I was going to start with the king’s eyebrows, but Max Clifford’s penis has to come first. While I watched the dissection of the Plantagenet Alliance’s claims in the Royal Courts of Justice in London on Friday morning, across the river, at Southwark Crown Court, the high-profile publicist heard his anatomy being discussed. A witness described conversations about the size of Clifford’s member. His defence barrister argued that if the witness had actually seen said member, as she claimed, she would know it was in fact “an average-sized penis”, and not “tiny”.
I’ve spent a day and a half in court, watching as barristers supported their claims with copious documentation. How did Clifford’s barrister back up his claim? A photo? (Presumably with some form of scale.) A witness statement? Or was it just flannel? I can’t help thinking it was a line the client may not thank his barrister for taking.
So onto the proper subject. The Plantagenet Alliance has now had its much publicised case about the reburial of Richard III’s remains aired and dissected in the High Court. Proceedings began on Thursday at 10.30am, and finished the next day before lunch. Lady Justice Hallett, the most senior judge present, closed saying, “We shall let you know our decision as soon as possible.” Anya Proops, counsel for the University of Leicester, suggests to me that might be in two or three weeks; the BBC thinks between four and six. So some time in April or May.
In the meantime, we can consider what was said. I am no expert in law and I may have misheard or misunderstood some of what was said (only words in quotation marks were necessarily spoken as written). But I do hope to capture the flavour of the occasion. It was wonderful to behold.
It begins with the architecture. On Thursday morning I had an errand at the Natural History Museum, so afterwards I travelled across London from Alfred Waterhouse’s 1881 cathedral to life (where the sun was burning the early mist off its glowing towers) to George Street’s 1882 fairy-tale paean to law – from one gorgeous Victorian temple to another. Inside, the Royal Courts of Justice really was like a cathedral, straight out of Look and Learn with shafts of coloured sunlight picking out small figures scurrying about on the decorated floor far below. You know important things happen here.
The courts and other rooms are around the nave, like a medieval monastery with its outbuildings. We are in Court 4 up on the right, the Lord Chief Justice’s court. With the presence of no less than three High Court judges – among them one deemed by BBC Woman’s Hour to be the eighth most powerful woman in the land – there can be little doubt as to the significance granted the hearing.
We sit in banks of long, dark oak benches facing the high podium to be occupied by the judges; I’m just left of the central passage. Groups coalesce as people enter. A porter wheels in boxes of files and arranges them in piles on the benches on my side, and sets out glasses of water. Wigged barristers trail smaller trolleys, like stewards for a legal airline, efficiently striding through crowds of confused flyers.
In front of me, I recognise Matthew Howarth from the press releases Gordons’ issued about their judicial review expert: so this set must be representing the Alliance. A larger group gathers across the passage to my right. This must be the combined forces representing the defendants – the Secretary of State for Justice, the University of Leicester, and Leicester City Council. Behind them are members of the university – including Richard Buckley and senior Pro-Vice-Chancellor Mark Thompson – the city and the cathedral. A woman in front of me lays down her folded Financial Times, Blackberry and iPad. iPads are popular notebooks.
Journalists sit between us and the judges in a small bank of seats on the left – I can see Peter Warzynski from the Leicester Mercury – and opposite them to the right further seats are mostly empty but for a group from Darlow-Smithson, who made the two Channel 4 films about the dig, and who must by now have left the hardly-believing-their-luck stage far in the distance (along with their cameras, in this instance). Somewhere out there, I later realise, must be BBC East Midlands’ Quentin Rayner, who tweets throughout. Behind me are members of the Alliance and supporters, among them Vanessa Roe (who describes herself as Richard III’s 16th great niece), Phil Stone (Chairman of the Richard III Society), Philippa Langley and John Ashdown-Hill. A historian might look down from high above through the ornate, oak-framed roof lantern, and draw a battle plan.
