Lethal Witness Andrew Rose Barrister and Author A meeting of the Society was held at the Royal Society of Medicine, 1 Wimpole Street, W1, on Thursday, 2 April 2009. The President, Dr Robin Moffat, was in the Chair. The President: Hello members and guests. Thank you very much for coming out on Obama day. You haven’t been seduced to the East End of London you have stuck with us here in the West. We are very pleased to welcome tonight a distinguished barrister and a retired Immigration Judge, Andrew Rose, who is an author and he has written a number of books, one of which was nominated for a prize. Most of the matters he has written about have been forensic, have they not? Murder on a Common; is that right? One or two things like that. So we are very pleased to have him here and his address, of course, is entitled Lethal Witness, and the lethal witness is not here tonight, he departed many years ago, and his name was Bernard Spilsbury, a household name in the last century, particularly in the twenties and thirties. Bernard Spilsbury was very well known to everybody who practised or who were students in the twenties and thirties and I always compare him to Hamilton Bailey. These two names: they were very similar men. Hamilton Bailey was a surgeon who smoked three packs a day; I think Spilsbury used to smoke about three packs a day. They both lost their sons in tragic circumstances and they both had what amounted to nervous breakdowns. Hamilton Bailey was in Graylingwell Hospital for some three years and was one of the early patients who received lithium to good effect. So they were comparable medical figures. Probably Hamilton Bailey was not quite as well known in the public arena as Bernard Spilsbury. There have been a number of books about Spilsbury. Yours, I think, is the third. Browne and Tullett produced a very good book, which was more of a hymn of praise than anything else, and there has been another paperback which I think emanated from America and now we have got the official biography, and I think this is our third book-signing meeting. They are very successful and I hope the price has been reduced to £20. Mr Rose: £10 for cash. The President: £10 for cash. It sounds like a barrister talking. (Laughter.) Tonight you are faced by a former President of the Royal College of Surgeons and a Professor of Forensic Medicine from Dundee, who will be watching every word you have to say, and we look forward, Andrew, to your address: please come to the rostrum and start. Mr Rose: It is a great honour to be invited to address the Medico-Legal Society, not least because the subject of my talk, Sir Bernard Spilsbury, was your President in 1933 and from the early 1900s right through to his death in 1947 he was an active member. So it is with some trepidation that I address you about Spilsbury, because what I am going to say about him isn’t really terribly complimentary. My conclusions about his career are based largely on Home Office, Metropolitan Police, and other official files, many of which were originally closed for 75 to 100 years and which were opened on my application in a process akin to pulling out hen’s teeth. My view of Spilsbury, which somebody has described, perhaps correctly, as “unforgiving”, is entirely my responsibility. Although Spilsbury’s career encompassed many aspects of forensic medicine, some of which I am sure are above criticism, I have chosen to concentrate on Spilsbury’s appearances in murder trials for this critical assessment, not least because my own experience as a barrister in criminal practice impels me to the view that several defendants were wrongly convicted of murder, and indeed executed, on what was essentially flawed evidence, and flawed by the standards of his own time, not applying, of course, the wisdom of hindsight, which would not be fair. Who Was Bernard Spilsbury? He was the founder of the modern cult of forensic pathology. He was effectively the first dedicated forensic pathologist in England and, by an outstandingly skilful presentation in court, he brought forensic pathology out of its Victorian shadows and into the public arena. He did not take refuge in medical jargon. He did not use twelve words where one would do and he explained complex pathological and toxicological problems in words that lay people could understand, without sacrificing the accuracy of his meaning. He gave minute attention to detail and, without doubt, showed dogged persistence in the face of the most daunting post-mortem conditions. By the 1920s his court appearances in a series of celebrated murder trials had made his name a household word, a media celebrity, whose A-List fame was reflected in the words Spilsbury Called In on newspaper hoardings, celebrating the discovery of some particularly gruesome crime. Standing “alone and unchallenged as our greatest medico-legal expert”, his became a worldwide reputation. In the 1920s detective stories were based on his character. By 1934 Time magazine in the USA was saluting Spilsbury as “the living successor to mythical Sherlock Holmes”, and on this side of the Atlantic Punch published a full-page cartoon and newspaper readers voted Spilsbury the “Best Read”, along with Greta Garbo, FD Roosevelt, Lloyd George, Mussolini and Gracie Fields. (Laughter.) Government ministers sought his advice on matters wildly beyond his expertise. No matter. At the height of his fame, whatever his view might be, his was always “the very best opinion that can be obtained”, in the opinion of one judge, the delight of trial judges, policemen and prosecutors.

