And so, hours later, we were called back in to court, the last case of the day. The matter had not been charged as distribution, John explained, because the defendant, by his own admission, had rebooted the computer some years before. This meant that there was little evidence of distribution, only possession. The judge scowled and stared at him, weighing up how far to go. I looked down, feeling the heat of her frustration, irritated by John’s words. It was the prosecution’s job to find the evidence and to charge the offence accordingly, but he had now created a suspicion in the judge’s mind that Peter’s proficiency had allowed him to get away with something more serious – a suspicion it would be impossible to dispel.
Before the judge could protest further, John moved on in haste, setting out the rest of the facts. Twenty-four per cent of the still images were of children under thirteen, fifty-seven per cent of the films were children under thirteen. The Level 4 films were of children aged ten to fifteen. I stared at the notes I had made and wondered whether the reduction of images to a percentage made them more, or less, shocking. John ventured, cautiously, as though worried he may be inviting further criticism, that none of the children was under ten. They were not, he said, very small children. The judge murmured and looked back down at her papers. It seemed the chapter of the alternative charge had been closed. I exhaled, realizing I had been holding my breath.
Without raising her head, the judge spoke into the silence. What she really wanted to know about, she said, was the requested CRB check. I sat up straight, ready to rise and mount Peter’s protest. John looked pained and admitted that he had been unable to find out. The information had come from the police officer in charge of the case, who had told the probation officer about the CRB request after her interview with the defendant. No, he apologized, he didn’t have a copy of the CRB application.
‘Well, where is he, your police officer?’ asked the judge, brusquely. In a resigned tone, John replied that he was not working that day and, no, he had not been able to reach him. Yes, the allegation that the defendant had applied for a job working with children was something, he believed, that was contested. The judge exploded. She could not possibly carry on without this information, she thundered. This man had a sexual interest in young children, which had, for now, manifested itself only in looking at images, but it was perfectly possible to suggest that it might evidence itself in other ways. It was impossible for her, she said, to put this alleged application out of her mind. Was it innocent, or predatory? She needed to know. It was now the end of the court day so she had little choice but to send everyone away and call us all back in a week’s time. Without a pause she rose – as did we in a reverential wave – nodded curtly into the middle distance and swept through the door behind her. It swung shut with a bang.
And so, a week later, we all returned to court. The case was eventually called on just before lunch. The terror painted upon Peter’s face was now clear to everyone, his attempt at assumed adulthood forgotten as he watched his fate balance before him. The judge, looking at her papers, remarked impatiently – as though reminding herself of the fact – that the case was a shambles. She paused, then looked up at John. ‘I want to see one,’ she said. John rose quickly to his feet, but remained silent. I sensed both his relief that the judge appeared to have forgotten the CRB check and his concern about what had just been proposed. The judge looked straight at the dock. ‘Before I sentence this man, I want to see an example of each of the images, in particular a Level Four film and a still image. I will adjourn this matter to enable this to be facilitated. Counsel should come into my chambers when all is ready.’
And so I found myself staring at a shabby laptop screen in the judge’s room, John More next to me, the judge on my other side, a police officer fumbling at a keyboard in front of us. It felt supremely odd to be standing together so intimately, avoiding one another’s eyes, all still wearing our protective uniforms of robes and wigs and badges as we waited for the misery that was about to appear before us. Now the decision had been made for me I felt numb to it, ready for it, unwilling to imagine what the pictures might look like but not resisting, waiting for them to flash up and wash into me. The police officer, thick-fingered, clicked on the keyboard. Nothing happened. Panicking, he took the CD out and tried to replay it, several times. Still nothing happened. He carried on, fear disabling his efforts, the process – the CD’s exit from the computer, the wiping of its disc, the replacing – all painfully slow. After the third attempt the judge’s frustration brought the spectacle to an end. The officer, wincing under her gaze, confirmed that there was no other way to play the CD. The judge looked down, as though trying to compose herself. She would, she said, just have to carry on without seeing the images.
We returned to the safety of the courtroom and before we resumed our places I had seconds with Peter to explain in a half-breath what had happened. The judge came in moments afterwards and as I stood I realized I felt light-headed. I had almost no idea what she would do.
‘Stand up, Peter.’ The judge’s voice sounded weary. ‘I am sentencing you for possession of eleven indecent images. These kinds of pictures and films are disgusting. You should be ashamed of yourself, in particular of those at Level Four. This is a worrying case. You are eighteen years old and have had some disruption in your upbringing. You have denied that you applied for a job within a youth organization. The police are not able to obtain a copy of the CRB form, but on the face of it the evidence appears to suggest that you did. This means that you showed an interest in applying for a job with children and all this would entail, and then lied about it when found out. Sentencing someone like you is always of concern. Your case, however, falls squarely into the guidelines. You have amply satisfied me that the threshold for custody has been crossed. I sentence you to one year. Had you not pleaded guilty at the earliest opportunity, you would have got eighteen months.’
I felt the moisture leave my mouth. I stared straight down at my notepad and the words I had just written: 1 year custody. I did not look back towards the dock to see Peter’s face; I could not.
