireland and its message had cautious support from The Economist – ‘It would be intolerable if Mr Lennon had been urged to egg on others to commit crimes for which they are now serving long prison sentences if the police can, in fact, fix a trial by a jury, so that their informer is acquitted and his partner convicted.’ That was exactly what they had done, yet few did see it as intolerable. ‘It is absurd and dangerous to apply the Queensbury rules to measures taken by the authorities. In this context there is no “right” or “wrong” – all that matters is success,’ countered the voice of the establishment, the Daily Express.

Soon, I was appearing for IRA suspects, doing the ‘bomb cases’ that I had been warned would damage my career. Miscarriages of justice did occur, but mainly through the mouths of expert witnesses – so-called forensic scientists who would speculate loosely on links between my clients and the parts of the bombs that had been recovered. It was not easy – I had to become an expert on the wiring of circuit boards. And a critical problem with these trials, which have conduced to so many wrongful convictions, was that they were labelled ‘terrorist’ trials, which of itself prejudged the guilt of Irish (especially Irish Republican) defendants. The atmosphere – which jurors picked up – was intimidating and redolent of guilt: there were police sharpshooters on the court roof, police Alsatians prowling the court’s yard and a security helicopter hovering over the Old Bailey, narrowly avoiding collision with the raised sword of Lady Justice. Intense body searches were inflicted on all who entered, including the jurors. For counsel, there was maximum security before you reached your client’s cramped cell, thick with body odour and bad breath and the smell of boiled cabbage and urine. I did notice, however, that the prison officers made one concession to class – they never made us take off our wigs, though we could have smuggled in guns or drugs underneath them.

The ethical problems of giving terrorist suspects a full-blooded defence, as was their right, could be agonising. The most difficult – which I have replayed in Hypotheticals, where it never receives a satisfactory answer – happened to a QC friend. We were co-defending a group of Irish suspects accused of planning terrible atrocities – bombings of summer resort hotels around Britain. There was no evidence against the QC’s client, other than that he had turned up at the door of the ‘safe house’ just before the police arrived. Everyone expected his case to be thrown out by the judge. But this barrister was punctilious, and insisted on going to Scotland Yard to inspect his client’s clothes and property, which had been confiscated by the police on his arrest. They were arrayed on the table by a police officer, who then sat back in a chair reading a copy of The Sun. The QC examined them, finding a Catholic medallion that his apparently devout client had worn around his neck. He held it up and tapped it, and out popped a piece of tissue paper – on which the targets and explosive recipes were minutely written.

In the few seconds before the police officer looked up, the barrister had to decide what to do. He could slide the tissue back into the medallion and hope for his client’s sake that it would not be found. He could say to the cop, ‘Here is the evidence you have been looking for – evidence that my client is guilty.’ Or he could eat the paper, ensuring his client’s acquittal. That is what his solicitor later suggested that his duty to his client required him to do. Unfortunately, or fortunately (depending on your solution to the dilemma), the solicitor had sent an articled clerk, who asked my friend loudly, ‘What’s that? It looks interesting.’ The police officer looked up from his newspaper and took possession of the tissue paper. It became the evidence upon which the client was sentenced to twenty-seven years in prison.

Well, what would you do? Destroying evidence is a crime which counsel has a duty not to commit (so much for the third option). Although every citizen should assist the police, that does not extend to barristers incriminating their own clients (although many think it should), so professional duty rules out the second solution. Faced with that dilemma, I would have shoved the paper back in the medallion and told the client to pray to the Virgin imprinted on it that the secret would stay there, and advised him to find another barrister (because we cannot set up fake stories for clients we know are guilty).

One case that entered the law books involved three young Irish people of good character and university background who had been found by police camping on a hillock with binoculars and poetry books. Their location gave a clear view over the country home and driveway of the Secretary of State for Northern Ireland, and they had noted down the number plates of some of his police protection vehicles. They had no guns, no explosives and no assault rifles, yet they were charged with conspiracy to murder the Cabinet minister. They had well-placed connections in Dublin, where many Republican sympathisers believed that the charge was over-egged. Before the trial, my instructing solicitor asked to see me privately. She opened with an observation. ‘I see that your junior is engaged to the daughter of Hugh Fraser?’ (Fraser was a Tory MP who had been the target of an IRA bomb which had killed someone else.)

‘Yes, that’s right. Ed [Fitzgerald] is a very good junior.’

‘And I’m told that gossip columns say you’re going to marry Nigella Lawson?’ (Nigel, Mrs Thatcher’s Chancellor of the Exchequer, was another IRA target.)

‘Yes, I am told the gossip columns are saying that.’

There was a long silence. ‘Well, how do you think this will look in Dublin?’

‘I think it will look good. Here we are, reportedly about to be married into the establishment, yet prepared to defend the people accused of plotting to kill a Tory minister.’

She slowly shook her head.

‘Come on, do you suggest that the privilege of defending your client requires my junior and me to abandon our intended wives?’ From her steely look, that is exactly what she thought we should do.

The case went ahead and the police had no more evidence. Perhaps they had been bird-watching, we suggested, or collecting evidence for a journalistic exposé of the Northern Ireland Secretary, notorious among Special Branch protection officers for making them labour on his farm. The defendants offered no evidence, as was their right, and my final speech shredded the prosecution speculation – there were lots of reasonable doubts and the jury seemed willing to acquit on the charge that these defendants were definitely planning the murder of a Cabinet minister.

