LORD LANE AND I

Ludovic Kennedy recalls

good times and bad with the outgoing Lord Chief Justice

NEXT Wednesday morning in the Law Courts, Bench and Bar will assemble to take farewell of Geoffrey Lane, the outgo- ing Lord Chief Justice. They will pay trib- ute to him, as is customary on these occasions, for qualities which some see as having marked his term of office: courtesy in court and encouragement to young advocates; the informality which has often characterised his conducting of proceed- ings and determination not to see time wasted in getting through the business of the day; helpful guidelines to fellow judges in the application of the law; and his uncomplaining mastery of the heavy (and many think unnecessary) workload which IS the lot of all Lord Chief Justices. What we shall not hear is any mention of what others see as his failings: impatience with those who fail to meet his high standards; a belief that only judges are qualified to pronounce on sentencing; and, above all, a blindness in rejecting appeals which allege corruption by the police.

It was when he was representing the Police at the Brabin enquiry into the case of Timothy Evans (10 Rillington Place) that our paths first crossed. One afternoon after the lunch interval he began his cross- examination of me by asking in a tone of undisguised hostility, `Mr Kennedy, have You been talking to your counsel during the adjournment?' I said I had, it never ha‘ mg occurred to me not to. Later I was told that in criminal trials counsel are not Permitted to talk to their witnesses during adjournments. Yet this was not a criminal trial but a public enquiry. It seemed to me that lane was attempting to intimidate me SO that I should not be too critical of the Police, and in this he partly succeeded. I next ran across him some ten years ago When he was the chief guest and I had some minor role to play at the Scottish Lawyers' annual conference at Aviemore. On the Saturday morning he made an excellent, witty speech, after which we went our separate ways before meeting for a hula-hula cocktail party (lei and Bermu- da shorts) in the evening. My wife and I went off in the car to Mr Campbell's famous tweed shop in Beauty, and Geof- frey Lane and others drove to Grantown-

on-Spey for a round of golf. At the hula- hula party Lane asked me how I had enjoyed my round. I said I hadn't been playing. He looked unbelieving and said, 'But don't you remember, when we were going down the ninth, you were coming up the eighth and I waved, your wife waved back and then you waved?' I said I had spent the afternoon in Beauly. He said, 'That's extraordinary! / could have sworn it was you.' Too late I thought of adding, 'On oath, my lord?', for I have never seen a more striking example of What the law calls 'fleeting identification', and this from a witness to whom I was not a total stranger and who himself, as counsel and judge, had had some experience of judging the worth of ID evidence in court. (It is perhaps worth noting that in 1962 he had helped to prosecute James Hanratty, whose dubious conviction had also rested on a fleeting identification.)

For a year or two after this, we became

friends and, as I was then living in Edin- burgh and he had a cottage near Dunbar (outside his own jurisdiction), we played the odd round of golf at Luffness (I had recently been blackballed for membership at nearby Muirfield by the Scottish legal establishment for questioning the verdict in the Meehan case) and met on several social occasions. I can now disclose that once, over tea at Luffness, I quizzed him about the Luton post office murder case in which two innocent men had been framed on a murder charge by a corrupt Scotland Yard detective and sentenced to life imprison- ment. I had written a book on the case to which Lord Devlin had also contributed, as a result of which Willie Whitelaw, then Home Secretary, ordered the men's imme- diate and unconditional release. Later, meeting Willie on holiday, I asked why he had not recommended them for a free par- don. 'I wanted to,' he said, 'but Geoffrey Lane objected. When I asked Geoffrey why he objected, he looked embarrassed and muttered something about special consid- erations.' I had no doubt then, nor have I now, that the special considerations were no more than deep reluctance on his part to have to admit to a wrongful conviction followed by ten years of Appeal Court hearings in which, on no fewer than five occasions, judges like Lawton and Roskill were quite unable to recognise that the men were innocent. I found this closing of establishment ranks deeply shocking. Willie should have ignored Geoffrey's protests and Geoffrey should never have made them. As a result the two framed men are today, many years after their release, still branded as convicted murderers.

Although by this time I had come to

'Oh, thank God — I hate to drink alone!' know Geoffrey Lane a little and to enjoy his company, I felt that both to the press and public at large he was a somewhat shadowy figure. I therefore floated an invi- tation to him to dine in a private room in a London club to meet a few senior journal- ists such as Robin Day, Peregrine Worsthorne and Anthony Howard, etc. The occasion would be .off the record, but by a free exchange of views at least some of the press would be enabled to form an idea of the personality and attitudes of the Lord Chief Justice. Disappointingly, he turned the invitation down saying that he had no views worth hearing. A truer expla- nation, I felt, was that he was a subscriber to Lord Kilmuir's notorious dictum of 1955: `So long as a judge keeps silent, his reputation for wisdom and impartiality remains unassailable', a view which might be thought to be pushing things a bit and happily not one supported by the present Lord Chancellor.