‘However …’ continued the judge, and my stomach plunged. ‘In light of your circumstances I am prepared to suspend this sentence for two years. You need help to deal with your offending. You will spend eighteen months of this period completing a Supervision Requirement where you will be asked to attend a programme. Any breaches will be referred to me and I will not look lightly upon them. I also entirely approve of the prosecution’s application for a Sexual Offences Prevention Order, which I shall make to last for seven years in the terms which were agreed before today.’ She paused, and I looked up at her, willing her to finish and let us go. The judge stared straight past me and into the dock. When she spoke, her voice was thick. ‘You should consider yourself lucky not to be heading immediately through those doors behind you and to prison.’ And then, without saying anything further, she rose, nodded at us all, turned, and left.
Afterwards I stood with Peter in the corridor outside the courtroom doors. I noticed not only that he was shaking, but that I was too. It had been too close. I was but a hair’s breadth from sitting opposite him in a cell, trying to discover which prison he would be sent to, writing down his parents’ phone numbers before the guards came and led him away. I was also aware that, by some serendipitous twist, a faulty CD had kept me behind the line I had drawn for myself. As we stood there, my relief became mixed with confusion. With every verbal assault on Peter by the judge I had felt indignant; with every assumption that a man who had looked was one who might go on to touch, with every comment that he was a predator and that the world’s children were at risk from him, I had felt resentment on Peter’s behalf. This was not, I thought, the young man who stood before me, whom I had spent time with, talked to, whose vulnerability was so clear. But there was no point in saying all this now. Our stunned silence was interrupted by the court usher, her keys rattling loudly in the lock as she closed the court for lunch, sounding out an echo of w
hat might have been.
I walked down the wide gum-stained pavement and around the corner of the court building as stationary traffic coughed out fumes, and thought, was that all about luck? Very bad luck. Bad luck that Peter hadn’t been born twenty years earlier, when camera phones for all and portable internet were the stuff of fantasy. Bad luck that the lonely men who prowled the dark corners of the internet had found him as a confused thirteen-year-old and reeled him in. Bad luck that he had spilled his drink on his laptop. Bad luck that the delay between his arrest and his guilty plea in court had spanned that crucial birthday, which meant he faced an adult rather than a youth court. I was angry on his behalf at a system that had punished Peter rather than protected him; that saw him in the same frame as the middle-aged man who does more than look at those pictures – who creates them. I was angry at this system that had taken a young person’s hopes and prospects and potential, and squeezed them until they were a pinprick.
As I approached the underground station, I noticed there was someone begging just outside it. This was not unusual; I had seen different people in the same spot before, their faces appearing, after a time, tragically homogeneous. This time it was a woman, relatively young, hunched within the shroud of an unzipped sleeping bag, worn like a cape. I stopped near her and began to scrabble in my handbag for my Oyster card. The woman raised her head and spoke. ‘Please?’ she said. Her voice sounded clear above the traffic noise. It was a plea, but did not sound pleading. It sounded reasonable, firm, as though she were negotiating with a child. She held out her hand towards me, the cuff of her coat sliding back to reveal the inside of an arm covered with shiny, pinkish lines, stretching as far as I could see, like a musical score of her pain. Without thinking or speaking I took my purse from my bag and gave her the only note within it, before walking quickly into the station, through the barriers, down the steps and on to the platform. I did not look back.
I stood, waiting for the strange warm rush of air that warned of the train’s approach, feeling confused. I did not give money to beggars, for a variety of reasons which I felt were reasoned ones. I could not understand why I had just done that. Was it the marks on her arm? Seeing the physical manifestation of her suffering was different, I realized, from imagining it. Being confronted with the shocking reality of what she had done to herself, meant, in turn, that I was unable to avoid seeing her. And then I thought of the judge and I understood. She had seen indecent images before, that judge. She knew more than I did: more than the theory, more than the narrative. She knew, in pixelated moving colour, what it looked like – the violation by an adult of a child. But I did not. I had read descriptions of it and I had spoken to and met the victims of it. But I had not seen it. And then I wondered whether my sympathy towards Peter – my conviction that this was a contemporary crime being dealt with in a pointlessly old-fashioned way, my belief that he was a world away from the squalid men I had represented in the past – was enabled only by the fact that I had not seen those pictures that moved him in ways I would never understand. My outrage that the judge had assumed Peter to be a predator could be entirely misplaced. Maybe Peter had, as the judge suspected, told lies about the missing job application; maybe he had intentionally destroyed the material that would have seen him beginning his adult life behind bars; maybe in time, if left unchecked, he would go on to act upon those late-night fantasies. Was that why my old pupil master had been so insistent that I must look at all the evidence: not only because it was my duty to, but because only when I had seen it for myself would I truly be able to understand my client? Only then would I really be able to comprehend the crime I was defending, in the way that the judge understood the crime she was punishing. Then, having unveiled the monster, I must continue to fight for him using all my skills and abilities and gifts, because that was the job I had chosen to do and that was the system I believed in. That was the test. I realized that what had stopped me looking at these images, what had prevented me viewing the horror that took place in that dark world and then seeing it again and again and again, was not the fear that I would be haunted by it but the fear that, eventually, I would not be. That I might become desensitized to this kind of evidence as well. That I might stop being moved by it. And that this was the only way I would truly be able to pass the test and become what I professed to be: an instrument of the law.