“Hero” Then – But Was He Also a “Villain”? One great advocate, whose father knew Spilsbury very well, described him as “a prima donna, increasingly thought of as a bit of a rogue”. Before revealing the shortcomings exhibited during Spilsbury’s 40 years as forensic pathologist, we must look briefly at his background, education, personal and professional life. He was born in in May 1877, his father a wholesale and analytical chemist, who later became a successful manufacturer of synthetic rubber. This is not a “rags to riches” story because Spilsbury senior was very comfortably off. Spilsbury’s adolescent education (I have a photograph which shows him at about age 16 with his two younger sisters and brother) was badly fragmented between three different day schools, as his father moved around the country, and this dislocation seems to have been the prime cause of Spilsbury’s notoriously aloof, cold, even frigid personality. At the end of his life, even his two closest acquaintances could not truly be described as “friends” in the normal sense of the word. Maybe he felt more at home with corpses, “patients” as it were, who would never question his judgment or recover unexpectedly or answer him back. (Laughter.) In 1895 he went up to Magdalen College, Oxford, to study physiology. Although not a “public school man” in the clichéd sense, he exhibited an arrogance and idleness (at least in his first couple of years as undergraduate) that astounded his exasperated tutors. He was regarded as something of a “know- all” – “too confident of his powers”: the latter was a quote from one of his tutors – and exhibited failings which would emerge only too clearly during his professional career. He managed to achieve Second Class Honours, better than expected, but by no means the achievement of a high flyer. Significantly, Spilsbury in his lifetime gained no gold medals and won no major awards or scholarships. His choice of hospital, however, was truly first class (St Mary’s, Paddington) and it would be the making of him. In 1899 he enrolled there as a medical student. Underfunded, relatively understaffed and in dire need of new buildings, St Mary’s in the early 1900s was nonetheless the cutting edge of medicine in England, as many of you, I am sure, will know. It developed an outstanding team of surgeons, physicians, bacteriologists, toxicologists, and (although not always appreciated by the medical elite) pathologists. At the beginning of the twentieth century forensic pathology was still widely regarded as the “Beastly Science”, a hangover from scandals in the mid-Victorian era. Highflying consultants, with expensive private practices in Harley Street or Wimpole Street, regarded post- mortem examinations as infra dig, something for lab assistants, medical students and very junior doctors indeed. Spilsbury, always the loner, relished this unfashionable work and soon found his niche in the post-mortem room (uncomfortably near the Metropolitan and District Railway, whose trains shook the gloomy basement where he worked so painstakingly in those early years). He gradually assembled (if you will forgive me) a corpus of knowledge that, from 1905, began to fill the famous black notebooks and case cards that recorded over 20,000 post-mortems in a 40- year career, which also included him giving evidence for the prosecution (and I emphasise that) in over 200 English murder trials, in respect of which his early biographers, Browne and Tullett, stated that “only a handful of which ended in acquittal” – slightly chilling words in the context of what happened. Deeply conservative and youthfully religious – he was turned down for the Methodist Ministry – Spilsbury shared the prevailing reactionary outlook common among senior staff at St Mary’s. Although he was usually polite, reserved and never grand in manner (unlike many of his colleagues), Spilsbury abhorred the idea of women doctors and seems to have agreed with Sir Almroth Wright, the great bacteriologist, who notoriously declared that “Woman belongs to the logical underworld” (and thus did not deserve the vote). (Laughter.) Spilsbury was also a firm opponent of socialised medicine (despite the fact that most of his income from coroners courts and trial appearances came ultimately from public funds). He strongly opposed Lloyd George’s reforms which laid the foundation for the NHS. He took a high moral line on abortion and regarded male homosexuality as unnatural vice. He would have agreed with an outspoken physician at St Mary’s who castigated contemporary developments in psychiatry in Vienna as the work of “prurient sexuo-psychologists exhibiting some sexual kink possessed by themselves”. Anyway, in 1910 Spilsbury emerged on to the media stage in the Crippen trial. The background story is well-known and I don’t propose to repeat it. While Crippen was awaiting trial at the Old Bailey Spilsbury was in effect headhunted by the chief prosecutor, Richard Muir. Photogenic in the extreme, Spilsbury’s handsome, tall figure, elegantly clad in black tailcoat, with striped trousers and sporting a carnation in the buttonhole of his coat, featured in the mass- circulation dailies. New technologies which had caught Crippen accompanied improvements in photographic reproduction, greatly to Spilsbury’s benefit in the illustrated papers and magazines, and indeed he was captured by court artists, and there (slide) is an example from a slightly later case. As you can see, Spilsbury is on the left, with his senior colleague Dr Willcox unfortunately seeming to take a slightly subordinate position next to him. In relation to the Crippen case, the crucial issue was whether the “remains” found in the cellar included an abdominal scar, Crippen’s wife Cora having once had an operation to remove an ovary. Spilsbury worked under the direction of Augustus Pepper, a brilliant St Mary’s surgeon who had dabbled in pathology from the 1880s and who became Home Office Pathologist, although he was never a full-timer like Spilsbury. Curiously in the Crippen case, although Pepper examined the remains for some hours on the 15 July 1910, it was not until August 8 that he decided that there was evidence of scar tissue, and that was after news about the operation had filtered out at the inquest held on July 18. Even more curiously, Spilsbury didn’t begin to examine the tissue microscopically until early September, by which time there was evidence of putrefaction in the specimens. In court Spilsbury cut an impressive figure as he quietly declared his certainty that the slide sections showed scar tissue (basically because of lack of evidence of hair follicles and/or sebaceous glands). He carefully explained his conclusions and avoided jargon, which was excellent, but his air of certainty (which would feature in so many later murder trials) suggested that forensic pathology was somehow an absolute science, capable of absolute proof, a very dangerous proposition indeed. “I have absolutely no doubt in my mind as regards the scar”, he declared – Spilsbury did not do doubt – and his word carried the day. Crippen was hanged. Muir, the prosecutor, even thought that, without Spilsbury’s evidence, Crippen might have walked free from court. Did Spilsbury see what he said he saw? Putting aside recent DNA evidence, claiming that the remains were not Cora’s and indeed were male, there is now strong reason to doubt Spilsbury’s conclusion that this was scar tissue. A defence witness, Dr Turnbull, who was discredited at the trial perhaps a little unfairly, prepared a convincing