The Heirs of Owain Glyndwr (37 page)

There was a long silence.

‘Do you actually think that I would have been party to misleading the court?' Evan asked. His voice shook with emotion.

‘Speaking for myself, I take members of the Bar at their word,' Gareth replied. ‘But what I or Ben may think is of no consequence. Once word of this fraud is breathed in open court, and comes within earshot of the press, it will no longer be a question of professional courtesy. This case will become a national scandal, and the public will demand that those responsible be held to account. At that point, it will no longer be within Ben's power, or mine, or even that of the Court of Appeal, to control it.'

He stood, and Ben followed his lead.

‘I suggest that you read DC Finch's affidavit,' he said, ‘and then ask yourself: what is the right thing to do, in the interests of justice? That's all I'm asking, Evan. Just ask yourself that one question. Even better, suggest to the Director of Public Prosecutions that he invite someone else to ask it – someone who has not been involved in the case before.'

They turned and walked without undue haste towards the door.

‘Don't get up,' Gareth said. ‘We will see ourselves out.'

82

Monday 15 June 1970

They had brought Arianwen
into the Royal Courts of Justice with no fanfare, through a side entrance some distance from the imposing arched main door by which the public entered. She was waiting for them in a small conference room adjacent to the court in which her appeal against conviction was to be heard. Although a serving prisoner, she was escorted, with a noticeable lack of concern for security, by a single female prison officer who seemed very relaxed and was sitting unobtrusively beside her. Arianwen had a white handkerchief clenched tightly in her right hand. Her face was even whiter than her normally pale complexion; the lines below her red eyes betrayed her anxiety and lack of rest all too clearly. She stood to greet her visitors. As Ben and Barratt took her hand in turn, they felt it shake. But she smiled and gave each a kiss on the cheek.

‘When you came to see me at Holloway, you said it would be a good sign if they let me come to the hearing,' she said, searching their faces for the slightest hint of any good news, any cause, however tenuous, for hope.

‘It
is
a good sign, Arianwen,' Ben replied, ‘but as I said before, there are no guarantees. Everything depends on what happens today. We can assume that they have read Trevor's affidavit and they think you have a seriously arguable ground of appeal. That in itself is good. But they will probably want to hear from him and have him cross-examined by the prosecution, and we can't be absolutely sure what effect that will have on them.'

She had quietly resumed her seat next to the prison officer.

‘So Trevor is here then?'

‘Yes. He is waiting in the witness room.'

She nodded and closed her eyes for some moments.

‘I don't know what effect it will have on me when I see him,' she said. ‘I only hope I can cope… that it doesn't throw me off balance too much…'

Ben took her hand again.

‘It's going to be important that you keep calm,' he said. ‘I'm not asking you not to react at all. That would be impossible, and the Court will understand that. In fact they would probably think it was a bit odd if you didn't show some reaction when he comes into court. The important thing is not to suggest to the Court that you are trying to contact him or get his attention. The last thing we want is for you to look as though you are playing on his emotions, trying to encourage him, or anything like that. You don't need to look away altogether. You should appear interested in his evidence. But don't give the impression of cheering him on.'

She nodded. ‘I understand. It's just that… you know, after you told me the truth about Trevor and brought me his affidavit, I felt…'

‘I understand,' Ben said.

‘I felt betrayed, so completely and utterly betrayed and abandoned. It took me days of reading his affidavit, time after time after time, even to begin to comprehend the scale of what he had done to me, and to Harri. Even now, there are days when I just can't believe it. I can't believe that I could have allowed myself to be deceived so completely.' She shook her head silently for some time. ‘Ben, how could this have happened to me?'

‘For what it's worth, Arianwen,' Ben replied, ‘I don't think Trevor set out to deceive you. It was something that just happened. He wasn't expecting to fall in love with you.'

‘That doesn't excuse what he did,' she insisted, her voice breaking.

‘No, of course not,' Ben agreed. ‘But you have to forget about that for the moment. What matters today is that Trevor is here, and he is here to do whatever he can to help you. It's not about making excuses for him. It's about accepting the help you have every right to expect. You must remember that, Arianwen. Let's get today over with. You will have plenty of time to think about the past later.'

She looked up at him.

‘I will be fine,' she replied, her voice suddenly stronger.

‘I know you will,' Ben said. ‘You won't be waiting very long. We are first in the list at 10.30. They will be calling you into court in a few minutes. Eifion is here, of course.'