I was driving home – I was booked to fly to Singapore the next day to defend some of Lee Kuan Yew’s detainees – when I heard the six o’clock BBC news. The Northern Ireland Secretary, the alleged target himself, had proposed to abolish the right of silence (i.e. the right that the defendants had just exercised, to say nothing and to have no inference of guilt drawn from their silence) because IRA terrorists were using it to get themselves acquitted. Then on came the loquacious Lord Denning, even more a menace since he had been forced to retire, explaining that every defendant in an IRA trial who claimed the right to silence must for that reason be guilty. The media the next day was so massively prejudicial that I cancelled my flight and returned to court, demanding the right to re-address the jury. Permission was granted, but it was an uphill task to explain to them that Lord Denning knew nothing about criminal law (which was in fact the case – he was a great civil lawyer). The three were convicted and jailed for twenty-five years. It was heartening, however, that when we took the case to the Court of Appeal, it recognised how prejudicial the publicity had been and quashed the convictions (no doubt Dublin was satisfied).44

That might have been why I was instructed to defend Dessie Ellis. His fingerprints were all over the circuit boards of the bombs that had caused civilian casualties in England and killed many soldiers and policemen in Northern Ireland. So dire had been the consequences of his conduct that the Irish Republic had given him up – the first Irishman ever extradited to face ‘British justice’ – a phrase which, since the trial of Roger Casement, had been regarded by Republicans as a contradiction in terms. I did not at first see how Ellis could be defended – the evidence against him was overwhelming, the right to silence would do him no good, and I did not fancy a long Old Bailey trial challenging what in this case seemed accurate scientific evidence. But I usually tell clients that ‘the truth will set you free’, and Ellis told the truth. He had indeed made many of the IRA bombs. He had done so in a remote part of the Republic, where he was told – and believed, otherwise he would not have made them – that they would be used to kill only policemen and British soldiers in Northern Ireland. In other words, he had no intention to kill anyone in England, and he believed his bombs would not be used there. This was a defence in law, but how to put it before an English jury unlikely to credit the distinction, or to believe it should avail a man causally responsible for many deaths?

I called the defendant into the box to give his truthful evidence. I called Bernadette McAliskey, who as Bernadette Devlin had won worldwide fame for leading Catholic protests in the North: she explained to the jury the mindset of Republicans like Dessie Ellis. They saw themselves as soldiers in a war of liberation, entitled in that war to kill their enemies, i.e. British soldiers and Protestant police. Civilians, other than informers, they regarded as off-limits, and they were opposed to extending the war to the English mainland. That was Ellis’s belief (although not shared by other factions in the IRA) and it supported his testimony. For complicated jurisdictional reasons concerned with his extradition, he could not be tried for those Northern Ireland killings, although the jury must have hated him for it. All they were called upon to consider was whether he intended or knew that other IRA factions would use his bombs for explosions in England, in which case he would be jailed for life.

All I can say is that the jury found him ‘not guilty’ – the most extraordinary acquittal, given all the prejudice against him, even in his own country. He had been acquitted because he did not have the criminal intention that the prosecution had alleged, namely to kill people in England. The verdict must have astonished those ‘people in Dublin’ who were shadowy paymasters of the IRA. It would be too much to suggest that it restored their faith in British justice, since they had never had any faith in the first place, but it did show others in the Republic that the traditional enemy could at last give them a fair trial.

* * *

Dr Samuel Johnson – the chambers I shared with John Mortimer were named after him – had a pretty good grasp of human nature. ‘There is’, he asserted, ‘a proof to which you have no right to put a man. You know, humanly speaking, there is a certain degree of temptation, which will overcome any virtue.’ This problem has exercised every criminal justice system since Adam was arraigned in the Garden of Eden: whether to punish a person who has been talked into committing an offence. Eve was not framed, as my dear friend Helena Kennedy contends: she was the first dupe of the state serpent. It lost its power to stand upright as punishment for using her as a honey trap, inveigling Adam into crime.

Police in London rarely ‘solved’ crimes by detection work, but in their ‘war on drugs’ they had no hesitation in using agents provocateurs to set up defendants in sting operations, tempting them to break the law. This power could be abused for corrupt purposes, by police who had a hold over informants who were also drug dealers – they sold the drugs on behalf of police, who took their share of the profits. The police even supplied them with drugs to sell, taken from those seized in other busts. This is an account of an Old Bailey trial which exposed the racket and pushed the law about unfair provocation a little further in favour of the wisdom of Dr Johnson.