The Alliance fields two barristers, in conventional black robes, black suits and curly-backed wigs. The senior man throws himself about, talking across to the journalists, turning to beam at the Ricardians behind me, strumming fingers on the bench, pouting lips, leafing pages, sitting down and standing up again. He is Gerard Clarke of Blackstone Chambers, described as one who can “easily win the trust of a judge with the eloquence of his presentation”. He leans over towards the defendants and addresses James Eadie QC (“absolute mastery of every issue in any case that he is in”), a colleague at Blackstone Chambers who is representing the Secretary of State for Justice. Mr Clarke offers to do the whole thing in the voice of Laurence Olivier.
It is 10.30.
The three judges enter from the back. We all stand and bow, and then we sit, except one. Olivier begins.
He introduces the parties and proposes a summary of their positions, “I hope fairly”. The Plantagenet Alliance believes the licence issued by the Ministry of Justice, under which Richard III’s remains were excavated, was inadequate to the job. In such exceptional circumstances, there should have been a consultation about where the remains were to be reburied. Instead, the Secretary of State simply left the decision to Leicester University.
But almost at once, Lady Justice Hallett, flanked by her male colleagues, interrupts. She seeks clarification about the nature of the consultation the Alliance proposes.
“We have never suggested”, says Mr Clarke, “and we do not suggest, a come-one come-all… that would be absurd.”
Her Lady Justice persists. Who would be consulted? English Heritage? Various churches? Distant relatives? Any other groups?
Mr Clarke refers to tab 53, bundle 12, process document October 2012, council documents… Do you say modern culture community? interjects her Lady Justice. Leicester? Are you asking for a public consultation?
Yes, says Mr Clarke… but differently weighted. Someone “writing in green ink from Australia” would carry very little weight; York, Leicester, maybe more weight.
“What form of consultation do you have in mind?”
Mr Clarke suggests something on a website.
“What exactly are you saying?”
He continues to appear evasive. The Secretary of State for Justice did not inform himself before the decision about reburial, he replies. One way to do that is a public consultation. We are asking for the right to be consulted.
What, asks her Lady Justice, might be the consequences if you are successful? Would the licence be quashed? Or is it the failure to revisit that concerns you?
“Substantially the latter”, says Mr Clarke.
Already, I’m puzzled. If Mr Clarke’s famed eloquence has yet to win the trust of her Lady Justice, what is Matthew Howarth thinking, sitting motionless and expressionless behind his barristers, his chin in his left hand? “The alliance’s lawyers will argue on Thursday,” said his firm’s press release issued ahead of the hearing, that “the failure to adopt appropriate consultation was unlawful and amounted to breaches by the ministry, university and city council which should cause the licence’s terms to be quashed.” Quashed: the word used by her Lady Justice, but now apparently largely dismissed by Mr Clarke. Was the release a ploy to confuse the enemy? Has the Alliance changed its tack? Or are barrister and solicitor not in full communication?
Mr Clarke is now talking about medieval history.
“Can we focus?” asks her Lady Justice.
“We’re still a monarchy, and it still matters… Except Harold, we don’t know where he is…”
It is the turn of Mr Justice Ouseley, sitting on her Lady Justice’s right, to interrupt.
“We can take it”, he says, “that a decision was made by the next monarch where the body should lie”, the place where its remains were subsequently discovered. He seems to be implying that a reburial elsewhere – not perhaps a few hundred metres from the car park, but certainly outside Leicester – might go against the wishes of King Henry VII (his famous son unfortunately demolished the friary church, so that is no longer an option). Royalty looms over the court. Behind the judges rises a huge royal coat of arms; its carved oak lions glisten.
Who knows the wishes, replies Mr Clarke, of Henry VII? It’s all “history and propaganda”. But, pushed, he concedes that the “best conjecture is that Henry did have some control”. Henry did later build a tomb for Richard, “but it’s all very conjectural”. “What is certain”, he adds, is that there was no state funeral or ceremony. Anyway, “it doesn’t matter what Henry VII did, because nobody is saying [that Richard’s remains] should go back to the car park.”
He’s winging it. This wasn’t in the script.
“We’re asking for a principled approach to an unprecedented, and unrepeatable, situation.” That was. So finally we move on to the submission, the Alliance’s claims.
