Posted on 16th February 2018
Rose Heilbron was one of the first female QCs. She was an extraordinary lawyer and her first murder case as leading Counsel, Rex v George Kelly was extraordinary too. As women lawyers prepare to celebrate the 100 years anniversary of being able to practice law, the case of George Kelly is to be remembered for many reasons and never were the lessons to be learnt in this case more important than they are now, writes Natalie Smith.
In January 1950 Rose Heilbron became the first female barrister to appear as leading counsel in a murder trial. The stakes and pressure upon her couldn’t have been higher. Her client, George Kelly, would hang if convicted.
The trial took place in Liverpool’s St George’s Hall, a grand venue in the heart of the city where Heilbron had grown up and built her practice in the law. The previous year she had been one of two women awarded the status of King’s Counsel (the equivalent of QC today) having only been practicing as a barrister for 10 years. She was 35 years old, a mother to a one year old baby girl and an exceptional lawyer. The eyes of the world were upon her.
George Kelly was accused of a double murder. It was alleged he had shot dead the manager and assistant manager of the Cameo Cinema in Wavertree, Liverpool during the course of a robbery. His co-defendant, Charles Connelly, was allegedly his look-out and also faced trial for the murders that had taken place in March 1949, coincidentally the same month Rose took silk.
The killing of two innocent men for no more than the evening’s takings of £50, attracted enormous attention and the police were under intense public pressure to bring the murderers to justice. The previous year a criminal with a string of convictions called Donald Johnson had been charged with being an accessory after the murders. He faced trial after providing the police with a statement confirming he had disposed of the gun for the killer. He too was represented by Rose Heilbron but on the first day of his trial she argued that the alleged confession he made was inadmissible as it had been provided on the promise of being granted bail in another case. The judge agreed with Heilbron and Johnson was acquitted before his trial began.
Within two months George Kelly and Charles Connelly were implicated by two alleged accomplices who had been granted immunity from prosecution in return for their evidence. James Northam and Jacqueline Dickson claimed to have been present when George Kelly and Charles Connelly planned the robbery and later when George bragged about the murders. They came forward with their evidence five months after the killings. There was no forensic evidence to link George Kelly or Charles Connolly to the crimes nor any other witness but the prosecution proceeded on the evidence of the two accomplices. On this evidence alone any trial judge would be bound to warn the jury to treat their evidence with the greatest caution. It was a circumstantial case and both Kelly and Connolly had alibis for the night of the killings.
On the first day of trial Heilbron faced new evidence from the prosecution in the form of a witness statement from Robert Graham, a fellow inmate Kelly and Connolly at Walton Prison where they were being held on remand whilst awaiting trial. He claimed that both men had used him to pass messages to each other and in doing so had admitted their part in the killings. This evidence was a breakthrough for the police and the prosecution as it corroborated the evidence of Northam and Dickson.
The trial lasted 13 days. It was at that point, the longest murder trial to have taken place in this country. The jury of ten men and two women retired to consider their verdict and after four hours returned asking the judge for more information. When they were provided with it the judge asked if it would help but the foreman said that he did not think they would agree, so the judge discharged the jury on the January 28, 1950. The trial was over but only for the shortest of time.
On the February 2, Heilbron was back in court ready to fight the retrial but this time George Kelly stood trial alone, his co-defendant’s trial having been split from his for no good reason other than for the convenience of his barrister. Heilbron opposed the separation of the trials. The men had been jointly accused and her legal view was they should be jointly tried. The judge disagreed, Kelly’s second trial for murder lasted six days and the jury took only one hour to reach a verdict.
James Northam and Jacqueline Dickson gave evidence once again and so did Robert Graham. George Kelly too gave evidence as he had done in the first trial, denying any involvement and maintaining that he was in the Leigh Arms pub at the time of the murders and that Robert Graham was lying about any confession.
In summing up the evidence of Robert Graham the Judge said, the assistant manager of the cinema ‘fell to his knees…. Who knew that? Only one person. Had Graham imagined the evidence? If you have a reasonable doubt, you will find him [George Kelly] not guilty. If, upon the evidence you come to the conclusion that George Kelly is the man, who on that night shot the cinema manager Leonard Thomas and thus brought his life of 44 years to an end, you will find him guilty.’ The jury duly convicted George Kelly. Heilbron was the first woman to lead in a murder case and in the end she lost, her client condemned to death by hanging.
Rose Heilbron didn’t give up. Immediately she and her junior counsel began drafting grounds of appeal to quash the conviction and they along with George Kelly travelled to London by train in March 1950 to try and convince the Court of Appeal to quash the conviction. Heilbron argued that the judge had been wrong to allow such a short amount of time before starting a second trial, he was wrong to order separate trials and had made over 10 errors in summing up. Evidence also emerged that one juror had in fact been convicted of an offence for which he’d served time in prison which the defence suggested disqualified him as a juror. The Court of Appeal swiftly dismissed the arguments and George Kelly would hang for a murder he claimed he did not commit.
In Hilary Heilbron’s book about her mother’s life she describes that following the failed appeal, George Kelly became understandably distressed during the train journey back to Liverpool and Heilbron was asked to speak to him in his compartment. It was the last time they ever saw each other and George’s parting remark was, ‘Don’t you worry about me luv, you just look after yourself.’ (Rose Heilbron by Hilary Heilbron 2012)
All attempts to obtain a reprieve failed and George Kelly hung at Walton prison on the March 28, 1950. His co-defendant Charles Connolly went to trial but was offered a deal to plead guilty to robbery and conspiracy to rob for his alleged role as lookout at the Cameo Cinema. If he accepted the deal he would avoid hanging and so he agreed and was sentenced to 10 years in prison.
