In Your Defence

by Sarah Langford

  ‘Yes, yes, Your Honour. The prosecution say—’

  ‘No need, no need.’ The judge waved him back down into his seat and looked at Fred. ‘I’m not with you, Mr Barrow. The property taken, which includes, lest we forget, various shotguns, was found in close proximity to your client’s home, at the home of the co-defendant. I concede there’s no scientific evidence, but this has got to be seen in that context. That is to say, he was in recent possession of the items soon after the burglary, which is ample circumstantial evidence. He was also found at his co-defendant’s house the day after the final burglary. There has got to be the inference that the three were in it together. The application is refused.’ Fred nodded and sat down, slowly. The judge turned towards me. ‘So, shall we have your client, Miss Langford?’

  As Rita walked up the steps and into the witness box, I willed her to remember the speech I had given her that morning. Keep calm and listen. Answer what you’ve been asked and not what you think they want to know. Be polite to the prosecutor – don’t disagree with him for the sake of it. And remember, when you walk into the witness box your case will be at its weakest. The jury have only heard from the prosecution and they want to hear your side of the story. Tell it to them; tell them your story.

  She was good, better than I thought she would be. Stronger than I thought she could be. She told the court about her life with Nick; her cash-in-hand job in a bar, six nights a week, stacking glasses and cleaning ashtrays while Nick watched their two children. She said she did not know about the burglaries, had never seen most of the stuff the police showed to her, and claimed that what she had seen was hers even if she could not prove it. She spoke about arriving home and seeing the guns – reaching out, touching the metal with her fingertips so she could be sure they were real. She told the court about her husband’s friend, Harry. That she didn’t like him, wouldn’t allow him in the house. That he was trouble. I watched her for a flinch or some sign that betrayed her lie, knowing that the Harry she tried to blame had been arrested and released, having produced an alibi, but I could not see any. I glanced down at my notes and flicked briefly to the single sheet that listed her previous convictions. One for possession of cannabis, punished by a fine; the other for assaulting a police officer some years ago. The jury knew nothing about them, as they knew nothing about Nick’s or Lee’s twenty-year criminal careers. A defendant walks into the dock as a blank slate. The jury may look at his tattoos, at his broken nose, at his shaved head, but they will not know if all their prejudices are confirmed, not unless the judge has given the prosecution permission to tell them, and even then they will be told only about the offences relevant to the case.

  I glanced to my right and watched the jury, who were looking at Rita as she gripped the edge of the dock and gave her answers. They were fascinated. I knew why: they had watched the three defendants sitting silently in their dock for days, and now, finally, they were going to get to hear them speak. There was something of the zoo about it: as though she were an animal they had been watching, waiting for her to perform a trick. I tried to encourage her with the tone of my voice, tried to pull her along the slow pathway of her evidence until, suddenly, we had reached the end, and I had to sit down and deliver her to the other barristers.

  ‘No further questions, Your Honour.’

  Leo and Fred then stood in turn and asked Rita a handful of questions each. Rita then looked at Matthew as he rose to his feet and I could see her fight her contempt. I wondered if he saw it, if he knew he could push her to reveal it. It would work well with the jury: disrespect for the prosecutor, disrespect for the police. Over and over again Matthew went through the detail of the day before her house was searched. Rita stuck to her story. She reiterated the minutiae of what she had eaten for breakfast, the route she had taken to the Job Centre, what bus she had caught back in the rain, how she had felt when she saw the guns brazenly laid out by the stairs. She gave evidence for most of the morning and I could see her beginning to tire. I found myself willing her on and glanced at Matthew, trying to work out where he was going. He seemed to sense it, drawing himself up, reaching his crescendo. ‘And when, Mrs Johnson, you had confirmed, as you say, that the guns were real, tell us why you did not immediately contact the police?’

  ‘I didn’t know what to do.’ Her face was hard to read. ‘It’s my husband … Something’s obviously happened, but I didn’t know what. I didn’t know what was going on.’

