Thomas Grant QC on Court No. 1

How a commercial and chancery silk became a criminal law historian of the most famous courtroom in Britain. David Etherington QC (DE) interviews Thomas Grant QC (TG)

DE Tom, you are a chancery and commercial silk, and editor and contributor to many publications in your field. And yet, amongst the general public, you are best known as the author of Jeremy Hutchinson’s Case Histories and most recently, Court Number One: The Old Bailey Trials that Defined Modern Britain. What drew a relatively young chancery silk to this interest in criminal trials and, in particular, Court Number One?

TG Pure serendipity. Like many people, lawyers and non-lawyers alike, I was aware of the great criminal advocates of the past and had read Marjoribanks’ Life of Sir Edward Marshall Hall and some of the Penguin Famous Trials series. But the key moment was when I was introduced to Jeremy Hutchinson, then aged 97. I am ashamed to admit it but I had not heard of him and was told simply that he had been a criminal barrister in the post-war period. After a few evenings in his company I had unlocked the scale of his achievements and the extraordinary life he had led. I knew I had to memorialise both his life and his cases: otherwise when he died he might, like so many other great lawyers, have faded from the public memory. And on a personal level it was a project which offered some form of antidote to the ephemerality of practice at the Bar, which had been nagging at me.

It was while researching Jeremy’s life that I began to read the fascinating literature of the practice of criminal law in the 20th century and to discover the excitement and drama of the criminal trials in that period. I found I had gathered a vast amount of material for a second book, not about just an individual but about a courtroom. Through this other aspect of my professional life I have been privileged to meet an array of remarkable criminal lawyers. Somehow the two strands of my work, as a historian of criminal law and a practitioner in the commercial and chancery sphere, co-exist happily.

DE You have included in the book a number of famous criminal cases from Robert Wood’s Camden Town Murder trial of 1907 to the Soham Murders tried in 2003? How did you make your selection and in what way do you think they defined modern Britain?

TG The centrality of a single courtroom, Court Number One of the Old Bailey, to the criminal law and the social history of Britain is remarkable. The number of landmark cases, both famous and infamous, that were tried there presents an over-abundance of choice. I wanted to avoid cases which had achieved significant coverage already: so Dr Crippen, Lady Chatterley, Bodkin Adams and Stephen Ward were out. But I saw this also as an opportunity to investigate cases which, while notorious in their time, had faded from view. Who has heard of Dr Guiseppe Martelli or Elvira Barney now? But at the time their trials dominated the front pages. More importantly they tapped into preoccupations prevalent at the time. Martelli was prosecuted in 1963 for acts preparatory to providing secrets to the Soviets. The trial disclosed a world of Russian agents engaging in concerted blackmail, elaborate codes and secret meetings in London parks. The sense of anxiety dominating the early 60s after the Cuban Missile Crisis seemed to permeate the trial.

There were a number of themes I wanted to pick up: changing attitudes to the death penalty, obscenity and sexual behaviour over the century; women’s experience of the criminal law – largely its inability to understand or properly respond to why women sometimes commit acts of violence; the centrality of the Old Bailey to treason, post-war espionage and political downfall; and the courtroom as a place of ritualised entertainment for the masses. I also wanted to write about cases which provided a kind of passport into the past and could vividly conjure up its weirdness and oddity. Finally I wanted to convey the sheer excitement of the criminal trial. Each case I wrote about had to fulfil all those criteria.

DE A number of the cases involve women, as the victim, the protagonist or the defendant: Emily Dimmock in the Robert Wood case, Maud Allan in the trial of the extraordinary Noel Pemberton Billing, Marguerite Fahmy accused of murdering her playboy husband, Elvira Barney – ‘the poor little rich girl’ – and, of course, Ruth Ellis. Did capital trials involving women as defendants attract greater public interest, and, if so, why?

TG In all those cases the trial had an overlay of sex. Emily Dimmock was a prostitute found murdered in her bed; Maud Allan, an Edwardian dancer, was the ‘sex symbol’ of her time; Marguerite Fahmy, Elvira Barney and Ruth Ellis each shot their husband/lover. In a more overtly prudish age a trial could exude an undertone of dark eroticism which appealed to a prurient public. One of the notable aspects of early and mid-20th century trials of women is the fascination of press and public with female sexuality. If a woman was on trial for murder her best hope of acquittal was to suppress any hint of erotic appeal. Sitting in the dock Edith Thompson and Ruth Ellis mesmerized the public and jurors; and paid the price.

DE You and I take part most years in a charity revue of famous cases that took place in Court Number One. You talk in the book about the physical courtroom itself. Is it just the cases that have given this courtroom its special place in the public imagination or is there something about Court Number One itself? And what part did the public gallery play in the trials you write about?

