The Heirs of Owain Glyndwr (22 page)

42

There was an audible
gasp from various sections of the courtroom. In the dock Dai Bach, who had been sitting forlornly with his head between his hands, suddenly looked up. Mr Justice Overton sat up abruptly in his chair and asked Gareth to pause. He made a careful note of what had been said.

‘Do I understand you correctly, Sergeant Griffiths?' the judge asked. ‘Is it your evidence that this man from the Security Services was in fact present during Prosser's interview?'

‘I can't say for certain that he was there all the time,' the Sergeant replied. ‘I wasn't there myself, and he may well have been in and out of the interview room when I was attending to other matters. But I was aware that he was there at least some of the time.'

The judge made a further note and nodded to Gareth.

‘There came a time, Sergeant,' Gareth continued, ‘did there not, when you heard a disturbance coming from the interview room?'

‘Yes, sir.'

‘What was it that you heard, exactly?'

‘I heard sounds which suggested to me that there was a fight or scuffle of some kind going on, furniture being knocked over or dragged around, some swearing, sounds which suggested that blows were being exchanged.'

‘What did you do as a result of hearing these sounds?'

‘I made my way to the interview room and opened the door.'

‘What did you see when you entered?'

‘I saw that Dafydd Prosser had his hands handcuffed behind him in his chair,' the sergeant replied. ‘I saw that he was bleeding from his nose, and that he had cuts around the eyes, and a red patch on his right cheek, which was beginning to swell up. DCI Grainger told me…'

‘That's all right, you can tell us. His Lordship has already heard it.'

‘DCI Grainger told me that Prosser had become violent and had assaulted both himself and DS Scripps, and that they had been obliged to restrain him.'

‘What did you do?'

‘It seemed obvious that Prosser was in a great deal of pain. I told DCI Grainger that I was going to call Dr Markey, the police surgeon, and that he should suspend the interview until the doctor had examined Mr Prosser.'

‘What did DCI Grainger say to that?'

‘Nothing, as far as I remember. I left the interview room to call Dr Markey, who arrived about forty minutes later.'

‘Are you aware that after you had called Dr Markey and left the interview room, and after you had instructed DCI Grainger to suspend the interview until he had been seen by the doctor, Dafydd Prosser made a statement under caution, which the prosecution seek to persuade his Lordship was a voluntary statement?'

‘I am aware of that, sir, yes.'

‘Did DS Scripps ask to see Dr Markey?'

‘Not as far as I remember. No.'

‘Did you notice any visible injury to DS Scripps?'

‘No, sir. I have nothing in the record about that.'

‘What about the man from MI5? Was he there at this time?'

‘He left the interview room hurriedly when I entered, sir, and I didn't see him again.'

Gareth paused.

‘Sergeant Griffiths, what would you say if I put to you that the visit to the interview room you have just described was not the first visit you made, during that interview, but the second?'

‘My second?'

‘Yes. Is it not correct that there was a first occasion when you heard sounds that led you to interrupt the interview?'

‘No. I don't think so.'

‘Did you not enter the interview room and ask what was going on? DCI Grainger and DS Scripps asked you to leave and, when you refused, you were bundled out of the room by the man from MI5. Isn't that right?'

‘I have nothing in the custody record about that, sir,' the sergeant answered, after a pause.

‘That wasn't what I asked…'

‘I do have a recollection that at some stage the man from MI5 asked me not to come in, or to leave, but I'm not sure whether that was the time I have already described, or another time. It was a very confused night.'

Gareth thought for a moment.

‘I won't press it,' he said. ‘Thank you very much, Sergeant Griffiths.'

Dr Markey told the court that he had been called to attend the Caernarfon Police Station by Sergeant Griffiths in response to an injury to a person in custody. He arrived at about 4.15 in the morning. He examined Dafydd Prosser and found that he had two broken ribs, and a number of cuts and lacerations on the back of the head, around both eyes, and on the nose. He had a very red, swollen right cheek. Prosser appeared to have many areas painful to the touch, and seemed greatly distressed and fearful. He refused to tell the doctor how his injuries had been caused. The doctor told Sergeant Griffiths that Prosser should be taken to hospital to be examined there, without delay. He initially suspected that Prosser might have a broken cheekbone, but an X-ray at the hospital revealed no fracture. He was later informed that Prosser had been returned to custody with heavy bandaging around his rib cage and a supply of analgesics. Doctor Markey suggested that he follow up the next day to check on Prosser's condition in custody, but was told that his services were no longer required.