  ‘But it is your house?’

  ‘Yes, but …’ She paused. When she spoke, it was as if she was talking to herself. ‘Every day, I think I should have called the police.’

  She would never have called the police. I knew that and Matthew knew that. I wondered if the jury knew it too. Rita carried on. ‘But the police kept going on about loads of guns and I had only seen two and I didn’t know what to think. I didn’t know. Look …’ her voice faltered and I looked up from my notes. ‘I was taken away from my kids for six months – for all of their school holidays, for both their birthdays – because I didn’t know where some guns were. I am being punished for not knowing. I would have told them if I’d known, but I didn’t.’

  She looked down and I felt Matthew hesitate. ‘No further questions, Your Honour.’ He sat down, carefully. And then it was over. I glanced at the clock, only now aware of the tension in my stomach and shoulders. The judge followed my gaze and, rising, adjourned us all for lunch.

  As Nick walked up the steps into the witness box I realized I had not yet really looked at him, not properly. He was short, a stocky man, with chaotic blond hair. Broken veins on his cheeks and nose gave away a drinking habit, although I imagined he probably looked better now after six months’ drying-out in prison. I found myself wondering about their two children; whether they looked like him or Rita. As Leo rose slowly to take Nick through his evidence, his notebook held in a steady hand, he let out a barely audible sigh.

  Nick’s evidence was terrible. Apparently keen to be precise, he confused himself and Leo with contradictions and mixed-up dates, tangling himself in meandering sentences. The judge had to stop him, ask him to pause, to repeat the evidence, only to get a different answer. I could feel Fred sinking lower in the seat next to Leo, wondering whether he could undo the mess in his cross-examination. I tried to keep up, noting down what Nick said in my book. Every now and then, at a particularly bad point, I would write expletives in capital letters in the margin. I wondered, seeing Leo’s expression, whether this was the first time he had heard this version. Undeterred, Nick ploughed on. It was his friend, he said, not really a friend, an acquaintance, really, called Harry, someone whom he’d known for a while. Harry had phoned Nick and said that his mum was kicking him out – he’d been staying with her for a bit and had nowhere else to go, had split from his girlfriend, was sofa-surfing, that sort of thing. He had said to Nick – could he leave his stuff at his while he sorted something out? Nick had agreed, thinking it was a bag or two, some boxes maybe, but then Harry had turned up in the early hours of the morning with tons of stuff. Pillowcases filled with things and boxes and bags and a massive sports bag. They’d argued about it and Harry had promised that it would all be gone by the next day. Then Lee had come over and they’d played some games and watched a film. Then they’d wanted to see what was in the sports bag, so they unzipped it and in the middle were some guns. And that’s when he got really worried, but it was too late because then the police turned up and raided the house, and he was arrested and that was that. As Nick reached his final sentence, the court appeared to exhale in relief. Leo looked down at his notebook, then sat down with a mutter, gesturing to Matthew.

  Lee was like Nick in build, but that was where the similarity ended. He was not wearing a suit, but someone had brought him a shirt and trousers and his dark hair was neatly combed. Fred warmed him up, asking him about himself. The jurors liking him was the best chance he had. Lee began to explain where each of the items had come from, which car boot sale he had got them from.
He’d found the air rifle at a car boot sale too, he said, and bought it for his son. He wanted to get him into the cadets; wanted to make sure he had a hobby so he didn’t find himself with too much time on his hands and getting into trouble. He shot a conspiratorial glance at the jury, with a smile. With painstaking precision, Fred then took Lee through all the benefits Lee and his family received. The point was not a new one – Fred was trying to build a picture of someone who did not need to sell off other people’s treasures to put food on the table. It was going quite well. Lee was trying too hard, but you could forgive him that. Until, apparently without realizing it, he undid all Fred’s hard work in a moment.