We asked the Commonwealth War Graves Commission, says Mr Clarke, what happens if someone digs up a man with no direct descendants? They said, we would ask the nearest descendants.
Her Lady Justice: Are you suggesting this is the same as people who didn’t even know they were related until a few years ago?
Mr Clarke: “It goes to weight. There can be no arbitrary cut-off point.”
Her Lady Justice: Did Mr Nicolay realise in 2012, as the press suggested? (Stephen Nicolay, who calls himself a 16th great nephew of Richard III – the king left no direct descendants, only collateral ones – is a founder member of the Plantagenet Alliance.)
Mr Clarke: He used to be an archaeologist.
Her Lady Justice: On your argument, his recent realisation of his relationship to the king gives less weight to his claim to be consulted.
Mr Clarke concedes the point, and her Lady Justice continues by suggesting he is “being unfair” in tarring Leicester as the only party with a commercial interest in the reburial.
But Mr Clarke is off embracing wider issues. “There are debates about colonialism”, he says, “when you have a whole museum full of bits of Maori.” Yes, that’s what he said. The neolithic Iceman comes into it somewhere. “We are not as close as 1916,” says Mr Clarke of Richard’s remains, “but we are closer than the neolithic.”
Mr Justice Ouseley asks a question. Until the skeleton was identified as that of Richard III, he says, the ministry’s policy was the right one, was it not? What policy deals with revisiting after the identification? “There isn’t one”, he suggests.
Mr Clarke: The Secretary of State should have had a rethink, a revisit, once it became clear there was a named person involved. He refers the judges to “paragraph six of m’learned friend’s skeleton”.
In the circumstances, over the day and a half we are thankfully spared much clowning around with puns (a party’s skeleton argument is a written pre-court summary of their case; it is supposed to be brief). Nor do we get too much Shakespeare, though Mr Clarke is unable to resist reading out a bit of Richard III at the start, contrary – he says – to his own pledge to avoid the bard. Later on this first day the University’s barrister, opening in the afternoon, comments bashfully that she has “the graveyard shift”. And that’s about it. Credit where it’s due.
Her Lady Justice continues on the theme of identity. We are agreed, she says, that any descendants’ relationship to the king is a weak part of the case, so why are we getting hung up on the “named individual”?
From public comments by Nicolay and other members of the Alliance, who I imagine sitting behind me wondering quite where this is going, their relationship to the named individual is key to the case. As also is the burial of the remains in York (or in the words of the Petition to bring Richard III back to Yorkshire, “the safe return of Richard III to his beloved Yorkshire, where he spent the happiest days of his life”. And no doubt gambolled with lambs.) Yet the legal issue is whether or not to have a petition about the reburial site, not to decide on the strength of York’s case. I feel that this expensive, time-consuming process will have little impact on the Plantagenet Alliance (whose own court costs are being borne entirely by others, not least taxpayers). They will be back.
Mr Clarke responds to her Lady Justice by saying that the point about identity, is that after it was realised “early last year” that the skeleton was Richard III’s, then there should have been a “rethink” about the exhumation licence. A point well made, though he seems to be accepting that the Alliance’s claimed relationships to the king are not particularly material. (An aside. For legal reasons to do with time allowances, the Alliance needs to argue that Richard III was found on February 4 2013, the day of the grand press conference announcing the scientific proof. It would suit the defendants to argue that he was found on the day he was dug up, in September 2012. Unfortunately for them, they lost that argument – or the case would never have come to court.)
“You can spin the numbers about petitions,” Mr Clarke is saying. “One doesn’t need to go there.” He is presumably referring to competing online petitions for Richard’s reburial in York and Leicester. Leicester won.
There is an unexpected shout behind me. I recognise Philippa Langley’s voice.
“I have to say something,” she says. Is this it already, the backlash? Can Philippa Langley read my thoughts? (She can apparently see through tarmac.)
“So much of the information here”, she says, “is being misrepresented.” She is in effect attacking her own barrister. The defence hasn’t even stood up yet.
