The Murder Trial of Dr John Bodkin Adams: Part II

Dr Adams’s defence counsel Geoffrey Lawrence became obsessed by the difficulty of ensuring that the massive pre-arrest publicity did not prevent Adams receiving a fair trial. His fears were exacerbated by an error for which Patrick Devlin bears primary responsibility. Soon after Devlin was appointed trial judge, he met Sir Reginald Manningham-Buller, who was both the Attorney-General and the prosecuting counsel in the case, in the absence of Lawrence, to discuss procedural questions. Manningham-Buller revealed that while he would not tender evidence concerning the death of Mrs Hullett during the Morrell trial, if Adams were acquitted he intended to prosecute him for the alleged murder of Hullett. Devlin then wrote to Lawrence about the procedural questions.

On February 26, 1957, Lawrence went to Devlin and criticised him strongly for seeing the Attorney-General in his absence. Apparently Devlin did not tell Lawrence what Sir Reginald said about abandoning the tender of the Hullett evidence in the Adams trial.

Lawrence was entirely correct. In both the 1950s and now, nothing to do with a trial should be discussed by the judge in the presence of one side without the other. Not only was it wrong, it was imprudent, because it attracted the risk of an application that the judge withdraw from the case on the ground of apprehended bias.

Devlin should not have invited Sir Reginald to see him in the absence of Lawrence. Sir Reginald should not have accepted the invitation and should not have revealed his decision to the judge alone. Nor should the judge have permitted this to happen.

The immaculate rectitude of Lawrence’s stance, of course, is somewhat tarnished by his meeting with the judge on February 26 and by another meeting with or telephone call to the judge on March 5, each in the absence of the Attorney-General.

The next Chief Justice

Before the trial, in April, the Chief Justice, Lord Goddard, a friend of Devlin’s, was to turn eighty. It was thought that he might then retire. It was customary for an Attorney-General who wanted the post to become Chief Justice if a vacancy occurred. A possible rival, Sir Walter Monkton QC, decided to leave politics and the law to become a sleek banker in February 1957. Another possible rival—Sir Hartley Shawcross of “We are the masters now” fame in 1945—was also moving out of the law. On February 24 the Sunday Express speculated that in fact the Chief Justiceship would only become vacant in the autumn and that whenever it became vacant, Prime Minister Macmillan would appoint, not Sir Reginald, but Devlin.

On March 5 Devlin wrote to Sir Reginald about the article and on March 6 Sir Reginald responded courteously, expressing regret that the hatred of the Beaverbrook press for him should have dragged in Devlin. Since this correspondence had nothing to do with the Adams case, failure to let Lawrence know was not culpable.

In the end Lord Goddard did not retire until September 1958. He was not succeeded by Devlin or Sir Reginald, but by Lord Justice Parker. Devlin described Sir Reginald as “bitterly disappointed”. It is likely that Devlin shared the emotion, since the appointment made it in practice impossible for him ever to attain the post. Thus this sub-plot fizzled out but perhaps not so far as Devlin’s state of mind was concerned.

A celebrity trial

During the trial, crowds gathered outside the Old Bailey. The national and international press gave it full coverage. The celebrated artist Ronald Searle sketched the judge and others in the court. This was not the sort of case which had grown tedious to Devlin while sitting in the Commercial Court—a squabble over a dreary charter party, or, as T.S. Eliot put it in The Waste Land, involving

Mr Eugenides, the Smyrna merchant,
Unshaven, with a pocket full of currants,
C.i.f. London: documents at sight …

Possibly all this novelty and glamour stimulated a little showing off by Lawrence and by Devlin.

Tainted questions

A potential problem for the prosecution was that while the quantity of drugs prescribed was known by recourse to contemporary records, it had no documentary proof of what quantity was injected.

Initially proof of what was injected into Mrs Morrell depended on the recollections of four nurses about what they administered, or saw Adams administer, or prepared for Adams to administer, coupled with inferences to be drawn from what had been prescribed.

The reliance on what had been prescribed was suddenly attacked on the second day of the trial. For Lawrence elicited from one of the nurses something that he knew very well, namely that the injections given were recorded in books. The search of Adams’s premises by the police on November 24, 1956, had not uncovered these books.

Lawrence used the books to demonstrate that drugs were being administered in quantities less than those indicated in the prescription records as having been prescribed. This did not matter much if one accepted the leading expert witness for the prosecution, Dr Douthwaite, who was as critical about doses recorded by the nurses as he was of the higher quantities indicated in the prescription records.