Hot wind plunged down the claustrophobic tunnel. Stepping forward, I pulled my wheelie case to the platform’s yellow line. Today was over. Another day, another case. I got on the train, thinking of the papers waiting to be picked up in chambers for tomorrow’s case, as the tube train doors closed tightly behind me.
8
Daniel
Winchester Crown Court
Sexual Offences Act 2003
Section 75 – Evidential presumptions about consent
(1) If in proceedings for an offence to which this section applies it is proved—
(a) that the defendant did the relevant act … the complainant is to be taken not to have consented to the relevant act unless sufficient evidence is adduced to raise an issue as to whether he consented, and the defendant is to be taken not to have reasonably believed that the complainant consented unless sufficient evidence is adduced to raise an issue as to whether he reasonably believed it.
IT WAS CHRISTMAS and my sister and I were standing in a long queue in the Winchester post office. ‘So …’ she said, killing time, ‘what case have you got on at the moment, then?’ My family will not always ask this question. Not because they don’t care, but because this world in which I half-live seems sometimes, from other people’s points of view, foreign and unreal. I find myself increasingly desensitized to blood and pain and suffering, but for others the subjects can seem large and unwieldy, and so removed from normal life that I wonder whether their reticence is simply due to a desire not to talk about such things.
‘Actually, I’ve just been given a really big case,’ I said, as the queue edged forwards. ‘There are five defendants. The judge decided there was so much evidence that each barrister should have a junior to help them go through it all, and I’m one of them. It’s starting in a few months’ time. My client’s been in prison for over a year already waiting for the trial to start …’
‘Hmmmmm,’ she responded, so I didn’t press the point that this was a very long time to wait for a trial. The law tries to prevent accused defendants languishing in prison by imposing strict time limits on how long they can be held in custody waiting for their guilt to be proved.1 The judge had overruled these limits to enable all the evidence to be gathered. Not just the phone records, text messages, site maps, CCTV – files and files of it – but also tracking down witnesses and persuading them to come to court. As was so often the case in a big drugs trial, the witnesses were addicts, homeless, vulnerable and very likely to disappear. The police had just arrested the fifth defendant and joined him to the case. Now it was time, the judge had said. The trial must finally begin.
‘So, what’s it actually about?’ she asked.
‘Oh …’ We shuffled forwards to the front of the queue. ‘Well, they are all charged with conspiracy to supply heroin, kidnapping and false imprisonment, and then my guy and another are charged with three counts of rape.’
‘Shhhhhhh!’ She held up her hand, whipping back her head to shoot a look at the line of people waiting behind us. ‘You can’t say rape in the post office!’
Daniel was a big man, comfortably over six feet tall, slightly overweight, and with cropped brown hair. He wore a sweatshirt embossed with his employer’s logo, which also appeared on the outside of the van he drove. Now Dan climbed into this van to begin his drive home through the streets of outer London. He arched his back, easing out stiffness from the day’s labours. It was Friday and his week had been a long one. He turned on the rap CD in the van’s player and edged the volume up. As he drove back to the block of flats where he and his girlfriend lived, Dan’s mobile phone rang. It was Kit, his girlfriend’s brot
her. Dan liked Kit. He was several years younger, but with his shaved head and tattoos he somehow seemed more adult, more assured of his place in the world. They arranged to meet near Kit’s flat to smoke some weed. Dan’s girlfriend was working a long shift that evening, and it was Friday after all.
Kit had a group of friends who lived on the edge of trouble and when Dan hung out with them he felt as though he was near something dangerous and thrilling. Some of these friends, Kit told him, needed Dan’s help. Or, more specifically, they needed his wheels. They had to get to Southampton that evening to do some business. Dan weighed up the prospect of a night at home alone against one with Kit’s gang, and agreed. That decision, made in a moment, would change his life.
They drove around to pick up two of Kit’s friends. One of them, whom Dan had met before, was called Drax. He was small and wiry, also with a shaved head, and he introduced Dan to the other man, whose name was Scat. It was only when Dan turned to nod a greeting as Scat climbed his bulk into the back of the van that Dan noticed he had a tear drop tatted on his cheek – the mark, Dan knew, of a death. The four men smoked weed and chatted together over the music as Dan drove them down to Southampton. It was midsummer and the evening was still light as the van reached the city. Dan was directed to a few addresses, sometimes stopping and parking up, sometimes driving slowly around. If they stopped, the others would get out and Dan would wait for them in the van until they came back. Once he saw them running, jumping over a gate yelling at him, ‘Drive! Drive! Drive!’, and then he heard the wail of a police car in the distance. The others scrambled into the van. Dan turned it around, adrenaline surging, and kept driving until the sound of the siren had faded away.
In Your Defence Page 16
