‘But, Miss Langford, I have read the report. Your client professed to the probation officer to want a community sentence. He said he did not want to go back to prison yet again. He claimed he needed a chance to stop his quite frankly appalling offending and address his alcohol problem, and that he would be willing to undertake any community programme I might make?’
Dom’s report had been written shortly after he had pleaded guilty, many months beforehand. He had used all his charm to persuade the probation officer that, despite breaching every other Community Order he had ever been given, this time it was different. He had done various food and hygiene courses in prison, he said. He’d learned to cook for himself when he was growing up, and now he wanted to train to be a chef, given the chance. He really thought he would be good at it. I could imagine how persuasive he had been, how charismatic. How the probation officer must have looked at the guideline starting point of eighteen weeks custody, then at this smiling young man before her, claiming he just needed a break, and remembered the reasons she had wanted to do this job. To help people, not to send them to prison.10 And she had gone back to her office and typed the words: ‘Exceptionally, I recommend that this should be disposed of with a long community sentence’.
But when Dom had told her all this, he had no idea that he would, in effect, serve more than the maximum sentence for his crime while waiting for his sentence. Now, after many months in prison and even more on a tag, the prospect of spending the next year in weekly meetings with a probation officer, attending courses and doing unpaid work – even though he had already done his time – meant that he had, understandably, changed his mind.
I rolled the arguments around, weighing up the judge. He was a recorder: a barrister who sat as a judge for a limited number of days a year. His speciality was not, I knew, in criminal law, but in civil disputes. I tried again.
‘Yes, I realize that my client said that, Your Honour. But, may I respectfully remind Your Honour once more of the sentencing guidelines for this matter? I fear the probation officer has been wildly optimistic in her recommendation. Your Honour will see that for a Category Two non-domestic burglary the starting point – regardless of plea or previous convictions – is a custodial sentence of eighteen weeks. Your Honour will also have noticed that the maximum sentence in this bracket is fifty-one weeks. My client has, therefore, already served a sentence in excess of the maximum, and that does not take into account the one-third discount he is entitled to for his early guilty plea. I respectfully urge the court to be careful that it does not pass a sentence which would prove … excessive.’
The judge looked down at the copy of the guidelines I had handed up. He paused, and I wondered whether I should push the point again. The sentencing guidelines were designed to create uniformity between courts, and had largely done so, but they also risked removing the skills and perception of the judge who has to decide an individual’s fate. I thought of a maverick judge before whom I used to appear. He was once due to sentence my client, a man with a history of fighting who had meted out a number of injuries in a bar brawl and who should, according to the guidelines, have gone straight to prison. Instead this judge bellowed at him: ‘Lay off the booze, stay out of trouble, get a bloody job, and come back here saying as much in a year’s time or you will be going straight down for eighteen months. Now get out of my court.’ A year later my client and I returned to show that he had faithfully obliged. He had new qualifications, a new job, a new home and a fiancée, and had kept out of trouble. Ever since I have been convinced that, in keeping him out of prison, that judge saved his life. But now, for Dominic, I needed the opposite. I looked at the judge, willing him to understand my plea, urging him to sentence Dom to prison so that he could walk free from court today.
‘Yes, thank you, Miss Langford. Is there anything further?’
I hesitated, and confirmed there was not, then retook my seat. My two co-defending counsel then stood and, in turn, pleaded with the judge for leniency. Their clients had seen the inside of a prison cell before, their barristers implored, and knew that now was the time for change. It was their last chance. They urged the judge not to commit them to the cycle of custody with which the courts were all too familiar, and to enable them to swerve their future on to a different path.
The judge nodded. As he cleared his throat and looked towards the dock, I realized I was holding my breath.
‘You are kidding?’ My solicitor swore down the phone.
‘No. I know,’ I said. ‘He gave him a Community Order. Twelve months of supervision to address his alcohol problem, an Enhanced Thinking Skills programme, and one hundred and twenty hours’ unpaid work. The other two got pretty much the same.’
‘Ridiculous. Didn’t he see his record? Dom will never do it! We’ll be back in court within weeks for a breach. It’s just setting him up to fail …’
‘I tried to say as much, but the judge didn’t get it. He agreed it was a Category Two burglary. He agreed that it was aggravated by there being more than one break-in, and that they had gone prepared with a claw-hammer, at night, under the influence of alcohol. I mean, that alone should have meant an immediate custodial sentence. He was clearly on some sort of reformation mission – or maybe he thought he had to follow probation’s recommendation, I don’t know. He went through all of Dom’s previous convictions and said that, despite the various remedies that had been applied – including prison – he had not learned his lesson and now was the time to do it.’
‘But what about all the time he’d spent on remand – how could the judge just ignore it?’