‘I am aware of the lateness of the hour,' Mr Justice Overton said.

It was now 5 o'clock and a general air of exhaustion had set in.

‘But I think it is right to give my decision now, so that all parties, particularly the prosecution, can regroup and decide what adjustments should be made to their cases. I shall be very brief. I think it better, in the circumstances, not to express any specific views about the evidence I have heard.

‘The test I have to apply is this. The prosecution has the burden of persuading me beyond reasonable doubt that the written statement under caution made by Dafydd Prosser was voluntary, and that it was not obtained by oppression. Based on the evidence I have heard, I am not so persuaded. A confession obtained by force cannot be said to be made voluntarily. There were also some admitted breaches of the Judges' Rules, the inducements made to Prosser to put in a good word for him and Mrs Hughes if he cooperated. Those breaches are not insignificant. But the main ground of my decision is that I am not sure that the statement was made voluntarily in the sense to which I have already referred.

‘Mr Morgan-Davies has said, very fairly, that he does not seek to criticise the officers for their conduct during the interview, which took place in circumstances of particular urgency. The officers had every reason to believe that they were dealing with an exceptionally grave situation in which lives were under immediate threat. I agree with Mr Morgan-Davies that the officers were entitled to considerable leeway. Whether others will agree at some later time is another matter, but that is not relevant today.

‘Whether or not there were circumstances which justified the conduct of the interview, its consequences as a matter of law are clear. The written statement under caution made by Dafydd Prosser is inadmissible. The oral statements he made to the police officers are likewise inadmissible. All this evidence is excluded, and will not be placed before the jury. I will now adjourn until 10.30 tomorrow.'

43

They held an impromptu
party in Chambers to celebrate a victory which no one, including Gareth, had expected. It was not every day that you managed to persuade a judge that a confession might have been obtained by means of force. Judges generally trusted the word of police officers, who were often the target of wild accusations by defendants who regretted having made incriminating statements while in police custody, and for Gareth, the exclusion of Dafydd Prosser's statements to the police was quite a coup. On Gareth's instructions, Merlin dispatched his junior clerk, Alan, to Fleet Street for a case of good champagne from
El Vino
, the Temple's wine bar of choice.

The party was a sign of how much Chambers had changed since Bernard Wesley had departed for the High Court bench. Wesley, while capable of great charm and warmth, had been a formal Head of Chambers. There were those, especially the younger members of Chambers, who found approaching him in his room an intimidating experience. His hospitality was also formal. There might be tea occasionally after court. He was known to keep a bottle of sherry in his room, which sometimes made an appearance at about 6 o'clock if anyone was with him. A rarer sight was the bottle of fine single malt whisky, which was produced only late in the evening, when he was alone or in serious conversation with one, or at the most two, others. In Wesley's day, any Chambers party would have been planned and announced months in advance, with great fanfare and great attention paid to the guest list. Informal gatherings of this kind, open to everyone in Chambers, were virtually unknown. Gareth had set out to change that culture. Members of Chambers needed a setting in which to talk to each other, and he was determined that no one should feel hesitant about coming to his room just because he was now Head of Chambers. On this evening, a number of members of Chambers had gathered for the celebration.

‘I hear you talked my father into excluding a confession, Gareth,' Clive Overton said with a broad smile. ‘Does that explain the flight of pigs I saw over Chambers on my way back from court?'

‘I did indeed,' Gareth smiled. ‘And, what's more, he was quite right to exclude it. But for God's sake don't tell him we are having a party to celebrate. He might change his mind.'

Clive laughed. ‘Don't worry. He has refused to even see me until the case is over, just in case it gives someone the wrong impression. You know what a stickler for protocol he is.'

‘He is quite right,' Gareth replied. ‘You can never be too careful, especially with Evan Roberts watching our every move, and he will be out for blood after this. I don't think he expected to lose this one.'

