by Peter Murphy
* * *
Wednesday afternoon
‘My Lord,’ Robert begins, ‘I’m pleased to inform your Lordship that the parties have reached an agreement to settle this case, and we will not require your Lordship to give a judgment.’
I’ve had a nice, relaxed morning – certainly more so than the parties, who will have spent it assessing the devastation caused to their homes by the sticky bombs, and making the buildings secure until permanent repairs can be made. I enjoy a full English breakfast at the George, cooked for me personally by Darla, who’s sad that I’m leaving and hopes that I will return soon – the prestige of having The Judge in Residence, one assumes – and recommends that I have a stroll around the Wednesday morning market in Market Square, which after perusing The Times, I do. It’s no match for the legendary Bermondsey market, but it has a certain rustic charm, and strolling among the various stalls I realise that I’m actually unwinding from the cares of being the RJ of a London Crown Court and, like the barristers in my case, enjoying the slower pace of life away from the big city.
‘In essence, my Lord, the claimants have withdrawn their action to assert title to the Middle Plot, and the defendant has withdrawn his claim to have acquired title to the Plot by adverse possession. Instead, the parties have signed a memorandum of understanding: the gist of which is that while the claimants will continue to have sole paper title to the Middle Plot, they will grant Mr Barratt, his heirs and assigns, a right to enter on to the land at reasonable times and to a reasonable extent for horticultural purposes. This memorandum will form the basis of a formal settlement agreement, which should be ready for signature by the end of the week.
‘The reason for the slight delay is that the parties’ solicitors want to consider whether to achieve that goal by means of an easement or licence, or in some other way. They are confident that they will find the most appropriate way, and copies of the documentation will be filed with the Court at that stage. The memorandum also contains an understanding between the parties, which will not form part of the formal settlement agreement, as both parties accept that it is essentially unenforceable. This understanding is that the parties will collaborate on the future use of the Middle Plot before engaging in any works there.
‘Finally, my Lord, Mr and Mrs Pearce also agree not to enter Lower Wattage in the Cambridgeshire Best Kept Village Competition, or any similar competition, until such time as both parties are satisfied that doing so would command the support of the inhabitants of Lower Wattage as a whole.’
‘That is correct, my Lord,’ Ruth adds, ‘and in the circumstances we invite your Lordship to make no order as to costs.’
‘So ordered,’ I say. It’s a phrase I seem to remember civil judges using in films and on TV, and it’s always sounded pleasingly definitive.
‘The only other thing, my Lord,’ Robert adds, ‘is to express the gratitude of the parties, and indeed the gratitude of my learned friend and myself, to your Lordship for his willingness to adopt such an unorthodox approach to bringing the parties together. Without your Lordship’s innovative approach to mediation it is very likely that we would still be contesting this case instead of settling it in such a constructive manner.’
I look up. ‘I hardly think I can claim any credit for that, Mr Mason,’ I protest. ‘You and Miss Bannerman educated me about the possibilities available to a judge sitting without a jury in a civil case, so it wasn’t really a case of innovation on my part.’
‘Nonetheless, my Lord,’ Ruth says, ‘that’s what we’re going to tell Mr Justice Gulivant, as senior Presiding Judge. It’s the best hope we have of making him send you back to see us again.’
Back in chambers, I thank Molly and Anand for their outstanding work during what on any view has been a remarkably challenging case, and promise that their contribution is something else Mr Justice Gulivant will be hearing about.
After Molly has left us to clear up in court, Anand and I share a pot of tea.
‘Couldn’t you find me something else to do for the next couple of days, Anand?’ I ask. ‘They won’t have anything for me at Bermondsey until next week and I’m rather enjoying sitting at Huntingdon. It wouldn’t be a problem for me to stay for a couple of days and help out.’
‘I’m sorry, Judge,’ he replies with a smile. ‘I wish I could, but we just don’t have that much work here. We’ve got nothing else scheduled until next week. Look, if you’re not in a hurry, why don’t you just take a couple of days for yourself, extend your stay at the George, rent a car, take in the sights? And I can recommend a couple of good restaurants, Indian and Italian, not too far away, if you like. I’m not entirely sure about the Italian, but I can claim to know a little about Indian.’