‘He didn’t – he said he was not going to pass a prison sentence because of the time spent on remand. In effect, he used it as mitigation. I asked for permission to appeal, which, of course, he refused. Don’t worry, I’ll draft you an application to the Court of Appeal.’ I paused. There was silence at the end of the line. ‘The problem was that Dom had banged on to the probation officer about needing to change. He insisted that, although he had breached Community Orders in the past, he wanted the chance to try again – he knew this was the moment to really make a go of it, he said. The probation officer was convinced apparently; she went into some detail about his changed motivation.’
‘I see.’ My solicitor paused. ‘I imagine that, by now, he is somewhat less motivated …?’
I hesitated. ‘You could put it like that.’
After we had come out of court I had stood in the corridor while Dom spat his fury at me. I understood why. The complaints he made were not new: the pointlessness of the brief appointments with the supervising probation officer crammed into an overloaded timetable, which offered just enough time to sign a name and ask a few questions but never enough to pull at the deep and secret thread that might undo the reasons for his offending. I watched Dom as he raged before me. He had put on weight in the last year, and the boyishness of his frame was giving way to slovenliness. Something else was different: there was a sullenness to him, a meanness and hardness I had not seen before. I looked at the other defendants, gathering in groups outside the courtroom doors, waiting for their turn, and realized that, for the first time, it was difficult to distinguish him from the rest of them.
My application to the Court of Appeal against Dom’s sentence was refused. A few months later, I stood on the railway station platform after court and listened to a voicemail from my clerk. Dom had a hearing in court the day after tomorrow and his solicitor had asked if I could cover it. He had refused to go to his supervision appointments after the application for permission to appeal was refused, declaring them a waste of time. The court would be asked to find him in breach of his order and to sentence him for it. The voicemail reminded me that I already had another case in my diary for the same day. It was a civil case: a hopeless whiplash claim on behalf of a client who was, it was clear, part of a group of professional claimants who organized crashes for cash. Usually, I would have done anything to get out of it. I knew that as long as there was a c
ompetent, warm body in my place, the solicitors would not care who bore the judge’s wrath towards my client on their behalf. I called my clerk back and, as he answered, I pictured Dominic the last time I had seen him.
‘The thing is, I know I represented him at the sentence and that there should be continuity of counsel, but the other case was in my diary first so, technically, I have to do it.’11 I paused. ‘I’ve also done loads of work on it. I won’t get a penny if it goes to someone else and the breach hearing will barely cover my train fare to Oxford, right?’12
All this was true. It was also irrelevant. A year or so beforehand, I would not have thought about it: I would have covered Dom’s case. But the truth was I no longer wanted to witness his pointless and predictable lurch between prison and court, court and prison. I no longer wanted to watch the justice system fail to help him, and Dom fail to help himself. It not only made me feel impotent, it also made me feel complicit. I called the solicitor to explain why I couldn’t cover the hearing and tried to ignore the gnawing of guilt in my gut. After that, although she asked me to cover other cases, the solicitor never again gave me one of Dom’s. I never knew whether it was Dom himself who asked for someone else because, despite all the years of representing him, I, like others, had given up on him, and he would not forgive me for it.
A few years after I turned down Dominic’s case, I was staying in Oxford on another trial and went out for dinner with a friend to a bistro near her flat, slightly out of town, in an area I did not know well. It was relaxed and noisy, the staff and diners a collection of students. When we finished I walked over to the till to pay. Behind it was the door to the kitchen, swinging on its hinges as staff walked in and out carrying dishes full and empty. As I waited, a girl with a pile of plates walked past me and into the kitchen. I looked up, curious to see the action behind the door. There, balancing against a stainless-steel countertop, I saw – for two long seconds – a man who looked exactly like Dominic. He was wearing a white kitchen jacket and chequered trousers, and his face was in profile as he laughed at someone out of sight. The door swung shut.
I wondered about it for a long time afterwards. The next time I saw Dominic’s solicitor I nearly asked her if I could be right, but fear stopped me. Fear that I had got it wrong; fear that I had seen another man – for I wanted, above all else, to believe I had seen Dom. I wanted to think that some unknown trigger – something someone said, something someone did – had made him want to change, want to stop. I wanted to believe the judge had been right to put someone else in charge of his life long enough to change it. I knew that this was not what the statistics told me and I knew it was wishful of me to think it, but I hoped that he – like others I had represented – had at last settled on a life that meant I would never see him again.
There are too many cases – too many faces – to remember them all. But sometimes, going through the many blue notebooks in which I wrote down all the evidence, a particular fact or name will bring my client and their case back to me so strongly I feel as though I am in the courtroom with them once again. These are the people who, for one reason or another, have touched my life. These are the people who will stay with me for ever. And Dominic was the first of them.
2
Derek
Newport Magistrates’ Court,
Isle of Wight
Sexual Offences Act 2003
Section 71 – Sexual activity in a public lavatory
(1) A person commits an offence if—
(a) he is in a lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,
(b) he intentionally engages in an activity, and,
(c) the activity is sexual.
‘POLICE, PLEASE.’