‘Good. Is Caradog here?'

‘No,' Ben replied. ‘They haven't brought him, or Dai Bach. Even if they tried, I would bet good money that Caradog would refuse to leave his cell to come to court.'

‘It's still an English court,' Barratt smiled.

She returned the smile wistfully, turning her head to the side.

‘He always was a silly boy,' she said quietly. ‘Always. From a little mite, my grandmother used to say.'

They met Evan Roberts outside Court 4. Barratt glanced at Ben, and saw him take a deep breath.

‘Good morning, Evan. I hope you're well.'

‘Perfectly well, thank you, Ben.'

Ben looked at Evan closely. His face was inscrutable; the usual thin smile was missing. He was giving nothing away, but Ben detected a hardness in the face he had not seen before.

‘We have DC Finch here,' Ben said, as lightly as he could. ‘Do I need to call him, as far as you're concerned?'

‘It's a matter for you how you conduct the appeal,' Evan replied coldly. ‘If the Court allows you to call Finch, we shall have some questions for him which he may prefer not to answer.'

Ben turned to look at Barratt before replying.

‘Do I take it that you will be objecting to his evidence? I have to say, I find that rather surprising.'

‘I will be resisting the appeal and objecting to Finch's evidence,' Evan replied. ‘These three appellants are guilty of the offence charged, and they were rightly convicted. Your client is no less guilty than the other two, and in a case of such gravity, there can be no question of allowing her conviction to be overturned. Frankly, I will be astonished if the Court does not agree with me. But however that may be, I will present the Crown's side of the case.'

Ben stared at Evan for some moments.

‘Come on, Barratt,' he said. ‘Let's go into court and get ready.' They walked briskly through the huge wooden doors.

‘We don't seem to have made much impression on him, do we?' Barratt commented as they took their seats.

‘Apparently not,' Ben agreed, quickly removing the pink ribbon which bound together the papers in his brief.

‘Did you think you might have changed his mind?' Barratt asked.

‘I thought we might have. But you never know when you put someone in the position we put Evan in. Sometimes they cave in. But sometimes they see no way out except to fight tooth and claw for their lives. You don't know until the decision is made. It seems Evan has chosen to fight.'

‘So, what now?' Barratt asked.

‘The gloves come off,' Ben replied. ‘If he wants a fight, we will give him a fight.'

83

‘May it please your
Lordships,' Ben began, ‘with the agreement of my learned friend Mr Morgan-Davies, I will address your Lordships first. All the counsel who appear before your Lordships today also appeared at the trial. I represent the woman who will be known in this appeal as Arianwen Finch.'

The three judges of the Court of Appeal sitting in Court 4 at the Royal Courts of Justice, the Lord Chief Justice's court, had found it packed to the gunnels, the atmosphere highly charged. The Lord Chief Justice, Lord Parker, took his seat in the centre of the bench, flanked by Lord Justice Carver to his right and Mr Justice Melrose to his left. They looked down impassively on the unusually large throng before them. In addition to those involved in the case, a good number of barristers who happened to be free before appearances in other courts, and who had learned of potentially sensational revelations, had attended court early to make sure of a seat. Reporters representing the national and international press had spilled over from the seating usually reserved for journalists and, with no discouragement from the court staff, found space wherever they could, notebooks and pencils poised for action.

In addition, there were as many members of the public as space would allow, many of whom had made the journey from Wales. A number of police officers and court security officers had taken their places among them in the hope of heading off any trouble that might develop; though they had all been carefully searched before being allowed into court, and their general mood seemed calm and optimistic, not at all threatening. Arianwen and her escort had taken their places discreetly at the back of the courtroom, visible to the judges but screened from the public by a curtain.

The last, and only, time Ben had appeared in Court 4, he had lost the appeal of Billy Cottage, a client who was later hanged for a brutal murder. Even more eerily, the three judges of the Court of Criminal Appeal on that occasion had been the same three judges who now sat in judgment on Arianwen. The Court had changed its name since then – it was now the Criminal Division of the Court of Appeal – but it was still an intimidating tribunal. Cottage had been Ben's first experience of appellate argument, and even though everyone had assured him that he could not possibly have done any more for his client, the memory of listening to the adverse judgment, with the terrible consequence that soon followed, was one that still haunted his dreams from time to time. Today, he hoped, both Court 4 and the three judges sitting on high would bring him better fortune.

