Judge Walden

by Peter Murphy

  ‘What happened?’ I ask.

  ‘It was during the second case, Karsten,’ Cathy replies. ‘Mr Karsten gave evidence. Aubrey finished his cross-examination just before lunch – this would be on the Wednesday – and Judge Drake said he might have a few questions for him after lunch. But after lunch Judge Drake seemed to think that it was Mr Bourne in the witness box, instead of Mr Karsten. He asked him three or four questions he’d asked Mr Bourne the week before, and even called him “Mr Bourne” once or twice.’

  ‘In fairness to Judge Drake,’ Aubrey intervenes, ‘as it happened, we were following almost the exact same timetable we had in Bourne. Do you remember, Cathy? Mr Bourne also gave evidence on the Wednesday, and had to come back into the witness box after lunch because Judge Drake had a few questions.’

  Cathy nods. ‘That’s right. That was pure coincidence.’

  ‘So, what happened?’ I ask.

  She shrugs. ‘Nothing, really. It was obvious that Judge Drake had got himself mixed up for a few moments, but Aubrey stood up and reminded him that it was Mr Karsten in the witness box. Judge Drake apologised and had a bit of a laugh with the jury about it – “It comes to us all eventually, members of the jury”, that kind of thing – and that was it. No big deal. We got on with the trial.’

  ‘I thought he handled it very well,’ Aubrey adds.

  I think for some time.

  ‘And neither of you thought it was serious enough to take any further?’

  ‘Oh no, Judge,’ Aubrey replies at once.

  ‘If I’d thought that,’ Cathy adds, ‘I would definitely have come to see you – not to mention that I might well be taking both cases to the Court of Appeal. But no, it wasn’t in that league at all, not even close.’

  ‘Well, in that case,’ I say, almost to myself, ‘who would report it to Sir Jeremy, and why?’

  ‘Did Sir Jeremy have any clues about it?’ Aubrey asks.

  ‘No, not really. He speculated that it might have been a police officer, or someone from the CPS.’

  Aubrey shakes his head. ‘Very unlikely’ he replies. ‘The officer in the case was very happy with the result, as were the CPS, as far as I know. If they’d had any worries, I would have been the first to know.’

  Cathy puts down her cup. ‘We’re still off the record, Judge, are we?’

  ‘Yes, Cathy, of course.’

  She turns to Aubrey. ‘I bet it was Andy McCabe.’

  Aubrey nods. ‘That’s possible, Judge.’

  ‘What? You mean, Recorder McCabe?’

  ‘Yes, Judge.’

  ‘He was sitting here the second of the two weeks,’ I point out, ‘while I was away on leave.’

  ‘Yes, Judge,’ Cathy replies, ‘but he was continually coming to the robing room to see Aubrey or me.’

  ‘What? But he was sitting as a recorder,’ I say. ‘He shouldn’t have been anywhere near the robing room. It’s totally improper. You sit yourself, Aubrey. You know that.’

  ‘Yes, Judge, and I tried to tell him,’ Aubrey replies. ‘But he wasn’t listening.’

  ‘What did he want?’

  ‘He wanted to bad-mouth Judge Drake, as usual.’

  ‘As usual?’

  ‘I assumed you’d know all that about that, Judge,’ Aubrey replies.

  ‘No: know about what?’

  ‘Well, you know Andy is in Judge Drake’s old chambers in Pump Court?’

  ‘Yes, I know that, but…’

  ‘Apparently, the two of them don’t like each other very much.’

  ‘That would be an understatement, Judge,’ Cathy adds. ‘This goes way back to when Andy applied to join chambers, years ago. Judge Drake didn’t think Andy was barrister material, so to speak. He fought tooth and nail to stop Andy being taken on in chambers. But they took him on anyway. There’s been friction between them ever since.’

  ‘Did either of you tell Recorder McCabe about Judge Drake’s moment of confusion?’ I ask.

  ‘Not me,’ Aubrey replies at once.

  ‘No, Judge, not at all,’ Cathy says. ‘I would think he got that from the court staff. Our usher told me he’d been pestering her to tell him all about whatever was going on in Judge Drake’s court. So God only knows what impression he came away with. But he didn’t get it from us.’