Her Lady Justice, perhaps accustomed to the occasional outburst from the public benches, gently moves things on. But a little later she does something that sounds – and this is later confirmed to me by one of the barristers – as quite out of the ordinary. She invites Langley to submit a written statement.
“After all,” she says in truth, “we wouldn’t be here if it wasn’t for her… You are Miss Langley, are you?”
Miss Langley’s scrap of notepaper is passed around. To coin a phrase used by a judge last year in this case, we seem to be on the verge of entering Alice in Wonderland territory. Her Lady Justice proposes a five minute break, and the judges nip out the back.
When we reassemble, the public are none the wiser about the note, and its impact on proceedings is impossible to know. “That’s the end,” says her Lady Justice firmly. No more notes. And so Mr Clarke reaches his case against Leicester Council.
This seems to be based on a notion that, under the Public Health Act (1984) local authorities have a responsibility to “inter decently” human remains found in their parish. The council “can’t just step back and say it has nothing to do with us” (which clearly in this case they are now happy to do, after some toing and froing). But this is “all about bodies, not remains”, interjects her Lady Justice. “What’s left of your argument?”
She persists as he rambles. He’s flailing. The local authority has a duty to hold a public consultation, he says, a common law obligation.
“Can I just ponder that”, says Mr Clarke, “for a moment?”
It is with some relief, I imagine, that Mr Clarke moves on to the university, as he glances at the clock on the wall above the little entrance hall at the back right corner of the room. It is 12.35.
Yet the case Mr Clarke presents seems to be no clearer than his previous two. A potentially interesting discussion about whether or not “other burial ground”, as listed on the exhumation licence, can include a building or not takes up a bit of time but ends with the conclusion that it can, and we are where we began.
“Can it be interred in a church?” asks Mr Justice Ouseley.
Mr Clarke: “Could I ponder that over adjournment?”
Mr Justice: “I raised the issue three months ago!”
Mr Clarke: “I don’t know.”
He then appears to blame the Secretary of State for Justice, who should not have “constrained the licence” – which is to say, acceded to the university’s suggestion that reburial of a king, if found, would occur in Leicester Cathedral – in the first place. We seem to have left the university behind.
Discussion moves onto the nature and powers of a panel which might advise on the matter. This harks back to a recommendation made in August 2013 by Mr Justice Haddon-Cave – who presently sits on her Lady Justice’s left, and so far has maintained complete silence – that the warring parties avoid further court appearances by referring to “an independent advisory panel”. Composed of “suitable experts and Privy Councillors”, this would deal with “the fundamental question – as to where and how Richard III is reburied”, by “consult[ing] and receiv[ing] representations from all interested parties, and mak[ing] suitable recommendations with reasonable speed”.
Her Lady Justice is unclear how this would work.
“Which of the 10 million collateral descendants”, she asks, should write a letter to the panel?
“Would the panel have had a duty to consult the public?” asks Mr Justice Ouseley.
Mr Clarke, I think, says no. “So you wouldn’t have been happy?” suggests Mr Justice. Presumably not. But if the panel didn’t have to consult, Mr Justice Ouseley continues logically, neither did the Secretary of State.
We are now, somehow, on the subject of Article 8 of the European Convention on Human Rights. Or we are meant to be.
“We’re talking about Article 8, Mr Clarke”, says her Lady Justice, stabbing her hands in the air. “Let’s stick to the point.”
She is, it feels, almost losing her patience. Mr Clarke admits that Article 8 “is of very low relevance” to the case. We break for lunch.
Back in court, the subject is who wants Richard’s remains buried where. “The Richard III Society are neutral on where burial should occur,” says Mr Clarke, adding that he heard this from the chairman in the morning. “Which isn’t the same as the Looking for Richard Project,” says Mr Justice Ouseley. York Minster is neutral, says Mr Clarke, after her Lady Justice suggests that many who might have been consulted would have been neutral. So is her Majesty the Queen, she adds.
And so to the defence for the Secretary of State for Justice. This is currently Chris Grayling, but the licence was issued under Kenneth Clarke QC. Curiously, Grayling was appointed the day after the licence was granted, and on the day the excavation of Richard III’s skeleton began.