Lawrence also established that the nurses’ testimony concerning Morrell’s condition was at variance with the observations they wrote in the books. Thus one nurse said that on November 2, 1950, Morrell—just after the allegedly homicidal doses began—was in an “almost semi-conscious condition and rambling”. The book for that day stated that at 6.45 a.m., “Morrell seems very bright this am and not confused”; that she had a breakfast of boiled egg, bread and butter, bramble jelly and two cups of tea; that at 11 a.m. she had hot milk with soda water and brandy; and that at 1 p.m. for lunch she had partridge, celery, pudding and brandy and soda.

Once Lawrence revealed the existence of the books, he asked “leading” questions of the nurses which suggested the desired answer. In cross-examination, which Lawrence was conducting, this is permissible, at least in moderation, but the answers are not necessarily reliable.

Cross-examining each witness, his leading questions suggested that all experienced and trained nurses made an “absolutely” accurate, “full and proper record of every injection”, together with “every­thing that happened of significance in the patient’s illness, including medicines and doctors’ visits”. He suggested that failure to do these things would have been a culpable breach of duty, and hence it was likely that the duty would have been carried out.

Lawrence built his case on the books. In his closing address he said they were “eloquent and unchallengeable” and gave “a complete picture of the medication and treatment of Mrs Morrell by Dr Adams”. The evidence in the books “prevails over anything else and excludes anything else”. On this theory the evidence in the books “excluded” Adams’s four admissions to the police on November 24, 1956, of having administered or seen to the administration of all the drugs prescribed in November 1950. It was a submission of more than Napoleonic ambition. To say that the evidence was “unchallengeable” or “complete” was a very large claim. But to say that it prevailed over any other evidence and excluded any other evidence was grossly unrealistic.

There is an ethical rule forbidding cross-examiners—even those acting for the defence in a murder case—from demanding a particular answer to a question which, if given, would be false to the knowledge of the cross-examiner. Lawrence contravened that rule, for it is common knowledge that innumerable mistakes appear in medical records, as in any other records, even records kept by nurses, who are generally highly conscientious, skilled and dedicated professionals.

Further, Lawrence was a difficult person with whom to disagree. Some of his questions employed a tone of flattery, but where that did not work, the nurses, even worse paid and more demeaned than they are now, were confronted with an authority figure in full cry. For Lawrence was a Queen’s Counsel, bewigged and obsessed with the prejudice he rightly saw as unfairly surrounding his client. His moods alternated between fire and ice, charm and acid rain, emollience and sharpness, affability and headmasterliness, courtesy and barking. He forced the nurses to undergo an ordeal in front of a hundred or more strangers, a large chunk of them journalists, in the Spartan environment of Court No. 1. They could not foresee when the ordeal would terminate. It is true that Sir Reginald could have objected to the questions, but the defence was under no duty to disclose the existence or content of the books to the prosecution before the trial, and at the time when the questions were asked of the first nurse, the books had not in fact been disclosed to the prosecution.

To make the questioning fair, the propositions needed qualification. The word usually appears once, but expressions like generally or time permitting or to the best of your observation are not employed.

In some respects the factual conclusions said to flow from the dogma that the nurses’ books were absolutely reliable became falsified during the trial. Thus, Lawrence mentioned the reliability of the books in relation to doctors’ visits but Dr Harris, a member of Adams’s practice, was able convincingly to contrast what the books said about the number of visits he made with his own records. He appears to have recorded twenty-eight visits to Morrell, yet the nurses’ books only recorded twenty. An error rate of 40 per cent is not trivial.

The most eminent victim of the fallacious assumptions underlying the questions seems to have been Devlin. In particular, he seemed to regard the books as totally nullifying Adams’s four admissions about his own administration of the drugs. But there is one major exception. Despite Lawrence’s doggedness, he failed to get Nurse Randall to withdraw her evidence that on November 11, 1950, hours before Morrell’s death, an injection not recorded in the nurses’ books was in fact given. After close analysis, twenty-eight years later, in Easing the Passing: The Trial of Dr John Bodkin Adams, Devlin accepted her evidence that she had given the unrecorded injection. Other parts of Nurse Randall’s testimony, though not recorded in the books, seemed to be based on vivid and credible recollections, for example, her memory of the jerkiness of Morrell’s movements in her last days.

