20 minute read
T What Really Happened in Liversidge v Anderson?
WHAT REALLY HAPPENED IN LIVERSIDGE V ANDERSON?
By Master Inigo Bing
Every barrister has heard of the case of Liversidge v Anderson, whether from practice, law school or exam cramming. It was about a detainee called Robert Liversidge, interned under emergency powers in the Second World War, who took a civil action for false imprisonment against the Home Secretary John Anderson. The action failed, but the case is remembered for Lord Atkin’s dissenting speech in the House of Lords when he protested against a construction of words which would give uncontrolled power of imprisonment to a minister. The House of Lords had to decide what the words ‘reasonable cause to believe’ meant and, apart from Lord Atkin, the House ruled the words meant the minister must believe he has reasonable cause to believe. That construction, Lord Atkin protested, showed judges to be “more executive minded than the executive” .
Nowadays, Lord Atkin’s approach to the judicial role in setting limits to executive power is preferred, but at the time Lord Atkin’s forthright dissent was controversial. Liversidge v Anderson is an important case, but it has never been examined from the vantage point of the facts, which, until recently, have been a closely guarded secret. Liversidge’s Security Services files were only declassified in 2012 and only now can the true story of his detention without trial be told. It is a remarkable tale of anti-Semitic prejudice, entrapment by the intelligence services and the liberality of Mr Justice Birkett, formerly Norman Birkett KC, who played a crucial part in securing Liversidge’s release.
Robert William Liversidge was born Jacob Perlzweig in 1904, the son of a rabbi who had fled Russia to make a family home in London. Jacob’s brother was also a rabbi on the executive of the World Zionist Federation when war was declared in 1939. It is beyond doubt that Jacob Perlzweig was not a Nazi sympathiser. He was a successful businessman with a substantial property portfolio. In 1926, he was on friendly terms with a man called Dore Baumberg, who was convicted at the Old Bailey of fraudulently obtaining share certificates from a widow. Liversidge later freely admitted that he had disposed of the certificates on the open market, although he did not know they had been obtained by fraud. The police continued to believe that Jacob Perlzweig was involved in the original deception, but he was never put on trial. He had left London in 1927, believing that better business opportunities lay abroad. In America, he met a man called Schapiro who had apparently committed a share swindle in New York. There was a suggestion that Perlzweig may have been his accomplice, but he was never charged with any offence. In California, he helped develop sound-recording equipment for the Hollywood studios, which were in transition from ‘silent’ movies to the ‘talkies’. When Robert William Liversidge, as he was now known, went to Canada on business he realised, in 1931, his British passport had expired and he needed a new one if he was to return to Britain. He then made a serious and costly mistake, which involved deceit. He applied for a Canadian passport in the name of Liversidge and falsely stated he had Canadian parentage and had been born in Toronto in 1901. These declarations were, of course, false, but he returned to Britain in 1936 on the Canadian passport. The following year, with the assistance of his solicitor, Lewis Silkin, he changed his name by deed poll to Robert William Liversidge. From that moment on, he was legally Robert Liversidge, and his company and personal business was conducted in that name. He was successful, rich and patriotic. On the day Germany invaded Poland, 1 September 1939, he applied for a commission as an officer in the RAF. He was, on the face of it, a most unlikely candidate for internment under emergency wartime regulations on the grounds of his “hostile associations”. But this is exactly what happened in May 1940 after he had given nearly nine months of unblemished service to his country in the Fighter Command of the Royal Air Force. He was arrested, detained and not finally released until December 1941, by which time he had become an embarrassment to the authorities. The story of his detention for a period of 18 months in Brixton Prison is shameful and reveals anti-Semitic prejudice, which infected the view the authorities took of him.
