Shortly after I got married, I found myself in court representing a waif with cropped red hair and tattooed tendrils crawling up the back of her neck. She was mother to a two-year-old son and a six-month-old daughter. Their father, who lived hundreds of miles away, had refused to bring them back after his contact weekend. My client had been considered ineligible for legal aid and so, with no one to advise her, did not know that she could file an expedited application. It was therefore many weeks before her case got to court, during which time she had not seen or spoken to her young children. She had begged and scraped pounds and pence together until at last she had enough to find a solicitor, who in turn found me. This was her only shot – she could get no more money for any further hearings. Her terror fuelled my outrage, which, in turn, I laid before the judge. The judge immediately ordered that these two infant children be returned to their mother’s care, instantly, that very afternoon.
The thought of this mother’s tearful relief stayed with me for a long time afterwards. I began to understand better the purpose of these cases and the system of justice within them.
Parents need the law. They need the court to make decisions for them when jealousy, rage and bitterness disable their own ability to do so. But, more than this, their children need the law too. At the back of every courtroom sit small ghosts – unseen, unheard – whose future will for ever be marked by the decision of the court. These children lie at the heart of every case and this system of justice tries to protect them. It lifts the weight of their parents’ battle from their small shoulders and places it upon the court’s. It is a profound, humbling and troubled burden for the law to bear, but bear it it does, whenever a parent refuses, or is unable, to bear it for themselves. This is a system whose purpose is founded on making children’s lives better than they would be otherwise. And that is a system in which I can absolutely believe.
10
Chris
Portsmouth Crown Court
Archbold Criminal Pleading Evidence and Practice
Chapter 4 – Trial. Part II. Arraignment and Plea, 4-253
Ordinarily, a plea of guilty may be changed right up to the moment that sentence is passed.
Only rarely, however, would it be appropriate for a judge to exercise this discretion, particularly where the accused has been represented by experienced counsel and, after full consultation with counsel, had already changed his plea from not guilty to guilty at an earlier stage in the proceedings.
I LOOKED AT my client, his eyes unblinking, staring at me across the bolted-down table of our conference room in the cells of Portsmouth Crown Court. A thought struck me with the clarity of a bell. This man might kill me. In eight years, this one might be the one. The one who suddenly leans across, puts both of his large, strong hands around my throat and squeezes the life from me.
His eyes were small and dark against the paleness of his thick-set face. They stayed fixed on me as I waited for him to answer my question. It was the second time I had asked it but he still did not respond. His hands rested on the table, palms down, and his body was completely still. There was nothing I could point to that made me certain he was mad, apart from the energy that fizzed off him and told of a hundred different voices and images battling inside his head. Was it these he was watching instead of me? He reminded me of a series of photographs I had seen: portraits of children playing violent video games – close-ups of their faces as they were shooting and killing in their alternative reality. I felt the flip of my baby inside me, as though he had been alerted in some unconscious way to danger. My pregnancy was too early yet to have formed a curve, but something made me want to put my hand over him, to reassure him, invisible beneath the cover of my suit and gown. But I kept my hands where they were; I did not want this man to know about my baby. I wished I had taken off the ring from my left hand, as though even that gave away too much. I wanted him to see me not as an individual, with vulnerabilities and precious things that could be taken away, but as a vehicle, an operative, a component of the court machine. I wanted him to see me not as a person, but as his lawyer.
I am tall, but this man, honed by service in the navy, could, I assessed, easily overpower me. As is usual, we were locked into our room, with two guards at the end of the corridor behind another door, laughing, joking, looking elsewhere. On the wall to my left was a dated-looking panic button. I knew of other barristers who had pressed their buzzer only to find it had not worked, forcing them to rely instead on their skills of persuasion and fists banging on the door. I wondered, even if I did reach it, even if it worked, would the cell guards get to us in time: hear the alarm, find the right key, open the door, pull him off? When I arrived the guards had scowled and fussed about my laptop, insisting that I sign it in, locking it into a cubbyhole, insensible to the time ticking ever nearer to our 10 a.m. sentence hearing. As far as they were concerned, this man, who had been brought by a van that morning from his prison cell, was nothing to worry about. He had pleaded guilty to raping his wife, sure. But two psychiatrists had decided that he was mentally sound, that he knew his own mind and actions.
Over the years I have met people who have scarred their limbs with self-loathing, tried to take their life with rope or pills, or been sucked into the blackness of depression. I have met people who shook with the ache of withdrawal, or who spoke to me through a fog of intoxication from the drugs or alcohol inside them. I have represented those whose low IQ or mental disorders have fogged their ability to understand me. But I had not before met someone in a psychotic state who had been judged sane. Sitting opposite this man, my hands resting on the top of two reports that declared him sound, all I had was my instinct – born from years of being locked in rooms with people who had done bad things – that the doctors who had assessed him were wrong. I sat still, trying to keep my face relaxed, open, and picked up my pen ready to write down his answer to my question.
