In Your Defence

by Sarah Langford

  When Catherine rang I knew something was unusual. At that stage of my career my cases would most often arrive in silence. A solicitor would call the clerks in my chambers, who would then – depending on the date of the hearing and the type of case – offer up a list of barristers’ names for them to choose from. If I was chosen, the case would be put into my diary and I would learn about it afterwards.

  When Catherine told me of the charge, I laughed. Sexual activity in a public lavatory. I had not known that such an offence existed. I thought back to a conversation I had had with a barrister before I went to law school. ‘How do you remember all the law?’ I asked her, in wonder. She scoffed. ‘You look it up! I have never, ever done a case where I haven’t looked it up.’ And so after Catherine’s call I went and found the offence. It was buried in the middle of a statute passed only a few years before – a 200-page attempt to clear up the prejudice and homophobia in existing legislation. The Act had removed the offence of ‘gross indecency’ which had been used to persecute gay men throughout the century it had stood on the statute book.4 It claimed to put in its place something gender-neutral and non-discriminatory. But the new offence carried with it the legacy of the old, for it was used almost solely to target ‘cottaging’ – gay men meeting in public lavatories for sex.5 The wording of the offence applied only to a public toilet. If sexual activity took place in a shower cubicle in a campsite, a cluster of trees in a park, a changing room at a swimming pool, for example, this did not count. But if the sexual activity took place in a lavatory to which the public had access, then the offence had been committed. It did not matter whether or not the person was alone, whether or not he had caused anyone alarm or distress, nor what his intentions were. Most often, of course, there needed to be a witness to prove the crime had been committed. That witness was Ralph.

  Ralph had identified all three defendants as the men he had seen in the public lavatory that day. In response, Catherine had asked the Crown Prosecution Service if she could use their identification suite to carry out her own procedure. She told them that a number of defence witnesses all claimed they had been intimately involved with Ralph and wanted their chance to point him out on a screen of photographs. Her letters were met first with a refusal and then with silence. Catherine was not deterred – she would conduct her own identification exercise. One by one the men in her small waiting room came into her office and from a selection of similar-looking photographs they picked out Ralph. ‘Yes!’ they said, the man in that picture was a regular visitor to their secret club in the woods. They all knew him and he knew all of them.

  The papers arrived in chambers on a Friday, some ten days before the trial, tied up in pink ribbon as they always were and left waiting in my pigeonhole for me to collect after I returned from court. I had grown used to first seeing case papers the day before the hearing. It was frustrating to spend time on cases that were later pulled from my diary without remuneration for the work I’d done – thwarted by a missing witness, an overfull court, an overrunning case – but I did not want to risk being unprepared. I took the papers to my room in chambers and began to read them through.

  Catherine had agreed with the two co-defending solicitors that, because George’s name was the first on the charge sheet, it fell to me to lead the defence. I began to comb through case law – trying to find a way to get Catherine’s home-made identification of Ralph into evidence – and considered what joyous luck it was to have such easy, hard proof that a witness was lying. In the daily grind of the magistrates’ court this was a rare thing. It made me think of a case I had seen when I was a very new pupil in chambers. I had been shadowing a barrister, Ivo, as he prosecuted a local gang leader, Terry, at Reading Crown Court. Among other brutal acts, Terry was accused of slicing a cut into the forehead of his girlfriend, Maria, with a knife. The blood would not stop coming and Terry realized that the wound was too deep. When they arrived at hospital Maria told the doctor she had fallen from a car. Now she was prepared to tell the truth. All of us in court knew what a risk she was taking in doing so. If Terry were found not guilty he would surely kill her. Terry’s evidence was full of denials that he had ever hurt Maria. When he had finished, his barrister stood and announced that he was calling a witness, Barry, to back up his client’s story.6 Barry stood in the witness box, his eyes flicking from Terry’s barrister to the dock at the back of court. I turned and looked at Terry. He sat in the dock in the middle of the row of seats. He was completely still, legs splayed, arms folded across his chest. His eyes, I noticed, did not move from Barry. Barry told the defence barrister that, yes, he had been at Terry’s house that day. Maria had been so drunk, he said, that she had fallen out of the car and cut her head on the metal edge of the door on her way down. That was how she had done it. Terry hadn’t touched her.