The tale begins in March 1940 when three alien detainees, all German Jews, were apparently planning to offer bribes to secure their release. For some reason, Liversidge’s business address cropped up in their plot, and this set in train the events which led to his arrest and detention. He was labelled, in MI5 files, “an international crook who fled the country in 1927”. This is a reference to the Baumberg and Schapiro swindles for which he was never questioned or charged. However, by early April 1940, he was believed to be “connected with subversive activities to release aliens in internment camps”, although this allegation was never substantiated. When Special Branch discovered that Liversidge was born Jacob Perlzweig, the authorities jumped on this as it demonstrated that Robert Liversidge was an imposter. This was a misconception as it was not fraudulent for Liversidge to use his adopted name, changed by deed poll, to apply to join the RAF. Nor was he a “crook”. However, for Special Branch and MI5, Liversidge was a suspicious individual who should be watched. His bank accounts were scrutinised, his house was searched, his telephone was tapped and his safe deposit box was opened, all under wartime warrants, which were permitted “for the purposes of defence of the Realm and the efficient promotion of the war”. Nothing to Liversidge’s detriment was discovered.
Then, on 25 April, a plot was hatched to entrap Pilot Officer Liversidge and have him detained under RAF disciplinary regulations. It was a disreputable cloak-and-dagger operation. The authorities had got it into their heads that Liversidge was a ‘crook’ with possible access to sensitive material, posing a danger to Britain’s war effort. A meeting was arranged between MI5 and Liversidge’s commanding officer at RAF Uxbridge. A memorandum of the meeting states, “It would be well (sic) if Liversidge could be placed under close arrest on a formal charge pending action between MI5 and Sir Norman Kendal [Assistant Commissioner at Scotland Yard] with a view to the internment of this man under the Defence Regulations. The RAF deputation agreed.” But what formal charge could possibly be laid against him under RAF rules? When he made his application to enlist, he was not subject to service discipline. During his eight months of service doing sensitive night-time photographic work his record was unimpeachable, but the minds of MI5 had already been made up. They wanted Liversidge interned, but on what grounds?
The entrapment operation was cunning. By an oversight, Liversidge had omitted to state his next of kin on his application form to join the RAF. Nobody had noticed this at the time. The ruse was to ask Liversidge to complete the form as a matter of routine. As he had applied in the name of Liversidge with a date of birth in 1901 (not 1904), he was obliged to provide names not called Perlzweig. No sooner had Liversidge put pen to paper than he was charged and detained under RAF regulations. He was subject to instant dismissal as an officer.
Despite being under arrest and not obliged to incriminate himself, Liversidge provided a written statement about his previous travels in North America and he continued, “Since 1935 I have moved freely as Robert Liversidge. I changed my name officially by deed poll about five years ago and have been known as Liversidge for about ten years.” He went on to emphasise he was a Jew and he joined the RAF “to serve my country”. This clearly rattled the authorities. Sir Norman Kendal wrote to MI5 a few days later to say that “unless you have enough on him to justify internment there is nothing which can be done by anybody except possibly the Air Force”.
Similar advice for caution was provided by Sir Tindal Atkinson, the Director of Public Prosecutions, who wrote on 4 May to say he was impressed by Liversidge’s witness statement. He advised, “In law a man’s unsavoury past and even his present contacts, if provable, are not relevant to the only available charge,” a summary matter punishable with a maximum of three months’ imprisonment. He then gave MI5 this warning: “Internment would be the only remedy and I fear this is a practical impossibility.”
This wise advice fell on deaf ears, and MI5 insisted that Liversidge had obtained a commission by fraud and he had an unsavoury police record. A memorandum stated, “As to the DPP’s counsel of caution, a principle is at stake and I fail to see why rottenness of procedure, apparently in existence in this country today, should affect the principle in any way.” The Security Services were much more impressed by a letter written by Sir Archibald Sinclair, the recently promoted Minister for Air. Sinclair had written to the Home Office on 15 May, asserting it was “most undesirable that a man with the unsavoury and indeed dangerous associations of Perlzweig, who has had access to information of a most secret character, should be left at large”.