A further qualification to Lawrence’s dogma is that a recurrent entry in the books was “special injections”. In summing up, Devlin said the jury might think that some related to vitamins, not morphia or heroin; that others may have related to morphia and heroin; but that “special injections” could not possibly account for the difference between the amounts prescribed and the amounts recorded as administered. That was a matter for the jury, not the judge. An explanation for even part of the difference tended to weaken Lawrence’s dogma.

The existence of some legitimate disparities between what the books recorded and what the nurses testified suggests that the books contained errors in other areas. Neither Lawrence nor Devlin refuted or even seemed to contemplate that possibility.

Nurses confer

The power Lawrence had over the nurses from the time he cross-examined the first one, early on the second day, increased on the third day. Witnesses are prohibited from discussing their evidence among themselves until they have left the witness box. Devlin reminded them of this prohibition.

After the court rose on the second day, Hannam saw three of the nurses talking and repeated Devlin’s reminder. The three nurses travelled to Eastbourne by train in the same compartment, surrounded by the evening papers and discussing their contents. They were observed again on the morning of the third day in the train with the morning papers to hand. One was heard to say, “Don’t you say that or you’ll get me into trouble.”

An informant who had witnessed what happened on each train journey managed to pass all this on to Lawrence. The nurse then in the box was cross-examined on those events in a fairly mild way but the incident was significant. It suggested defence omniscience, a worried prosecution camp and a lack of trustworthiness in the nurses’ recollection unless supported by their books. It reinforced the unlikelihood of any nurse witness attempting any significant rebellion against Lawrence’s iron regime based on the books, however open to question their completeness might have been.

Lawrence and the police witnesses

Lawrence’s cross-examination of Detective Superintendent Hannam was aggressive, sarcastic and unsuccessful. He alleged that the meeting on October 1 with Adams was not by chance: Devlin seemed to accept Hannam’s claim that it was by chance, and added that it would not shock him even if the officer had tried to waylay Adams: it was his duty to waylay suspected criminals. Lawrence also suggested that Adams made no admissions on November 24: the judge agreed with the police officer that he did. Lawrence further suggested that since the search warrant executed on November 24 was in Detective Inspector Pugh’s name, Hannam may have been a trespasser. The judge saw nothing unfair or oppressive in the police officers’ conduct. It is true that after Hannam was provoked by Lawrence into interrupting the latter’s submission to the judge, the judge rebuked him. But he also directed Lawrence to terminate the brawl and resume his questioning. Another Lawrence-provoked brawl had to be stopped by the judge. Finally, Hannam (and later Pugh) put an innocent construction on Adams’s statement: “Murder. Murder. Can you prove it was murder?” This may have helped the defence case, but also seemed greatly to improve the standing of the police in the judge’s eyes.

Nor was Lawrence’s cross-examination of Det­ective Sergeant Hewitt a success. He indignantly attacked the detective for giving evidence by reference to notes made by Hannam in Hewitt’s presence. Devlin was “not in the least shocked” by that either. If the latter disagreed with the notes he should say so. Lawrence was apparently ignorant of the fact that this common practice had been approved by the Court of Criminal Appeal as recently as 1953.

Dr Douthwaite’s theory

Intangible elements in fact finding by juries may be affected by the rhythm and atmosphere of the trial. Sir Reginald was calm and imperturbable after the nurses’ books emerged. But he had to do a great deal in a hurry. He and his team had to master the contents of the books without an adjournment—for to seek one would have been to stress the disarray their advent was causing. His examinations in chief and re-examinations of the nurses had to be refashioned. In this questioning he showed skill in downplaying the significance of what Lawrence’s cross-examinations showed.

Arthur Douthwaite was the first expert witness called by the prosecution. Initially his theory was that by keeping Morrell on morphia and heroin for over two years, Adams had made her an addict by mid-1949, and thereafter she was under his influence. He greatly increased the doses on November 8, 1950, with homicidal intent and homicidal effect. But after re-examination was over, in answer to questions from Devlin on the tenth day of the trial, Douthwaite advanced a different theory, developed since he had entered the witness box. Whether the cause of the new theory was the nurses’ books or something else, the theory was that having caused Morrell to become addicted, Adams ceased to administer morphia on November 1, 1950, so that tolerance to it could be reduced, but thereafter employed it again from November 5 in rapidly increased doses, in combination with large doses of heroin, to which she was no longer tolerant, to effect death. Had Morrell been in extreme pain, the doses were justifiable. But she was not in extreme pain. On this amended theory the murder plan was put into effect on November 1, not November 8.

