Letters to Master Thompson
By LUDOVIC KENNEDY
EARLY in July of last year I signed a contract with my publishers to write a book on the trial of Stephen Ward. I thought it essential to have beside me a full, official transcript of the trial, and when Messrs. Gollancz applied for my Old Bailey ticket, they asked if this could be supplied. 'They were informed that the cost of an official transcript would be about £30 a day, and as the trial was likely to last some eight days, the total cost would be over £200. I told Victor Gollancz that I thought an official transcript was necessary, and be kindly agreed to halve the cost of it with me.
I first applied for a transcript on July 23, the second day of Ward's trial. My letter of application to the Clerk of the Central Criminal Court was forwarded to the Court of Criminal Appeal, who are the sole authority in this matter, and on August 1 the Assistant Registrar of the Court, Master (sic) D. R. Thompson, wrote to tell me that it was unlikely that permission would be granted until any appeal was disposed of. (Ward at that time was still alive, though only lust.) By August 9 it was clear to me that the Court of Criminal Appeal were engaged in delaying tactics, and that if my book was to be published before the whole affair was out of mind, I had better find another source book. So I got in touch with the Press Association, and for a little over £100 they supplied me with a Partial transcript which, while perfectly ade- quate for a true account of the hearing, in no way Compared with the full transcript of the official shorthand-writer. I then wrote to Master Thomp- son telling him that while I did not now require the full transcript, I would still be glad to have a transcript of counsels' legal arguments which (because they took place during the absence of What jury) the Press Association did not provide. What follows is the correspondence that took Place on this subject during the next two and a half months.
Criminal Appeal Office, Royal Courts of Justice, London WC2.
16th. August 1963.
Dear Mr, Kennedy, Since receiving your letter dated 15th. August I have endeavoured to refer your application for- leave to purchase transcripts of the legal argu- ments in Stephen Ward's trial, together with applications relating to the same matter by another person, to a Judge of the Court of Criminal Appeal, but as a result of the Vacation I have not succeeded in obtaining a ruling with regard to any of the applications.
I would like to say that I very much regret this complication in what is, no doubt, a difficult task, but I should also say that I do not now believe that I shall be able to obtain a ruling before the last few days of this month.
D. R. THOMPSON Assistant Registrar.
Piers Place, Old Amersham, Bucks.
22nd. August 1963.
Dear Mr. Thompson, Thank you for your fetter of 16th. August.
I need hardly say how disappointed I am at the delay in obtaining approval for the purchase of transcripts of the legal arguments in the Ward trial. Although I am grateful for your personal efforts it does strike me that there is a
quite unnecessary amount of red tape in the obtaining of written records of proceedings which were originally delivered in open court and which are in no way confidential.
I shall look forward to hearing from you again as soon as possible.
Yours sincerely, LUDOVIC KENNEDY.
3rd. September 1963.
With reference to your letter of 23rd. July 1963, and the subsequent correspondence, I have to say that your application to be furnished with a copy of the transcript, or of some parts of the transcript, of the official shorthand note of the proceedings at the recent trial of Stephen Ward has been referred under the provisions of the Criminal Appeal Rules 1958 to a Judge of the Court of Criminal Appeal: and that leave has not been granted.
Yours faithfully, H. B. PALMER Registrar.
6th. September 1963. Dear Sir, I have received your letter in which you tell me that a judge of the Court of Criminal Appeal has refused to allow me access to copies of the transcript of the trial of Stephen Ward. I must tell you 1 have received this news with astonishment.
In view of the fact that any transcript of the trial is only a confirmation in writing of what was said and heard in open court, and that there is nothing secret about it, I am at a loss to understand why permission has been refused.
I should be grateful if you would inform me a) why permission has been refused.
b) whether the other applicants, referred to in a previous letter from your office, have also been refused.
Yours truly, LUDOVIC KENNEDY.
17th. September 1963.
Dear Mr. Kennedy, In response to the enquiries in your last letter, I am able to tell you that all the applications for leave to purchase transcripts in the Ward case were refused, but I cannot be of much assistance with regard to your other question because the matter is one for the Judge's dis- cretion, and in this and other such cases no reasons are given.
Yours sincerely, D. R. THOMPSON.
19th. September 1963. Dear Master Thompson, Thank you for your letter of September 17th. informing me that all the applications for leave to purchase transcripts of the Ward trial were refused.
While I understand that no reasons are usually given for the refusal of such applications, should be grateful if you would kindly convey to the judge who dealt with the matter my surprise at his decision in view of the fact that all I was asking for was confirmation of what I had already heard in open court. I should also be glad if you would ask him if, in view of this, he would be good enough to let me know why he could not see his way to granting the application. Finally I should be obliged if you would ask the judge in question whether he has any objection to my knowing his name.
Yours sincerely, LUDOVIC KENNEDY.
30th. September 1963. Dear Mr. Kennedy,
I am sorry that your letter dated 19th. Sep- tember has not been answered until now. I have been on leave and it was thought that I should answer it.
The Lord Chief Justice has seen your letter and indeed each of the other letters which you sent. I am authorised to tell you that the matter was decided by him, but as I explained in my letter dated 17th. September the permission is given or withheld at discretion and I cannot set out the reasons.
Since I wrote to you on 17th. September, per- mission has been given for the purchase of a limited portion of the transcript but this is in connection with legal proceedings.
Yours sincerely, D. R. THOMPSON.
At the beginning of October I went to see Master Thompson in his office in the Law Courts, and he turned out to be as courteous and helpful a man as I had imagined. He explained to me that the judge's decisions in this matter were governed by the Criminal Appeal Rules of 1908 which laid down that transcripts could only be furnished to a 'party interested' (interested, that is, from the legal point of view) and 'to no other person,' and that this rule was very strictly enr forced until 1958 when it was modified by the inclusion of the words 'except by leave of a Judge of the Court of Criminal Appeal.'