Ralph stumbled through the wood, his face burning. He pressed his mobile phone to his ear as he told the emergency operator his name, his number, where he was, why he was calling. Panting, he said that behind him on the edge of the wood was a public lavatory. In that lavatory there were three men. They were in there together; there among the damp smell of moss, the secret codes graffitied on to the walls and the lavatory partitions with holes cut at groin height. This was a place where men would close the door of their cubicle, unbutton their flies, and blindly invite pleasure from a stranger. The three men were all half-dressed, Ralph said, and performing acts upon one another which were disgusting, quite disgusting. And he would like an officer to go down there and clear them out, right now. Ralph gave the operator a description of each man, then hung up. He paused, catching his breath, and turned to look at the squat brick building, now half hidden by the trees. Then he walked away.
The police arrived shortly afterwards. They knew the building by its reputation. It sat at the edge of a small copse set back from the coastline on the Isle of Wight. As day-trippers ate ice-creams and, from the lawn of the yacht club, couples in brass-buttoned blazers and floral dresses watched boats race, here, in this infamous wood, men would meet for sex. When the police arrived they found not three but many men: chatting, smoking, hanging around outside the drab building. Inside it were two who fitted the descriptions Ralph had given. One gave his name as Michael. He was an accountant in his forties, conspicuous by his Scottish accent, moustache and air of assurance. The younger man was George. He was in his early thirties, slim, with a quiff of white-blond hair. He was new to the area, having just moved down from London for work. He was used to the easy bars and streets of the capital and had found it difficult in this tight-lipped place to find other men – not just for casual sex but also for companionship.
The police asked those still loitering outside whether they recognized the description of the third man. Late sixties. Tall and slim. Balding. Wearing brown corduroy trousers and a plaid shirt. ‘Oh yes,’ said one. ‘That’s Derek Pollard. He’s here all the time.’ That evening the police knocked on Derek’s door. He was a gentle man with a quiet disposition. He had run the local post office until it closed down, and now filled his days with the allotment association, the church choir, fetes, teas, fundraisers, newsletters. A dependable volunteer; a local stalwart. He lived alone, unobtrusively, loved by those friends and neighbours alongside whom he had grown old. When he answered the door to the police Derek was wearing completely different clothes from those described by Ralph. Otherwise his appearance matched and, because he had no alibi for the afternoon, he found himself in the back of a police car being driven to the station for interview.
Whereas Derek and Michael chose to follow the advice of their newly instructed solicitors and answered ‘No comment’ to every interview question, George told the police everything. He did not need a lawyer, he said, for he was not guilty. The story was not right. That day he and Michael had been talking, smoking, hanging out. They had been fully clothed. Derek, he said, had not been there. It was true that he had seen Derek at other times, and that both he and George had used the place for the purpose that had earned it its reputation. But not that day. There had been another man there about the same age as Derek, who was also tall and bald. George had spoken to him briefly – he’d given him a cigarette. He didn’t know his name. When the police arrived this man had melted away into the trees and when George was led from the building to the police car he could not see him. But Derek definitely was not there, George insisted, and none of them had done anything wrong.
If the men had admitted the offence, the police may have puffed their cheeks, cracked their knuckles and decided they could let them go with a caution.1 But all three denied their guilt and so the police were left to decide what to do. They looked at their evidence. They had a complainant – although not yet a victim, not until the word ‘guilty’ rang out in court – who was horrified by what he had seen and was prepared to come to court to say so. They had George’s admission in interview that he and the others had been to the building for sex in the past. And if their witness had got it right about Michael and George, why not about Derek? They had enough. Enou
gh for there to be a reasonable prospect of convicting all three men. Enough to believe that it was in the public interest to charge them.2 After all, there was an offence conceived for exactly this circumstance. Its purpose was to protect the public from witnessing the kind of acts George had just admitted to. The offence could be heard only in the magistrates’ court, not being serious enough to find its way up to the crown court before a judge and jury.3 They made their decision. All three men would be charged.
It was only later, when the witness statement bearing Ralph’s name made its way into his hands, that George worked it out. He had been inside the building talking to Michael that day – they were leaning against the wall, laughing, smoking, handing out cigarettes to those who asked – when a man walked in. George recognized him: he had had sex with him before, as had many of his friends. The man gave George a look George understood, walked into one of the cubicles, closed the door, unbuttoned his fly and put his penis through the hole cut for the purpose in the partition. But that day George was not interested. He ignored him. After a time the man flung the cubicle door open in rage and, buttoning up his fly, swore at the men. He stormed off through the wood as their laughter echoed off the building’s tiles. After George read the statement, an internet search turned the name upon it into a face. Then it all fell into place. That man, George said, was Ralph.
It was then that George found a lawyer. She was a solicitor called Catherine, who practised from one of the small criminal defence firms left on the island, the others having turned their hand to more lucrative work or been driven out entirely by funding cuts. It was Catherine who stood in court as George confirmed his not guilty plea – echoed by Michael and Derek – and who noted down the date of their trial. And it was Catherine who then called me.
In Your Defence Page 3