written analysis of the slide evidence in 1917, a document which can be seen in the Royal London Hospital archives. In the fifties Dr Francis Camps, a later Home Office Pathologist, examined the slides and, I gather, did not accept Spilsbury’s view. More recently, in 2002, Professor Bernard Knight, a former Home Office Pathologist, came to the same conclusion. Interestingly, despite Spilsbury’s reputation for pinpoint accuracy, it appears that he accidentally inverted two of the sections in his numbered slide samples. Pepper retired shortly after the trial and Spilsbury, then 33, succeeded him as “the Honorary Pathologist to the Home Office”, a title invented for him. Here is a picture of Spilsbury that you have probably seen before; it was taken a little later at St Bartholomew’s Hospital; but it is one of the few pictures of him actually in the laboratory. His reputation soon burgeoned. In the trial of Seddon for poisoning with arsenic his unhygienic lodger for her money, he exemplified a technique likened to a neat drop shot at Wimbledon, giving bland answers in cross-examination until, quite unexpectedly, he would ram home his original finding. In one example he agreed with an inexperienced defence counsel that the reddening of the gut, found at post-mortem, was consistent with ordinary epidemic diarrhoea in that hot summer of 1911; that this could extend over some ten to twelve days; that in the absence of evidence of other disease it was also consistent with epidemic diarrhoea; that there was nothing inconsistent with the General Practitioner’s death certificate finding of epidemic diarrhoea. “That is so,” said Spilsbury at the end of the exchange, just gently seeding in “with the one exception of the condition of the preservation of the body”. Arsenic, as you will know, tends to preserve tissue from decomposition. Collapse of the defence. In 1915 Spilsbury led the prosecution medical team in the Brides in the Bath case (from which that earlier illustration was taken), where he had to grapple with severe decomposition in two of the three victims. He disclaimed responsibility for the experiment in which a nurse, clad in bathing drawers, was suddenly yanked under water in a bath and nearly drowned. Spilsbury’s fame, in any event, was now firmly established and his likeness again featured in the mass- circulation press. In my view, Spilsbury must bear a major share of responsibility for a gross miscarriage of justice in the case of David Greenwood, convicted in February 1918 of the rape and murder of 16-year old Nellie Trew on Eltham Common. Greenwood, then aged 20, was of unblemished character and had a fine service record, invalided out of the army in 1917 after three years in the trenches, nearly buried alive by a shell, suffering from disordered heart action and indeed having been in hospital for over two months suffering from severe influenza. I am not clear whether that was the notorious Spanish flu or an earlier variety of it; it may have been a little bit too soon for the 1918 epidemic, but in any event he had obviously been seriously ill. In outline, the defence was that Greenwood was physically too weak to have overcome Nellie, who was a keen swimmer and athlete and, only too plainly, had put up a brave and protracted struggle against her attacker. The prosecution case was essentially circumstantial, deriving from the finding of a military badge and a plain coat button similar to items possessed by Greenwood, who, however, lived in an area populated by thousands of soldiers, ex-servicemen and workers in the Woolwich munitions factories. His defence was handled as a Poor Prisoners’ brief by an inexperienced single junior counsel, who probably couldn’t get funds to call independent medical evidence for the defence. Spilsbury appeared for the Crown and was the only medical witness of significance. Far from being the independent witness that he ought to have been, Spilsbury was only too obviously partisan and his pointed failure to assist the defence was cruelly effective. He simply batted the defence away, suggesting, contrary to the evidence, that Greenwood could somehow have recovered his full health and strength within such a short time of grave illness. The effect of Spilsbury’s testimony was devastating and remembered long afterwards by the officer in the case. A little later on one of Spilsbury’s enemies commented that “A report of Spilsbury’s attendance at a mortuary is enough to condemn an accused to death even before committal proceedings have begun”. Condemned to death, Greenwood was reprieved (much to the annoyance of King George V) by a courageous Home Secretary, who clearly had lingering doubts about the case. Greenwood served 15 years’ penal servitude and in 2005, in previously closed Home Office papers opened on my application, I discovered the identity of the real murderer in a shocking case that demands an official pardon. In 1923 Spilsbury became the first dedicated forensic pathologist to be knighted. He had served the Home Office well, regularly appearing on the Crown’s side in murder and other grave criminal trials, and, of course, did not appear for the defence in England. Supposedly an independent witness, he was “to all intents and purposes a member of the CID” (the words of his first biographers), closely steeped in prosecution culture. His evidence was instrumental in convicting the Hay-on-Wye solicitor Herbert Armstrong for poisoning his wife with arsenic in a highly publicised case, which may have prompted the new Prime Minister, Bonar Law, to honour the Honorary Pathologist with a knighthood. In summary, the prosecution case was that Mrs Armstrong had been slowly poisoned by her husband over a long period and that, when she became finally bedridden with illness, he fed her a massive dose of arsenic within 24 hours of her death. There was evidence that she had been unable to get out of bed for some four days before she died. Mrs Armstrong, however, was addicted to patent medicines (some of which included arsenic), there was arsenic in the house (supposedly used as a weed-killer) and she was neurotic, depressive and had talked of suicide. She had been buried for some nine months before exhumation on a bitterly cold January afternoon in 1922. Unsurprisingly, the body was badly decomposed. Spilsbury found a small colony of beetles living in the feet, samples of which he thoughtfully sent to a Mr Blair at the Entomology Department of the British Museum. Some organs, however, had been preserved by the effect of the arsenic in her system. At the trial Spilsbury ignored contemporary scientific evidence (based on what was known as the “Witthaus theory”) that inferences drawn from the concentration of arsenic in particular organs were unreliable, because arsenic can move through the tissues in the process of decomposition. I should say, however, in fairness to Spilsbury, that his views were shared by William Willcox, who appeared with him at that trial. Spilsbury, however, was the principal witness and at the height of his form and defeated the defence argument that the large dose might have been taken some eight days before death, the poison being slowly released into the system, a dose taken perhaps accidentally or in a suicide attempt. In any event, the jury took their cue from the words of the judge, the egregious Mr Justice Darling, who virtually directed them to accept Spilsbury’s evidence. This is what he said to the jury: “Did you ever see a witness who more thoroughly satisfied you that he was absolutely