Mr James Eadie QC was cast to oppose Mr Clarke. He dispenses with theatre, bluster and anecdote, and restricts his argument entirely to matters of law. He supports his case with substantial documentation. While the judges leaf through folders of papers and read to themselves as instructed, the court is largely silent – though the level of shuffling behind me rises. Members of the Alliance like theatre.
Indeed, it occurs to me that the entire proceedings are theatrical, or perhaps televisual. The Plantagenet Alliance, a ramshackle collection of characters and opinions, for whom legal process is a thing of mystery replete with options – a giant galactic sweetshop – has found its appropriate counsel. Mr Clarke is a merry-go-round, colourful and entertaining. By contrast, Mr Eadie is a bullet train. No curlicues reduce the speed with which he slips through the air towards his target. The merry-go-round goes round, flinging the occasional soft ice cream into the crowd, music plays, children laugh – and then it stops, and you are where you started. Mr Edie’s train rises among a crowd of newspaper-clutching grey suits and emerges in a bright land of aloha shirts and sunshine. Here is a counsel for bureaucrats and academics, unemotional, balanced, and frighteningly well-informed.
The core of his case is that the law clearly recognises instances in which there is a duty to consult. Such instances are limited. The relevant common law is complex, but none of it applies to the archaeological exhumation of human remains. He presents his argument with reference to legal principles, and with examples of applications.
Ultimately, he says, it comes down to significance. But one cannot build a consultation simply on the fact that the remains in question are of a king. Besides, there is nothing inconsistent with dignity and respect were reburial to occur in Leicester. There is no basis for the creation of a consultation, he says, on the principle that the reburial decision is “important”. “It is for the government to decide” (namely, the Secretary of State for Justice).
Judges do not interrupt Mr Eadie. Every so often Mr Justice Ouseley picks up a point in agreement, occasionally with a little laugh. I notice Lady Justice Hallett’s wig. It is magnificent, perfectly round and smooth, with a sheen, like a helmet; by comparison, Mr Justice Ouseley’s looks as if it has shortly emerged from a briefcase.
The case for revisiting the licence, says Mr Eadie, is as flawed as the case for a consultation. The Secretary of State knew from the outset that remains of Richard III might be found – that fact was, after all, mentioned in the licence, as was Leicester Cathedral.
Mr Justice Haddon-Cave, who granted the review on the grounds that “that there was a duty at common law to consult widely as to how and where Richard III’s remains should appropriately be re-interred”, continues to sit in silence, with a still expression of inscrutable bemusement. Is he embarrassed at having supported a review which he now sees has no merit? Is he proud at having been party to such a penetrating defence? Or is he inwardly concocting a demolition of Mr Eadie’s case?
It is ten minutes to four. The graveyard shift.
Ms Anya Proops, who rises to defend Leicester University, is at once entertaining and witheringly forensic – a Flying Scotsman, perhaps. She speaks fast. Everybody sinks back into their seats a little, anticipating a reprimand for not listening properly. Perhaps that accounts for the near silence of all three judges. They do not wish to be caught out.
“It is not our job”, she says – she talks throughout as if she is the university – “to play nanny to the Secretary of State. We are very clearly not a proper defendant in these proceedings.” Nonetheless, now that we are here, we might as well destroy the case brought against us.
Many of her points have already been made, by Mr Eadie or the judges. But she adds detail. Human remains guidance issued by the Department for Culture Media and Sport does not bind the university, and anyway refers to “close relatives”, and is concerned with the return of aboriginal remains. Mr Clarke referred to paragraph 18 in English Heritage’s guidance. This notes that “Ethical treatment of human remains involves making decisions that take into account, via appropriate consultation, the views of individuals and groups with legitimate interests in those remains.” He did not refer to paragraph 20. But she will. The judges leaf through folders.
“… it would be ethical”, says paragraph 20, “to accord views of living close family members strong weight. When excavation of 18th- or 19th-century burial grounds is planned, reasonable steps, such as advertisements in local newspapers, should be taken at the start of project planning to alert local people who may be descendants of interred individuals so that their views may be heard.”
