I felt a sort of thrill, as the day began to shift. We left the room, and I sent Dom back to his friends as I went into court alone to show the prosecutor the photographs and tell her what she did not want to hear. We were going to have a trial.
I grew up in a cathedral city where the police were our protectors. If I was walking home from town at night and saw two on patrol, I would cross the road to go their way for as long as I could because it made me feel safer. I made them tea when we were burgled; pointed them in the right direction after one man laid a blow on another, then ran off. The only other contact I had with them was benign – teenage cider-drinking, the confiscation of a fake ID, my mother shouting ‘Duck!’ to the six children crammed on the back seat of our ancient car – and little trouble came from it. When I became a barrister, my voice and presentation guaranteed respectful treatment from the police, even when I was on the opposite side of the courtroom from them. It was only through defending that I began to see, and understand, why those I represented often viewed them so differently from me.
There are some police officers whom I rarely cross-examine. These ones are earnest and keen, view their job as a vocation, and strive to be fair. I have met a good number of them, but I rarely need to test their evidence in court for, most often, they tell the truth. Some are lazy and apparently without independent thought, but are not dishonest. Others are old hands who have seen their powers eroded and red tape strangle their investigations. They will break and bend rules and cut corners to ensure that – as they see it – justice is done, but they usually hover just on the right side of the line. As a defence barrister, my experience of challenging police in court usually involves a different type of officer. These are the ones who use their badge for no reason other than to legitimize their bullying, their brutality and their deception. In their witness statements they lie and exaggerate, which means that my client – who may well have done something wrong, just not the wrong of which they are accused – will cry ‘No! That is not what happened!’ So, rather than pleading guilty, we must come to court to admit the true parts and dispute the rest.
The police in Dominic’s case were made up of this latter type of officer. And, on the second day of the trial, their evidence began to unravel.
The magistrates, as arbiters of Dominic’s guilt, came into court knowing nothing but his name and the charges he faced. They had not seen the police officers’ witness statements before the trial because criminal evidence is what is said in court, under oath, and not what is written down beforehand. I, of course, had read them. In their statements, the police officers said they had suspected Dom of an offence, had approached him, and then chased him when he ran. When they caught up with him they took him to the ground, where he had then assaulted them. As a result, they had handcuffed him. Caz had tried to pull them off and, when they turned to deal with her, Dom had tried to run away, so they had sprayed him with gas and put him into the back of a police van. In evidence, however, the officers’ attempts to minimize their own actions and exaggerate Dom’s began to undo them. As each officer described a different version of events, I tried to keep up – circling the evidence in my notebook, attempting to keep track of who said what.
Then the final officer gave evidence. He was the one who had thundered into Dominic’s side, taking him down. He was the one, Dom said, who had put his boot on Dominic’s head and kept it there, crushing it into the ground, and who later sprayed gas into his face. He was the one who had got into the police van with Dom to finish him off. With every question I asked, the officer turned and addressed his answer to the magistrates with extravagant deference. It had the effect of aligning him with them as he stood, hands clasped before him, barely pretending to take my questions seriously.
‘So, officer, am I right in suggesting that when you saw Dominic in the street, you immediately went over to him?’
‘Yes, that’s correct, Your Worships. Just before the defendant absconded and we pursued him.’
‘You mean he ran off and you chased him?’
The officer stared at me, hard. There I was, a nice middle-class girl in a black suit with a smart accent. He must think that, surely, I should be on his side.
‘In a manner of speaking, Your Worships.’
‘And he seemed perfectly all right when you saw him? I mean, there were no marks or injuries to his face or hands, or elsewhere, that you could see?’
‘None whatsoever.’
‘When you caught up with the accused he was bent over, hand raised, at the end of the tunnel – is that correct?’
‘I don’t recall his position. My aim was to prevent his further escape.’
‘By taking him to the ground?’ I asked.
‘Yes, Your Worships.’
‘And, just outside the tunnel, there was a patch of grass. You say that was where you took him to the ground?’
‘Indeed, Your Worships.’
I paused and looked at my notes. ‘And tell us exactly, officer, how you detained him on the ground.’
‘In a Home Office approved manner, Your Worships.’
‘Right. And what is a Home Office approved manner?’
‘It is a technique designed to prevent injury, Your Worships.’
‘To you?’
‘Yes, Your Worships.’
‘And to the detained person?’
‘Exactly, Your Worships.’
I had him. At last, I had him.
‘I see. And was that, in part, why you detained him on the soft grass, rather than the hard pathway …?’
The officer turned to the magistrates, pleased with himself. ‘Of course, Your Worships.’
I looked at the magistrates as I framed the next question. ‘I see, officer. So, to be clear, using the Home Office approved manner on the grass would have protected both you and the defendant from any injuries – have I understood this?’
‘Exactly.’
I slid my notebook off the photographs, and sensed the prosecutor twitch. I had shown them to her beforehand, but she could not have predicted that the officer’s evidence would make their existence impossible. I held the pictures up, watching as the magistrates craned forward to look at the bruises, lumps and cuts in glossy close-up.