  As Barry was giving his evidence I noticed two brief exchanges between Ivo and the police officer sitting behind him. The officer darted twice from the courtroom. The second time he returned holding a thin bundle of papers just as Ivo was beginning his cross-examination. Barry stood his ground in answer to Ivo’s questions. No, he was not lying. He didn’t even like Terry; he just couldn’t see an innocent man go down for something he hadn’t done.

  Ivo glanced down at the paperwork the officer had just handed him and then back up at Barry. ‘We can be sure of the date that Maria suffered her injury,’ he said, ‘because we have her hospital records which make it clear when she was admitted at A and E.’

  ‘If you say so. I can’t remember what date it was.’ Barry waved his hand and looked away, uninterested.

  ‘The problem, you see,’ said Ivo calmly, ‘is that on the twenty-eighth of November you were in police custody.’

  I had never actually seen anyone turn white. The colour drained from Barry’s face as literally as the cliché suggested it might.

  ‘We have it you see – your custody record.’ Ivo looked down at the paper in his hand. ‘Arrested in the early hours of twenty-eighth November on suspicion of a public order offence. Solicitor arrived at two p.m.; detainee considered sober enough to be interviewed at four p.m. Released without charge just after eleven p.m. Which was approximately two hours after Maria was discharged from the hospital.’

  The jury sat up in a collective shuffle, their attention fixed on the witness box, gripped. Barry stood completely still. He looked as if he might faint.

  ‘No further questions, Your Honour.’ Ivo sat down without flourish.

  After watching the two officers waiting at the back of court arrest Barry for perjury, I hurried down the courthouse corridor after Ivo. He opened the robing-room door, taking his wig off as he did so. He paused, then turned to face me. The beginnings of a smile crept into the edges of his mouth. ‘That,’ he said softly, ‘was manna from heaven. It hardly ever happens. Enjoy it when it does.’

  It was late when I walked home from the tube station after reading through George’s case, back to the house I rented with friends. I opened the door to a blast of warmth and smells and talk. The dinner party had started without me. I allowed myself to be waved into an empty chair next to someone I had met a few times before. It was not long before he asked the question I was becoming used to.

  ‘So, what are you working on at the moment, then?’

  Years earlier I would not have dared to believe that my answer could be so interesting.

  My parents had never navigated the university system and so when I told them I was putting it off and heading around the world they had little choice but to acquiesce. At nineteen years old I travelled through five countries in ten months, then returned to start an English degree, knowing that, when it was over, I had to find a job I thought worthwhile, unpredictable, interesting and, most of all, where words were loved. Law seemed to offer everything I wanted, but without a top degree from the right kind of university, or at the very least some family connections, it seemed well beyond my reach. My grandmother – who had received no formal education of her own – h
ad been a magistrate years earlier, but had returned to her role of tenant farmer’s wife long before I left school and could not help. One day, towards the end of my degree, a friend sat me down and told me that I had, at least, to try. Buoyed up with new self-belief, I moved home and began to work out how to do it. I became a temporary legal secretary and spent my days filling out forms, typing letters and proofreading statements. In the evening I served drinks in my local pub and talked to the barristers staying in the rooms above while their cases were being heard in the local court. I found a few jobs taking notes for solicitors on trials they could not attend. One of these was a three-day lesbian abduction case in a small village in rural Wales. The defence barrister had a booming voice that you could hear three rooms away and red hair cut into a bowl shape with a blunt fringe. I loved her. She and I got drunk together in the bar of a tiny Welsh inn and she told me that I must become a barrister, that I could become a barrister and that I should become a barrister. So I took out a bank loan and studied three years of law in eight months on a law conversion course, astonishing myself by gaining a distinction.7

