The Law

The Trial of John Bodkin Adams (Part III)

How the Trial Damaged the Lives of Its Participants

The judge in the Adams trial, Patrick Devlin, told the jury that “it is very much more difficult … to prove that a doctor murdered his patient than it is to prove other acts of murder”. That is because the very act of murder by doctor of patient, most usually, has to be proved by expert evidence. The jury may have reasoned that because of the difficulty of proof the safe course was to acquit. Devlin also told the jury:

you are not sitting here … as a body of men [sic] who can call for [the] transcripts, read them over every day down to the sixteenth and then compare one paragraph with another and endeavour to arrive at a conclusion. That is not the way in which in this country we convict of murder. We convict only if the witness can clearly supply from the witness box the evidence to the jury…

The jury may have thought that the evidence of Douthwaite and Ashby was not clear to the point of excluding a reasonable doubt. Devlin said that Ashby’s evidence was “borderline” in the sense that what he “gave with one hand he took away with the other” and he said that the jury could not convict on borderline evidence. This is a reasonable direction, but it is one of the many examples illustrating how favourable the summing up was for the defence.

Lawrence made a powerful submission early in his address: “Is this not a most extraordinary case that a doctor should be accused of murdering one of his patients when she was dying already? With no intervention on his part the end was inevitable.” He was referring to the evidence of several nurses and doctors that it was plain in the last few days of her life that Mrs Morrell was dying. Further, Ashby gave evidence that one could not rule out the possibility that death was caused by “a sudden catastrophic intervention by some natural cause”. Harman gave similar evidence. A related consideration was the weakness—for an already rich doctor—of the alleged motive. Both Lawrence and Devlin described the postulated reward for murder as “very paltry”.

In 1957 (as contrasted with 1985) Devlin seems to have seen the late disclosure of the nurses’ books as vital because he told the jury that “no one can say that the Crown was not justified on the material they had at the beginning of this trial in prosecuting Adams”. Perhaps more important than the actual records was any shifting in the Crown position flowing from the late disclosure, such as possibly Douthwaite’s change of position. Speaking of that change, in Easing the Passing: The Trial of Dr John Bodkin Adams Devlin said that it would have been extremely unlikely for “the great Sir Bernard Spilsbury” to make a substantial concession, and less likely for him voluntarily to change his mind in the course of evidence. Devlin was referring to a pathologist much called by the prosecution in the early to mid-twentieth century in murder cases. Some, of course, now hold that Sir Bernard’s masterful testimonial manner was responsible for the hanging of innocent persons.

Another partial reason for the acquittal may have been the moral strength Lawrence seemed, somewhat illegitimately, to have derived from his questioning of the nurses and his placement of the books on a pinnacle of irrefragable significance. Yet another may have been Douthwaite’s concession that the views opposing his own were possible, coupled with the presentation of just such views by Harman.

Another may have been the fact that there were medical advisers whose treatment of Mrs Morrell was similar to that of Adams. For example, contrary to what Douthwaite regarded as correct, she was given morphia by two doctors in the hospital in Cheshire. And while Adams was away, Dr Harris, hardly an enthusiastic supporter of Adams’s regime, made seven visits to Morrell in May 1950, one in June and twenty in September, but did not change Adams’s morphia and heroin regime. In fact, he increased it on September 12, because of Morrell’s extreme irritation over Adams’s departure on holiday.

Devlin’s “no evidence” direction in relation to Adams’s four admissions to Hannam may have contributed to the acquittal. But the biggest factor was probably Devlin’s strongly pro-Adams summing up.

 

The vindication of Hoskins

The acquittal brought great relief to Adams’s faithful champion, Percy Hoskins of the Daily Express. In the autumn of 1956, Lord Beaverbrook, fearful of the harm a conviction might cause the paper, had questioned Hoskins closely before allowing him to continue to support Adams. “My head would have been on the block,” Hoskins (right) wrote, “if he’d been found guilty. Lord Beaverbrook … phoned and declared: ‘Percy, two men have been acquitted today, Adams and Hoskins’.”