Once I’m alone I call the Reverend Mrs Walden.
‘I know you’re busy, Clara,’ I say, ‘but couldn’t you take a couple of days off and come up here and breathe some fresh air with me? I’ll have you back in good time for Sunday, I promise.’
‘Oh, I don’t know, Charlie. I’ve got so much to do…’
‘I’m in need of pastoral care,’ I whine. ‘You are my vicar, you know, as well as my wife.’
She hesitates. ‘Well, you have been through a lot this week,’ she admits, ‘so I suppose it may be my duty – spousal as well as pastoral – to assist in your recovery, and if a short foray into the country would help…’
‘It might make all the difference,’ I say.
‘In that case, I will see you in time for dinner this evening. Get the noises, sounds and sweet airs ready for me, as long as they give delight and hurt not.’
‘I think I’ll forego any further noises, if you don’t mind,’ I reply, ‘but I’ll have the sounds and sweet airs ready in the George by six.’
SOMETHING BORROWED, SOMETHING BLUE
Monday morning
‘St Paul,’ the Reverend Mrs Walden told her hushed congregation yesterday morning, ‘showed us what he thought of marriage when he wrote to the Corinthians, didn’t he? “It’s better to marry than to burn,” he advised them. Well, I’m sure he was right: but isn’t that a bit like saying that it’s better to eat cold porridge than to starve? It may be true, but it’s not exactly a great advertisement for marriage, is it? I don’t think it was marriage that concerned St Paul, as much as sex. When he said, “better to marry than to burn,” he meant, of course, that it was better for a male follower of Jesus to find a woman to have sex with than to spend his whole life walking around too frustrated to think straight; and in his world a man couldn’t have sex with a woman unless he was married to her. Obviously, he wasn’t going to put it as directly as that, but neither was he about to offer the Corinthians the full range of choices we have available to us in our lives today.
‘For St Paul, it was marriage or nothing and given that stark choice, St Paul himself apparently preferred the burning option. But is that how we should think of sex and marriage today? I don’t think so; and I suspect most of you don’t think so. Let’s be honest about it – St Paul is great on many things, for example the supreme importance of love, but he isn’t necessarily the most reliable authority when it comes to sex and marriage. He comes across as pretty uptight when it comes to anything involving sex, and he didn’t think much of women, married or otherwise. So, where should Christians living in today’s world, with its constant emphasis on sex, start when it comes to the subject of marriage? The church recognises marriage as a sacrament, but…’
Sitting dutifully in my pew in the parish church of St Aethelburgh and All Angels in the Diocese of Southwark, as is my wont on Sunday mornings, I am frequently in awe of the Reverend’s willingness to depart from the script, so to speak. Today her subject is marriage, but I’ve listened to her on many other Sundays when she’s raised some eyebrows on a variety of different subjects – her support for the medicinal and recreational use of cannabis and her exegesis of the biblical texts dealing with the r
elationship between Jesus and Mary Magdalene have caused the occasional stir in the past. But, as Abraham Lincoln, or John Lydgate, or somebody once said, ‘You can’t please all of the people all of the time’; and it’s a lesson the Reverend Mrs Walden has taken to heart over the years. She is unapologetic about departing from the party line when she disagrees with it, and I applaud her for her willingness to dissent, as (thank goodness) do her bishop and most of the younger members of her congregation. As I say, it’s not always about marriage. But at certain times of the year, when there are a good number of marriages pending at the church, the subject does tend to resurface in her sermons and just now she has something of a deluge of them. So for a week or two, marriage is going to get the full treatment.
The full treatment actually encompasses rather more than marriage in the strict sense of the term, and tends to range from the traditional Church of England wedding model – something old, something new, and all that kind of thing – to long-term cohabitation, experimental cohabitation, gay marriage, civil unions, and even to young people learning to enjoy sex responsibly with the benefit of education from both school and parents. The Reverend leaves her audience in no doubt that, in contrast to St Paul, she is in favour of Christians feeling free to express themselves sexually, whatever proponents of some other religions – not to mention the great majority of her own co-religionists – may believe. There are occasions when she holds out our own relationship as a good example of what marriage can be, and sometimes even condescends to a certain degree of detail to make her point. Mercifully, yesterday was not one of them. But she did conclude by telling her congregation that, after thirty plus years of marriage to me, her enthusiasm for marriage remained undimmed.