Recommended consultation is here defined as being local, and with “close family members”. Later, outside the court, I ask Richard Buckley if ULAS has ever held such a consultation? Oh yes, he says. We excavated a couple of non-conformist chapels, and advertised in the local paper. No one came forward.
Mr Clarke, I suspect, can see where this is heading. He stands up. “This is misrepresenting my case”, he says. You will have your chance of reply, says her Lady Justice. He sits.
But if consultation is not local, asks Ms Proops, how will that work? Suppose there are 10 to 17 million people who have to be identified. Say a million come forward. How do you establish if they have a legal right to be consulted? DNA tests?
The “finders keepers” allegation levelled at the university is unfair, and ignores the facts of the case. The original Leicester burial ground, chosen by Henry VII, has a “royal seal of approval”. It is standard archaeological practise to rebury nearby – it’s not as if Leicester archaeologists found Richard III in York and sought to take him to Leicester. Yet we found the remains: we are not, and could not be seen to be, neutral, so it would be wrong for us to hold a consultation. Exhumation can be conducted by private bodies or individuals, not just public bodies. So a judicial review (which examines the lawfulness of a decision or action made by a public body) is not appropriate to our case.
Then an interesting point emerges. The licence, says Ms Proops, endorses the university’s position on reburial (ie to be in Leicester Cathedral) – we see that as a restraint.
Mr Justice Ouseley points out that the licence allows the reburial to occur anywhere. (Not only does it not name an individual, but it allows for deposition of remains in a specified museum, or “in a burial ground in which interments may legally take place”.)
Ms Proops replies that the licence has to be read with the application form, which specifically states that reburial of Richard III’s remains will occur in Leicester Cathedral. In effect, the form is an integral part of the licence.
This seems to be Mr Eadie’s position, too. When he said the Secretary of State knew Richard III’s remains might be found because they were “mentioned in the licence, as was Leicester Cathedral” (my phrasing, as above), he is using the word “licence” to embrace the application form, which is where that fact appears.
There are dangers, however, in taking this argument too far. In the image below, I’ve pasted an extract from the application form, the complete licence and the complete accompanying letter (compressed, but all there). With hindsight, one could argue that things might have been better thought out.
Firstly, the application form, as Ms Proops indicates, opts to bury Richard in the cathedral. This is not, however, repeated in the licence, nor the accompanying letter. Neither is the “intention” for the burial to be “within 4 weeks of exhumation”. This point was inserted, perhaps, as a result of the murky “contract” between Philippa Langley and ULAS which I discussed in my previous post, and also the archaeologists’ belief that finding Richard was an “unlikely event” to such an extreme that it was barely worth considering – they must have known that adequate study of a king’s remains would require more time than that, as it plainly did. And finally, an awkward party might choose to focus on the phrase in the licence, in bold type, that grants permission for the removal of the remains of “persons unknown”. Does that imply that the removal of “persons known” was not licenced?
Ms Proops ends in triumph. We had promised Leicester Cathedral a reburial as a result of the “brave and ingenious work” of our archaeologists, including Mr Buckley. We have made one of the country’s greatest archaeological discoveries. Clever Leicester.
The next morning we hear the council’s case, and Mr Clarke’s reply. Each had promised, in response to Lady Justice Hallett’s query at the close of Thursday, about half an hour. Mr Andrew Sharland speaks for Leicester in 13 minutes; Mr Clarke’s response, and the judges’ questions, continue for just over an hour.
Mr Sharland really has little need to talk at all: it feels the judges successfully dismissed the Alliance’s case against the council on Thursday. He is a brisk speaker, clear and confident, racing through his presentation like a sprinter. The council’s common law duty to bury human remains applies to paupers, he says, slicing his flattened palms through the air. “The king of England is not a role usually associated with poverty.” £1.3m (he does the sums) is enough to pay for the reburial without the council having to chip in, and no one has a right or expectation to consult it. “My Lords and Ladies”, he concludes, grasping a proffered water bottle without missing a stride, “that is sufficient to dispose of the case against the council.”