Let me set the scene: two young men are playing frisbee on the green in front of Holland House in wealthy Kensington. Rafi, a fly Indian, has not a care in the world: he has a wealthy girlfriend, and does bits of import/export when he needs to boost his self-esteem. His friend is working class, from Newcastle upon Tyne, hip and generous – in fact, he has provided the line of cocaine they have just sniffed to put them in a mood for the game. Rafi has been easily charmed by this new acquaintance, Cornelius Buckley, and calls him, affectionately, ‘Con’. This nickname is appropriate in a way Rafi does not suspect, for Con works with a police team in Notting Hill, conning new acquaintances into drug deals, in the course of which they get nicked. Con is rewarded for his efforts – officially, by a modest £150 per arrest from the Scotland Yard informants’ fund. Unofficially, he receives a proportion of the cannabis seized at each bust, which he recycles in the streets and pubs of Notting Hill Gate, returning a share of his profits to the police. He has already notched up twenty-four arrests and today he is hoping to set up another. So after the game he tells Rafi that he has a friend who owns nightclubs in Birmingham, who ‘has a lot of bread’ (money, for younger readers) and is desperate to obtain 20 kilograms of hash.

Rafi is at first unwilling to help, but over the next few weeks Con works upon him, inveigling him into the joint enterprise out of friendship and the promise of easy profit (the purchasers are offering £14,000, a lot of money in 1976). Rafi is not, and never has been, a drug dealer: he smokes pot, enough to think the law an ass and to make him less worried about breaking it. After several weeks of dangling conversation, Rafi succumbs and approaches a supplier, who is willing to obtain this large amount of cannabis so long as Rafi will take the risk of delivering it to the buyer. Rafi has been persuaded by Con that there is no risk at all – the nightclub owner is a close and trusted friend.

This was how Rafi and the supplier came to drive with a suitcase containing 20 kilograms of hashish to meet Con and his trusted friend in room 7068 of the Kensington Hilton, just off the Shepherd’s Bush roundabout, regularly used by resting or adulterous aircrew after long flights to Heathrow. The supplier waited with the suitcase in the car while Rafi went up to the appointed room. Con opened the door and introduced two big men, who swore loudly and behaved as coarsely as Birmingham nightclub owners might be expected to behave. They placed a large bag crammed with bundles of £20 notes on the table, withdrawn that morning from Scotland Yard’s special vault for used banknotes, in the sum of £14,000, and invited Rafi to count the money. Having quickly done so, he returned to the car, collected the suitcase and brought it to the room so the nightclub owners could inspect the 100 cannabis bricks inside it, each in a linen wrapping, stamped with a special blue-ink seal in Arabic lettering to indicate the batch and date. (These seals were used by Middle East producers to denote the origin of commercially grown cannabis, for an international black market which had become brazen enough to label its product like wine.) At this point, the police officers dropped their pose and handcuffed Rafi, while Con slipped away into the bathroom, scooping up a dozen slabs of cannabis as he went. It was only later, when Rafi was formally charged with being in possession of only 14 kilograms of cannabis, that he realised he’d been set up.

What he did not volunteer, understandably, was how many kilos of the drug had actually been in his possession. People rarely do volunteer the fact that they are more guilty than charged. That was the beauty of these sting operations. The victims were caught red-handed and were happy to plead guilty to the lesser amount, in the hope of a reduced prison sentence. The missing slabs, their labels intact, would stay in Con’s shoulder bag until he sold them on the street, at street prices, and handed the proceeds to the detectives. Everyone profited and no one complained. And the best thing was that the actual evidence went up in smoke. All except for the Arabic seals, which Con, as a cannabis connoisseur, kept, in the way others collected stamps. His role as an informant who participated in the offence would never be disclosed, because judges in this period routinely refused to order the identification of police informants, believing that this was ‘not in the public interest’. Indeed, no trials were ever expected to take place: men like Rafi would all plead guilty, make their excuses and go to prison. Being conned by an agent provocateur was not a defence in English law.

In the US, if defendants admit that they committed a crime but satisfy the court that they would not have done so without the ‘creative activity’ of the police or their agents, they are entitled to acquittal. In the words of American Supreme Court Justice Felix Frankfurter:

The power of government is abused and directed to an end for which it was not constituted when employed to promote rather than to detect crime and to bring about the downfall of those who, left to themselves, might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.

‘Entrapment’, as it is called, is not an easy defence to run, because the court will draw a line between the trap for the unwary innocent and the trap for the unwary criminal, and will readily infer that far from being a lamb led to the slaughter, the defendant is a wolf snared on the prowl. Nonetheless, an entrapment defence would have succeeded for Rafi, who was not a drug trafficker and would not have become involved in a big drugs deal had it not been for Con’s persistent persuasion and the temptation of a promised suitcase full of cash.

But we were not in the US; we were in the Old Bailey. Rafi and this supplier’s choice of counsel, however, led to a remarkable coincidence, which gave the makings of a possible acquittal. I happened to have been briefed not only for Rafi but for a defendant in another drug bust carried out by the team of police officers who were using the services of ‘Con’. My instructions mentioned, in passing, that the charges seemed to relate to less cannabis than the defendant had actually supplied. ‘How interesting,’ said Mike Mansfield, the barrister who was acting for the supplier, Rafi’s co-defendant. ‘I’ve just had a brief in another case where exactly the same thing has happened – same informer, same mysterious shrinking cannabis.’