‘I thought, Mr Schroeder,' Lord Parker said, ‘that your client was indicted under the name of Arianwen Hughes?'

‘Your Lordship is quite right,' Ben replied. ‘That is one of many unfortunate aspects of this case. At the time of the trial she believed, as she had ever since her marriage, that she was Arianwen Hughes. She is, in fact, Arianwen Finch, and that is important to her appeal. With your Lordship's leave, I will refer to her by her correct married name.'

‘Yes, very well,' Lord Parker said.

‘I am obliged. My learned friends Mr Morgan-Davies and Mr Weston appear on behalf of Dafydd Prosser. My learned friends Mr Roberts and Mr Broderick appear on behalf of the Crown. My learned friend Mr Morgan-Davies has also been assigned by the Registrar of Criminal Appeals to address your Lordships on behalf of Caradog Prys-Jones. Mr Prys-Jones did not take any steps himself to appeal against his conviction or sentence. He is an appellant today only because the Registrar found that his case raises important issues which he has invited your Lordships to consider.'

‘I understand that he would have preferred to be tried in a Welsh court, and in the Welsh language,' Mr Justice Melrose said, with a smile.

‘His appeal will receive the fullest and fairest consideration from this English Court, Mr Schroeder,' Lord Parker said, joining in the smile. ‘But the proceedings will be conducted in English.'

‘I am relieved to hear that, My Lord,' Ben said. ‘My learned friend Mr Morgan-Davies could address the Court in either language, but I'm afraid I am restricted to English. This may be a good moment to mention that we do have a Welsh interpreter in court – PC Hywel Watkins who performed the same role at the trial, in case any question arises about any materials or evidence of conversations in Welsh.'

‘Yes, thank you,' the Lord Chief Justice said.

‘My Lords, before I present the substance of the appeal on behalf of Mrs Finch, I have an application. I first invite your Lordships to rule that my learned friends Mr Roberts and Mr Broderick should play no part in this appeal as advocates. One or both of them may be witnesses to certain facts on which the appellants rely, and of course, it would not be proper for them to act professionally if their evidence is required.'

Evan Roberts jumped indignantly to his feet.

‘My Lords, this is an outrage. We have been given no notice of any such application, and your Lordships have not even decided to hear any further evidence. We strenuously oppose the further evidence as being irrelevant and designed solely to deflect the Court from the facts of the case.'

Deliberately, Ben turned to smile at him.

‘If my learned friend would allow me to finish,' he said, ‘I will explain to your Lordships why the application I make is essential to the proper hearing of the appeal.'

Lord Parker conferred briefly with Lord Justice Carver and Mr Justice Melrose.

‘We will hear your application, Mr Schroeder,' he said.

84

‘I am much obliged.
My Lords, may I ask whether your Lordships have had the opportunity to read the affidavit of Detective Constable Trevor Finch, which was submitted with the application to adduce his evidence?'

All three judges nodded.

‘We have,' the Lord Chief Justice confirmed.

‘I am obliged. In that case, I will not take up too much of your Lordships' time with background matters. The essence of Arianwen Finch's appeal is that the prosecution's case at trial was put before the jury on a wholly false basis. The prosecution insisted from first to last that Trevor Hughes – the name DC Finch was using during his undercover assignment – was also a guilty party. They told the jury that he was a party to the conspiracy who had evaded arrest and remained a fugitive from justice at the time of trial. That was untrue.

‘It follows that certain individuals on the prosecution side – and your Lordships will understand that I choose my words with the utmost care – must have known that it was untrue. That, I am afraid, is an unavoidable reality. These individuals knew that DC Finch had been working undercover, and that arrangements had been made on the morning of the arrests for him to escape the police net and return to London, where he was to remain in hiding. The involvement of DC Finch was relevant to the case as a whole, but it was obviously crucial to Arianwen Finch's defence.'

Ben paused deliberately as the three judges exchanged glances.

‘Mr Schroeder,' Lord Parker asked, ‘do you suggest that Mr Roberts or Mr Broderick knew that the man calling himself Trevor Hughes was in fact DC Finch? I must say, that would be an exceptionally grave allegation to make against any member of the Bar, and it would require the clearest possible proof before this Court would entertain it.'

Ben felt every eye in the courtroom on him.

‘My Lords, I do not suggest that. My learned friend Mr Roberts assured me personally some time ago that he and Mr Broderick had no knowledge of the deception. That, of course, is exactly what I would have expected, and I accept his word for it without hesitation.'