So back to Mr Clarke – but we have an unexpected diversion. Despite my clear instructions yesterday, says her Lady Justice, we did receive more handwritten notes. There is one from Mr Ashdown-Hill, signed by Ms Langley, one from the Deputy Chair of the Richard III Society, and another from the same society… “We have a bundle, m’Lady,” says Mr Clarke. On the bench behind him is a loose scatter of pages torn from notebooks. The writing is all in black ink.
Mr Clarke responds in the style to which we have become accustomed. Mr Eadie goes to the law, he says, while we go to the facts. Among which is the information that his late tutor never used the word Tudor. At the Ministry of Justice, at an early stage Mr Robert Clifford “took an interest”, he “flagged up the issue” of what might happen should a king be found, but the Secretary of State did not follow through. He effectively made no decision: the court should intervene.
Her Lady Justice: “I infer these steps take us back to consultation.”
Mr Clarke: Yes (a simple word that does not come easily to the speaker, but this is, I think, what he means by his reply).
Her Lady Justice: Are you saying, had the Secretary of State consulted collateral descendants, would that be enough?
Mr Clarke: “That is an academic question.”
Mr Justice Ouseley: “That is the question.”
Her Lady Justice repeats it, Mr Clarke obfuscates.
Her Lady Justice: “I am just trying to pin down exactly what your case is. I’m finding it difficult.”
And when she suggests that if his case was right, consultation should extend beyond collateral descendants, Mr Clarke appears to answer back. He does not like to be told how to present his case.
And so it goes on. Mr Justice Ouseley continues to prod. “You need to explain to us what it is that the Secretary of State has failed to do”, he says. And then, when no one was expecting it, a voice comes from the right side of the judges’ bench. Mr Justice Haddon-Cave speaks!
“It is pretty basic stuff”, says Mr Justice, to make your case clear to the court. He repeats Mr Justice Ouseley’s query. Mr Clarke adjusts his wig, no Olivier now, more of a stage hand.
“Let me step back from that point,” he says “Some people say that Henry I is missing… Harold… James II ended up in Paris…”
Her Lady Justice: “I think you’re straying again.”
Her Lady Justice: “Is there a duty to consult the public on a present monarch?”
Mr Clarke: “No, that would be bizarre.”
After her long service to the country, says Mr Justice Ouseley, this is a matter in which we all have an interest – some people might say her burial should not be in London. If, says Mr Clarke, “the awful event on the awful day” were to occur in Lowestoft, we wouldn’t bury her in Lowestoft.
Mr Justice Ouseley: “I can’t help think [Richard III] would have raised an eyebrow at the thought of a public consultation. Kings of that era were not democrats.”
Mr Clarke: “He would probably have raised two eyebrows if someone had told him he would be buried in Leicester.”
A little later, her Lady Justice asks Mr Clarke to “stick to the arguments, please? Can we avoid forensic flourishes, I am not finding them helpful?”
To which, without a pause, Mr Clarke replies, “Here is a forensic flourish…”
And so at last, at 11.36am, we reach the end. “We shall let you know”, says Lady Justice Hallett, “our decision as soon as possible.”
We walk out into the warm sun, funnelled through works on the pavement along the front of the courts (“Having to compete with this right outside the High Court for #RichardIII judicial review,” tweets news reporter Quentin Rayner. “No bones yet. Deafening”).
There is no doubt where the wind blows. Beaming in the bright light, Richard Buckley sets off to buy cheese at Covent Garden before heading home to Leicester. Counsel for defence stride confidently out into the streets, laughing and chatting. Philippa Langley talks to journalists, looking anxious. After the first day, I told Buckley I would eat my hat if the Alliance won. He famously had to eat his when they found Richard III, which he did in the shape of a cake. No one, I feel, will need to bake for me.
But how sure can I be? The argument put by counsel for the Secretary of State for Justice, that there are neither legal principles nor examples of practice to support a case for consultation, is compelling. Yet is it not in effect an argument that backs the Alliance’s case? Of course there is no principle and no practice – that is the point. How could there be, when the nature of the case is that it is unique? The modern exhumation of a king’s remains is unprecedented, and of great public significance. It calls for unprecedented acts.