impartial, absolutely fair, absolutely indifferent as to whether his evidence told for one side or the other.” Armstrong may have killed his wife, but with Spilsbury and Darling batting on the other side, he didn’t stand a chance. In another case Spilsbury’s silence on a vital issue nearly resulted in the execution of another young soldier, Drummer Dearnley, in 1923. Dearnley was convicted of murdering his best friend, Drummer Ellis, whose tightly bound body was found near their barracks at Aldershot. The defence (rather feeble) was that the pair had been playing a game of “cowboys and Indians” that had gone disastrously wrong. (Laughter.) The prosecution suggested, absurdly with the knowledge now available, that Dearnley had killed Ellis in the course of a fight over a girl. Two days before the execution date Dearnley’s grave had already been dug, when a sharp-eyed prison governor noticed a curious phrase in what was intended to be Dearnley’s last letter before execution. Dearnley was later reprieved because of what was then discovered. Official investigation revealed that he and Ellis had enjoyed a deep and long-standing sado-masochistic relationship, complicated by the amorous attentions of their platoon Sergeant. The authorities moved quickly to avert a major public scandal and the papers, opened on my application in 2005, were endorsed clearly in red ink with the words “No-one is to see them”. (Laughter.) Spilsbury later told colleagues that Ellis’s death was a result of a sado-masochistic exercise involving partial asphyxiation (supposed to enhance sexual pleasure). Research shows that he made no mention of this conclusion in any of his reports, in his evidence at the trial, or in any memorandum submitted to the Home Office after conviction. Officials were simply unaware of Spilsbury’s views about the matter. Although the authors of the 1951 biography suggested that Spilsbury’s opinion that death had occurred during consensual sado-masochistic role play might have contributed to the reprieve, it is clear that, on the contrary, Dearnley was a degenerate and pervert in Spilsbury’s eyes, in effect to be left to his fate. In 1924 Spilsbury took a starring role in a seriously gruesome forensic inquiry into the death of Emily Kaye, a woman in her thirties murdered by her lover, the psychopath Patrick Mahon. The crime occurred at a former coastguard cottage, converted into an unlikely holiday home, on a dreary stretch of shingle near Eastbourne, known locally as the Crumbles. Mahon variously burnt, boiled, chopped up and pulverised his victim into a thousand pieces of bone and flesh, which “ripened”, if I may put it so, in the tiny bungalow over ten days in May 1924. It must rank as one of the most disgusting dismemberments on record. Spilsbury’s sense of smell was notoriously defective (perhaps due to his fifty-a-day cigarette habit), although the stench was such that he was eventually forced to work outside in the walled garden of the cottage, as you can see from this picture, which is a rare example of Spilsbury actually at work. Happily for Spilsbury’s public image, no screens were erected by police and Spilsbury performed his post-mortem in front of an admiring audience of several hundred morbidly curious citizenry, plus assorted journalists and press photographers. The photograph shows him pulling a “silk-knitted yellow jumper” – heavily bloodstained – from Emily’s leather hat-box, accompanied by some 37 pieces of rotting human flesh. MPs later criticised these “ghoulish pictures” and “unseemly scenes”, but Spilsbury, unfazed, carried off the remains to St Bartholomew’s Hospital (to which he had removed in 1919 after a spat with his colleagues at St Mary’s). The photograph, incidentally, shows the lady to the left, described as his assistant, who is oddly dressed for a lab assistant as she appears to be wearing a sable coat, a cloche hat and possibly silk stockings. She was at that time Spilsbury’s lady friend, he having parted from his wife in effective terms two or three years before, but Mrs Bainbridge (that was her name) died two years after that picture was taken and Spilsbury thereafter lived alone.

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The Mahon Case (1924) – Spilsbury giving a very public performance (note the spats).

Returning to the Crumbles case, over three days Spilsbury painstakingly re-assembled what was left of Emily, in a remarkable feat of pathology which greatly redounds to his credit. Unfortunately, the skull was never found, so that, for all his work, the cause of death remained an informed guess, as a blow or blows to the skull. After Mahon was executed at Wandsworth, Spilsbury seems to have taken his revenge by undertaking an unusually detailed post-mortem on the man his evidence had helped to hang (and he would do the same in the cases of other convicted murderers later in his career). Richard Gordon (the author of Doctor in the House and other books well known to us) mordantly put it that Spilsbury “could achieve single-handed all the legal consequences of a homicide – arrest, prosecution, conviction, and final post-mortem – requiring only the brief assistance of the hangman”. The following year Spilsbury secured (not too strong a word) the conviction of Norman Thorne, a young man, who was an unsuccessful farmer of poultry, living at the Wesley Farm, Crowborough. Thorne had been engaged to Elsy Cameron, a typist and neighbour of Thorne’s parents in Kensal Rise. Elsy had an extremely possessive and neurotic personality and Thorne, away from her suffocating attentions, took up with a Crowborough girl. Elsy, deluding herself that she was pregnant, turned up at Thorne’s hut (his on-site living quarters) one December afternoon in 1924. By midnight she was dead. Thorne cut up the body and buried it in the chicken run. He denied having struck Elsy, but there was evidence of sufficient bruising on her body to support the theory that there had been a struggle between them before she died. The real issue at the trial was whether Elsy had died in an attempted or sham suicide, a gesture designed to win back her errant boyfriend. The remains had lain in soil in the chicken run for some six weeks before exhumation, though Thorne had thoughtfully buried the head and part of the neck in a biscuit box, hoping to preserve the marks of a rope on the neck, as he put it. Although Thorne had already been charged with murder, Spilsbury conducted a post-mortem on the 15 January 1925 in the absence of any defence medical representative. Aware of Thorne’s claim, he examined the neck. “No groove in the neck other than a fold in the skin”, he wrote, but Spilsbury did not at that time take a section or make any microscopic examination of the area. Moreover, there is a significant discrepancy in his account: he maintained at one point that the neck was “in perfect condition” at this first post-mortem, but later said that the brain was in “an advanced state of putrefaction” and crumbled away when exposed, which doesn’t sit easily with the earlier assertion. The cause of death was given as “shock due to bruises on the face, to the head, legs and feet”, but, as I understand matters, people do not die from bruising per se and, as Spilsbury himself would later say, “‘Shock’ I regard as one of the most overworked terms in the medico- legal vocabulary.” Thorne, who had expected the evidence to support his hanging claim, was shocked himself by Spilsbury’s conclusions. Then three weeks later, after Elsy’s remains had (inexplicably) been simply reburied, a