‘So, officer – can you explain how my client got these, then?’
We sat in court in silence waiting for the magistrates to return, the clerk having summoned us from the waiting room. They had decided on their verdicts. I glanced quickly behind me at the dock where Dom stood, staring at the floor. Caz, next to him, looked up as the magistrates filed into court. The legal advisor, walking ahead of them, returned to her seat below their bench. She waited for everyone in the courtroom to sit, then asked Dom and Caz to stand once again, ready to hear their verdicts.
I spread the photographs out before me, even though they could make no difference now. The magistrates would not stop, midway through their verdict, and change their minds just because they caught sight of them. Perhaps, I thought, looking at Dom’s bruised and cut flesh, I just wanted proof I was entitled to feel outraged.
The lead magistrate, seated in the centre of the three, leaned forward slightly. Like so many magistrates I have appeared before, she presented as a cliché: well-spoken, greying hair, small half-moon glasses pulled down to the end of her nose. She looked over them and at the dock as she spoke.
‘We have listened carefully to the evidence from the five officers, the two defendants and their witness. We have also re-read the defendants’ interviews and taken account of the advice given to us by our legal advisor. Firstly, Caroline Wood, you are accused of striking and kicking a police officer. You say you acted in defence of your co-defendant and denied that your actions were as described. We find you did make contact with the officer …’
I noted down her words and resisted the temptation to sigh.
‘… but because of the conflicting stories given by the police officers and the evidence of the injuries to Dominic Parker, we find that y
our actions were in defence of another. We therefore find you not guilty.’
I held my breath. The magistrate adjusted her gaze.
‘Dominic Parker, we have also listened carefully to the evidence against you. Firstly, you are charged with assaults on both PC Smith and PC Duncan. Because of the conflicting evidence, we find you not guilty, and find that any contact you made was accidental in the circumstances. Lastly, you are charged with an assault on PC Davis. We find that the spitting, which is the nature of the assault, did take place, but that this was as a result of the effect of the CS gas you had suffered, and was therefore also accidental. We therefore find you not guilty of all offences.’
I stood up, and hoped my voice was level. I had assumed that these three people, who were so different from those who appeared before them, could never have preferred a defendant’s account over a police officer’s. I had been wrong. I was embarrassed to have applied the same prejudices to them that I assumed they would apply to my client. The magistrates had not, of course, explicitly said the officers were lying. Over the following years I would never hear a magistrate accuse a police officer of poor practice, of lying or of planting evidence, even when the evidence suggested exactly this. The defendant’s vindication had to lie in his acquittal. I glanced behind me to look at Dominic, and knew that, for him, that was enough.
‘May the defendants be released, Madam?’
‘Of course. Please unlock the dock.’
After our first victory, I went on to represent Dominic many times. His crimes were almost always theft, with occasional light violence and plenty of public disorder. He would target cash, alcohol and cigarettes, which he knew he could sell on fast, but which never made him sufficient money to survive on for long. He was not, I soon discovered, a good thief. His crimes were opportunist, usually unplanned, and often committed when he was too drunk to think about the trail of evidence he was leaving behind him like breadcrumbs.
Unfailingly, I would read the evidence against him and find myself laughing out loud. Once, climbing backwards out of an office window, he became stuck. Spotted by a passerby he had to wait, suspended in mid-air, for the police to come and arrest him. Another time he tore his bag on the way out of a window so that the bottles of alcohol he had just stolen fell and smashed, calling over curious witnesses to investigate the noise. In another drunken break-in, he left behind a tool covered in his fingerprints, and smears of blood from a cut to his hand. But my favourite piece of evidence was a letter, carefully placed on his pillow as though it were a love note, for the police to find when they raided his flat: ‘Fuck You Pigs! Can’t Catch Me! Ha Ha Ha Ha Ha. Dom xxx’. They did, of course.
I was involved in only one other trial in which Dom refused to plead guilty. It involved a break-in at a local college and the evidence against him was slim, but the prosecution decided to charge him anyway. They knew that his previous convictions for burglary showed a propensity to commit the crime, and that this meant they were admissible by law into the trial.6 During his evidence, I asked Dom about his past, getting there before the prosecutor’s cross-examination, hoping to deaden the punch.
‘Dominic,’ I said, as he stood in the witness box. ‘You are twenty-one years old and you have twenty-three previous convictions for burglary.’
He clasped his hands in front of him, dropping his head. All we could see was his halo of dark hair.
‘Yes, Miss, I have.’
‘And how did you plead to those burglaries, Dominic?’
He looked back up and straight at me. ‘Guilty, Miss, to every single one of them.’
‘So Dominic, why aren’t you pleading guilty to this one?’
‘Because …’ he said, turning to stare beseechingly at the magistrates, all of whom gazed back, ‘… I didn’t do this one.’
As the not guilty verdict was read out and Dom skipped away from court with the friends who had been waiting for him, I found myself wondering whether I, like the magistrates, had just been deceived and, if so, whether I was glad he had got away with it.