There might not have been an entrapment defence, but there was a thin but discernible line of legal authority to the effect that every trial judge has an inherent power to exclude evidence ‘obtained by conduct of which the Crown ought not to take advantage, even though tendered for the suppression of crime’. The moral imperative – ‘ought’ – seemed to open the window, at least a crack, to the full blast of an argument about the immorality of the state itself creating the crimes it was meant to be prohibiting. It would not be a ‘defence’ which could be laid before a jury, but we might just prevail upon a fair-minded judge, before the trial commenced, to throw out evidence obtained by a flagrant agent provocateur, and the prosecution would have to be withdrawn. Nonetheless, no one would regard our suspicions, although based on similarities in four different cases, as proof of anything. We needed Con. Not the smooth-talking Con who had duped all these dopes, but a reformed and repentant Con, willing to tell the truth under oath in the witness box.

‘Turning’ Con to this extent – 180 degrees – was beyond the power of any defence solicitor, who would first have to find him somewhere in the basements of Notting Hill. ‘And I don’t like the media,’ said Mike (who has changed in this respect). But I thought it was our only hope. The Sunday Times, under my friend Harold Evans, was a newspaper with the resources to uncover injustice, and its ‘Insight’ team had recently hired David May, the former editor of Time Out, who did not need a compass to find his way around Notting Hill basements. David tracked Con down just as the trial was about to start, and demanded an interview. Con ran for his life. But the next day he turned up at the Sunday Times with an unusual request. He wanted protection, not from all the people on whom he had informed, but from the police officers who controlled him with their threats to put him behind bars if he didn’t hand over the profits from selling ‘their’ drugs. David was careful not to offer Con money: he wanted the truth, on tape. It was the only way, he explained to Con, that he could free himself from the clutches of Scotland Yard. Con said he would think the matter over.

Meanwhile, in the courtroom, the crunch had almost come. I had persuaded the judge to hold an inquiry, before a jury was sworn, into whether the evidence – seventy-seven slabs of cannabis, piled high on the exhibits table – had been obtained so unconscionably that the prosecution ought not to take advantage of it. The police officers were outraged by the suggestion. Con was a reliable and trusted informer, they swore, whose behaviour gave them no reason to suspect that he was acting as an agent provocateur. They knew nothing about any missing cannabis, and treated my cross-examination with practised derision. The senior officer turned to the judge: ‘I have no idea what counsel is talking about.’ The judge nodded grimly, as if to indicate that his patience was wearing thin. I put Rafi into the witness box to explain how he had been persuaded to commit a crime he would otherwise never have contemplated, but the judge seemed unconvinced.

I told David May we had run out of time: unless Con told the truth that evening, Rafi would have to plead guilty. At 2.40 a.m., David woke me with a call to say that Con had just confessed, on tape, to everything we had suspected. I subpoenaed him to repeat his taped confession in court. Unless prosecuting counsel could shake him, this case would die of shame.

He came to the Old Bailey nervous and subdued, casting frightened glances at the police officers he was about to accuse. He told a disconsolate story, of drifting to London and becoming a persistent if minor criminal in the Notting Hill area. He was terrified of prison: his petty-criminal father had hanged himself rather than face a custodial sentence. So the police team had a strong hold on him. ‘You will go away for a very long time,’ he was told, unless he did them some favours. That meant informing on accomplices and providing regular ‘drinks’ for the police out of his reward money and earnings from drug deals. So he went to work, specialising in drug busts. He had pursued Rafi tenaciously because he saw the possibility of a lucky break – a big deal, from which he could make a lot of money. ‘Rafi wanted to back out of the deal, he was trying to lose me, but I was holding on. He trusted me. The police told me to encourage him, so I tried to make him feel at ease – I tried every trick in the book.’ At the time of the bust in the Hilton, he had snatched some cannabis bricks before he was pushed into the bathroom, where, he said, the police officer met him afterwards to put ‘a little present’ – more cannabis bricks – in his shoulder bag. The police would want their share of the proceeds: ‘Where’s my drinks money?’ was their routine greeting. Why had he finally agreed to tell his story to the Sunday Times? ‘An innocent man is in the dock because of me.’ The remorse in his voice sounded genuine.

The prosecutor (Allan Green, later the DPP) had prepared his first question carefully. ‘I put it to you, Mr Buckley,’ he said confidently, ‘that you have not one scrap of evidence, not one scrap, to support the story you have been telling us.’

There was a long silence, Con’s face crinkling with the effort of some internal memory scan. ‘We-ell,’ he said eventually, ‘as a matter of fact, I do.’

It was not the answer the prosecutor had expected. ‘And where is this evidence, Mr Buckley?’

‘It’s in me mum’s flat up in Stoke-on-Trent. It’s under me bed, actually, in an old shoebox.’

The stout barrister valiantly tried to avoid collapse. ‘And, Mr Buckley, what evidence would we find in this shoebox to support your story?’

‘It’s me box of cannabis seals. I’ve kept them all, you see. The labels of the cannabis I was given to sell. I’m sure some of the seals from this load are there.’

The judge called an early adjournment: arrangements would be made to retrieve the shoebox and bring it, unopened, down to the Old Bailey on the morrow.

The next morning, while we awaited the dispatch rider, Con was invited to inspect the seventy-seven slabs of cannabis – that part of the load at the Hilton which had made it into police custody. ‘Just tell us, Mr Buckley, which of these ink seals do you have in your shoebox?’ As the coverings of the bricks were handed to him, Con’s eyes lit up. He sniffed them as if they were the corks of vintage wine. Finally he selected eight different seals, which he said would match eight of those from his bedroom collection.