That made me feel good, of course, and it’s a sentiment I share unreservedly. But perhaps we don’t need to have quite the same degree of enthusiasm for marriage as Marcus Findlay-Smyth, whose case I am to try today: and as I arrive at court, latte and Times in hand, I do find myself wondering whether her open-mindedness about marriage would extend to the kind of history that awaits an unsuspecting jury this morning.
‘Members of the jury, my name is Aubrey Brooks, and I appear to prosecute in this case. My learned friend Miss Cathy Writtle appears for the defendant, Marcus Findlay-Smyth, the gentleman in the dock.’
An ironic case for two unmarried counsel, I reflect, although both more than make up for their lack of the matrimonial experience in other ways. Aubrey moves in the best of circles, in which he has the reputation of being quite the ladies’ man; while Cathy, who mixes in more mundane circles, is happily cohabiting with a charming South African anaesthetist whom I’ve met once or twice at legal dinners. They are just as different in court. Both are regular members of the Bermondsey Bar, and both are very good at what they do. Aubrey, known for his invariably elegant appearance featuring his trademark double-breasted jackets, is low-key and urbane, and polite to a fault; but quite capable of a sudden, deadly blow to the jugular when the opportunity presents itself. Cathy is equally capable of wreaking havoc on an opponent. She can sometimes be a bit frantic in court and occasionally gets a bit dishevelled as the day wears on; but she’s a dogged, relentless pursuer of dishonest and evasive witnesses. She starts her assault on the prosecution case with the first witness and never lets up; and very often, something eventually gives way.
Our jury is the kind of fascinating mix of people we always seem to get at Bermondsey: it includes one man and one woman of Bangladeshi ancestry and two men originally from Eastern Europe, one of them, to judge from his dress – and the fact that he asked to take the oath on the Old Testament – Jewish. What this typically cross-cultural group is going to make of the evidence they’re about to hear, and what they would have made of the Reverend Mrs Walden’s sermon yesterday, is anyone’s guess; but I’d love to be a fly on the wall of the jury room when they start their deliberations. Aubrey asks if they can have copies of the indictment, and as I glance over at them they are receiving their copies from Dawn, today resplendent in a bright pink dress under her black gown.
‘Members of the jury,’ Aubrey continues, ‘this defendant, Marcus Findlay-Smyth, is a director of a small family-owned international investment bank. He earns a substantial income from his position with the bank, and in addition has some older family money of his own. In other words, he is a successful and wealthy man – the kind of man you would probably expect to have a wife and a family by the age of forty. And indeed, you will hear that in September 2012, when he was forty years of age, Mr Findlay-Smyth apparently married a woman called Deborah Jane Martineau. The apparent marriage took place here in London, at Holy Trinity Church, Brompton. After their apparent marriage, Mr and Mrs Findlay-Smyth, as they were known to their friends and neighbours, lived together in a large flat on the top two floors of an elegant house in Park Walk. For those of you who don’t know it, Park Walk is a prestigious residential street in an affluent district of the Royal Borough of Kensington and Chelsea. They lived there in some style; and about six months after the ceremony of marriage, Deborah Jane Martineau, who is some twenty years younger than Mr Findlay-Smyth, gave birth to their daughter, whom they named Charlotte.
‘Now, you may have noticed, members of the jury, that I was careful to say that Mr Findlay-Smyth “apparently” married Deborah Jane Martineau. I put it in that way because, although the ceremony of marriage celebrated at Holy Trinity Brompton appeared to be perfectly regular – in other words, it appeared to comply with all the necessary legal formalities and the rules of the Church of England – it was in fact unlawful. It was unlawful because in June 1998, Mr Findlay-Smyth had married a woman called Monica Harhoff in Scotland, at a church in Edinburgh. That marriage, members of the jury, was lawful; and although, sadly, she has since died, Mrs Monica Findlay-Smyth was alive and well in September 2012 when her husband apparently married Deborah Jane Martineau.