  Buffered by a scholarship from an Inn of Court, I then went on to Bar school and applied to a barrister’s chambers in the city where I grew up.8 I nearly left my second interview with chambers before it started. The other candidates in the waiting room were men in tailored suits, who sat with legs confidently spread, looking only an inch or two away from middle age despite their youth. I fidgeted with the buttons of my H&M suit and wondered what I was doing there. But I stayed and got through it, and then they offered me a pupillage. During this year-long apprenticeship I began to understand that normal people did this job too. In fact, that can be what makes you good at it: being able to talk to your client, being able to talk to a jury – being able to say ‘put yourself in his shoes – I can’. At the end of my year of pupillage the members of my chambers took a vote and decided I could join them, and that I could work from any of the five cities in which they had an annex. My name was engraved on a plaque, which was slotted into its groove outside chambers’ door, rising as junior members joined beneath me.

  I quickly found myself in the magistrates’, county and criminal courts day after day, experiencing each case with all my senses. I turned my hand to whatever came my way: road traffic accidents, personal injury claims, accidents at work, inquests, courts martial, divorce, parental disputes over children. I was a hired mouthpiece, paid to lend my gifts of education and art to my clients, and to lead them, in all their shades of grey, through the black and white of the law. I was paid to tell their stories for them when they could not do so themselves. But the work I loved most – and the reason I had wanted to become a barrister – was crime. All life is there. Its courtrooms are filled with advocates navigating the kind of stories that others would struggle to believe. Rarely would a week pass without a case causing me to stifle my laughter with a fist, rage at the unfairness of life’s lot, or send a cold chill of shock right through me.

  Very often when I tell someone what I do a wistful look settles over them, and they declare that they ‘always wanted to become a barrister’. I watch them imagining stone steps to ancient buildings, leather-backed chairs, wigs and gowns and gilded crests. I try to tell them of the 5 a.m. starts, the trains to towns they would never otherwise have cause to visit, the utilitarian courthouses of red brick and grey concrete; of the vending-machine lunches in windowless brick rooms, the interminable waiting, the clients who leave without an utterance of thanks, and the ever-decreasing rates of publicly funded pay.9 But often I do not press this, because I know that that is not what they want to imagine, even if the truth lies far from their fiction.

  At the dinner table, nudged on by my neighbour’s question, I took the wine offered, leaned back, and spoke of my newly discovered world of glory holes and the etiquette of homosexual sex with a stranger and the finer details of who goes where in an all-male threesome. Heads turned and voices dropped as the table rippled with laughter, shock and curiosity that I – a twenty-something girl with a nice accent, black suit and neatly crossed legs – lived in this world. I was aware of the contradiction between how I looked and the words I said. It was my circus trick and I loved performing it.

  Over the weekend I began to prepare George’s case. As I always did – even when technology made it obsolete – I opened the blue notebook all barristers once carried and wrote down the names of the people involved, the evidence found, the missing links, the law.10 Only when I had translated evidence to page would I begin to draft my questions. In court, the prosecution lawyer would stand before the magistrates and lay out the details of the crime with which the three men were charged. Then he would call his first witness. Ralph. The prosecutor would have to tease out the evidence without putting his own words into his witness’s mouth. I planned to sit and bide my time, and allow Ralph to dig his way further into the pit he had created, unaware of my witnesses waiting outside the courtroom for their chance to expose him. I wondered whether, faced with the three men staring at him from the other side of the courtroom, he would crumble. Maybe he would try to go back on what he had said. Maybe he had just meant to scare them, humiliate them in revenge, not expecting the police to charge, not anticipating that he would ever actually have to go to court. I looked at the questions I had drafted and felt a surge of excitement.

  I pulled the red leather-bound copy of my law book, Archbold, towards me. It was part of my duty to warn George what would happen if the magistrates didn’t believe him and found him guilty. I needed to check the sentence he could face. I flipped through the pages to the law and winced. I would have to tell my client – when we met for the first time in those frantic moments outside court – that, however unlikely, if the magistrates wanted to they could send him to prison for up to six months.