  Before leaving court for the day, I make my way down to the list office, where Stella is putting the final touches to tomorrow’s list.

  ‘Stella,’ I say, ‘I assume Recorder McCabe was using one of our notebooks while he was sitting here?’

  ‘Yes, Judge.’

  ‘And we still have it, I assume?’

  ‘Oh, yes, of course, Judge. We keep all your notebooks, for the permanent judges and for our recorders. They’re always here if you should need them. If Recorder McCabe comes back to sit here again, we would find it for him.’

  ‘Might I borrow it for a few moments?’

  She raises her eyebrows slightly, but without hesitation walks over to a cabinet on the other side of her office, unlocks a door, and within a few seconds, locates the red hard-backed court notebook assigned to Mr Recorder Andrew McCabe.

  ‘Don’t let me interrupt you,’ I say. I sit down in a chair in front of her desk, and, with Stella doing her best to ignore me but unable to resist glancing up at me from time to time, I begin to browse. It’s the first and only time Andy McCabe has sat at Bermondsey, and he’s been meticulous in noting the date of each entry. Mostly, as one would expect, the book contains his notes of the trial he did while he was with us, a four-day supplying class A drugs with two defendants. There are also a handful of bail applications Marjorie assigned to him. She was acting RJ during my absence, and would have been in charge of such things. But one page is of particular interest. Towards the end of the week, sandwiched between notes of two bail applications, in Recorder McCabe’s admirably clear handwriting, there appears the following: ‘Mixes up two cases. Losing plot?’

  I show the page to Stella.

  ‘Can we get this to Sir Jeremy in its original form?’ I ask. ‘Confidentially, of course.’

  She examines it briefly.

  ‘Yes,’ she replies immediately. ‘I should be able to scan the page and attach it to an email. If not, I’ll copy it and fax it over to him.’

  I nod. ‘Good. Would you please also ask Sir Jeremy to check the handwriting against the handwriting on the report he received about Judge Drake, and to give me a call once he’s done that?’

  She smiles. ‘It will be my pleasure, Judge.’

  * * *

  Wednesday afternoon

  As expected, Aubrey and Cathy have asked to address me at two o’clock in the absence of the jury. Deborah Martineau and James Harhoff are sitting together in the public gallery, but there is no sign of any other wife, official or unofficial, of Marcus Findlay-Smyth. Just before lunch, I received copies of the witness statements taken by DI Bairstow from Elies van der Meer and Veronica Ho, which contain exactly what I’d expected them to contain: namely confirmation that, in the prescient words of Miss van der Meer, until now the court has not been fully informed about the case.

  ‘Your Honour will have read the witness statements,’ Aubrey is saying, ‘and I’ve discussed the situation at some length with my learned friend. We are agreed that, if my learned friend asks your Honour to discharge the jury, and order a new trial in front of another jury at a later time, it’s an application I can’t resist.

  ‘This is what we’ve got: Mr Findlay-Smyth went through a ceremony of marriage with Veronica Ho in Hong Kong in February 2018, after having validly married Elies van der Meer in Amsterdam in May 2017. In so doing, he committed a further offence of bigamy. I must now either seek a new indictment to charge him with that offence, or amend the present indictment to add it as an additional count. If I add it to the present indictment, I accept that
it can’t be right to proceed any further in front of this jury, certainly not without my learned friend’s agreement. I understand, however, that Mr Findlay-Smyth would be prepared to plead guilty to the new count.’

  ‘That’s correct, your Honour,’ Cathy replies immediately.

  ‘And in those circumstances, one possible course, if my learned friend agrees, would be to say nothing to the jury about the new charge, to continue with the trial on the count involving Miss Martineau, and to allow Mr Findlay-Smyth to plead to the new count after the jury have returned a verdict as to Miss Martineau.’

  I look at Aubrey. ‘That’s a very generous view, Mr Brooks. Many prosecutors would argue that the offence involving Miss Ho would be admissible evidence on the Martineau count, to rebut the defence of duress. You could apply to reopen your case to call her and Miss van der Meer.’