Some have criticised Douthwaite for this supposed change. They might be met by Keynes’s retort: “When the facts change, I change my mind. What do you do?” It is not uncommon in the face of hostile questioning to think intensely about a subject and refine or modify one’s views.

The change may have assisted the insinuations of the defence that the prosecution did not know its own case. Worse was Douthwaite’s doubtless reasonable concession that while he believed that events suggested Adams had an intent to murder, others could take a different view. In relation to his amended theory, however, he took a stern line at the end of his evidence. In answer to questions from Devlin he said the treatment by Adams was not due to error, ignorance or incompetence, but reflected an intent to kill, and he said that anyone stating a contrary view was dishonest.

Dr Ashby

The other expert medical witness for the prosecution, Dr Ashby, did not support Douthwaite’s amended theory and he did not go far beyond criticising Adams’s orthodoxy and competence. He conceded that it was possible that the drugs given after November 8 were given with the sole object of promoting Morrell’s comfort. He also conceded that Morrell’s death could have been the result of natural causes. Both concessions were very valuable for the defence.

No case

On April 2, 1957, the twelfth day of the trial, the prosecution case closed. On April 3, Lawrence made an application for a directed acquittal—that is, for a decision by the judge that the case should end without the jury having to consider its verdict. It was another sign of his ability. His address, referring to highly technical evidence, was delivered fluently and without notes, but Devlin rejected the application on the ground that the medical evidence gave rise to questions only properly to be determined by the jury.

Usually such applications are heard by the judge in the absence of the jury but Devlin was unorthodox in several times refusing to order them out of the court. The procedure was advantageous to Lawrence. It gave him two speeches. On April 3 he was able to make points about complex medical evidence which the jury could mull over in the interval between the no case application and Lawrence’s final address, delivered on April 5. It was then open to him to increase the force of those points by repeating them in the final address.

The defence case

Lawrence announced that he had advised Adams not to give evidence, which was entirely understandable. It is true that a doctor who is unwilling to explain how his patient died after attending her for over two years does not present a dignified spectacle. But it was wise not to call a man whose dealings with the police revealed him to be garrulous, incapable of sticking to the point and excessively loquacious.

Instead the main defence witness was Dr John Bishop Harman, a physician. Sir Reginald was able to demonstrate that much of Harman’s “expertise” stemmed from reading rather than practical personal experience. It is perhaps surprising that a serial litigant like the Medical Defence Union, faced with a grave challenge to Adams and hence all its members, was not able to call a better-qualified witness. However, he disputed various aspects of the evidence given by Douthwaite and Ashby as to the alleged conduct of making Morrell an addict. He did not regard the heavy doses given to Morrell in the last few days of her life as causing death: she was dying in any event. He demonstrated that the correctness of the prosecution case was at least debatable.

Devlin’s direction

On April 8 Devlin began summing up. Near the beginning, he said: “I … direct as a matter of law that there is no evidence upon which you could properly come to the conclusion that any drugs were administered to Morrell over and above the injections recorded in the nurses’ books.” That was an extraordinary direction.

Sir Reginald expressed dissent from that direction from the moment when, just after the acquittal of Adams, he explained why he would not proceed with the Hullett matter. He complained about the direction when defending himself in the House of Commons from attacks on his conduct of the prosecution.

In reply to a letter from Devlin commiserating with him in relation to the attacks by Labour politicians and the public for losing the case, Sir Reginald politely complained about the direction—a dangerous thing for a barrister to say to a judge, admittedly. For the rest of his life he regarded the direction as completely incorrect. He saw it as the reason for Adams’s acquittal.

For his part, in Easing the Passing Devlin claimed that his direction was of extreme importance. He compared himself to no less a personage than Alexander the Great in cutting the knot at Gordium, thereby ensuring that, in accordance with a pronouncement of the oracle at Delphi, or perhaps Zeus, Alexander would become ruler of all Asia. This immodest comparison seems to approve Alexander’s impetuous and irrational violence, but it was hardly a model for a judge presiding over an English murder trial in 1957.

The direction had been conditionally foreshadowed by Devlin during Lawrence’s “no case” submission on April 3. Devlin then said that until Sir Reginald had been heard, and he had not been heard, he, Devlin, was not satisfied that the quantity of drugs prescribed had actually been administered, and that the only evidence which should go to the jury was the quantity administered. In a practical sense, Devlin was saying that the nurses’ books comprised the sole evidence which should go to the jury. He accepted, contrary to the tenor of Lawrence’s cross-examination, that Adams had made four distinct admissions to the police about having administered all the drugs prescribed. But Devlin was holding that those admissions could not be taken into account by the jury on that topic.