TG The courtroom was built in the early part of the 20th century and opened in 1907. It is a magnificent room and highly ritualised. One of my key theses is that a trial is not just a disembodied set of voices speaking in an orderly way: it takes place in a physical space and that space, and its layout, are key to understanding how the trial works. The dock is the most extraordinary sight: it is positioned right in the middle of the courtroom, raised up, and has four walls. The defendant comes into the dock from a hidden staircase from the cells below: the moment of arrival can be electrifying. He or she then sits directly facing the judge, also raised on the bench. To the left of the dock is the jury box; to the right counsel’s rows: a square in which the various participants in a trial conduct their separate roles. The public gallery is itself exactly that: a gallery positioned high above the courtroom and overlooking it, like a theatre’s upper circle. The public reaction from that gallery at key moments in trials has often been noted: hisses and muttering when a judge’s summing up is going against a defendant the public has taken to its heart; stamping of feet in an attempt to intimidate a witness; the terrible cry of ‘blonde tart’ when Ruth Ellis came into the dock on the first day of the trial. One journalist described people in the public gallery as the ‘direct descendants of the patrons of the Roman Circus’.

DE There are a series of extraordinary legal characters in the book with distinctive personalities. I particularly enjoyed your description of Mr Justice Darling losing control of the Noel Pemberton Billing trial… not a judge I had ever imagined having that problem. What changes in the style of judges and barristers took place over the period the book covers?

TG My impression from the transcripts and books I have consulted is that the judges of the early and mid-20th century had a tendency to be pompous, cantankerous and sanctimonious. It must have been a nightmare to appear in front of them. They were not afraid to show their feelings and their summings-up could often clearly indicate the verdict they expected. Lord Goddard’s summing up in the Derek Bentley trial was so biased that 50 years later his posthumous appeal was allowed by the Court of Appeal. Lord Bingham remarked, putting the matter as diplomatically as possible in relation to a former Lord Chief Justice: ‘the summing up in this case was such as to deny the appellant that fair trial which is the birthright of every British citizen.’ I don’t appear in front of criminal judges now but I know a number of them well and I think it is safe to say that the 21st century approach to judging is a country mile from that of even 50 years ago. No doubt there are exceptions but our judges are not bullies; they are scrupulously fair and sensitive to the needs of witnesses, alleged victims and defendants. As for advocates, high rhetoric is undoubtedly now deeply unfashionable: that may be in the interests of justice, but is not conducive to encouraging the drama of the trial. Edward Marshall Hall may have had roguish characteristics, but he made for very good copy.

DE Clearly, we have seen many changes in criminal procedure over the years. Nowadays, the defence has to reveal its case and its witnesses. The defendant has limitations on the right to silence. The sacrosanct technicalities of a criminal trial have given way to the dictum that a trial is not a game. On the other hand, judges are less frightening and more balanced than some of their predecessors. Are there any cases in your collection that you think would have been decided differently if tried at a different time?

TG The most terrible miscarriage of justice I examine is the notorious conviction of Timothy Evans in 1950 for the murder of his daughter. It was in fact committed by the serial murderer John Christie, discovered only after Evans had been hanged. The behaviour of the police was shocking; vital evidence which plainly exonerated Evans was withheld and his (false) confessions procured through completely illegitimate means. No doubt he would have been acquitted today, not least because of legislative changes such as the Police and Criminal Evidence Act 1984. On the other hand, a number of cases involve acquittals where the evidence was overwhelmingly against the defendant: a different form of miscarriage of justice and often achieved through counsel playing on the contemporary prejudices of the jury – behaviour which would be deprecated today.

DE Did you have particular favourites amongst the cases? What were they and why?

TG A trial can be a tragedy, or a melodrama, or a farce. I write about two farces, both of which I enjoyed recreating on the page. The Jeremy Thorpe case is pure comic gold from beginning to end. Less well known is the Pemberton Billing criminal libel trial of 1918, where a maverick populist MP was prosecuted for having allegedly imputed immorality – via a headline in an article bearing the obscure title ‘The Cult of the Clitoris’ – against the most famous dancer of the day, Maud Allan, because of her performance of Salome in Oscar Wilde’s play. Somehow the trial, conducted at the height of the First World War, turned into an echo-chamber of conspiracy theories about the decadence of the upper classes and German infiltration. A high-point (or perhaps low-point) was Lord Alfred Douglas, Wilde’s former lover, screaming abuse at the judge.

DE You make the observation that Court Number One’s status as the nation’s foremost criminal courtroom had diminished by the millennium and amongst factors you cite for this is its unsuitability for the digital age of case presentation. Is its fate to become a curiosity and perhaps even to be abandoned as a regular courtroom or do you still see a future for it?

TG It was interesting to see that HHJ Lucraft QC chose the court to conduct the very important London Bridge and Westminster inquests. But I fear that its inconveniences and lack of security will mean that its role as the national cockpit is lost, though its fate is in the hands of the judges. They can decide to sit there in important cases. I wish they would.

Court Number One: The Old Bailey Trials that Defined Modern Britain by Thomas Grant (John Murray, 2019) is a Times  and Telegraph book of the year and out in paperback in April 2020.
High ritual and high rhetoric: electrifying trials took their cue from Court No. 1’s design.
Echo-chamber of conspiracy theories: the most famous dancer of Edwardian times, Maud Allan, embroiled in the extraordinary 1918 trial of Noel Pemberton Billing at the height of the First World War.
Hanged in a terrible miscarriage of justice: the epitome of bad practice in Timothy Evans’ 1950 trial for the murder of his daughter (committed by serial murderer John Christie).
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David Etherington QC

David Etherington QC is former head of Red Lion Chambers, a frequent legal series adviser for film/TV and acts with Thomas Grant QC in the Bailey’s annual Trial and Error in Court 1.