Everything was now in place for an application to have Liversidge interned. The alternative was a charge, which the DPP had advised against, or release, which MI5 and the Air Ministry did not want. The intelligence services’ obsession that Liversidge had sought entry into the RAF by fraud was a complete misconception. He had changed his name from Perlzweig to Liversidge by deed poll in 1937, and this entitled him to use that name on his application to join up. His photographic experience stated on the application form was perfectly true, and there was nothing in any alleged unsavoury background to suggest he was a security risk. On the contrary, he was a principled anti-Nazi.
MI5 were scrabbling around to mount a case against him in the febrile atmosphere that was enveloping the country about a ‘fifth column’ in our midst. In April, Germany had invaded Norway, and the country had been taken over by the Nazis without any noticeable resistance. An American journalist, based in Oslo, claimed in The Daily Telegraph of 16 April 1940 that the Germans had only succeeded in their invasion through a “gigantic conspiracy”, involving highly placed Norwegian civilians who had, in some way, facilitated the German invasion. This claim is now discredited by historians, but at the time it was taken extremely seriously in Britain. In May 1940, the Joint Intelligence Committee reported to cabinet it was credible a “fifth column” was operating in Britain. When Hitler invaded Holland, the following month Sir Nevile Bland, Special Envoy to the Netherlands, warned Winston Churchill in memorandum that a “fifth column menace” existed in Holland. The claim was not supported by cogent evidence.
It only remained for Churchill and the cabinet to make a decision about what to do about any ‘fifth column menace’ among Britain’s civilian population. All the powers to round up suspects were in place. The Emergency Powers (Defence) Act 1939 had been passed in a single day by parliament on 24 August 1939. The Act gave ministers wide powers to bring in regulations, which included detention without trial in the notorious regulation 18B. It stated, “If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations [the applicable words in Liversidge’s case]…and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he shall be detained.”
By the time Liversidge’s case came up for consideration, the Secretary of State was Sir John Anderson. Arrests under emergency powers began on 23 May 1940, and by the end of May he had signed more than 400 detentions under regulation 18B, of which 69 related to citizens of the United Kingdom, including Robert Liversidge. MI5 now believed they had a new lead. They had discovered that in the 1930s a Dutch citizen called Van Lighten had made an application to join the British Security Services and had named Liversidge as a referee. Van Lighten was suspected of being a spy and his application was refused. The link between Van Lighten and Liversidge was a business one connected with diamonds. Van Lighten dealt in diamonds in Holland, and Liversidge had an interest in the design and manufacture of industrial diamonds. At that time, techniques for making industrial diamonds for use in precision engineering were being developed and it was perfectly lawful. A business associate of Liversidge called Nussbaum was apparently suspected of exporting industrial diamonds to Germany. Nussbaum and a man called Marcus persuaded Liversidge to help them set up the Carbonite Diamond Company, whose purpose was to produce industrial diamonds. But Liversidge had fallen out with Nussbaum and Marcus, and this was the subject of litigation Lewis Silkin was handling. Unfortunately for Liversidge, Marcus was a German national who had been interned as an alien and Nussbaum was suspected of helping the Germans. MI5 grabbed hold of these facts to build a case for Sir John Anderson to sign. For them, an ‘association’ with a possible German sympathiser and an enemy alien was the foundation of the case they were trying to construct. The Home Secretary was told “it was highly probable” Liversidge’s diamond business was dishonest even though there was no evidence it was. The ‘statement of case’ presented to the Home Secretary continued to allege Liversidge had obtained his commission by giving false particulars, enabling him to acquire information of a highly secret character. As the DPP and Sir Maurice Kendal had pointed out, it is far from clear that Liversidge gave false particulars in order to obtain a commission. He was using the name his deed poll legally gave him. His skills, acquired through business, were truthfully stated on his application form even if his educational qualifications were not. As to secret information, there was absolutely no evidence that he divulged anything sensitive while serving on Fighter Command. The statement then comments that Liversidge was, by nature, “completely unscrupulous”. This damaging assertion is not backed up by anything other than suspicion founded on the discredited rule of guilt by association. Nonetheless, the Home Secretary signed the order, stating: “I have reason to believe Jack Perlzweig/ Robert Liversidge to be a person of hostile associations and that by reason thereof…I direct the above mentioned…be detained.”