The shoebox duly arrived and was solemnly handed to Con as he stood in the witness box. Eight seals from the Hilton haul were laid out like playing cards on the desk in front of him. He opened his shoebox and produced one matching label, then another. ‘Snap’ – eight times. It was a wholly convincing performance. His hobby had produced the evidence which proved that Con had been in possession of blocks from the same shipment as the Hilton cannabis: the only reasonable deduction was that they had come from the same bust. How, now, were the police to explain this?

They were forced to troop back into the witness box to deny, unconvincingly, Con’s allegations. How had Con come into possession of the ink seals which matched those on the wrappings of the cannabis slabs seized in room 7068 at the Kensington Hilton? ‘It’s a mystery to me, sir,’ was the reply from a rather more respectful police inspector. All vigorously denied the allegations that they had ‘licensed’ Con to deal in drugs and had taken their cut from his reward money, but in order to do so their confident assertions, made the previous week, about Con’s reliability as an informer had to be jettisoned. It was not long before we had some new police officers sitting in the back of the court. They were from A10, Scotland Yard’s special squad which investigated allegations of corruption against police officers.

In the end, the judge had no doubt that the prosecution evidence should be excluded. Buckley, he held, was plainly an agent provocateur; Rafi was not dealing in cannabis and would not have done so without Con’s persuasion. Although informers were vital to detection work, it would be ‘unfair and ignoble’ to allow a prosecution based on the work of this informer to proceed. He directed that the evidence against the police should be sent to the DPP. Rafi was released from the cells below the Old Bailey, to stumble blinking into the summer sunshine. He had obtained a large amount of cannabis and had tried to sell it, and yet now he was free. Buckley-related drugs cases awaiting trial were abandoned, which meant that twenty-four prisoners convicted by the team had to be released. The full story was recorded on the front page of the Sunday Times, telling the tale of ‘Cornelius and the Case of the Vanishing Drugs’.45

These were remarkable results, and many law enforcers did not like them. They believed that lawyers should not examine the methods by which criminals were brought to book, or argue that evidence of their guilt had been unfairly obtained. It was no business of the courts, in other words, to set standards for the police. It would have been better, said these officials (and some judges agreed with them), had Rafi pleaded guilty and gone to prison for six years, rather than having a trial which provided an opportunity for barristers to make public accusations against Scotland Yard.

The problem with this argument is that misconduct by police or by their agents will rarely be revealed unless there is an opportunity to do so in a court. The very reason police are tempted to conspire with criminals is because they know they will not be informed on by colleagues, nor called to account through internal disciplinary systems. What gives pause to the corrupt policeman is that wild card, the defence barrister, who may just nail him in open court.

* * *

Most barristers will, by the end of their career, have a case that still haunts them – lost because they overlooked a winning argument, or failed to ask a crucial question, or asked one question too many. The case on my conscience is one in which I failed to persuade enough members of a jury – although I persuaded some of them – that my client, a Chinese refugee named Wang Yam, was not guilty of murder. He was later convicted by a majority verdict at a retrial after being defended by another QC, and jailed for life. Wrongly convicted, I believe, in the sense that his guilt could not be proved beyond reasonable doubt, either at the time of his first trial or at his second – and certainly not today, as new evidence came forward after he had spent eight years in prison. The case has become quite notorious: a book has been published disputing the verdict,46 it has had some sensational newspaper coverage and has been taken to the Supreme Court and beyond, i.e. to Strasbourg, where it is pending. It remains a mystery, shrouded in secrecy said to be required by national security.

The murder, in 2006, of 86-year-old Allan Chappelow, seemed particularly brutal. It took place in his house in Downshire Hill, Hampstead – one of London’s most desirable addresses, leading to Hampstead Heath. He was an author, who in the 1960s had written a learned and lengthy biography of George Bernard Shaw and had stored in his large, part-derelict house several tons of the old page proofs. It was under them that his body was finally found by police several weeks after his death. His body was badly decomposed, but forensic evidence suggested that hot wax had been dripped on him, he had been tied up and possibly tortured and had suffered severe blows to the head. There was no clue to point to his killer, other than DNA found on the butts of seven cigarettes in an ashtray, smoked (so I assumed) while the torturer watched his sufferings and waited for him to spill whatever beans he happened to possess.

Soon after finding the body, the police identified their prime and only suspect. He was a Chinese refugee named Wang Yam. They had evidence to show that after the murder he had been busy trying to steal Chappelow’s identity by passing himself off as the dead man in calls to his banks and credit card providers, using information gleaned from stealing his mail. The prosecution theory about the murder (to account for the fact that his passport and other identity documents found in the house had not been taken by the murderer) was that Chappelow had found him on the doorstep in the act of stealing his mail: they had fought and Wang Yam had killed him and buried his body under 560kg of book proofs then quickly made his escape. This theory did not account for the hot wax or the cigarettes – Chappelow was not a smoker, and it was not his DNA on the butts.

Wang Yam, a few weeks after the murder, had travelled to Switzerland. There he was arrested and sent back in custody: his first words to the British police were to request that they dial a telephone number which he said would explain everything. What happened next was the subject of secret hearings; when The Times speculated about them, the paper was prosecuted for contempt, although the case was abandoned after a former Law Lord, writing an article on ‘open justice’ for the London Review of Books, made similar conjectures. Thanks to a court order, even eleven years after the first trial I cannot comment on evidence that was heard in secret, and the European Court of Human Rights cannot be provided with any information about it to assess whether his trial was fair.