Heilbron went on to appear in more capital cases until the death penalty was finally abolished for the crime of murder. Of note, the Member of Parliament who introduced the private members bill in 1965 into the House of Commons which finally ended capital punishment for the crime of murder was Sidney Silverman, partner in the Liverpool Law Firm Livermore and Silverman, the firm that had instructed Rose to represent George Kelly.
Rose Heilbron went on to become the first woman recorder, the first woman to sit as a judge at the Old Bailey and was finally appointed a High Court judge. She was an extraordinary lawyer and the world remained fascinated by her. Some 53 years after George Kelly’s first appeal, his case appeared once again in the Criminal division of the Court of Appeal sitting in the Royal Courts of Justice in London where Heilbron ended her career.
It was the oldest case ever to be considered by the Court. After years of fighting, George Kelly’s daughter and Charles Connelly’s widow appealed the convictions. Heilbron had been an excellent barrister but even she could not have truly understood what lengths a police officer had gone to secure a conviction. After years of persistence those who were sure of the defendants’ innocence obtained the police file and found within it a statement taken from Robert Graham that was completely different to the one provided to the defence on the first day of the first trial in January 1950.
In September 1949, two months before he gave his witness statement concerning George Kelly and Charles Connolly’s confessions to him in prison, Robert Graham told police that Donald Johnson, another fellow inmate at Walton Prison, had confessed to killing the manager and assistant manager of the Cameo Cinema. This statement had been given to the Police Officer in charge of the investigation, Detective Chief Inspector Balmer. It was then stored away on the basis that Johnson had already been acquitted of his role in the murder. In November 1949 Graham gave a second statement to police (over the course of four meetings with DCI Balmer) and this time he claimed the same confession he heard from Donald Johnson was made by George Kelly and Charles Connolly.
In George Kelly’s second trial, the judge highlighted the fact Graham knew that the assistant manager at the Cameo Cinema fell to his knees during his murder. He pointed out to the jury that only one man could have known that, namely the murderer and the fact Graham knew it too pointed to George Kelly being the killer. In September 1949 Graham claimed Donald Johnson had told him this same detail.
At no point during the trials was this first statement of Robert Graham ever disclosed to the defence or even prosecution counsel. When DCI Balmer gave evidence at the first trial he said clearly that he’d first met Robert Graham in November 1949 which was not true. Graham stated at both of George Kelly’s trials that the first time he’d met DCI Balmer was in November 1949 and deliberately concealed their meeting in September 1949. There was clear evidence of deliberate concealment of this first statement.
Following the conviction of George Kelly, Robert Graham was immediately released from prison as a reward from the authorities for his assistance. The deputy Director of Public Prosecution wrote to the Home Office and confirmed: “I am of the opinion that but for the evidence of Graham, Kelly would not have been convicted.” The jury that convicted George Kelly of a murder he did not commit was never warned when considering Robert Graham’s evidence that he may be seeking an advantage for himself by giving it.
So powerful was the impact of the concealment of Graham’s first statement, in 2003 the Crown Prosecution Service conceded that George Kelly’s conviction was unsafe and that it should be overturned. However, the prosecution refused to concede that Charles Connelly’s conviction for Robbery was unsafe as he’d entered the plea voluntarily. The Court of Appeal disagreed, recognising that he had been in the unenviable position of facing the death penalty if convicted of murder and the advice from his counsel to plead guilty would have been entirely different had the first statement of Graham been disclosed. They declared his conviction unsafe too. Charles Connolly had passed away by the time of the appeal but had maintained his innocence all of his life just as George Kelly had.
The Cameo Cinema murders remained unsolved and the killer or killers of two innocent men were never caught and brought to justice. The Court of Appeal said in 2003: “There was in these cases a breakdown in the due administration of justice and a failure to ensure a fair trial, we consider that the consequence was a miscarriage of justice, which must be deeply regretted.”
George Kelly and Charles Connolly were innocent men.
Rose Heilbron died two years after the miscarriage of justice was declared by the court, by that point having retired and being cared for by her loving family. She was suffering from dementia towards the end of her life and so it is unlikely she ever got to know the truth of what happened.
Another great sadness in this case is that Home Office records showed the voting numbers from the first trial Rose conducted for George Kelly at the start of 1950 were eleven to one to acquit him. Today that would have secured the acquittal on a majority decision but in 1950 a jury was obliged to reach a verdict upon which all of them were agreed.
Rose had secured the minds of nearly all of the jury. She was an exceptional lawyer and but for the corruption deployed to secure a conviction she would have won. She had come so close despite everything.
When Rose Heilbron was born in 1914 women weren’t allowed to be barristers, solicitors or judges. They didn’t have the vote and couldn’t be awarded degrees. She wasn’t from a particularly privileged background and so her rise in the legal profession during the post war period was extraordinary. She was unique and she captured the world’s attention quite rightly because she was brilliant. She challenged the world’s view of what women were capable of. She inspired many women to enter professions that were once considered for men only. She helped change the legal profession whilst having nothing but a love and devotion to the law.
In 2019 lawyers will celebrate the 100 year anniversary of women being allowed to practice law in this country and Rose Heilbron will take her place amongst those women lawyers who lead the way. But George Kelly and Charles Connelly should be remembered too. Not just for the horrific miscarriage of justice they were the victims of but the need for vigilance.
The police and prosecuting authorities’ failure to disclose crucial evidence is as relevant today as it was in 1950 as the Metropolitan Police are urgently reviewing disclosure in a number of serious sexual offences prosecutions follow notable failings by the police acknowledging and disclosing exculpatory evidence which meant cases should not have been prosecuted. The justice system must remain vigilant to the need for proper scrutiny on those investigating and prosecuting offences, the need for thorough and proper disclosure of anything that would undermine the prosecution case no matter how horrific the offence.
This article first appeared on The Justice Gap, January 2018
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