Liversidge was taken on 30 May from his confinement at RAF Uxbridge to Brixton Prison, where he remained for the next 18 months. He immediately gave notice of his objection to his detention, which he was entitled to do under regulation 18B. His objections are heart-rending. “I must personally state,” he wrote, “it is fantastic that a person in my position (a Jew, a serving member of HM Forces and a person controlling some £180,00 of houses in London) should be detained. If (God Forbid) we should lose the war, not only would I lose everything I possess, but my life would most certainly be at an end because of my family, my father and brother both being Jewish Rabbis.” He then requested an early hearing before the Advisory Committee. This body had been created under emergency powers to allow a detainee to make representations against his detention, but the Committee was informal, inquisitorial, and its recommendations were not binding on the Home Secretary. By good fortune, Norman Birkett KC had been appointed to chair the Advisory Committee and a transcript of Liversidge’s appearance before it in October 1940 survives. He was not allowed legal representation, but Birkett, flanked by two lay colleagues, presided with scrupulous fairness. Liversidge gave full explanations about his associations with Baumberg, Schapiro, Nussbaum, Van Lighten and Marcus. A reference from a senior RAF officer stated that Liversidge was “very definitely” opposed to the present German regime, and other references from former business associates attested to Liversidge’s loyalty.
The Committee put off a final decision as Birkett felt they did not have sufficient information about Liversidge’s past business dealings. He advised that Lewis Silkin be given an opportunity to demonstrate that past business affairs should not be seen “as a skeleton hanging round his neck”, thereby demonstrating there was no “ulterior motive” in Liversidge’s decision to volunteer for military duties. The Committee reported that alleged hostile associations were “really difficult to justify… The Committee were unable to find that at any stage Liversidge had been disloyal to his country…nor that the information he possessed would be used to injure his country.”
Release was not recommended at that stage on the sole ground that the RAF had made it abundantly clear that on security grounds he should remain in detention. The Committee recommended continued detention for the time being, but they would return to the case on a later date. Liversidge had reason for optimism. He could soon be recommended for release when the Committee read about his legitimate business dealings, and he might also succeed in a legal case against the Home Secretary for false imprisonment. He had issued a writ against Anderson in March 1941.
After Liversidge’s action against the Home Secretary became known, an intelligence officer noted, in April 1941, that evidence of hostile associations was not very strong and that the real reason why Liversidge had been detained was that “the RAF wished to get rid of him and have him detained as he was an untrustworthy person with a very bad character”. This was, of course, the clear view of Sir Archibald Sinclair, but RAF objections, in themselves, would not have been sufficient to make a case for the Home Secretary to sign. Liversidge was only detained as a result of representations from MI5, not those only of the RAF. When Norman Birkett began reconsidering the papers in July, there was something of a panic within MI5. It was beginning to dawn on them that they really did not have anything very incriminating against Liversidge. Responsibility for his detention was shifted to the RAF. MI5 began pleading for the RAF to moderate their stance. Unfortunately for MI5, the RAF simply repeated the line Sir Archibald Sinclair had taken earlier: “Liversidge is, as you know, an international crook and the functioning of the Operations Room, of which he had knowledge, has not changed. His release should be opposed.”