second post-mortem was held, this time by both Spilsbury and Thorne’s medical team, headed by Dr Robert Brontë, who would become of Spilsbury’s bitterest enemies. This time sections of the neck tissue were taken by each party. Spilsbury’s showed nothing, but those taken by the defence showed, it was said, extravasation of blood in the tissues, consistent with hanging or attempted hanging. This is one of Spilsbury’s slides, with his handwriting on the bottom, misspelling the name “Thorn”, which had an “e” on the end. Amid enormous publicity, Spilsbury maintained his view at the trial. Despite the testimony of Brontë (whose credibility suffered by being regarded as a garrulous Irishman, quite the opposite of Spilsbury’s English sang froid) and two very good witnesses (whose contributions have often been overlooked in assessments of this case), Dr Nabarro and Dr Miller Galt, Thorne was convicted. Spilsbury’s evidence was also notable for claims, now quite unsustainable, regarding the order in which bruising was inflicted, leading prosecuting counsel to claim that it was “quite possible to tell the difference between a bruise caused 15 seconds before death and at the moment of death”. In order to counter Thorne’s evidence of cutting up the body at 1.00 am, Spilsbury created a wholly unreliable chronology, based on an assumption about the time of the onset of rigor mortis. He also developed a flawed chronology based on the transit of food through the gut. Question by prosecuting counsel: “Supposing that she arrives at 5.15… in your opinion, by the condition of the stomach, she was dead by eight o’clock?” “Yes eight o’clock at the outside.” The judge privately thought that the case was one of manslaughter, rather than murder, but nevertheless in summing-up referred to Spilsbury’s testimony as “really the very best opinion that can be obtained”. The jury took their cue and convicted Thorne. After the appeal was dismissed, Thorne’s father spearheaded a surprisingly effective claim for reprieve, but, an extraordinary secret meeting took place between Joynson-Hicks, the very right-wing Home Secretary, the Lord Chief Justice, the Director of Public Prosecutions (which was bad enough, as he was the prosecutor), and Spilsbury (even worse, as he was a witness mired in controversy at that time). After this secret meeting, which I only discovered from files opened on my application, the law “took its course”. In his final letter Thorne called himself “A Martyr to Spilsburyism”, which may in fact be correct. A couple of years after the execution, Helena Normanton, a pioneer woman barrister, pointed out that, on the night of her death, Elsy was about to start her period. The possibility of severe depression, associated with premenstrual tension, was never before the all- male court. Normanton, noting that Elsy had previously spoken of suicide, hazarded that, realising that she was not pregnant and thus had no chance of forcing Thorne to marry her, she might well have tried to enlist sympathy by a sham suicide, a gesture that went disastrously wrong. Contrary to Spilsbury’s evidence at the trial, and as I understand, death could have occurred instantaneously during an attempted hanging by the effect of pressure on the nerves of the neck. Undaunted by a wave of criticism about his “almost papal infallibility” – here is this Punch cartoon, a full-page cartoon in 1928’s Punch – Spilsbury’s evidence substantially contributed to the conviction of John Robinson for the murder of Minnie Bonati, a prostitute, in Robinson’s office, which was, ironically, situated directly opposite Rochester Row Police Station. Like Thorne, Robinson had cut up the body, although this time the bits were not buried but put into a large wicker trunk, deposited at Charing Cross left luggage office, where eventually a disagreeable odour attracted the attention of staff. The core issue was whether the woman (who had a reputation for violent and abusive behaviour) fell to the floor in the course of a struggle with Robinson during an argument about payment for her services. Did she end up face down, as Robinson claimed, or on her back, as Spilsbury asserted, speculating that the woman had been suffocated by hand (or possibly with a cushion, although this idea arose only at a late stage in the trial process), this being after she had been knocked down and rendered unconscious. In my view, Spilsbury’s conclusions were manifestly flawed, not least because he made no microscopic examination of bruises to the right temple and over the hip, bruising he said was inflicted “minutes” before death. In drawing conclusions from the congestion of blood in the lungs, he gave insufficient weight to the position of the quartered remains in the trunk. In the National Archives I found a private memorandum to the Home Office, written by Spilsbury’s (in my view) far greater contemporary, Dr Sydney Smith, with the assistance of the noted Scottish pathologist Professor Littlejohn, and this memorandum is of considerable importance, although it was overlooked at the time. Smith and Littlejohn cogently criticised Spilsbury’s evidence in terms which broadly accord with modern theories. This memorandum only saw the light of public day in 2005. It was ignored by the Home Office and Robinson was hanged for murder. This is an example of a case tipped from manslaughter into murder by the devastating effect of Spilsbury’s evidence. Indeed it is possible Bonati’s death may have been accidental. There is certainly some evidence that she suffered from epileptic fits. The execution of Sydney Fox for murdering his mother in 1930 was essentially the result of Spilsbury’s flawed evidence, flawed by the standards of his own time. Fox was accused of murdering his invalid mother for insurance money. She had died in mysterious circumstances, amid a fire in a hotel bedroom in Margate. The fire wasn’t the cause of her death. Her body was exhumed two weeks later in a very good condition. The post-mortem was held by Spilsbury, as usual working alone and without professional assistance, in a draughty schoolroom in a small Norfolk village. Mrs Fox presented the appearance of an elderly woman who had died naturally. There was no sign typical of manual strangulation (petechiae, froth, blackening, marks of struggle, livid fingernails, and so forth). The hyoid bone was intact, although so brittle that it broke when Spilsbury was trying to remove it. The crucial evidence, which hanged Fox, was a bruise, said to be the size of “a half crown”, which Spilsbury said that he had seen at the back of the larynx. This bruise was the foundation for his conclusion that Fox had strangled his mother (who suffered from fairly advanced Parkinson’s disease) as she lay helpless in bed. Indeed, the Director of Public Prosecutions took the view that the case really depended upon Spilsbury’s evidence. It is worth bearing that observation in mind when assessing the outcome of the trial. Although Spilsbury later wrote “whenever you see … a bruise, always cut into it freely”, he did not take a tissue section at this time. Rather feebly, he would later claim that the so-called bruise “became obscure before I put the larynx in formalin”. The bruise “just disappeared”. When the larynx was later examined by the defence medical team, Drs Brontë and Sydney Smith, there was no sign of a bruise. They thought that Spilsbury had simply seen a post-mortem change, a discoloration induced by the process of putrefaction, which may be correct. More recently, Spilsbury’s finding has been