Nonetheless, it can be said that Wang Yam’s defence hinged on his claim that he was infiltrating a gang of serious criminals and maintaining his cover by participating in an identity theft they had arranged. The first days of the trial were spent arguing over whether the evidence of Wang Yam’s motivation for becoming involved with this gang could be heard in open court. The judge (and then the Court of Appeal) decided that national security would be imperilled if it was, so R v Wang Yam became the first murder trial in modern English history to have a substantial part of its evidence heard behind closed doors. I argued the case for open justice unsuccessfully and simply note that one of my arguments was that if the evidence was heard in open court, the case would attract a great deal of publicity, which might encourage defence witnesses to come forward. Exactly the sort of witnesses who, eight years later, emerged to cast questions over Wang Yam’s guilt.

Our forensic problem at the trial was that the jury would undoubtedly find that Wang Yam was guilty of theft, or at least handling, of Chappelow’s bank statements and credit cards a week or so after his murder. There was no evidence to connect him to the murder itself, but post hoc ergo propter hoc is a common fallacy. So is over-reliance on circumstantial evidence. This all pointed to Wang Yam – the only man apparently seeking to profit from the death. Jurors were likely to convict him of murder, unless we (I was doing the case with Kirsty Brimelow, a top defender on the verge of taking silk) could come up with another possible suspect. Wang Yam provided the nicknames of three gang members, but they could not be traced. No associates of Chappelow could be brought into the frame. He was presented as a recluse, who seemed to live among his rubble, venturing only to the local library every morning to read The Times. Police made few enquiries among his neighbours – the cops were not really interested, because they thought they had their man.

Legal aid did not extend to provide my over-stretched solicitor with an enquiry agent. I was left to do my own research, and contacted a friend who lived nearby – West Hampstead is full of QCs and Law Lords. I was told that the neighbours had clubbed together to pay for a security company to keep an eye on their properties, but this had made them feel less secure because it was staffed by unfriendly Albanians. I called some evidence about this, but it went nowhere. Nor did my suggestion that Chappelow may have met his murderer on Hampstead Heath, which was well known to be a gay pick-up area at night. I suspected, from going through his possessions and hundreds of his photographs, that he probably was gay, but that was not relevant – unless it could be shown that he was given to assignations at the pick-up places on the Heath. I made such speculative suggestions in my final speech to the jury, but they lacked force – my best point was the lack of any evidence to place Wang Yam inside the house or any incriminating forensics from his flat or his possessions (this murderer would have been splattered with blood). Then there was the mysterious DNA on the cigarette butts of the presumed torturer, waiting (or so it seemed) for Chappelow to disclose the combination of his safe or some other secret while hot wax was dripped on him. At this first trial, the jury could not agree.

Wang Yam was gentle, weak and voluble in a way that psychiatrists would identify as having ‘flight of ideas’. When called to the witness box he wailed inconsolably for five minutes before I could ask him a question. I could not see him as a brutal killer. He was, interestingly enough, Chinese royalty – his grandfather had been Mao’s third in command during the Long March, and was venerated by the Communist Party as a hero – this fact probably saved him from retribution when he turned against it and joined the student revolt in Tiananmen Square. Afterwards, he had been permitted to travel to Britain, where he was admitted as a refugee and involved himself in some anti-Beijing activity. Whether or not his use of Chappelow’s stolen credit cards could be connected with work to infiltrate a criminal gang was the subject of evidence in closed court, and of closed portions of our final speeches to the jury on the charge of murdering Chappelow. Wang Yam was out to profit from Chappelow’s finances, but did he know of the murder, and more importantly did he commit it? The jury could not agree, although it was out deliberating for three days.

At his retrial, the new jury found him guilty. I could not defend him because I had other professional commitments which clashed with the date the court insisted the retrial must take place, but he asked me to return as his counsel for the appeal. The retrial had, however, been fair, and no fresh evidence was available: the jury verdict was allowed to stand.

And stand it did, for eight long years, until his case engaged the attention of the CCRC – the Criminal Cases Review Commission, a body charged with reviewing questionable convictions after all appeals against them have been exhausted, and bringing really doubtful verdicts back to the Court of Appeal, where judges can decide if they should be quashed. The reason for reviewing Wang Yam’s case was that Guardian journalist Duncan Campbell had uncovered three new witnesses. Two of them were not really new – disgracefully, their evidence was known to police even before the first trial but was not passed on to the defence. There was a witness who had reported a mailbox theft near Downshire Hill by violent men, and it had uncanny parallels with the modus operandi allegedly used by Wang Yam. He could not have done it, because he was in prison awaiting trial. The police report – which raised the possibility that these robbers killed Mr Chappelow – was never passed on to the prosecutor, who would have passed it to me. It would have gone before the jury as important evidence for the existence of another suspect.