The more I represented him, the more I began to understand something else. Dominic might be a terrible criminal, but he was not stupid. He would talk me through the evidence, what charges he thought we might persuade the prosecution to drop, which ones he should plead guilty to. He had a working knowledge of the sentencing guidelines, to which all courts are bound, and which predetermined his fate with a flow chart to his future.7 Dom would tell me which level of the guideline for his offence did, or did not, apply to him. He would point to details of the case which meant the judge could go below the sentence starting point. But his special skill was writing beautiful, heartfelt letters to the court, full of pleas and promises of reformation and his commitment to a life beyond crime, where, having never had one, he would hold down a job. He wrote with great charm; his spelling and syntax were better than most of the police statements that had imprisoned him, and more than one judge remarked how articulate they were, even if they rarely worked. He was canny enough to check which judge was sentencing him. ‘Oh, right,’ he once said, crunching his handwritten letter into a ball. ‘He’s had one of these before.’
Dom had so many court hearings that sometimes barely a week went by without my seeing him. I began to believe that he did not care about getting caught, nor about the consequences. Sometimes, on my way home from court, I would gaze out of the train window as dusk fell and lose myself in a fantasy where I took him from his life. I would help him find somewhere to live, get him a job, show him ways to focus his energy and rebellion and character. I would indulge myself in this daydreaming aware that it could surely never work, and that I would surely never try.
Some six years after I first met Dominic I found myself representing him for the last time, although I did not know it then.
I went into chambers, collected the case papers from my pigeonhole and started flicking through the evidence. Dom was due to appear in court to be sentenced for a burglary spree. He had set out into the autumn night with two friends, drunk and armed with a claw-hammer. The three of them had smashed their way into a row of local shops. A dry-cleaner: bottom pane of its door shattered, £15.23 of change stolen. A Tesco Express: door smashed, £320.21 of alcohol stolen. Next a newsagent: £500 of cigarettes and £26 of alcohol taken. Then an estate agent and a launderette, where, running out of energy, they left empty-handed, two splintered doors the only sign they had been there at all.
Dom knew he had to plead guilty. A fairytale trail of blood, fingerprints and DNA had led the police directly to him. However, twelve months earlier he had been sentenced for a different burglary. He had been released from prison halfway through this sentence, as the law required. Then he committed these new offences, with only a month left to go before that sentence expired. This meant that Dom was immediately sent back to prison, to serve out the rest of his existing sentence. When the month passed, we agreed there was little merit in asking a judge for bail. The guidelines said that the maximum sentence for this kind of burglary was fifty-one weeks’ imprisonment. Dom had pleaded guilty, which meant he was entitled to one third off his sentence.8 We both knew, however, that any judge would look at the guidelines, and his previous convictions, and sentence him to the longest period he could. Dom might as well stay in prison and clock up some time, which would then be taken off his sentence as time he had already served.
Dominic was still in prison when his co-defendants were joined to his case. He was also still in prison when they pleaded not guilty and their trial date was set. Their trial was to be a ‘floater’. It could begin on any day in a given week, but whether or not it actually began depended on another trial collapsing. If another defendant pleaded guilty, or a witness failed to attend court, or some other unexpected happening occurred which meant that a court became free, then this one would be waiting in the wings to take its place. If, however, no court became available and the week came to an end without the trial beginning, then everyone would be sent away to r
elive the experience months later.
Knowing that Dom had to wait until his co-defendants’ trial was over before he could be sentenced, I persuaded the judge to grant him bail. By this point he had been back in prison for twenty weeks. Dom was in grave danger, I told the judge, of spending more time in prison waiting for his sentence than his eventual punishment could ever be. The judge agreed, and released him with a list of bail conditions, a requirement to report at the police station every day and a strict curfew monitored by an electronic tag.
On the first day of their trial, Dominic’s co-defendants changed their pleas to guilty. I did not know why they had taken eight months to admit their crimes. I only wanted to make sure that Dom got credit for all the time he had spent abiding by his onerous conditions, waiting to receive his punishment. Every day of curtailed liberty spent on a tagged curfew, says the law, is worth half a day in prison. Preparing his case for his sentencing hearing, I wrote down the numbers in my notebook and circled them. Dom had spent 111 days on remand in custody on these offences, and 176 tagged on a curfew. Twenty-eight weeks in total, the same length of time he would have spent in prison had he been given a fifty-six-week sentence. He had already served a longer sentence than any judge was likely to pass.
I checked Dom’s date of birth, printed at the top of his previous convictions. He had just turned twenty-four – only eight years younger than I was. The futility of it all, the inevitability of the cycle, crushed down on me. My fantasy of the life Dom could have, were he spirited away from his current one, seemed suddenly vain and absurd, and, as I packed the bundle of papers into my bag with my wig and gown, I felt embarrassed to have indulged in it.
In my hand I held Dom’s pre-sentence report.9 This slim bundle of papers contained a probation officer’s analysis of Dominic: an outline of his life, what remorse, if any, he felt about the crimes he had committed, and details of whatever sentence the probation officer recommended to the judge. I raised my head as the judge frowned down at me.
In Your Defence Page 2