  He nods. ‘Technically, that must be right, your Honour. But I’m concerned with the question of fairness. I understand that my learned friend is anxious to continue with this jury, but we both agree that it would be unfair to Mr Findlay-Smyth to call Miss Ho and Miss van der Meer at this late stage of the trial. My learned friend has been taken completely by surprise: I accept that.’

  I look in turn at Cathy.

  ‘Your Honour,’ she says, ‘I’m very grateful to my learned friend. Having considered the matter, and having had a lengthy conference with my client, I do not apply for the jury to be discharged. We have no objection to the prosecution amending the indictment to include a second count of bigamy in respect of the ceremony with Miss Ho. Mr Findlay-Smyth will plead guilty to that count at the end of the trial, and the trial on the existing count involving Miss Martineau can continue. I submit that there is no need for the jury to be told about any of this, and I would further ask your Honour to direct them not to pay any attention to what I invite your Honour to call the “outburst” in court by Miss van der Meer yesterday.’

  ‘Are you sure about that, Miss Writtle?’ I ask. ‘As Mr Brooks says, I wouldn’t hesitate to discharge the jury if you were to ask me.’

  ‘I’m quite sure, your Honour. Thank you.’

  I have to admire Cathy’s coolness under fire. I’m sure there was blood on the floor during her conference with Findlay-Smyth. In the hierarchy of abuses clients can commit against barristers, lying to and withholding vital information from them are the two cardinal sins. Findlay-Smyth’s modesty about the true scale of his liking for marriage has pulled the rug clean out from under her feet, and knowing Cathy as I do, I have no doubt that she let him have it with both barrels when she got him to herself down in the cells. But after venting, she would have taken some time by herself and reflected on the mess her client has created for himself. At least nineteen out of any twenty given barristers would have run for cover. They wouldn’t have hesitated to ask me to discharge the jury and order a retrial. That would have been the instinctive and natural path to take.

  But Cathy has taken her time and thought this through. She knows Aubrey has Findlay-Smyth bang to rights for the offence involving Veronica Ho; and if she opts for a new trial, Aubrey will try him for both offences together, in which case Findlay-Smyth is going down like a lead balloon. The chances of a jury buying the defence of duress once they know about Elies van der Meer and Veronica Ho are somewhere between minimal and non-existent. But if she can deal with the Martineau count on its own, having inflicted some injury on the Martineau family enforcers in cross-examination, she still has some chance of limiting the damage to a single conviction. And, of course, there’s always Strasbourg.

  So we bring the jury back down, I tell them to ignore the “outburst” and we forge ahead. Aubrey resumes his cross-examination where he left off on being interrupted by Elies van der Meer, but he’s not long about it. He treats us to an entertaining few minutes of exploration of Findlay-Smyth’s form of Mormonism, demonstrating that the defendant is woefully uninformed about the theological background to polygamy in the Mormon Church, and indeed about any justification for polygamy other than his liking for marriage. He has the jury chuckling, and Cathy sinking ever deeper into her seat. Satisfied, he then wisely stops. We agree that we have time for closing speeches, but that I will sum up and send the jury out tomorrow morning.

  Aubrey is short and to the point. Marcus Findlay-Smyth can’t even get his story straight, he points out. Today, he asks the jury to believe that he committed bigamy out of fear of the Martineau family enforcers. But when arrested, he is interviewed in the safety of the police station, in the presence of his solicitor, and says not a word about duress: not even a hint. Instead, he tells the police that he likes being married, and suggests that he’s expressing his religious beliefs. On the other hand, when he gives evidence before the jury, there’s no mention of his religious beliefs until he’s confronted about it in cross-examination.

  Besides which, Aubrey adds, almost as an afterthought, his assertion of duress doesn’t come close to the legal definition. Even if you believe every word he says, the idea that he was in fear of his life or of suffering really serious harm – which is the legal standard for duress – is laughable. All he had to do was to skip town, take himself off to Edinburgh, or Amsterdam, or Hong Kong, or wherever his abundant wealth could take him. As long as he supported the child financially, there was no real risk to him at all – it’s obvious, isn’t it, that money is what matters to the Martineau men? He could also have gone to the police, or simply told everyone involved – from a safe distance – that he was already married to Monica. The idea that he had no alternative but to appear at Holy Trinity Brompton, and participate in a ceremony he knew to be illegal, doesn’t stand up to any serious scrutiny. There’s only one possible conclusion the jury can draw from the evidence, Aubrey suggests: namely, that Marcus Findlay-Smyth is an unapologetic bigamist.