The acquittal made the “Beaver” happy but it did not end Adams’s troubles. Douthwaite damaged Adams’s reputation for competence; Devlin damaged his reputation for morality. More damage lay in store. The worry of prosecution for procuring other deaths took years to lift. Adams resigned or was dismissed from almost every organisation with which he was connected. On July 26, 1957, he pleaded guilty to the “minor” related charges, with which he had been charged on November 26, 1956—false statements on cremation forms, drug possession and the like. He was fined £2400. On September 4, 1957, his authority to possess and prescribe dangerous drugs was revoked by Rab Butler, Home Secretary. On November 27, 1957, he was struck off the Medical Register. This at least fulfilled one of Hannam’s secondary goals—to minimise the chance of any murders in future.

From 1961, Adams began to climb off the floor. On November 22 he was restored to the Medical Register, after several failed applications. On July 2, 1962, his authority to possess and prescribe dangerous drugs was restored by order of Rab Butler, still Home Secretary. This decision astonished some observers. He resumed practice to some degree as a sole practitioner. His financial position strengthened. He continued to receive bequests from patients. And he obtained numerous tax-free damages awards for press libels. He rejoined Rotary. He retained a strong interest in shooting, nearly until his death. In short, his encounter with Hannam badly damaged his career but did not destroy it. When he died in 1983 he left the large sum of £408,305. It was divided among his relatives, charities and the quite large number of people who had stood by him.

 

Press and political reaction

It is a cliché of lawyers that it is better for the guilty to go free than for an innocent person to be convicted. The failure of a prosecution, particularly a difficult prosecution, is not, therefore, necessarily a criticism of the prosecutors. That is not however the way elements of the press saw Adams’s acquittal. Many were extremely critical of the prosecution in general and Sir Reginald in particular. 

Chief among the complaints was the failure of the police to get the records of Morrell’s treatment in Cheshire or to find the nurses’ books—though this may have been because Adams deliberately hid them. Devlin’s record of what Lawrence later told him over dinner in the Savoy Grill suggests that Adams was assisted by the fact that the search warrant executed on November 24, 1956, was for “dangerous drugs only”—not nurses’ books. Devlin’s record continues: “In presence of police, A opened every drawer. Day after event, A’s Eastbourne [solicitor], who knew his habits, turned A’s place upside down in search for anything of use and found them.” There also seemed to be no single mind co-ordinating the prosecution team. 

But some things must be remembered. One is that apparently initially the Medical Defence Union, which was not obliged to support Adams in his defence and had a discretionary right not to, were reluctant to assist. When the Union decided to assist, it probably had much better sources of information, and certainly much more support from the medical profession which could have been damaged by a conviction, than did the prosecution. Devlin, by the “no evidence” direction and his favourable summing up, made things hard for the prosecution. And in Easing the Passing and a BBC interview in 1985 with Joshua Rozenberg, Devlin said he was sure of Adams’s innocence and the prosecution “hadn’t a hope from the beginning” even if the nurses’ books had never emerged. “Nobody could’ve got a verdict on it.” If that is correct, any failing of Sir Reginald or the police cannot have been the cause of the acquittal. It would have happened even if there had been no failings. 

These considerations did not stop members of the Labour party criticising Sir Reginald’s conduct of the trial and demanding an independent inquiry. This campaign got nowhere but did generate more adverse press comment. Devlin wrote to Sir Reginald commiserating about the criticism. Sir Reginald thanked him, but said his only regret was his failure to satisfy Devlin that Adams’s four admissions to Hannam created a prima facie case that he administered the drugs prescribed. He nursed this grievance all his life.

 

We’ll meet again

In the late 1950s the British colony of Nyasaland was moving towards independence under Dr Hastings Banda of the Congress Party. In early 1959, there were outbreaks of violence against property and persons, and threats of more. The Governor, Sir Robert Armitage, declared a state of emergency on March 3, 1959. The British cabinet decided to establish a commission of inquiry into Nyasaland affairs. Devlin was appointed to head it. A report was delivered to the Colonial Secretary on July 16. Armitage, the Nyasaland government and the British cabinet were critical of the report. The most damning lines had a Devlinian ring: “Nyasaland is—no doubt temporarily—a police state where it is not safe for anyone to express approval of the policies of the Congress Party.” On July 28 Sir Reginald, as Attorney-General, made numerous criticisms of the report in the House of Commons in an hour-long speech. Prime Minister Macmillan described it in his diary as “a massive speech which greatly pleased our Party. He was given a great ovation when he finished.” The speech attracted much Conservative support in both the Commons and the Lords, and much Labour opposition. Devlin did not hear it. But he read it. He naturally regarded it not as massive but flimsy. He also directed a fair bit of abuse at it in Easing the Passing. This is not the place to analyse the merits of Devlin’s report. It was on the right side of history, since Dr Banda became the first President when independence was granted to the colony under the name “Malawi” in 1964. Ironically, at the independence ceremonies the representative of the British government was Sir Reginald.