  ‘Bloody Disneyland!’ Fred threw his wig down on to the robing-room table. ‘I mean, why say it? Three thousand pounds for a holiday, and after all that evidence about the wife’s bad back and agoraphobia and how he couldn’t get a job because someone has to look after the children. Then he bangs on about the holiday they’re missing because of the trial? I haven’t been on holiday for two years, for God’s sake. And this guy feels hard done by because he’s lost his deposit. Did you see the jury’s faces: that bloke in the front row was fuming. He’d probably just done his tax return. Oh, I give up …’ He slumped into the frayed armchair by the window in the robing room and gazed outside, the springs in the seat letting out a low whine.

  As I walked the route from the railway station across the cobbles of the cathedral city on the last day of the trial, I noticed how soothing I had begun to find the routine. Getting up at the same time, buying coffee from the same stall on the station platform, sitting in the same carriage on the same train, seeing the same people and being able to continue the jokes and teasing. The rhythm was restful, a relief from the unpredictability of my usual practice. I wondered, not for the first time, how I would manage this job if, one day, I had to be home by a certain time; with a fridge filled with food and clothes cleaned for others; when I found myself in charge of small people’s lives as well as my own. I checked myself. I had, after all, sought out a job which meant I never knew how my day would unfold. A life in which I could ride the adrenaline from the pitches and curves dealt by the unexpected, and experience the instant hit of success when it was gloriously close.

  As I carried my case up the steps to the courthouse’s doors, I was reminded of something else. To be a legitimate voyeur into people’s lives, within a machine both ancient and modern, which tries to represent and uphold the values that underpin the country in which we live – that is an extraordinary privilege. It is not one which, no matter how hard the work or difficult the case, I have ever taken for granted.

  Later that day, about an hour before lunch, I sat on the court bench, dangling my shoes from the end of my toes, waiting for the judge to return. The atmosphere in the courtroom now all the evidence was finished and all the closing speeches given was one of tangible relief, almost bordering on cheerfulness. I could not suppress a feeling that, if I lay low and held firm, Rita and I would be released back into the grey autumn day, hearts thudding at our escape. All we needed now was for the judge to give his summary of the evidence. Then the jury would be sent out and there would be nothing left to do but wait.

  The usher thundered ‘Court rise!’ as our judge strode in from his secret door at the back of court and took his seat, raised above the rest of us. He was carrying his copy of Archbold and I watched him flick open the rice-paper pages to the one he wanted.

  ‘Counsel, before I start the summing-up I thought it helpful to clarify exactly what directions of law everyone wanted me to explain to the jury?’

  When I was very junior, I wondered whether the law bent too heavily in favour of the defence. The judge’s legal directions to the jury – instructions on the law and how they should treat the evidence they had heard – were only part of it. I wondered whether the rules of court and evidence did too. The convention that defence counsel sat nearest the jury; the rules that always gave the defence the last word; the prohibition on disclosing a defendant’s past lest the jury be prejudiced against them – all were dutifully followed. I wondered whether it was disproportionate for an entire trial to collapse, weeks of work and expense come to nothing, because a juror had conducted their own research, or been told something that the law said they should not know. I was sometimes frustrated by the rules of questioning and the bar on speaking about the case to witnesses, lest their evidence was affected, which everyone observed with strict solemnity. But then, when I saw twelve eyes turn and gaze upon the silent defendant locked away in the dock, I started to realize how hard it was to walk into the courtroom an innocent man. I began to understand why a judge would be so concerned that, no matter how delicate the balance, the jury should not take into their hallowed room anything that was not evidence given in open court. And I began to understand that it was not enough for justice to be done. It must also be seen to be done. This sense of fairness is with us from the beginning of our understanding about the world and we carry it with us into adulthood. Time and time again my clients remark that all they want, really, is their day in court and a fair hearing. Accepting an unwanted decision is infinitely harder if it is accompanied by a sense of injustice.

  The judge paused. ‘Something occurred to me which has yet to be raised, and which may become relevant during the jury’s deliberations. It is still the law, is it not, that a husband cannot conspire with a wife …?’

