C H Rolph

Crime and the DPP

Public Prosecutor

By

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It’s natural to open the memoirs of a retired DPP in high hopes of learning the inside stories of recent criminal causes celebres. You know anyway that nearly all these cases have an unrevealed lowdown, about which a whole clutch of officials (including above all the DPP) must have been tight-lipped for years. The publishers say that Sir Norman Skelhorn is the first DPP to have written an account of his years in office (though I seem to remember that Archibald Bodkin did it), and that he is the eighth man to have held that office, established only in 1879. But he remains pretty tight-lipped. His book is thoroughly conventional – on all matters except, 1) the death penalty for murder and 2) some totally undeserved public strictures passed upon him by Lord Justice Lawton in 1973.

The former provokes the thought that he might not have wanted hanging restored while he was in office. But at the beginning of his book he says, with the rather chilling self-satisfaction to be found among criminal law practitioners, ‘only once was a man I defended on a murder charge actually hanged.’ What does that mean, if it doesn’t mean that in most of his murder cases (before he became DPP and ceased to defend anyone) he managed to thwart the law? His publishers say that, even if a man who spent so much of his early life defending people was an unexpected choice for DPP, Sir Norman ‘never regarded himself as a public prosecutor but more as a Criminal Ombudsman,’ whatever that might be. And everyone will concede that, as from the time of his appointment in 1964, he writes with something very close to complete objectivity.

But the mask slips sometimes, and no wonder. The DPP is a sitting target for snipers from all directions, not least from the High Court Bench, and in 1973 he was cruelly and unjustly castigated in the Court of Appeal by Lord Justice Lawton for having granted immunity to the ‘supergrass’ Bertie Smalls. This arch-sneak, a violent criminal with a hideous record, offered to put away no less than twenty-six of his odious accomplices, all much sought after by the police, in return for his own immunity; and Sir Norman, after what must have been an agonising period of indecision, agreed that the public interest demanded compliance. ‘Nothing of a similar kind must ever happen again,’ said Lord Justice Lawton at the end of a tirade. Was that for him or any other judge to say? The issue reached the House of Lords, which placed on record the important principle (long known but never enunciated) that no judge had any right to give directions to the DPP as to how he conducted his business. Sir Norman was completely vindicated. But the ‘supergrass’ technique is by far the biggest advance in thief catching since the middle of the nineteenth century – and it is no misnomer to call it a technique, for it is immensely complicated and difficult. The Lawton strictures, despite their emphatic rejection by the House of Lords, amounted to a body-blow from which it has not yet recovered. Sir Norman’s account of the episode is restrained, dignified and convincing.

I believe that many readers will decide that he doesn’t always do so well. In the Peter Hain case his defence (for here he is really on the defensive) is both less confident and less convincing. Here he was faced with a pretty self-evident ‘mistaken identity’ case, in which he was asked to believe that a widely known young South African of impeccable character, who happened to be unpopular among supporters of apartheid and had made a nuisance of himself by the disruption of sporting events, would snatch £450 from his own local branch of Barclays Bank and try to run off with it. The case should never have gone before magistrates. The DPP’s criteria ought to include inherent unlikelihood if not downright absurdity. And has not Sir Norman’s successor since declared that the DPP never prosecutes (or authorises prosecution) unless there is a fifty-one per cent likelihood of conviction?

Among a stream of stories which must appeal to a wide variety of readers, none is more interesting than the DPP’s reluctant prosecution of Calder and Boyars for publishing Last Exit to Brookyn in 1969 (Sir Norman doesn’t give the date and is in fact pretty sparse with his dates). Here his hand was forced by the activities of Sir Cyril Black MP, who took it upon himself to get the book condemned by the Chief Magistrate at Bow Street, under a section of the Obscene Publications Act 1959 which precludes trial by jury. The effect of this was that further publication would be dangerous within the jurisdiction of that particular Court, while it might still be safe elsewhere. But no-one could say, no lawyer could reassure. Calder and Boyars faced the possibility of endless local actions before lay justices, and needed a jury trial to settle the matter nationally. So they decided to continue publication and told the DPP that, if he felt like prosecuting, they would like it done before a jury. In due course an Old Bailey jury convicted after a nine-day trial, and Mr John Mortimer QC then took the case to the Court of Appeal, where he succeeded on the ground that Judge Rogers at the Old Bailey had omitted to tell his jury that they should consider whether the book, so far from ‘depraving or corrupting’ its readers, might fill them with compassion and revulsion. Last Exit to Brooklyn was made. It had escaped on a technicality, and Sir Cyril Black had not only wasted his time (and about £1,000) but ensured prosperity for the book he had wanted to suppress.

In memoirs of this kind I always enjoy the judicial view of the kind of jurors coming into the courts as the years go by and the fashions change. Sir Norman recalls sitting as a Crown Court Recorder at the time when prisoners began appearing in open-necked shirts (‘it used to be thought important to make a good impression by appearing in one’s Sunday suit’). Of the nine men on one jury at that time, he says, four were without ties and two without jackets. (But he always noticed that ‘the jury chose as their foreman the best-dressed man among them.’) He thinks this marks a decreased respect for the law, though it more probably marks a decreased respect for everything and everybody. What he may not know is that some of the newly qualified artisan jurors go to court so confident of getting excused that they turn up in the working clothes in which they had expected to hurry off and get on with their jobs.

It is among such minutiae that one has to classify Sir Norman’s obvious belief (actually inexcusable in someone so closely identified with the whole system) that Charles Richardson, the gangland torturer who escaped from prison in 1980, had ‘had his application for parole rejected’. A prisoner makes no ‘application’ for parole. His eligibility for it is considered at a certain time whether he applies or not. The only ‘application’ from him which will receive attention is an application he left out, a rejection of the whole notion of parole. Some prisoners resort to this as the one and only lawful method available to them of thumbing their noses at the system; and of course they don’t get parole whether they have earned it or not.

Sir Norman Skelhorn has richly earned his, plus the thanks of the country for a difficult job well done.

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