On October 4 I wrote to Master Thompson as follows :
Dear Master Thompson, Thank you very much for your letter of 30th. September and thank you also for your kindness in letting me come and see you the other day and for explaining to me the rules governing the decision not to grant 'permission for the purchase of transcripts.
As 1 understand it from you, it has only been within the power of the Court of Criminal Appeal to grant permission to someone uncon- nected with the trial since 1958, when the rules were amended. You were good enough to tell me that permission was granted to Mr. Rupert Furneaux to purchase a transcript for his book on the trial of Gunter Podola. Might I be allowed to know for what other books per- mission has been granted during the last five years, and in what material way the requests regarding them differed from my request and that of 'Penguin' Books on behalf of Lord Kennet?
With all good wishes, Yours sincerely, LUDOVIC KENNEDY.
On October 14 Master Thompson replied at length :
In response to your letter dated 4th. October I have looked through the applications received since the 1958 Rules came into force.
I estimate the total number at, something like 400, the great majority, more than 90 per cent, being from persons concerned personally in legal proceedings and requiring information from the transcripts to assist them in the pro- ceedings. The Rule was modified for their benefit and such applications have rarely, if ever, been refused because traditionally one Court—in this case the Court of Criminal Appeal --will assist any other Court to determine the truth about matters before it. Applications arising from legal proceedings ---the great majority as 1 have said—are clearly within the scope of Rule 5 (d). Others are doubtful and the difficulty is where the line should be drawn. not, of course according to the personal inclinations of the Judges, but in- terpreting the intention of the law as expressed in the Rule. Thus there have been a few applications, some with success, where the applicant was con- cerned personally and required the transcript not for legal proceedings but, for example, for the analogous purpose of tracing property lost through theft or fraud.
Very few applications have been received where the applicant was not concerned per- sonally, and it would not have been surprising had all been regarded as outside the scope of the Rule.
However, in six or seven cases over the whole period permission has been given to purchase transcripts to elucidate points of strictly pro- fessional interest; to law reporters, to accoun- tants and to a pathologist.
Permission for the purpose of books has been given in even fewer cases, and in no case during the last twelve months. Bearing in mind that the Judges must apply the law as they find it I think that the cases in which permission has been granted—at the very limit of the scope of the Rule—demonstrate if anything the reverse of hostility to authorship.
Tony Parker was given permission to pur- chase a transcript, but I believe it was for his recent book and if so it appears that he could have obtained the transcript without permission through the 'party interested.'
Permission was given in the case of Podola which was of great legal interest. It was also given in respect of four other notorious murder trials which had taken place some years, or a considerable number of years, before.
In at least two or three of the five murder cases the transcript was not, in the end, ob- tained from the Shorthand-writers but from sources not controlled by Rule 5 (d) and no doubt transcripts have been so obtained for many years for the 'Famous Trials' series and others.
I am confident that I have dealt with all but one or two of the cases where permission was given for books, and I do not think that any in the last two years has escaped my notice. I think in any case that this material shows how the rule has worked.
D. R. THOMPSON.
16th. October 1963. Dear Master Thompson, Thank you for your letter of October 14th. and for going to such trouble in answering.
I have taken up so much of your time already that I hesitate to do so any more. Hut the interesting comparison for me is not the cases where permission for transcripts was granted to people in the legal and allied pro- fessions etc., but simply regarding professional writers. You have mentioned in your letter a small number of authors to whom permission to obtain transcripts was granted since the amendment to the rules in 1958. Are you in a position to tell me the names of the authors and the titles of the books which they subse- quently produced?
Yours sincerely, LUDOVIC KENNEDY.
21st. October 1963.
Dear Mr. Kennedy.
Thank you for your letter of 16th. October.
I thought that it would be valuable to give you a general picture of the working of the Rule because I believe you are interested in the matter generally as well as in your own par- ticular application and, of course, I think that the work involved was well worth while.
However my difficulty is that the administra- tion of the Rule is not part of the public pro- ceedings of the Court. I trust you will not think me discourteous if I say that I feel I ought not to enter into any more details about the applications Vow-. sincerely. •
15th. November 1963. Dear Master Thompson,
I have been away in America, so have only just received your letter of October 21st. While I am grateful for your continued co-operation, I note with deep regret your decision not to inform me what authors during the last five years have been granted permission to have transcripts of what trials. Despite what you said in your previous letters about the rules govern- ing this matter, it is impossible to resist the conclusion that some form of discrimination regarding certain authors is inevitably exercised.
Yours sincerely, LUDOVIC KENNEDY.
And there, as they say, the matter now rests, with the result that my coming book on Ward's trial has necessarily suffered by only scant refer- ence to the legal arguments, as well as in a number of other ways. • What makes the whole thing so absurd is that in most important trials transcripts are invari- ably ordered for the appeal, and that when this
is over, are usually obtainable from the defence (see penultimate paragraph of Master Thomp- son's letter of October 14). The only reason that there was no transcript for Ward's trial was that he died before sentence. The decision of the Lord Chief Justice therefore to refuse transcripts to myself and Wayland Young would seem to be particularly petty. It is not even as though the judges succeed in their object of discouraging certain books, for with the help of the Press Association authors will write their books any- way. All that such refusal does is ensure that such books are that much less accurate, detailed and authoritative than if they had been based on the official transcript.
Who are the judges, anyway, to decide what books shall br shall not be encouraged? In a democracy should not every citizen have right of access to the transcripts of important trials on payment of a reasonable (though not exorbi- tant) fee? And if so, has not the time come for Parliament to take away from the judges these arbitrary powers?