I was not supposed to be there, that day, in that cell. Chris was somebody else’s client. A senior barrister from chambers, Kate, had represented him at all the other hearings up until trial. Kate had also feared that her client was mentally unwell. She had discovered that Chris had been admitted to hospital before. There he had been treated by a consultant psychiatrist, who had said he was indeed suffering from an underlying psychosis, but that the symptoms were only apparent when he smoked marijuana. When no longer under the influence, he was of full capacity, able to know and understand his actions. Able, in theory, to know he had raped his wife and to take responsibility for it. Able, in theory, to understand me. After all, there were no drugs in prison.1 Right?
Chris had maintained his plea of not guilty up until the morning of his trial. That day, his wife had come to court as the only witness, and had pleaded in tears not to have to give evidence against her husband. He was, she was sure, unwell. It had happened before. He had joined the navy and had served all over the world. He was a good man, she said, and a good father to their two sons, but once he left the navy he had started smoking marijuana. The drug seemed to eradicate the man she knew. He would fight invisible enemies, bang her against the wall with his hands around her throat, cause her nose to bleed with a swipe of his elbow. Afterwards, when he saw the blood and tears and bruises, he could not remember any of it. She was at court only because she wanted to help him. The prosecutor must have frowned and looked at the psychiatrist’s notes declaring Chris mentally fit to plead and to stand trial. He had approached Kate, and the two had edged around the difficulty until Kate wrote out a basis of plea – a piece of paper on which was written Chris’s new admission that he was guilty of rape, but not in the way the prosecution alleged. Chris accepted that he had raped his wife, but not with the violent brutality she described in her statement. His basis of plea said it was rape because he knew she did not want to make love with him that night and he forced himself on her anyway. Chris signed the words Kate had written for him, and then so did the prosecutor. Chris’s wife was spared the ordeal of evidence; he would sp
end fewer years in prison. Then Chris stood in the dock before the trial judge and the court clerk put the offence to him again. Chris was silent. Kate went to stand by him in the dock, prompting his response. Guilty.
Kate, in spite of the report by the treating psychiatrist, was so sure of her client’s ill-health that, after the guilty plea, she asked the court to order a second opinion. She wanted a further psychiatric assessment which could say whether Chris should serve his sentence in a prison, or in a hospital.2 But when everyone came back to court for the sentence hearing six weeks later, neither this report nor probation’s pre-sentence report was ready.3 And so the case was adjourned, Kate went on holiday and I found myself in her place, sitting opposite Chris in a prison cell, wondering if I was right to feel so afraid.
I had been told by my clerks the day before that the case was a simple one. The psychiatric and probation reports would be at court, and Chris’s basis of plea would be attached. All I really needed to know was in the basis of plea and the reports. The wife’s statement, as well as her victim impact statement, would be emailed to me. It was a straightforward sentence: the judge knew the case and would just follow the guidelines.4 The client knew to expect prison, although there had been a hint that the judge might make an exception, given that the wife’s statement had begged for leniency.
Unable to hold Chris’s gaze, I flicked open the pre-sentence report and pointed to a paragraph on the first page. ‘See, it says it here,’ I said, hoping that proof might enable him finally to answer my questions: Why did you tell the probation officer and the psychiatrist that you were innocent, that the sex was consensual? Why are you now alleging that you were forced to plead guilty by your other barrister, and that this was all a trick by your wife? I tapped the page with my finger, trying to divert his attention away from me, to get him to focus. His eyes continued to bore into me, his stare so penetrating that I felt as though he was challenging me to name his madness. After a long pause, when he eventually spoke he did so in short staccato sentences that sprayed from his mouth like bullets from a machine gun. Individually his words made sense; what he said was not jabberwocky. But his phrases bore no relation to one another. He would fixate on an insignificant topic, skitting between subjects, apparently unable to give detail or concrete facts. He would ask questions which had no bearing on the topic. And whenever I asked him of the detail of the offence he simply maintained that, as far as he was concerned, the evidence spoke for itself. He need not explain further; anyone who read the statements could see the truth.
I wondered whether he was practised at this – whether he knew the right words to say to keep the doctors from his door. Whether he realized that by maintaining that his wife was lying when she said he had smoked cannabis before the rape – by asserting that he had not – he knew the absence of drugs must make him sane at the time of the offence. Was it better, to him, to be a criminal than to be mad? Reading the reports, I thought how strange it was that so much reliance was placed on a patient’s own analysis of his mental health, but this was the psychiatrists’ realm and not mine, and, faced with the firm opinion of two doctors, I – and the court – had little choice but to accept what they said.