  I looked up, sharply. I thought I knew all the law on conspiracy. To be a conspiracy there needs to be two or more people. I had looked it up again in the late hours of preparation the night before the trial began. I had scanned through a few of the cases in the pages of my law book. All familiar, all straightforward. I had looked through the book that set out the possible directions relevant for our case.4 I had not found this exception within either of them. Now my hands flew out and flipped my Archbold open to the pages I needed. I traced my finger over the tiny print explaining the lengthy precedents on the law. I was aware of the other barristers next to me nodding their agreement, suggesting that the judge was quite right. Then I found it, a short paragraph right at the back of the chapter, near the end of the section to do with parties in the case: the anachronistic legal fiction from common law that a husband cannot conspire with a wife because they are believed to be of one mind, of one will.5, 6 The judge must therefore advise the jury that Rita could not, in law, conspire with Nick. A conspiracy must involve two or more people and, in law, Nick and Rita only counted as one. If the jury therefore found Lee not guilty of conspiracy, then they must acquit Nick and Rita too. I looked up, aware that the voices in court had stilled. The judge was looking down on me.

  ‘Um, yes, Your Honour. Your Honour is, um …’ I looked back down at the paragraph, ‘… quite right. It is still law.’

  I looked across at my co-defendants. The frustration I had felt that their clients could not accept their part – and that they were prepared to take Rita down with them – grew to anger. The law encouraged the jury to think of Rita as indistinguishable from Nick; to find her guilty by association. Even though it was possible for the jury to convict the two men alone and find her not guilty, this outdated principle placed her in danger. Far from distancing her from the criminality of her husband, the judge was going to ask the jury to believe that, as far as the law was concerned, she had no independent will of her own. So much so that, had she wanted to conspire with him, the law would not have allowed her to do so.

  The judge nodded, closing his law book. ‘Very good. Well, if there’s nothing further, can we have the jury in, please? I shall start my summing-up.’

  It is true that, at a glance, the most important people in a courtroom might appear to be the ones in costume: the judge, a deity raised high above us all on his great throne; the barristers, with their ancient uniform so instantly recognizable; or the clerks and ushers, who run the courts in their own black gowns with varying expressions of ennui. But it is, of course, the twelve members of the jury, in
jeans and T-shirts and floral dresses, who decide my client’s fate. I know nothing of them except their names, read out by the clerk at the beginning of the trial. Throughout the rest of the proceedings it is impossible not to watch a jury and try to work out who they are. Which one is the oppressive bore, who the libertarian, who the reactionary longing to send someone to prison? Which alliances have formed? Who is on your side? In a sense it is a pointless game because I will never know – no one will, except the jurors themselves. The way in which the jurors decide the fate of the person they have been staring at in the dock is so secret that, before they leave the courtroom to deliberate, an usher takes an oath, before everyone in court, to protect and maintain this secrecy. Even after the verdict you will not know what went on in the sacred space of the jury room. Only occasionally, when I watch a jury file in to deliver their verdict, do I find a jury member glancing towards the dock. I have come to learn that this often means they are about to set the defendant free. Sometimes they will flash a grin, knowing the victory they are about to hand me. More often it is a cautious smile as I try to hide my own. Sometimes I have been met with a hard stare, other times a curious one. And, every now and then, I leave court after a trial and realize – as I buy a coffee, slip into a nearby shop or wait for my train on the station platform – that I am standing next to a juror. Sometimes they do a double take, as though astonished that my life could be as pedestrian as theirs. Although several have acknowledged me with a greeting and a grin, only once has one approached me. She gripped my arm and breathed into my face, ‘We knew he was lying, that other man,’ before beaming and setting off down the street.

  And now this representation of society – twelve of Rita’s peers – was to decide her fate.

  Leo threw open the door to the robing room where Fred and I were waiting and his black gown billowed in the backdraught. ‘Jury’s back,’ he barked. Fred and I stood urgently but Leo held up his hand. ‘A question, only a question.’