They would have hesitated to convict had they heard from another ‘new’ witness, an elderly man living nearby who had seen and spoken to a man – white, aged about fifty, with an Irish accent – entering Chappelow’s home just after his death. Although the witness went to the police with this obviously important evidence, a policewoman told him it was irrelevant and sent him on his way. Whether she was irresponsible, or had imbibed the certainty among her team that their suspect, Wang Yam, was guilty, is not clear. Suffice to say this vital witness never came to the knowledge of prosecutor or defence counsel. Had either or both witnesses testified, the impact on the jury would have been such that Wang Yam could well have been acquitted.

It was the third new witness, however, whose testimony would in my view have assured a ‘not guilty’ verdict, although it cast a very different light on the killing. It was delivered precisely and with deadly seriousness by a local government official who seemed to be addressing his own demons as well as the court. He was, late at night on the Heath, a sadomasochist of somewhat extreme bent, prowling for partners of the same predilection, whom he would handcuff, place over what he termed ‘the spanking bench’ and beat unmercifully. He brought the handcuffs – ‘They were not for pleasure,’ he told the judges, elliptically. The man whom he often met, between the hours of 11 p.m. and 3 a.m., and who joined him in these exercises was named Allan, whom he identified as Chappelow. They did not have sex – just shared pain, in this Walpurgisnacht that took place between consenting males three or four times a week, around a bench in a clearing in the woods. Allan had asked him back to his nearby home, but he declined out of concern that the old man wanted sex. ‘I am not into necrophilia,’ he explained, rather cruelly, I thought. But on two occasions he had seen ‘Allan’ leave the scene with another man, possibly headed to the house in Downshire Hill.

The testimony was shocking – in the large, half-empty appeal court where I heard it, shivers ran up spines. It conjured up an entirely different but tantalisingly credible scenario: Chappelow, the distinguished author, transforming at night to the masochist on the Heath, tied up and tortured by volunteers from a semicircle of men clad in black. From this dark spectacle the imagination leapt to the pathologist’s picture of a body tied up and beaten, tortured by hot wax and perhaps burned by cigarettes which were then stubbed out, leaving the DNA of a passing sadist. I had speculated to the jury that the killing might have been by someone he had met on the Heath, but I did not envisage the possibility that Chappelow might have been a willing ‘victim’ in a sadomasochist ritual gone wrong. The pathology could have been interpreted to match this scenario, in which case it would have been unlikely that a jury would find Wang Yam guilty ‘beyond reasonable doubt’.

That was the view of the CCRC, which investigated with great thoroughness and was convinced Wang Yam’s conviction had been a miscarriage of justice. The case against him of murder was circumstantial, and the fresh evidence, it said, must have raised jury doubts. In 2017 it used its power to refer the case back to the Court of Appeal, where I listened to the fresh evidence (I was in court as an interested observer, not as counsel). The appeal judges found the new witnesses credible, but relied on the circumstantial evidence to uphold his conviction. The case serves as a reminder of the fallibility of human justice here – as well as there and everywhere.

* * *

When the farcical trial was over, Mr Geoffrey Robertson QC crowed ‘Mr Scargill is as innocent as a newborn lamb.’ If he believes that, he’ll believe anything … MR SCARGILL IS NO LAMB, MR ROBERTSON. NOR WAS HE BORN YESTERDAY.

The Daily Mirror editorial was understandably bitter. The newspaper had spent a fortune on investigating and condemning miners’ leader Arthur Scargill and the National Union of Mineworkers over their desperate attempts during the 1984–85 miners’ strike to combat the Thatcher government, which was determined to close the pits. There had been trusts created, bank accounts opened, donations put in and taken out, and the Daily Mirror had made these transactions sound deeply dodgy. They had been undertaken, after all, on behalf of miners, men who work with their hands for modest wages. It was outrageous – possibly even criminal – for such people to have trusts in their favour, operated through overseas bank accounts: who did they think they were, Robert Maxwell?

I had encountered the Mirror’s proprietor only once before, when invited to a lunch in his boardroom to unveil his plans for a new, Labour-friendly London evening paper. I was there with other potentially supportive figures – the super-bright Tessa Blackstone (now earning the gratitude of the Bar as head of its Standards Board) and Ken Livingstone, sane and sarcastic (in the days before he went a bit loopy over Hitler). Maxwell, an enormous man with permanent perspiration on his brows, clapped his hands for silence and turned to his features editor, the experienced journalist Yvonne Roberts. ‘Now, show them how our progressive paper will deal with the important issues of the day.’ One important issue of that day concerned Prince Edward, who had just announced his decision to break centuries of royal tradition and not enlist in the armed forces – he had been condemned as ‘the royal wimp’ in most papers. ‘Instead, we shall salute him,’ announced Yvonne confidently. ‘We shall congratulate him for rejecting the military tradition of the royal family, we shall…’ ‘We shall do no such thing,’ Maxwell erupted. ‘We shall condemn this royal wimp…’ He went on, crushing his senior employee, and showing his real character as a bully. When he asked for ideas for the paper, I suggested an ombudsperson, to correct its mistakes, an idea he rather liked and offered me the job. I declined – his face contorted in amazement (nobody refused Robert Maxwell) until I explained that I would in that event be unable to accept briefs to sue his paper. A motive based on money he could understand, and as we broke up he offered me a place on one of his advisory boards. He rattled off a list of politicians he paid to have on his ‘advisory boards’, and doubtless in his pocket. As we left, we noticed the former British ambassador to the US, now his employee, in a glass office framed by golden strips. ‘The gilded cage,’ I whispered to Tessa, or she to me. It was sad that the Labour Party, under the principled Michael Foot, should have to depend on characters like ‘Capt’n Bob’.