attributed to the “Prinsloo-Gordon Artefact”, an error caused by failure to ensure that the area under examination should be carried out, as far as possible, “in a bloodless field”. As in earlier cases, however, Spilsbury’s superb presentational skills carried the day, despite cogent evidence that Mrs Fox had a grave heart condition; indeed the evidence established that she had probably suffered a heart attack, maybe without knowing it, about three months before she died. Two days before she died, Mrs Fox seemed to be exhibiting early signs of cardiac failure. Put simply, she had advanced heart disease and she could have died at any time. Spilsbury notably played down this evidence, but the accounts of her symptoms and post- mortem appearance support the view that the circumstances of her death were in fact consistent with a cardiac arrest as she had tried to get up out of bed to use a chamber pot. I should add that she was a very heavily built woman; I think she stood five feet tall and weighed twelve stone. This case, a lethal exemplar of Spilsbury’s famed obstinacy, cannot be divorced from a consideration of Fox’s character. A petty conman and former rent-boy, whose victims were mostly army officers looking for a servant who would provide sexual “extras”, Fox seems to have been suspected, by the Director of Public Prosecutions and by prosecuting counsel, of blackmailing a close friend of the King. It is unlikely that Spilsbury knew about that, but there is evidence that he was aware of Fox’s background and sexuality and that both he and the officer in the case held the view that society was well rid of people like Sydney Fox. Spilsbury must have known, by the time the case came to trial at Lewes Assizes, that his opinion about the bruise was unsustainable, but he ploughed on regardless. Perjury consists of wilfully giving material evidence which a witness believes to be false or doesn’t believe to be true. In the Fox case, in my view, Spilsbury entered this dangerous territory. Sydney Smith considered that Fox, whatever his character defects, didn’t murder his mother and, on a present-day overview, Smith was right and Spilsbury was wrong, and of course Sydney Fox was hanged. In 1931 AA Rouse was convicted of murdering a down-and-out in a “Reginald Perrin” style exercise known as “The Blazing Car case”. The prosecution case was that Rouse had set fire to his car, with the dead man inside, hoping that the victim would be identified as himself. Rouse later claimed that the car had caught fire after he had got out to relieve himself. Northamptonshire police bungled the scene of crime investigation, moving the car and the body before the crime scene could be recorded and the remains examined professionally. Despite the gravity of the crime, Spilsbury was not instructed for some four days. He didn’t examine the charred body in situ, but in a garage of the Crown Inn at Hardingstone. The effects of intense heat (estimated at 2,000 degrees centigrade) on the human body can cause severe distortions. A defence expert later stated that “one cannot draw very definite conclusions from the position or posture of the body when found … great heat does contort the limbs … I do not think one can assume safely that the position the body was found in … was the position in which the body was when death took place”. Moreover, police officers first at the scene had given differing accounts of the position of the body when they found it. Spilsbury, however, postulated firmly – despite this unsatisfactory evidential background – that the victim had either “pitched or was thrown” across the front seats of the car, the obvious conclusion being that he had been first struck on the head by Rouse with murderous intent and then thrown into the car. Although his original report had not mentioned this possibility, and he had not referred to it in committal proceedings, he added to his report before the trial started the statement that “the door on the passenger side was open” when the fire started, an entirely new and deadly element, which now must be seen as an unwarranted embellishment, crushing Rouse’s story that the car had caught fire while he was some distance away. Here is a typical Spilsbury answer in the trial, so very definite: “both legs extended, but the right leg was not able to get the consequences of heat rigor because of the seats. The left was free to contract”. Rouse (who was probably guilty, but in this regard can’t be really said to have had a fair trial) was hanged in March 1931. This conviction was probably the high point of Spilsbury’s career. No forensic pathologist, before or since, has achieved such public recognition. The Oxford Murder that year (no connection with Inspector Morse) is a graphic illustration of Spilsbury’s yielding to police pressure. This case wasn’t considered worthy of mention in the 1951 biography and official papers remained unopened to public view until my application to see them was granted in 2006. The simple facts of this case are that, on August Bank Holiday Monday 1931, a widow was found battered to death in her home. The motive was robbery. Her skull bore “remarkably similar fractures”, according to Spilsbury, who concluded (quite correctly) that the head had been repeatedly struck by a hammer, which had produced several similar marks on the skull. Police arrested Henry Seymour, against whom there was significant circumstantial evidence, and discovered that he had bought a hammer. He was duly charged with murder. In the first of two confidential reports to the police, neither of which would have been made available to Seymour’s defence, Spilsbury wrote: “The surfaces of the head of the hammer are all too small to have caused the fractures of the skull. I am bound to conclude that this was not the weapon used.” In a second report he stated: “The injuries were not produced by this hammer.” The police officer in charge of the case wasn’t satisfied. Spilsbury was summoned to a conference in Oxford. He then changed his conclusions, stating that the fractures “could not have been caused by the hammer in this condition”. He said he had observed fine fibres of cotton adhering to the head and part of the handle, from which he extrapolated that the murderer (for some unknown reason) had wrapped the head of the hammer in cloth. Spilsbury conducted a curious experiment, in which he tied thicknesses of cloth and paper successively round the head of the hammer until (surprise, surprise) the head of the hammer fitted the fracture marks on the skull. His experiments now seem risible, not least because he used a block of wood as a target. “Will you not agree…”, asked a bold junior barrister, “…that there is a vast difference between the human head and a piece of wood?” (Laughter.) No matter that the fluff could have been the result of Seymour having kept the hammer in his coat pocket. As so often in capital cases, Spilsbury carried the day, also advancing flawed conclusions about the time of the fatal assault based on digestive tract evidence, similar to those put forward in the case of Thorne. And, like Thorne, Seymour was executed. After 1931 Spilsbury’s magic began to fade, although he remained an iconic figure in the media. Press photographers loved snapping the Garbo-like way that Spilsbury would hide his face, claiming to detest being photographed. You saw that marvellous studio portrait of him earlier on: he obviously didn’t mind his image being taken by fashionable West End photographers. Privately, however, medical contemporaries