Sir Edward Clarke pointed out that there was one set of charges under the Criminal Law Amendment Act and another set of charges of conspiracy.  He urged that the charges of conspiracy should be dropped.  Under the counts alleging conspiracy, the defendants could not be called on as witnesses, which put the defence at a disadvantage.  In the end the Judge decided that there were inconveniences; but he would not accede to Sir Edward Clarke’s request.  Later in the trial, however, Mr. Gill himself withdrew the charges of conspiracy, and the Judge admitted explicitly in his summing up that, if he had known the evidence which was to be offered, he would not have allowed these charges of conspiracy to be made.  By this confession he apparently cleared his conscience just as Pilate washed his hands.  But the wrong had already been done.  Not only did this charge of conspiracy embarrass the defence, but if it had never been made, as it should never have been made, then Sir Edward Clarke would have insisted and could have insisted properly that the two men should be tried separately, and Wilde would not have been discredited by being coupled with Taylor, whose character was notorious and who had already been in the hands of the police on a similar charge.

This was not the only instance of unfairness in the conduct of the prosecution.  The Treasury put a youth called Atkins in the box, thus declaring him to be at least a credible witness; but Atkins was proved by Sir Edward Clarke to have perjured himself in the court in the most barefaced way.  In fact the Treasury witnesses against Wilde were all blackmailers and people of the lowest character, with two exceptions.  The exceptions were a boy named Mavor and a youth named Shelley.  With regard to Mavor the judge admitted that no evidence had been offered that he could place before the jury; but in his summing up he was greatly affected by the evidence of Shelley.  Shelley was a young man who seemed to be afflicted with a species of religious mania.  Mr. Justice Charles gave great weight to his testimony.  He invited the jury to say that “although there was, in his correspondence which had been read, evidence of excitability, to talk of him as a young man who did not know what he was saying was to exaggerate the effect of his letters.”  He went on to ask with much solemnity:  “Why should this young man have invented a tale, which must have been unpleasant to him to present from the witness box?”

In the later trial before Mr. Justice Wills the Judge had to rule out the evidence of Shelley in toto, because it was wholly without corroboration.  If the case before Mr. Justice Charles had not been confused with the charges of conspiracy, there is no doubt that he too would have ruled out the evidence of Shelley, and then his summing up must have been entirely in favour of Wilde.

The singular malevolence of the prosecution also can be estimated by their use of the so-called “literary argument.”  Wilde had written in a magazine called The Chameleon. The Chameleon contained an immoral story, with which Wilde had nothing to do, and which he had repudiated as offensive.  Yet the prosecution tried to make him responsible in some way for the immorality of a writing which he knew nothing about.