‘Your learned junior tells me that you played the role of a Celtic Lorelei,' Aubrey Smith-Gurney said, ‘and shamelessly lured a poor little Welsh police officer on to the rocks by drawing him into a Welsh-speaking alliance against the wicked English.'

‘I didn't say that,' Donald protested.

‘Well, perhaps not exactly,' Smith-Gurney conceded, ‘but as the second most senior chap in Chambers, I am allowed the occasional embellishment. Besides, I insist I'm not far off the mark.'

‘He did charm him, though,' Donald said, ‘like a bird from a tree.'

‘That's only partly true,' Gareth smiled. ‘Firstly, the witness was an experienced sergeant, not a poor little officer; and secondly, the wicked MI5 officer who started the beating up of my client, was a wicked Welsh-speaker, not a wicked Englishman.'

‘I still believe the bit about the charm,' Harriet Fisk said.

‘Thank you, Harriet,' Gareth said. ‘Oh… was Ben in your room? I need to find him.'

‘Yes. He was on the phone with someone. I think he is just on his way… in fact, here he is now.'

‘Ah, yes.' He waved a hand in Ben's direction.

‘Help yourselves to champagne, everyone,' he said to the room at large. ‘Roger, see if you can find Anthony and tell him we are here. He may have been late getting back from court in Reading.'

He walked to the door, put an arm around Ben's shoulder, and steered him to the table where Alan was in charge of pouring champagne into glasses and opening new bottles as required.

‘Merlin said you needed a talk,' he said.

‘I'm not in a rush,' Ben replied. ‘Enjoy your victory party. It is well deserved. For all the times I've seen you in court, during my pupillage and since, I am still impressed.'

Gareth smiled thinly. ‘To tell you the truth, Ben, we won today mainly because of sheer good fortune. Apparently, they didn't send Sergeant Griffiths the script.'

Ben shook his head.

‘Oh, he had the script,' he replied. ‘He just didn't like it.'

‘What? You think he has some sympathy with Dai Bach?'

‘No. I think he resents having his police station taken over by ill-mannered, aggressive coppers from London who can't speak a word of the language, but push him around and behave as if they own the place.'

Gareth nodded. ‘Yes, you may well be right. I'm sure that's not the way they usually do things in Caernarfon. In some ways, it must have seemed like having Edward I and his merry men back in town.'

‘You still had to exploit it,' Ben said, ‘which you did perfectly.'

‘Thank you. So, what's up?'

‘I've got Barratt in the clerk's room,' Ben said. ‘Can we have a word with you and Donald? It's something we should talk about this evening.'

‘Yes, of course. Let's use your room.' He called over his shoulder. ‘Donald, bring an extra glass of champagne with you for Barratt, will you, and come to Ben's room.'

44

‘We are getting through
the prosecution case quite quickly,' Ben said. ‘There's not much left, now that the confession evidence in Dai Bach's case has gone.'

‘Just the statements made by Caradog and Arianwen,' Donald confirmed, ‘the scientific evidence about the device, and the search of the various addresses – a day, two days at most.'

‘I don't think any of that is controversial,' Gareth said. ‘I wouldn't be surprised if we finish the prosecution case tomorrow or Thursday.'

‘There's the surveillance evidence,' Ben pointed out, ‘about the Belfast trip. It doesn't concern Arianwen, but you may have a few questions about it.'

‘One or two,' Gareth said, ‘nothing much. Let's say two days.'

‘And after that,' Ben continued, ‘the natural order of business would be for Caradog to give evidence. The judge is bound to have him brought into court to offer him the opportunity to go into the witness box.'

‘He's not going to give evidence,' Donald said. ‘He will refuse to leave his cell; and even if he does grace us with his presence, he will just give another speech in Welsh about how dreadful the English are. The judge will have him removed again, complete waste of everybody's time, and we will move on to our case – not that we have a case, but still…'

‘He might give evidence,' Ben said, ‘if somebody asked him.'

Donald laughed. ‘Why would he do that? And why would anybody ask him to? Even if he went into the witness box, it wouldn't really be evidence; it would be little more than a rant. It would be very dangerous for our clients. There is no telling what the man might say.'