The significance of these events is that they perpetuated the dislike which Devlin had developed for Sir Reginald. However, in the next few years each was promoted. Macmillan appointed Devlin to the Court of Appeal in 1960 and to the House of Lords in 1961. And in 1962 when Macmillan dismissed seven members of his cabinet in the “Night of the Long Knives”, he appointed Sir Reginald as Lord Chancellor and ennobled him as Lord Dilhorne. This was a more than satisfactory substitute for the Chief Justiceship which neither Devlin nor Sir Reginald had been appointed to as a replacement for Lord Goddard. In 1964, in the resignation honours following Harold Wilson’s electoral victory, Sir Reginald became a Viscount. He also became Deputy Leader of the Opposition in the House of Lords.

It was not only Sir Reginald who had been aggrieved by Devlin’s summing up. Another malcontent was Hannam. He said that neither Sir Reginald nor Melford Stevenson QC could explain why it favoured the defence so much. From a personal point of view, of course, he could have taken comfort from the praise which Devlin’s summing up had bestowed on the honesty and fairmindedness of himself, Pugh and Hewitt. In his report to the Chief Superintendent on the trial, he said there were easier cases of murder by Adams to prove than Morrell’s (since that case was six years old, there had been no suspicion during those six years, and the body had been cremated). The Morrell case turned entirely on medical opinion and Dr Ashby (in Sir Reginald’s opinion) had failed to come up to proof. The summing up had been extremely detrimental to the prosecution and unusually favourable to the defence. The police had been seriously under-involved in the case after Adams had been committed for trial. Hannam felt that the investigation had been curtailed and hampered and that evidence he had gathered had been withheld. Hannam read a serialised life story of Adams in the Daily Express, for which Adams was paid £10,000. He composed a notebook about the life story, recording Adams’s lies and making other interesting observations. A son and a grandson each became a police officer. In 1960, Hannam was promoted to the rank of Commander but he resigned from the CID and became a security adviser. He died shortly before Adams in 1983. 

Pugh was another police officer who had been confident of Adams’s guilt. In his prime he had been a very fit man, habitually leaping over the desktop at Eastbourne police station instead of opening it and walking through. He impressed Bedford as an energetic, wiry man as he sprinted into the witness box and delivered his testimony at high speed. But he died in sad circumstances at the age of sixty-nine in 1977 of Alzheimer’s disease.

Douthwaite’s reputation was seriously injured by his encounter with Lawrence, Devlin and the jury. He nevertheless wrote a letter to Lawrence thanking him for his “unfailing courtesy”—a gentlemanly but not wholly truthful tribute. It was said that he did not become President of the Royal College of Physicians because of his theory that Morrell’s doctors at Cheshire were no better than Adams. Or perhaps his colleagues were infuriated by the idea that any physician should give evidence against a fellow medical practitioner, a not uncommon “dog doesn’t eat dog” view among professions to this day. 

 

Lawrence

Lawrence was the least damaged by the trial. The acquittal made him a popular hero. His performance must have played a large part in nullifying the prejudice against Adams created by the press coverage of the previous months. He gained worldwide admiration for his skill and virtue in saving Adams from the gallows (or life in jail if he had been “lucky”). He became Chairman of the Bar. He delivered an extremely successful address to the American Bar Association. He became a judge. He then satisfied a necessary condition for apotheosis by dying a Wordsworthian death at the relatively young age of sixty-four in 1967.

But to some degree his feet were made of clay. There were his tainted questions, his rudeness to and mockery of some witnesses. And his bizarre post-trial dinner with Devlin. 

The judge was not a friend of Lawrence but he invited him to dinner at the Savoy Grill on July 26, 1961. It is a weakness of some judges, who never know as much about a case as the parties, to seek to find out from legal advisers what did not emerge at a trial. As Devlin said in Easing the Passing, for him “almost every case has been a story of which I should have liked to have known more”. 