Encouraged by ‘Capt’n Bob’ – who was still, at this point, larger than life, his massive theft of his own workers’ pension fund as yet unexposed – a team of rather dim-witted journalists at his Daily Mirror had gone about the business of destroying Arthur Scargill. They had paid £50,000 to his driver, and £80,000 to one of his officials, for information and documentation. They had published the result of their investigations under banner headlines which ran for four days calling Scargill a crook. The miners’ union set up an independent inquiry conducted by a former judge, which exonerated Scargill from all the serious accusations. It did, however, raise a number of criticisms and questions relating to trust law and accounting practice, and it was read with interest by an obscure and hitherto inactive government official called the Certification Officer for Trade Unions. It struck him that the union had not disclosed any trust funds in its 1984 report, and there was an argument in law that it had a duty to do so. There was also an argument in law that it had no duty at all to do so. Instead of asking Parliament to clarify the law, or telling unions that in future funds of this type would need to be notified, the Certification Officer embarked in 1991 on a very belated criminal prosecution for ‘wilful neglect’ to notify his office of the existence of trusts which (although outside the union’s control) were designed to benefit its striking members. The maximum fine was only £400, although the vast number of journalists who congregated in and around the court might have suggested that Arthur Scargill – at the time, Mrs Thatcher’s main enemy – was up for serial killing.

It fell to me to open the defence and to urge the judge to dismiss the charges on the grounds that there was no admissible evidence to support them. I explained how the matter originated in allegations of corruption against the defendants made ‘in a national newspaper as a result of very extensive bribes, not disclosed to its readers, which have obviously tainted the evidence of the prosecution witnesses who received them’. For this attack on its behaviour (and, more importantly, I suspect, for getting Arthur Scargill off the charge), the Mirror editorially condemned me. I could wear that – all in a day’s work when you defend unpopular people who happen not to be guilty of the charges brought against them. But the editor of the Daily Mirror, one Richard Stott, was not content to attack me in his editorial. For the first and last time in my career, I was made the subject of a complaint to the Professional Conduct Committee of the Bar Council that seemed plausible enough for this disciplinary committee to investigate. My misconduct, in Stott’s eyes, was to subject his precious newspaper to gratuitous criticism by falsely accusing it of ‘bribing’ its informers by paying them large amounts of money.

Any complaint against a barrister by the editor of a national newspaper (the Mirror had a circulation of three million in those days) had to be taken seriously. It was, and I was called upon to explain my conduct. I was confident that the offending words had been relevant to our defence, and not inaccurate in relation to the conduct of the Mirror, which had rewarded potential witnesses with large sums of money for breaking the confidences of their ex-employer. But any lawyer who defends himself has a fool for a client. So I consulted Richard Du Cann QC, a former head of the Professional Conduct Committee and the advocate whose views on ethical matters I most respected. I found myself, at the close of our discussion of the case, feeling that sense of dread which so many clients must feel as they come to the crunch with their counsellor: ‘Do you think I have anything to worry about?’ Dick was too fond of teasing not to let several miserable beats go by before expostulating, ‘No!’

The Professional Conduct Committee gave long and careful consideration to Stott’s complaint, and dismissed it after a spirited discussion. They had studied transcripts of the trial, obtained responses from all the other participants, and could find no basis for criticising me. Any professional disciplinary body which sits in secret and dismisses an unjustified complaint is an easy target for criticism, however, and I would have preferred the matter to have been dealt with publicly. I doubt whether Stott would have relished the publicity his rivals would have given to the nice question of whether the Mirror’s ‘chequebook journalism’ amounted to ‘bribery’ when it amounted to £130,000, but he worked himself into a high lather of indignation for one last abusive letter to the Bar Council about its verdict, which he ungraciously copied to me.

This masterpiece of injured dignity (he had been addressed as Richard Scott) was dated 13 September 1991, a few weeks before Robert Maxwell, unable to face an investigation of his criminality in looting the Mirror’s pension fund, committed suicide by jumping off his boat in the middle of the night in the middle of the Mediterranean. The absurd Stott first wrote hagiographic obituaries (‘The man who saved the Mirror’) and then, at long last and only when it was safe to do so, the truth (‘Maxwell was a crook’). Although he had failed to uncover the massive criminality taking place under his own nose, he was said to be a good editor, and in defending his staff he was doubtless doing what he thought was his duty; I was sorry he could not see that I was doing mine in defending Arthur Scargill.

Notes

44 R v McCann & Others (1991) 92 Cr App R 239.

45 See Clive Borrell, ‘Yard Inquiry into Agent Provocateur Allegations’, Sunday Times, 2 August 1976, p. 1. See also R v Ameer & Lucas CCC (1977) Crim L R 104, & G. Robertson, ‘Entrapment Evidence: Manna from Heaven, or Fruit of the Poisoned Tree?’ (1994) Crim LR 805.

46 Thomas Harding, Blood on the Page: A Murder, a Secret Trial, a Search for the Truth (London: William Heinemann, 2018).