and lawyers were growing sceptical of his methodology and conclusions. The case of George Kitchen (also ignored by his 1951 biographers) marks the start of Spilsbury’s decline. A father was accused of shooting his son, the defence being accidental discharge of the shotgun. Spilsbury’s flawed experimentation with the gunsmith Robert Churchill – experiments involving dubious calculations and rods strapped to a volunteer’s body – was instrumental in persuading the DPP to charge the father with murder. At the Old Bailey trial, however, the case collapsed during Spilbury’s evidence, the judge pointedly referring to the Spilsbury-Churchill conclusions as “ghastly speculation”. I am afraid there is no time in this talk to review Spilsbury’s work with Churchill, including the notorious Merrett case in Scotland, where the pair managed a neat “defence by confusion” – it was a rare appearance by Spilsbury for the defence – arising from essentially flawed experiments with a different gun and a different batch of ammunition, which allowed a guilty man to walk free and, many years later, to murder again. Here is a picture, taken in 1934, of the wedding of Spilsbury’s daughter, both very smartly dressed, at the chapel of the Savoy, the image Spilsbury rather liked to present. Note the spats. Keith Simpson remembered an occasion when Spilsbury emerged from the post-mortem room with his spats covered in blood; he simply wouldn’t take them off during his work. In the “Brighton Trunk case”, or, more accurately, the second “Brighton Trunk case”, Spilsbury was badly mauled in cross-examination by Norman Birkett. This is the case when Cecil Lois England, alias Tony Mancini, and a pimp, was charged with murdering the prostitute he had been controlling, later putting her body into a trunk. The prosecution argued that Mancini had battered her head with a hammer, whereas Mancini claimed that she had fallen down a flight of stairs after taking drugs. Spilsbury’s evidence was muddled as to which end of the hammer had caused the injuries to Violette’s head and, at a very late stage in the trial, he produced a piece of bone said to be the exact piece forming a depressed fracture. The existence of this piece of bone had not previously been revealed to the defence, and Spilsbury also altered his conclusions about the time and circumstances of death. Birkett lambasted Spilsbury’s dubiously precise chronology in a way in which defence counsel would never have dared to do a few years before. “Sir Bernard said that death came within two or three minutes of the blow. How did he tell?” This devastatingly simple rhetorical question contributed to Mancini’s acquittal. Ironically, however, many years later, long after Spilsbury had died, Mancini confessed to murdering Violette. Here is a picture of him outside Southwark Coroners Court: “The man with the key to the situation”, said the newspaper. He is about to open the door of his Armstrong Siddeley car, a much loved vehicle. An even more striking example of Spilsbury’s declining powers can be found in the 1936 case of Linford Derrick, accused of battering a friend to death with an old police truncheon, Spilsbury had spoken of a “rain of blows” on the victim’s skull, including three blows to the forehead, but a sharp-eyed defence counsel, remembering his own days during the Great War as a special constable (complete with truncheon), married up the marks on the forehead to three rings round the shaft of the truncheon, forming a grip. It was Derrick’s story that he had grabbed at the truncheon being wielded by the dead man, the man who eventually died, and had hit him with the wrong end of it. So there were not three blows but just one. Under cross-examination (and possibly for the first time in his career), Spilsbury was forced to agree that he had made a mistake in asserting that the victim had been “rendered unconscious” by a whole series of blows from the truncheon. In the event, Derrick was convicted of manslaughter but, had Spilsbury been on his old form of years before, he would probably have been convicted of murder. During the Second World War, despite increasing health problems, Spilsbury continued a punishing workload, sometimes carrying out seven post-mortems a day, though these were now mostly in St Pancras and Hackney, because many coroners in London and the Home Counties wouldn’t employ him. He played a notable role in the “Man Who Never Was” deception, which saved thousands of allied servicemen’s lives in the Italian campaign, but the war had brought personal tragedy. His son, Peter, a House Surgeon at St Thomas’, was killed in the blitz. Another son, Alan, who had never enjoyed good health, died of TB in 1945. As I have indicated before, Spilsbury’s marriage had failed many years previously, partly because of his affair with Hilda Bainbridge. In this final phase of his career, when work was getting scarce, Spilsbury would sometimes put his head round the door of the coroner’s office, asking plaintively “Anything for me?” The end wasn’t long delayed. Severe arthritis, which made post-mortem work difficult, a series of strokes, loneliness and severe depression contributed to a bizarre suicide on the night of 17 December 1947. He turned on the gas tap of a Bunsen burner in his grim little laboratory at University College Hospital – that is it. By sheer luck, a major explosion was avoided in this last nihilistic gesture (Spilsbury seems to have had scant regard for the prevailing national power shortage). Despite the fame of his earlier years, only 22 mourners (including family members) attended his cremation at Golders Green. Robert Churchill, the gunsmith, at first thought he had come to the wrong service. Spilsbury’s Legacy There he is, outside the Old Bailey, in his late years, a picture taken in 1937. He wrote little; he never wrote or edited a forensic textbook; and was regarded by his students as a dull lecturer, who seemed only to come alive doing practical work in the post-mortem room. He mooted various developments, such as the establishment of a forensic science academy, but never followed the ideas through. Nevertheless, Spilsbury “secured a hearing for the forensic pathologist in his difficult speciality” and, as he himself wrote, “When medical witnesses use only technical language, juries do not appreciate the points sought to be made.” His capacity for hard work was legendary, often working far into the night for weeks on end, but all this hard graft seems to have led to a belief that, as he had done all that was humanly possible to solve a forensic problem, he must have the best answer, leading to the “Jehovah complex” noted by contemporaries. His love of playing the detective led to the construction of theories dangerously beyond his capacity as a medical expert. Spilsbury wrote of “an absolute certainty in the facts and a quiet confidence in the witness box”, traits which aptly sum up his presentational style, but in the words of his greater contemporary, Professor Sir Sydney Smith, Spilsbury was “very brilliant and very famous, but fallible, and very, very obstinate”. That, incidentally, is Spilsbury’s posthumous fame, a Lyons Maid card from 1966. He was sandwiched between General de Gaulle and Pablo Picasso in the Gallery of Famous Men. To return to Sydney Smith, years after Spilsbury’s death, he wrote “One might almost hope that there will never be another Bernard Spilsbury”. Thank you. (Applause.) INSERT PICTURE: SPILSBURY DIED ETC.JPG Spilsbury died in this grim laboratory at University College Hospital.