The sentencing hearing was, of course, a disaster. Chris maintained his innocence and his allegation that pressure had been put upon him by his previous barrister. The judge, on hearing this, huffed in irritation, although his own reading of the reports had warned him of the defendant’s change of heart, so he did not seem wholly surprised. The judge then adjourned the case for a month so that I could prepare an application to withdraw my client’s guilty plea – a request which must now be made in writing, supported by evidence, responded to by the prosecution and ruled upon by a judge. This I did. Chris confirmed that he was prepared to waive legal professional privilege and allow me access to the record of his confidential conference with Kate.5 Kate emailed me her attendance note from the aborted trial, which described what had happened, and I rifled through law books and skimmed through case law, trying to find something that might support my application. Part of me dreaded its success, for if my application were granted and Chris was allowed to switch his plea back to one of not guilty, I must then represent him at his rape trial. I filed my application and the case law that went with it, and waited. No reply came from the prosecution and so, at the next hearing, I went in search of the prosecuting barrister. The Crown Prosecution Service, it turned out, had failed to instruct anyone to cover the case. There was no one available to stand in, so the judge roared to a half-empty court and sent me away again, demanding that the matter be listed for a contested hearing and that Kate be there to give evidence and explain herself.
By the time a date was found that all could do, three months had passed. The curve of my baby was bigger and, even though I had learned to hide it, when I went to the cells on the morning of our hearing I looked at Chris, sitting opposite me in prison clothes, and felt again the same familiar fear. I showed him Kate’s attendance note, although he refused to look at it. After a long pause, he said he had pleaded guilty only because he was told by Kate that, if he did so, he could go home, that very day, as this was what his wife had asked for. Chris suddenly bent low on the table, causing me to start, and snatched up his basis of plea, which had been sitting on my notebook. He turned it slowly over, then put it solemnly down. He looked at me, triumphantly, and slapped both his hands down on the table with a bang that made me flinch. That was not, he declared, his document. There was another page, one that his previous barrister had hidden. He prodded the page with his finger, slowly and deliberately, as though he were pressing a button. The missing page was the one he had signed, and it said he was not guilty. Carefully, I drew the basis of plea towards me and spun it around so it faced him. I pointed to the flourish above his printed name at the bottom of the page. Wasn’t this his writing?
‘No.’
I paused. ‘Are you saying that this is not your signature?’
The intensity of his stare felt like a test. I felt my senses heighten. After what seemed an age, he looked down at the piece of paper where my hand rested.
‘No, that is my signature.’ He said it as if I had asked him something very stupid; as if our previous conversation had simply not happened.
Right. Okay. Don’t let him get diverted, I thought: just stick to the points you need instructions on and get out of there and on with the hearing.
I asked him to tell me about Kate’s advice, but Chris told me he did not want to talk about Kate – that I should put her to one side. The real issue, he maintained, was that his wife had invented these accusations to steal his inheritance. And there was something else he needed me to do, something more important. She had sent his navy docket to the prison. It had been lost; he could not find it, and he needed it with him. I must help him find it, he said. It was my turn to look at him in silence. I told him I would tell the solicitors about the docket and that I needed to go to find the prosecution before I ran out of time. I stood to leave the cell, rapping on the small window in the door to attract the guards’ attention, willing them to come quickly and allow me to move away from the man whose eyes were boring into my back.
‘Are you doing this: the case of, um …’ the prosecution barrister peered down at the file in his hand, squinting, in need of glasses not to hand ‘… Mira?’ I confirmed I was. He did not return my smile as he ran his fingers through grey hair, shifting his weight. ‘Bloody CPS forgot to instruct anyone, didn’t they? I’ve just been handed it. It’s something completely daft like trying to vacate a plea, right? Your application, is it?’
‘Yes. Do you have a copy? I brought spares.’
He did not, nor a copy of the prosecution’s reply, and took the ones I offered him. As he flicked through the documents, reading but not seeing, he gave a low rumble. ‘I mean, this says all I intend to say, really. Can’t see I need to add anything further.’
It was unhelpful: his bluster, his hauteur. I wanted to be abl
e to confide in him, to say Look, you’ll see in evidence, but my client is as mad as a box of frogs, and somehow he’s slipped it past both doctors. I wanted to urge him to tread gently, to go easy. But as he strutted and blustered I knew I could not. It occurred to me that he might not have been told that Kate was coming to give evidence; that I was in the bizarre position of calling a colleague and cross-examining her under oath in an effort to prove she had pressured my client to plead guilty. I said all this to him and agreed with his protests that he could not, surely, have anything to ask this barrister. That this was, after all, my show.
In Your Defence Page 22