By November 1941, Liversidge’s resumed hearing before the now elevated Mr Justice Birkett was imminent, and MI5 were now insisting Liversidge was originally detained “at the instance of the Air Ministry as he succeeded in falsifying his papers and getting a senior position in Fighter Command”. This, of course, was untrue. MI5 had themselves wanted Liversidge detained. Pressure was mounting for the intelligence services to distance themselves from responsibility for Liversidge’s detention as by now MI5 were anticipating Birkett would recommend his release. Then, at last, on 2 December 1941, just two days before the resumed Advisory Committee hearing, the Air Ministry conceded there was now no objection to Liversidge’s release. The resumed hearing on 4 December was something of a formality. The voluminous material on Liversidge’s business dealings revealed nothing to his detriment. At the end of the hearing, Mr Justice Birkett commented: “I have assumed you are heart and soul with the British cause? I have never had any reason to doubt it myself.” On Christmas Eve 1941, Herbert Morrison, who had now succeeded Anderson as Home Secretary, revoked Liversidge’s detention order.
In this whole saga, the courts of England and Wales had played no part in ensuring Liversidge received justice. The legal claim for false imprisonment against Sir John Anderson had stalled in tactical skirmishes, which did not touch upon the real issues in the case. In the pleadings, Liversidge was unable to state why his imprisonment was unlawful as he did not know the grounds upon which the Home Secretary had reason to believe his detention was necessary. Anderson, for his part, admitted nothing other than he had ordered Liversidge’s detention under regulation 18B. It was stalemate. Neither side put forward any facts to back up their respective cases, Liversidge because he was unable to, and Anderson because he did not want to.
The litigation in Liversidge v Anderson was entirely on a preliminary point. Was it for Liversidge to show why his detention was unlawful or was it for the Home Secretary to demonstrate there was, in actual fact, a reasonable cause for a belief that his detention should be ordered? Liversidge had sought an order requiring the Home Secretary to provide particulars as to the grounds for his detention. The Master, the High Court judge and the Court of Appeal all refused to make the order. The application turned on the proper interpretation to be given to the words ‘reasonable cause to believe’. Was this something essentially within the knowledge of the Secretary of State himself or was a reasonable cause to believe something the existence of which could be ascertained? Did the words simply have a subjective meaning or should they be interpreted objectively? As is well known, the majority of their Lordships ruled the words had a subjective meaning. Only Lord Atkin, among eight other judges and one master, ruled, emphatically, the words were capable of only one meaning and that was the ordinary meaning. This meaning was unambiguous. The words meant the Secretary of State did actually have to have a reasonable cause for his belief. The case Robert Liversidge brought against the Home Secretary was, therefore, concluded at a preliminary stage and the merits of the case were never considered.
The story did not quite end with his release in December 1941. By March 1942, Liversidge’s file was still open and a security officer commented, “Liversidge is of no great security interest. He was interned largely because after he obtained a Commission in the Air Force by false pretences, he came into possession of secret information and he could not be trusted not to impart it to others.” But, as Sir Norman Birkett had discovered, there was nothing remotely untrustworthy about the way Liversidge conducted himself. Despite complete exoneration before the Advisory Committee, prejudice against Liversidge persisted. In January 1943, Liversidge set up a company called Albermarle Productions with the object of providing ‘theatrical shows’ to the troops, but the War Office were soon to raise objections. In March 1943, a memorandum stated, “It was undesirable for a company run by a man like Liversidge to exhibit theatrical shows to camps with the blessing of the War Office.” Without War Office support, the project was doomed. Despite this setback, Liversidge’s business ventures flourished after the war ended in 1945 and he lived for another 49 years, becoming extremely wealthy. To his dying day, he insisted his imprisonment had been malicious, but, of course, his ability to argue this in a court of law had been denied to him by the majority in the House of Lords.
His Honour Inigo Bing
SOURCES:
The National Archive.
AW Brian Simpson, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Oxford, OUP, 1992), Peter and Leni Gillman, Collar the Lot! How Britain Interned and Expelled Its Wartime Refugees (London, Quartet Books, 1980) and Christopher Andrew, Defence of the Realm: the Authorised History of MI5 (London, Penguin Books, 2010).