As Mr Justice Haddon-Cave said in granting the Alliance the right for a judicial review, the remains represent “not only a named individual with potentially traceable lineage and descendants, but also a former monarch and a significant historical figure, whose re-interment was likely to be a matter of legitimate national interest”. Accordingly, “There was a legitimate expectation that the Secretary of State would… consult widely to how, and where, Richard III’s remains should be appropriately re-interred” (leaving aside the parenthesis that the Secretary of State was supposed to do this “prior to granting a Licence”, as legitimate exhumation could only occur when the remains’ identity was unknown, creating a logical conundrum).
For archaeologists, at least, if such an argument won, the implications could be appalling. If public consultation could be insisted upon on the grounds of the significance of remains, would that not potentially open the way for every exhumation to be preceded by consultation? Who is to say who is or is not, or was or was not, of great significance in the past? Archaeological excavation as we know it could grind to a halt.
After the hearing, I asked John Ashdown-Hill what outcome he favoured. His answer is interesting. There is a key point here, that is easy to miss in the immediacy and relentlessness of everything that has happened in this case since September 2012.
Ashdown-Hill told me he hoped for a public consultation – he had no particular strong feelings about where the remains should be buried, but he thought the issue should be debated. Had you always thought that, I asked, or was this a view you came to more recently, after, for example, the judicial review was granted?
At first, he replied, we wanted him to be buried in Leicester Cathedral – he and Philippa Langley actually spoke to the cathedral authorities about a reburial ceremony before the dig began. But later, he changed his mind. Hearing parliament debate the possibility of a state funeral made him think: this is too important for us, for Leicester University, it should be a national decision.
And that’s what happened to everyone. Finding Richard III’s remains changed the game. We know the archaeologists never expected to find the king. Clearly the Plantagenet Alliance hadn’t expected it, if they had thought about it all. At the time of the dig, they didn’t even exist. But neither had anyone else, whatever they might have imagined or said at the time. In the real world, you don’t dig a small hole in a car park and find a king.
The Ministry of Justice hadn’t expected the discovery, else how do we explain the problems with the licence? For Ashdown-Hill and Langley, finding Richard was a dream, a thrilling vision, that would allow them to prove to the world what a great monarch the man had been. They hadn’t thought it through. They hadn’t anticipated the proof that Richard III was, in Shakespeare’s word, “deformed”. Nor had they expected to be midwives to the evidence for his brutal, undignified death; the forensic scraping and prodding, the destructive analyses, the bickering and shouting. They hadn’t realised that, by finding Richard’s remains, they would lose control of their private monarch. Because, deep down, they hadn’t believed they would find him. No one had.
Outside the front of the court, Langley speaks to Peter Warzynski. “She said she would never have gone ahead with the dig”, he reports, “if she had realised the king would be treated as an ‘archaeological specimen’. She said: ‘The whole ethos of this project was that it wasn’t an archaeological dig… It was a reburial project from the get-go.’” Whatever exchanges took place between Philippa Langley and Richard Buckley, clearly everyone knew this was an archaeological dig. That was never in question. The question was what would be found. And no one, in their deepest hearts, answered that with the name of a king.
And here’s the twist. It could happen again.
On at least once occasion, Mr Clarke got mired down in court with a discussion about the grave of Henry I: its location wasn’t known – or perhaps it was. Or was it Henry II’s grave?
He was onto something. Henry I was buried in Reading Abbey (having founded the abbey himself in 1121), after dying in Normandy at the decent age of 67, from eating lampreys (a sort of fish that looks like a cross between an eel and a leech). All that now remains of the abbey above ground are a few crumbled walls: it was demolished under Henry VIII’s orders, like Grey Friars in Leicester, in 1539. As Richard Buckley told me, the situation is exactly the same as pertained in Leicester before the excavation. We know the king was buried in a church. The church has gone, for the same reason, but we know more or less where it was. What we don’t know is where the grave is – if it still exists.
There’s only one way to find out.