  Cathy, of course, launches a frontal attack on Deborah Martineau’s father and brother. She reminds the jury of their previous convictions at the Old Bailey. It’s all very well for Aubrey to suggest that he could have made a run for it and hoped that his financial support of Charlotte would be enough: but is that the reality when you’re dealing with organised crime? Is there ever really any place to hide? Would Marcus Findlay-Smyth have been condemning himself to spending the rest of his life on the run, looking over his shoulder every day of his life, wondering when the end would come? This wasn’t just about money: these were men who were not about to allow their daughter and sister to be shamed. You can almost see Marlon Brando stroking his cat and murmuring instructions to Luca Brasi to avenge the family’s honour.

  The trouble is, it doesn’t quite ring true. I’m going to have to direct the jury that Aubrey’s right about the legal definition of duress. Legally, there has to be a certain immediacy about the threat. If Deborah’s father were actually pointing a loaded shotgun at him in some rural barn, far from any source of salvation, and Findlay-Smyth had every reason to believe that he would pull the trigger unless he heard an enthusiastic ‘I do’, that would be one thing. But unarmed, in a church in central London with a vicar and any number of guests around him, Oscar Martineau doesn’t pose quite such an immediate threat. Wisely, Cathy doesn’t even attempt to explain Findlay-Smyth’s failure to confide in the police about the threat hanging over his head, except as part of the overall picture of the terror that consumed him.

  As I’m leaving for the day, I pass Hubert’s chambers. The door is partially open, and I see that he’s sitting at his desk, reading something in The Times. The time has come. I knock and venture inside.

  ‘Come in, Charlie,’ he says cheerfully. ‘I was just thinking about heading off to the Garrick, but you look as though you could use a cup of tea.’

  ‘That would be very welcome,’ I reply. ‘It’s been an interesting day.’

  Hubert self-caters when it comes to tea and coffee. He has his own kettle and a miniscule fridge for the milk.

  ‘Still doing yo
ur bigamy case, are you?’

  ‘Yes, but we’ve now discovered that Chummy has been unduly modest about his accomplishments in the field of bigamy.’

  ‘Oh, yes?’

  ‘Yes. Another case has turned up – one more genuine wife plus one more bigamous – and the way things are going, I wouldn’t rule out further surprises before we’re finished.’

  ‘Extraordinary,’ Hubert replies. ‘And has Chummy been supporting all of them?’

  ‘As far as I know. The Colonel would have been proud of him.’

  ‘Extraordinary.’

  When the tea is ready, we sit together on Hubert’s sofa, a personal touch he insists on in chambers to supplement the standard government-issue chairs.

  ‘Hubert,’ I begin, ‘there’s something I want to ask you about. I don’t want you to say anything immediately. Just listen, and then you can say something if you want to.’

  ‘That all sounds very mysterious, Charlie.’

  ‘No, not really. You remember those two benefit fraud cases I asked you about at lunch, Bourne and Karsten?’

  Hubert takes a drink of his tea.

  ‘Yes, of course I remember. I remember them very well. Why are you so interested in them?’

  I take a deep breath. ‘Well, you told me that nothing out of the ordinary had happened. But I’ve had a report that you were a bit confused for a short time during the second trial. I was told that you asked Karsten a few questions while under the impression that he was Bourne, the defendant from the previous week, and that Aubrey Brooks had to correct you.’

  Hubert doesn’t reply for some time.

  ‘Did Aubrey tell you that?’ he asks eventually.

  ‘Only when I asked him. I have Aubrey and Cathy in front of me, and I happened to call them into chambers in connection with my case. The report didn’t come from either of them.’

  Hubert looks at me, puzzled. ‘Well, who did it come from, then?’

  ‘I’m not a hundred per cent sure yet,’ I admit. ‘It should become clear tomorrow. But the point is, Hubert, not where it came from, but whether it’s accurate. Obviously you don’t need to tell me anything you don’t want to, but as RJ, I am supposed to keep an eye on things, and…’