Lord Parker nodded.

‘On the other hand, I cannot say what conclusions your Lordships may be compelled to draw from the evidence, and I would be failing in my duty to Mrs Finch if I did not invite your Lordships to consider every possibility. The fact is that my learned friend Mr Roberts chose to present the case to the jury in the way I have indicated, and the Court may feel that it cannot avoid inquiring into why he did so.'

Evan was on his feet again immediately.

‘This is outrageous,' he said. ‘My learned friend must consider the possible consequences of what he is saying.'

‘I have considered them,' Ben replied. ‘It might have been better if my learned friend had done the same at the beginning of the trial.'

‘I will not be spoken to in this way…'

‘Counsel will kindly address the Court, not each other,' Lord Parker intervened quietly. ‘You will have your opportunity, Mr Roberts.'

‘Yes, my Lord,' Ben said. ‘I am not asking your Lordships to assume anything at this stage. Even if there has been no misconduct on their part, my learned friends may have evidence to give about who knew about this fraud, and who perpetrated it on the trial court. It may be evidence they do not even realise they can give, some detail it has never occurred to them to mention until now.

‘The prosecution must be represented by counsel who has not been involved in the case before, and so cannot be a witness. That is the only course which would be fair to the prosecution itself. It would be desirable, for obvious reasons, that new counsel should be instructed and in place before the appeal proceeds any further.'

Lord Parker turned towards Gareth Morgan-Davies.

‘Mr Morgan-Davies, what do you say about this?'

Gareth climbed deliberately slowly to his feet, exchanging a look with Ben.

‘My Lord, I must confess that I am taken somewhat by surprise. My learned friend had not indicated to me that he would be making such an application. But as I have listened to the reasons he has put forward, I am bound to say that I find them persuasive, and I would join in the application on behalf of Dafydd Prosser.'

Lord Parker turned back to Evan Roberts.

‘My Lords, the application is outrageous,' he spluttered. As Ben had calculated, the calm veneer had vanished. Evan was close to the edge. ‘It's all very well for my learned friend to disclaim any intention of accusing me, but the application itself is an accusation.'

‘I don't think that's true at all, Mr Roberts,' Mr Justice Melrose replied. ‘You have read DC Finch's affidavit, as we have. If he is telling the truth, some police officer must have known. It stands to reason. But it doesn't follow that you would have known. Indeed, you might be the last person they would tell. They might very well have foreseen that, if any hint of Finch's true involvement reached you or Mr Broderick, you would be bound to come forward and say so immediately; in which case the game would be up.'

‘I agree,' Lord Justice Carver added. ‘If there was a plan to mislead the trial court, its success may well have depended on them keeping it from you.'

‘Be that as it may, my Lords,' Evan insisted. ‘If my learned friend Mr Broderick and I were to be removed from the case, it is bound to reflect badly, not only on us, but on the prosecution, and it would deprive the prosecution of the advantage of having counsel in this appeal who were present throughout the trial.'

Lord Parker nodded. He gestured to his colleagues. Lord Justice Carver leaned in towards him. Mr Justice Melrose left his seat and stood between them so that they could confer in a series of whispers without being heard. After what seemed a considerable time, they resumed their positions.

‘We have decided to grant the application in part,' Lord Parker said. ‘We think it is important that Mr Roberts and Mr Broderick should continue to act for the Crown, having done so at the trial. We also think it unlikely that we would call on either of them to give evidence in the appeal. But we cannot exclude that possibility.'

He paused.

‘We must ensure that our decision is not only correct, but is seen by the public to be correct, that it is seen to be one in which they can have full confidence. For that reason, we conclude that the Court should also have input from prosecuting counsel who has not been involved in the case previously, only – and I stress this – only so that we can satisfy ourselves that we have not overlooked anything that may be important.'

Evan slammed his pen down on the desk. Lord Parker ignored him.

‘Accordingly, we will adjourn this appeal until 10.30 tomorrow morning, and we will direct the prosecution to have new counsel available to assist the Court, with Mr Roberts and Mr Broderick, at that time.'

Evan Roberts stormed imperiously out of court as soon as the judges had risen, leaving his junior to gather up his papers.

‘You weren't joking about taking the gloves off, Ben, were you?' Barratt smiled as they stood to leave court.

‘I'm just warming up,' Ben replied.