Time marched on. After 14 years inside, the Guildford Four lodged a further appeal and as the prosecution didn't con- test it, Lane quashed the convictions and ordered their release. (But for the blind- ness of Roskill and his colleagues their convictions would have been quashed at their first appeal 12 years earlier). For Lane and his fellow judges to have offered an apology to the appellants for what they had suffered would have been a graceful gesture, but it was not in their nature to do so.

A little later, and as a result of some assiduous research by the solicitor Gareth Peirce, the case of the Birmingham Six pub bombings came up on appeal. It lasted six weeks and was heard by Lane and Lord Justices Stephen Brown and O'Connor. They dismissed the appeal with these words: 'As with many cases referred by the Home Secretary to the Court of Appeal, the longer this case has gone on, the more this court has been convinced that the ver- dict of the jury was correct.'

At this time I knew little of the case of the Birmingham Six, although I remem- bered a conversation I had had with Dou- glas Hurd when he was Home Secretary. He was worried about the Guildford Four, be said, but he didn't think there was any- thing of substance in the case of the Birm- ingham Six. Against this, I had worked with Gareth Peirce on the Luton post office murder case, and if he believed that the Birmingham Six were innocent, then there must be something in it.

Two years later I was invited by the Sun- 'day Times to conduct my own investigation into the case, and having read the tran- script of the appeal hearing as well as Chris Mullin's book, Error of Judgment, interviewed some of the Six, their wives, counsel and several witnesses and visited the locus of the explosions and the police station where the Six were held and allegedly beaten up after arrest, I had not the slightest doubt that they were inno-

cent; and for the three judges to assert that the convictions were safe and satisfac- tory (the stipulated criterion for proof) was not only perverse but an abuse of the English language. The Six's claims that their 'confessions' had been beaten out of them by the police were supported by wit- nesses who had either seen them being beaten up or had observed the results of it. The 'confessions' themselves of how and where they had planted the bombs were clearly false and contradicted by police evidence; none of which prevented Mr Justice Bridge (now Lord Bridge of Har- wich) from rubbishing most of the defence's witnesses and more or less urg- ing the jury to convict. One scientific wit- ness for the prosecution had said that it was possible that one of the defendants had traces of nitroglycerine on his hand. In their judgment Lane and his colleagues said that this was proof that he had.

Three years after the 1988 appeal and as a result of Esda (Electro-static document analysis) tests on the notebooks of the investigating officers and fresh technical evidence about nitroglycerine, the case returned to the Appeal Court for a third time. Unlike the successful appeal of the Guildford Four, it was contested by the prosecution; but the new evidence was overwhelming and after 16 years inside the Six walked out of the Old Bailey free men. I do not recall any apology being made to them on this occasion.

The crassness of the judgments of Lane, Stephen Brown and O'Connor in the pre- vious appeal being now evident to all, it was expected that Lane at least would have lost no time in retiring. Indeed an editorial in the Times urged him to, and

some 140 MPs signed a Commons motion to that effect. Had he heeded their advice, he would, I believe, have departed with dignity and honour. But those who wield power are always reluctant to forgo it, and he stayed stubbornly where he was, no doubt hoping that things would soon blow over. And they well might have done had not the case of the Tottenham Three once again raised its ugly head. These three had been convicted of the horrific murder of PC Keith Blakelock in the course of the riots in Broadwater Farm, and sentenced to life imprisonment. A year later their case came up on appeal and despite the unrelia- bility of the evidence leading to their con- victions, Lord Lane refused leave to appeal.

Now (1991), as a result of fresh evidence, the case returned to the Appeal Court, the convictions were quashed and the men released. And for the first time to my knowledge the law was prepared to admit its culpability. 'In allowing these appeals,' said Lord Justice Farquharson of the appellants, 'we wish to express our pro- found regret that they have suffered as a result of the shortcomings of the criminal process.' This was a kind of breakthrough and one hopes that when future miscar- riages are corrected such expressions of regret will be considered routine.

Inevitably there were further calls for Lane's resignation, but although by now a wholly discredited figure, he still stayed his hand. Apologists for him said that he would go in his own time, that he was determined not to be pressurised. I have seldom heard a more wretched excuse for staying put. To have condemned nine men who should never have been convicted in the first place to several further years of wrongful imprisonment was an error of the first magnitude. If the managing director of some professional or business concern had made a similar sort of cock-up, and not once but twice, he would have been dis- missed or obliged to retire without delay. But then the Bench have always believed that they inhabit a rarefied world where normal professional and ethical practices do not apply; a view detrimental to them- selves, to society and to justice.

It wasn't until some six weeks ago that Lane, no doubt prodded by the Lord Chan- cellor, finally threw in the towel. 'Lane's exit,' ran the Times headline, 'a relief to friend and foe alike.' It was a sad way for a man of such accomplishments to go. His Achilles' heel, like that of so many of his brethren, was a deep reluctance ever to recognise, let alone admit, that police offi- cers in their misguided zeal to see justice done can and do fix the evidence to secure a conviction and can and do tell lies in the witness box every bit as venal as those of other witnesses. If Geoffrey Lane's going results in a change of attitude by the Bench in this respect, then, quite unintentionally, he will have achieved a much needed reform.