At the dinner, according to Devlin’s notes, Lawrence said that he “disliked Adams v much—greedy, pig-headed, loquacious, dishonest”. Adams charged “Morrell [for] visits he did not make” and probably “he was charging her [for] drugs not administered”. Lawrence also described Adams as “a bounder”. He said he had not called Adams as a witness because he thought Sir Reginald would expose his dishonesty, because there was no evidence that Adams had given a fatal dose, and because Adams’s loquacity would have made him a bad witness, dangerously liable to make an admission about “easing the passing”. What were the standards of taste and judgment displayed by Lawrence—a Queen’s Counsel, indeed Chairman of the Bar Council—revealing discreditable secrets learned while owing strict duties of confidentiality about a client, and making those revelations while that client was still living? What were the standards of taste and judgment displayed by a judge eliciting the secrets and making notes? The episode tends to smudge the saintly reputation Lawrence enjoyed after the universal triumph of the acquittal. It does not reflect well on Devlin either.

Devlin gave no detailed account of this in Easing the Passing but at the end of the book in the acknowledgments he writes: 

I have exchanged thoughts about the trial with Sir Theobald Mathew who was at the time Director of Public Prosecutions and with Mr Geoffrey Lawrence QC and Mr (as he then was) Edward Clarke, the counsel for the defence. The book owes a little to them, but not too much since our conversation was inevitably confined by their duty to their clients.

In Lawrence’s case, the confinement does not seem to have been too rigid. 

 

Sir Reginald’s death

In Easing the Passing, Devlin said of Sir Reginald’s death in 1980 at the age of seventy-five, “there were no comets seen”. There was a “very generous obituary in The Times … though that was all”. This is incorrect, ungracious and spiteful. It is true that Devlin could not have known the contents of Viscount Hailsham’s diary but it said:

Reggie Dilhorne is dead: MCH rang me on the way home in car y’day. Apparently in Scotland. Grand day on the hill. Some fine heads seen. In the night fell ill and sent for daughter and son: “I think this is the end”, and died. Wrote Mary D. Sad for her. Old school friend. Will be sadly missed. But his life’s work ended w: retirement last July. Fine character. Sound values. Unflagging industry. Filled each office he held with distinction. End at the top of his powers: no slow decline, no long illness.

This tribute is the more notable in view of a quarrel between the two men in the House of Lords in 1978. Churchill’s son-in-law, Lord Soames, said in the House of Lords on October 6, 1980: “Behind the bluff and perhaps sometimes forbidding exterior there lay a deep sensitivity and a strong sense of humour.” Lord Elwyn-Jones, a former Labour Lord Chancellor who had sat with Sir Reginald (left) in the House of Lords and earlier opposed him in the House of Commons, said of the Commons years that he had “tough robustness in the face of stormy parliamentary onslaughts … I did not often agree with him politically but this never affected our long-standing friendship which extended over a span of 40 years. Few men were kinder in personal relationships than he was.” Maybe these three tributes were wrong. Maybe they were too generous. But they were more than one obituary in The Times.

The death of Sir Reginald in 1980 left the path clear for the publication of Easing the Passing, which could never have been published in his lifetime without the risk of a libel action potentially ruinous to publisher and author. The book is partly written in the present tense, as if to suggest the author continued to work as a judge. But Devlin sat in no trials after 1960. Were parts of the book composed at or soon after the trial, with a view to later publication? Was Devlin’s invitation of Lawrence to dinner in 1961 a technique for extracting titillating material for publication? Was the work an effort by a man in his late seventies to recapture a moment of past glory? Was it motivated by revenge for some slight after the trial, like Sir Reginald’s attack on the Nyasaland report in 1959? Whenever Easing the Passing was written, it was published in 1985 when all the other strong men had gone—Lawrence in 1967, Douthwaite in 1974, Sir Reginald in 1980, Hannam and Adams in 1983.

Between 1964 and 1969 Sir Reginald sat from time to time in the House of Lords and on the Privy Council. Sometimes he sat with Devlin, who records no criticism of his performance in those years. In 1969, Labour Prime Minister Harold Wilson looked across the party divide and graciously made him a full-time judge—Lord of Appeal in Ordinary. Easing the Passing does not seem to think it important, but Sir Reginald’s conduct, like Othello’s, did the state some service. If an equivalent to the blind tasting of wine were held, his work would be seen to compare well with that of his colleagues, some possessing very illustrious names.