Discussion The President: Derrick, would you like to say something or ask a question? You are the only forensic pathologist here. Professor Derrick Pounder (professor of forensic medicine, Dundee University): I have to confess I belong to the cult of forensic pathology, as you describe it, albeit north of the border, and so, although a Welshman, I have an allegiance in the conflict between Sir Sydney Smith and Sir Bernard Spilsbury. I was given your book and I have read it and I thoroughly enjoyed it. I thought you captured very well what Bernard Spilsbury was, which was “a prosecuting expert”, not “an expert called by the prosecution”, and that was very clear in those difficult cases that he dealt with, and perhaps, to echo Sydney Smith, if I can quote Robbie Burns (I will translate into the English from the Scots): “My Son, these maxims make a rule, And taken altogether, The Rigid Righteous is a fool, The Rigid Wise another”. Mr Samuels: Alec Samuels, lawyer. Going back to the Crippen case, my recollection is that when the police first searched the cellar they found nothing. Subsequently when they searched they found this piece of flesh, what Spilsbury described, I think, as a “female abdomen” and, as you rightly say, identified the victim because of the scar. The defence, as I recall, was: how did he know that it was a woman’s body anyway and that the marks, I think they said, could be attributed to creasing, or whatever, in that kind of situation. I understand that subsequently medical students at St Mary’s many years later were told that the abdomen had been preserved and that in fact subsequent analysis had shown that it was a male abdomen. Now, does that specimen still exist and can we be confident as to exactly what was the origin of that abdomen? The rest of the body, as I understand it, was never found. Mr Rose: Yes, that is correct. The remains were, in effect, filleted; there were no bones; there was no indication of sex. Abdominal and thoracic organs and nothing much else. You are absolutely right. I understand, however, that they were buried. It was actually slightly unfortunate for Dr Crippen because, before the trial, supporters of his wife (and she had quite a few) actually put up a grave with a headstone on it, which I think still exists. If some material was preserved, I don’t know about that, but it does perhaps dovetail in with the recent DNA evidence, which is certainly a matter of controversy. People from the University of Michigan were allowed to examine one of the sections Spilsbury took, from slides which are in the Royal London Hospital Museum, who allowed them to open one of the slides and take material from it. A Dr Foran of Michigan University has come to the conclusion – I think I adverted to that briefly – that the DNA analysis (I think it is called mitochondrial DNA) showed that the tissue was not from Cora Crippen. There had been research done into Mrs Crippen’s genealogy and living female relations found. It was also later asserted that the sample came from a male subject. I am bound to say (and I think it is pretty obvious), that there must be a real risk of contamination in material of that age, with the best will in the world. It was not Spilsbury’s fault, given these antique circumstances, that other genetic material might have found its way into the slide sample. But, as far as the question of the remains is concerned, it is absolutely right that it does seem remarkable that Crippen should have buried the filleted piece of his wife, with no indication of sex, but leaving with it articles of women’s use, such as a hair slide, and things like that, which were easily identifiable. So it is one of the mysteries which attend this case and the centenary, which of course is next year, will be a field day, I think, for a number of people, probably including me. The President: Peter Dean, who is a coroner. Dr Dean: Thank you very much for a fascinating presentation. I mean, it is interesting when you look at, as Derek said, this sort of cult of forensic pathology. Do you think without the sort of characters like Spilsbury, Smith and indeed, in more recent times, Keith Simpson we maybe wouldn’t have quite so many television shows covering the subject today? Mr Rose: Well, they paved the way, of course, didn’t they? Although sadly some pathologists aren’t as well known as others, when perhaps they should be, they obviously paved the way for CSI and these other shows which are so popular now, because they did bring a public profile to it. Whatever Spilsbury’s faults were, he did put this subject to the forefront and people started talking about these things and they gave forensic pathology a status it just simply didn’t enjoy before. The President: I think it was a great mistake for him to patronise people like Simpson and Camps and Brontë. I mean, he should have really worked with them, shouldn’t he? Mr Rose: Well, that wasn’t Spilsbury’s way at all. The President: I know. He was self-employed. Mr Rose: Yes. Well, I think you are absolutely right. Brontë, for example was a very poor witness, there was no question about that; he was garrulous, rambled on and was easily distracted by clever prosecuting counsel. I would say that there was a great contrast between the Saxon and the Celt, if you like, between Spilsbury and him, but we must also remember Sydney Smith, who was a New Zealander who came to work in Scotland, a dapper, dry man, certainly my personal view is that he was the greater man and I would defer to his view perhaps rather more so than I would have done to Spilsbury. The President: Well, we do thank you, sir, for a fascinating address and we are going to make you an honorary member of the Society. Mr Rose: I am very grateful to you. The President: And there is an extremely valuable book token there. You might want to buy a book on “Lethal Barristers”. (Laughter.) Mr Rose: Thank you very much. (Applause.)