Gareth was smiling towards Ben.

‘But you're thinking about it, aren't you?'

‘Yes.'

‘For God's sake, Ben,' Donald said quietly. ‘Why would you do that? What could you possibly have to gain by it?'

‘It's simple, Donald,' Gareth replied, before Ben could say anything. ‘He doesn't have Trevor Hughes. If he had Trevor Hughes, Trevor would say that Arianwen had nothing to do with any conspiracy to cause explosions, and was kept out of it from the start. But he doesn't have Trevor Hughes, and Dai Bach won't be giving evidence, so the only other possibility is Caradog.'

Ben was nodding. ‘I am not sure how credible he would be. I am going to call Arianwen, but I would be much happier with some independent evidence to support her.'

‘He's hardly independent,' Donald protested. ‘He's her brother, and he's a co-conspirator and, given his performance thus far, I don't think the jury would believe a word he said. It would do her more harm than good.'

‘I'm not so sure,' Gareth said. ‘The jury may well think that Caradog is a ruthless extremist, but they might just believe that he wouldn't have dragged his sister into it, let alone her four-year-old son. It wasn't necessary to use her to carry the bomb. Dai Bach would back her up if he could, but you know I can't let him.'

‘I know.'

‘It might be worth a shot.'

‘You have no idea what he might say,' Donald insisted. ‘He is totally unpredictable, and don't forget, the prosecution would be entitled to cross-examine him.'

‘Yes,' Gareth replied, ‘and that does raise some practical difficulties. He is not represented. If he gives evidence, he will be cross-examined and he may incriminate himself. You would have to warn him of the risks.'

‘He has incriminated himself as much as anyone could already,' Ben pointed out. ‘Look at the statement he made at the police station.'

‘Perhaps so, but you still have a professional duty to warn him.'

‘I would point that out to him when I see him, of course,' Barratt said.

‘That's not enough. If he decided to give evidence on his own, that would be one thing. But if
you
ask him, at a minimum, you would have to advise him to take independent legal advice about the risks of giving evidence. You can't advise him, Barratt. You're acting for Arianwen. You would have to have another solicitor waiting in the wings.'

‘Technically, Barratt, you have a conflict of interest,' Donald said. ‘If Caradog gives evidence, he could also make it worse for Dai Bach. As Dai's solicitor, that puts you in a difficult position. It may seem that you are advancing one client's case at the expense of the other.'

Barratt nodded slowly. ‘Yes,' he said.

‘It's not necessarily an insuperable problem,' Gareth continued, after a silence. ‘It means we would have to speak to Dai Bach about it as well and give him the chance to object, but my guess is that he would be all in favour of it. He has been very protective of Arianwen from day one.'

‘We can't advise him to agree to it,' Donald said. ‘He would be taking the risk of making his case worse, without any chance of repairing the damage.'

‘Certainly, we would have to make sure that he understands the situation fully,' Gareth replied. ‘But we can tell him, quite truthfully, that the chances of Caradog making his case any worse are extremely remote.'

‘Are they?'

‘Donald, Dai Bach's case could hardly get any worse than it already is. Yes, we won a great victory today and kept out his confession, and we are all drinking this excellent champagne to celebrate. But what have we really accomplished? The fact remains that he was caught red-handed with a bomb in the company of Caradog Prys-Jones; he assured the police that he knew it was harmless; and he showed them how it worked. They have the search of the garage, and the trip to Belfast. And we can't call him to give evidence because he has effectively admitted his guilt to us. All in all, I would say that the chances of Caradog making it any worse for him are negligible, and I think that if we offered Dai Bach a chance to save Arianwen, he would jump at it.'

‘I still think it would be wrong,' Donald persisted.

‘Would it?' Gareth asked. ‘Perhaps so, on a strict legal view. On the other hand, from a human point of view, if he can do something for Arianwen, it may be the one thing in this whole sorry mess that gives him some reason to be proud of himself, and perhaps at this point that might appeal to him.'

He turned to Barratt.

‘If you can find out when they are bringing Caradog to court, we will see Dai Bach at the same time. Whatever you do, don't forget to take an independent solicitor with you.'