Devlin’s “no evidence” direction was radically flawed.

Lawrence had submitted that the jury should reject the four admissions as based on an “absolutely wrong” recollection, but he never applied for the direction. Beyond what Devlin said on April 3, he gave neither counsel any satisfactory notice that the direction would be given. Each counsel delivered his final address on the assumption that the evidence of the four witnesses was material to the jury’s consideration of the case, without being told by Devlin that the assumption was wrong. In his summing up, he did give one set of reasons for the “no evidence” direction. But in Easing the Passing, twenty-eight years later, he gave a different set of reasons. In part the later reasons turned on the view that Adams’s four admissions were lies because he wished to conceal the crime of possessing drugs unlawfully. This rested on the conclusion that Hannam’s evidence about Adams’s attempt to purloin two bottles of morphine was relevant and admissible, despite the fact that this conclusion was contradicted by Devlin’s ruling in the trial, on Lawrence’s application, that the evidence was irrelevant and inadmissible. Devlin also enunciated several propositions about the use of conflicting items of evidence which reflect ingenious desperation more than sound doctrine. And he did not explain how he, as judge, could intrude into the exclusive jury domain of fact finding about material which had been received into evidence. Most importantly, close analysis reveals that not one of Devlin’s reasons for his direction is satisfactory. It is beyond the scope of this article to expound that analysis, but events at the trial and their treatment in Easing the Passing seem to reveal a consciousness on Devlin’s part of unease about his own performance. If so, he was right to feel it.

Devlin’s finest hour

Devlin’s summing up has been greatly admired, particularly in the United States, whether in the form originally delivered, or its heavily revised version, and it created his subsequent celebrity. At a formal level it is a remarkable piece of lucid English prose.

It is notable for three things.

The most important is its stress on Adams’s right to silence. Devlin correctly pointed out near the beginning that it would be “utterly wrong if you were to regard the Doctor’s silence as contributing in any way towards proof of guilt”. Then, near the end, he uttered an eloquent passage, which concluded:

You sit to answer one limited question: Has the prosecution satisfied you beyond reasonable doubt the Doctor murdered Morrell? On that question he stands upon his rights and does not speak. I have made it quite clear—have I not?—that I am not criticising that; I do not criticise it at all. I hope that the day will never come when that right is denied to any Englishman. It is not a refuge of technicality, members of the jury. The law on this subject reflects the natural thought of England. So great is, and always has been, our horror at the idea that a man might be questioned, forced to speak and perhaps to condemn himself out of his own mouth that we grant to everyone suspected or accused of crime at the beginning, at every stage and until the very end the right to say, “Ask me no questions. I shall answer none. Prove your case.”

Not everyone likes the John of Gaunt patriotism of this passage. Modern thinking, or at least feeling, is much more hostile than Devlin to the silent accused. For at least that reason what Devlin said is now profoundly unfashionable. But he was entirely correct. In various places legislative inroads have been made on his statement of the principle. It nevertheless stands as a barrier against the full violence of the triumphant state, triggered by mobs baying for revenge. It may have been Devlin’s finest hour.

A second feature is its use of the “character reference argument”. Sometimes it is risky to do so, but counsel or a judge may remind the jury that an acquittal does not require that the accused be of good character in all respects. Thus Devlin said:

Members of the jury, you may well come to the conclusion that the Doctor was a fraudulent rogue—indeed rogue would be too mild a word—who deliberately tried to get a patient under his influence to get something out of the patient … [But fraud] and murder are poles apart.

The third feature is its conclusion:

I dare say, members of the jury, it is the first time that you have sat in that jury box. It is not the first time that I have sat in this chair and addressed juries. And not infrequently I have heard a case presented by the prosecution that seemed to me to be a manifestly strong one. Sometimes I have felt it my duty to tell the jury so, reminding them that the case for the prosecution must be strong if it is to be proved beyond reasonable doubt, and that it rests always with them to say whether it is strong enough. I do not think, therefore, that I ought to hesitate to tell you in this case that here the case for the defence seems to me to be manifestly a strong one …

This is as close as he could possibly go towards doing what in law he could not do—direct acquittal.

Immediately after the summing up, the jury retired. They returned only forty-four minutes later with an acquittal.

Dyson Heydon served as a judge of the High Court of Australia from 2003 to 2013.