‘It is, of course, a requirement of a valid marriage that both parties are free to marry; and being free to marry means, among other things, not being lawfully married to anyone else. Members of the jury, it follows that Mr Findlay-Smyth was not free to marry Deborah Jane Martineau in September 2012, and the Crown say that in going through that apparently regular ceremony of marriage with her at Holy Trinity Brompton, he committed the offence of bigamy.
‘If you would look at the indictment with me for a moment, you will see that it charges Mr Findlay-Smyth with a single count of bigamy, contrary to section 57 of the Offences against the Person Act 1861, which alleges that he, “on or about the 8th day of September 2012, married Deborah Jane Martineau during the life of his wife, Monica Harhoff Findlay-Smyth.”’
The jury are looking confused, and you can’t really blame them. Whoever drafted section 57 of the Offences against the Person Act 1861 overlooked the self-evident proposition that you can’t ‘marry’ a person during the life of your wife. If you already have a wife, at best you can purport to marry another woman by going through a ceremony of marriage with her; your ‘marriage’ is unlawful and would be declared void by any court in the land. Why this obvious drafting error hasn’t been corrected in the more than a century and a half since the act was passed is anyone’s guess. I will explain it to the jury when I sum the case up to them, of course: but it doesn’t reflect much credit on the law and it doesn’t make the jury’s job any easier to have such nonsense perpetuated in indictments. Marcus Findlay-Smyth, smartly dressed in a dark grey suit, white shirt, and a red and blue striped tie, doesn’t look in any way confused. He is listening attentively but without any obvious show of anxiety, almost as if he were attending a board meeting at his bank.
‘As I said a moment ago,’ Aubrey continues, ‘Mr Findlay-Smyth’s wife Monica is deceased, and so he is technically a widower. Monica Findlay-Smyth died of natural causes in November 2016. As far as we know, Monica died without any knowledge of the ceremony of marriage celebrated at Holy Trinity Brompton in 2012 between her husband and
Deborah Jane Martineau, and the two women never met.
‘Indeed, both women appear to have believed, not only that they were married to the defendant, but also that they were living with him as husband and wife in perfectly normal circumstances. Deborah believed that their home was in Park Walk in Kensington and Chelsea, while Monica believed that their home was the flat in the New Town district of Edinburgh they had occupied ever since their marriage in 1998. Mr Findlay-Smyth’s bank has an office in Edinburgh as well as in London; and the Crown say that he was in effect commuting between his two homes in London and Edinburgh. Cleverly, he spent enough time in turn with his wife and with Deborah to convince both women that he was simply dividing a busy work schedule equally between the two cities. Unfortunately, Monica Findlay-Smyth is no longer with us to tell you about her experience of this relationship, but the Crown will call her brother James to tell you what he observed, and Deborah Jane Martineau will give evidence about her history with the defendant.
‘It may well be, members of the jury, that Mr Findlay-Smyth would have got away with this deception indefinitely, had it not been for the vigilance of a junior civil servant at Her Majesty’s Revenue and Customs, who during a routine review of his tax affairs noticed some irregularities in tax returns filed by Mr Findlay-Smyth for the tax years 2015-2016 and 2016-2017, which covered the period during which Monica Findlay-Smyth died. This young civil servant, Alice Clegg, told her superiors of her findings, and they in turn passed their file to the Crown Prosecution Service.
‘Members of the jury, you may well be wondering what explanation the defendant could give for his extraordinary behaviour; and you may be surprised to hear that he has put forward, not one, but two quite different explanations. When he was arrested and interviewed by the police, he did not deny any of the facts I’ve just told you about. On the contrary, he told the police that he was entitled to be married to two women at the same time because he “enjoyed being married”; and because polygamous marriage formed part of his religious belief and was, therefore, protected under European human rights law. You will hear evidence of the interview from the officer in the case, DI Bairstow, in due course, and the Crown say that you will find his explanation of his religious belief to be, shall we say, lacking in substance.