  I looked at Ralph’s statement again. I had to consider the possibility that what he was saying might be true – that Ralph had seen what he claimed and that the real fallacy was his disgust. Maybe Derek had been there that day but some sense of foreboding had made him leave and, once safely home, he had changed the clothes that could identify him. Maybe George was lying to protect him, knowing how Derek’s world would be undone if his secret life was uncovered? Until I was there in the courtroom – listening to the evidence, weighing it up – I would not know. I could only wait, and watch, and listen, and hope that the prosecution’s evidence fell apart in my hands.

  It was the evening before the trial. I had been away for the weekend and as I walked through the airport terminal on Sunday night, I turned on my phone. It came to life with a voicemail. It was from Catherine. I called her back, ambling slowly through the airport, aware of the excitement I felt at the prospect of the next day’s case. I thought of the time I had sat opposite my gently baffled parents at the kitchen table and explained what I wanted to do. That it might take me a long time – years perhaps – but that I would get there in the end. And I had; and I loved it. And tomorrow I was going to start a case that I would surely win with a glorious exposé. With manna from heaven.

  Catherine picked up the phone. Her voice was low. There had been a hearing, she explained, last Friday. I listened, wondering if she was about to tell me that the trial was off, that the prosecution had finally dropped the case. I felt prematurely disappointed, cheated of my drama. It was Derek, Catherine went on. He had asked for a hearing to try to persuade the magistrates to impose restrictions on any press reporting on the trial. He wanted an order which, if granted, would prevent them from putting his name in the paper. The idea of it pulled me up short. I hadn’t thought about the press with their scribbling pens and cameras outside court. Of course they would be there. It was a story full of salacious detail which would thrill and titillate. I knew that, for I had told it. I imagined the bench in court where the reporters would sit and make notes of the trial and draw sketches of the defendants, locked into their dock, separated from the rest of us as though their criminality were catching.
I felt a swell of anger on Derek’s behalf. At the public humiliation of being revealed as the man he was, like this, in such an excruciating, shaming way.

  Catherine told me that the magistrates had been silent as they listened to their legal advisor tell them of the rule of great exception, which applies to restrictions on reporting details of a trial. The unfairness most often lies in reporting a trial before it has concluded – the defendant’s name is there for all to see, although the prosecution witnesses will not be known until they give evidence – but this application was for the trial itself. The magistrates were reminded of the principle of open court – that anyone can walk into a criminal court and listen to a trial.11 The evidence given is a matter of public record and, said the legal advisor, the principle of open justice must be fiercely protected. After the briefest of adjournments, Catherine said, the magistrates had filed back into court and refused Derek’s desperate request for dignity. Afterwards the defendants’ solicitors, having warned their clients to expect nothing less, had all shrugged their shoulders and waved each other off for the weekend.

  And Derek, gripped with black dread, had gone home. He had sorted through his bureau, putting everything in order. He had written notes for all those he loved. He had pressed and folded his choir uniform and left it ready for its next wearer. And then he had killed himself.

  On Monday morning the air felt mild and damp after a weekend of grey skies and showers. As the long journey from home to court took me, in sequence, on a train, a taxi, a ferry and a bus, I felt myself knot with nerves. I had no idea what would happen when I got to court. I just knew I was dreading it.

  The magistrates’ court is in the same large brick building as the crown court. The corridor outside the courtroom was quiet apart from a gathering of men standing bunched together, whispering, in the corner. I approached them, stopping just shy of their pack. I recognized George from the description in the witness statement and realized that those standing with him must be his witnesses. He turned when I called out his name and I noticed with shock that his eyes were puffy and pink-rimmed. I told him, quietly, how sorry I was and he nodded in acknowledgment. At a loss to know what to do, I said I should go into court to find the other lawyers, to work out what was going on. The mood had bled through to the courtroom, where I found Michael’s barrister speaking to the legal advisor and Derek’s barrister sitting alone at the advocates’ bench. With proceedings due to start at 10 a.m., we waited, lurking, before the news filtered through. Ralph had failed to show up to court and was not answering calls. There would be no request for a witness summons to force him to come, or even a delay to see if he appeared. The prosecution was going to drop the case. It was over.