Devlin’s career had also been highly successful. He retired from the House of Lords in 1964, having served the minimum fifteen-year period to qualify for a pension. It has never been entirely clear why he did this, but he said it was to avoid boredom. He continued to sit occasionally in the House of Lords and on the Privy Council. He participated in numerous international commercial arbitrations. He chaired the Press Council for five years. He produced reports on subjects ranging from the docks to identification evidence. He was a well-known public figure through his lectures and books and participation in the Hart-Devlin controversy, the controversy about the Wolfenden Report and the controversy about the Warren Commission report on President Kennedy’s death. He served for many years as a judge in the Administrative Tribunal of the International Labour Office. He wrote a very learned if dull book about Woodrow Wilson’s drift to war, Too Proud to Fight. Few now share his admiration for that moralising segregationist. He befriended distinguished Americans like Justice Felix Frankfurter of the United States Supreme Court and former Secretary of State Dean Acheson. If ever a name ranked high amongst the great and the good, it was Devlin. Then he published Easing the Passing—an act of massive self-harm.

Easing the Passing is in parts brilliant. In parts it makes many points useful and interesting to lawyers. It explores mysteries about the course of events and the character of Adams left obscure by the trial. It examines the moral issues which confront those attempting to treat the dying. In these respects it had a succès d’estime. 

But it gives the impression of a sustained attempt to bury Sir Reginald once and for all under a heap of stinking denigration. Why did he do this? Perhaps because of their rivalry for the Chief Justiceship. Perhaps because he loathed Sir Reginald because of Sir Reginald’s attack on the Devlin Report on Nyasaland. Possibly he had residual guilt about his failure to give Sir Reginald natural justice in the Adams trial. Whatever the reason, it ensured that Easing the Passing enjoyed a succès de scandale.

The book was criticised for attacking a dead colleague. It is true that Devlin wrote a letter on July 19, 1984, to Sir Reginald’s son purportedly seeking copyright permission in relation to a sentence from a letter of Sir Reginald’s (which was probably not needed). The letter foreshadowed that the book would be “very critical”. The son seems not to have replied. If that was a deliberate decision, it is understandable. 

Easing the Passing led to severe criticism from senior judges—a retired Lord Justice of Appeal, Sir Robin Dunn, and two Law Lords, Lords Scarman and Bridge. And it led to much criticism within the legal profession—clandestine, but massive. Devlin attempted to refute his critics and calm the storm by publishing a postscript to a further edition, but it only made everything worse. It contained additional criticisms of Sir Reginald and further damaged Devlin’s reputation. It is replete with evasions, titters at his feebly donnish “witticisms” and sophomoric debating points. He tried to downplay the charge of having attacked a former judicial colleague by grossly underestimating the number of cases in which they sat together. His regrets, expressed in his BBC interview in 1985, that the book had “caused much anguish” to Sir Reginald’s family ring hollow.

The saga reveals how much the world has changed since the 1950s. One example is the completion within nine months of a police investigation into the case of Morrell and others, a committal hearing, and a seventeen-day trial—regarded at the time as very lengthy. Today that would be regarded as extraordinarily brisk and commendable. Another example is that while held in Brixton Prison pending trial, Adams was nicknamed “Mr Pickwick” by his fellow prisoners. Modern prisoners would lack such literacy.

But the standards which led to the condemnation of Easing the Passing have not changed. Of the six strong men, the one who had the greatest power to damage another tried to wield it in Easing the Passing. Ironically, that caused more damage to the abuser than the abused. Had the book not been published, Devlin’s reputation would have stood high. He was close to the greatest of twentieth-century English judges. He was a leading public intellectual. Whether correctly or not, the book’s meanness of spirit has diminished all the achievements and talents of its author.

In reviewing Sackar’s life of Devlin in the Times Literary Supplement, Michael Beloff said that Easing the Passing was a collection of “calculated insults”. He also said that while a Devlin cult had been developing, the book converted him into an agnostic. The cloud over Devlin’s reputation which suddenly gathered in 1985 survived his death in 1992. It is unlikely to go away soon.

Dyson Heydon served as a judge of the High Court of Australia from 2003 to 2013. This is the final part of a three-part series; the first two parts appeared in the May and June issues

 

One thought on “The Trial of John Bodkin Adams (Part III)

Leave a Reply