The problem with cross-courting is that each Judge expects you to be in his court ready and able to start at 10.30am, which is the start of the court day, so being in three different cases, and not being able to produce clones of yourself, means that there is every chance that two of the Judges will be mightily hacked off when they glance towards the Bar and see an empty space where a barrister is supposed to be.
And one of the first rules of how to make a Judge happy is physically being in their court when your case is called on.
My first case that day involved a burglar, Tommy Nutall, who was due to be sentenced in front of His Honour Judge Timothy Percy.
Judge Percy held no fear for me. He was a fairly new appointment, which was good for me, and good for Tommy Nutall. You see it used to be that Judges were appointed with a ‘tap on the shoulder’ once they had reached a certain level of seniority at the bar. It was a ‘jobs for the boys’ arrangement, and meant that on occasions some absolute dinosaurs found themselves on the bench – real lunatics who oozed prejudice and spite and would bully anyone who got in their way. Now, thankfully, the rules have changed and judicial appointments are subject to open competition, with interviews and assessments – and the system is much better for it.
I went to see Tommy in the cells and discussed his case with him. Like so many others, Tommy’s problem lay in his addiction to Class A drugs. He was not intrinsically a bad person, he was a junkie – and in his desperation to pay for heroin and crack cocaine he stole people’s stuff. Now, don’t get me wrong, theft is a crime and he should be punished. But there is a distinction between those sad, pathetic individuals who commit crimes to get the drugs they crave, and the seriously bad people who sell them the drugs and make vast profits.
And like so many others addicted to drugs, prison was just part of Tommy’s life. He was only 27, but had been convicted of over 80 offences. He had been in prison on remand for over two months for burgling a garage and stealing a push-bike, a chainsaw, a bag full of washing and a small fridge. He was caught riding the push-bike unsteadily down the road, with the fridge and washing balanced precariously on the back. He told me that he regretted it, that he had been desperate, and that he is now drug-free and healthy. He showed me some certificates that he had obtained in literacy and numeracy and that his partner was pregnant.
‘That’s all good, Tommy,’ I told him. ‘I’m going to tell the Judge a little bit about your background, a little bit about what happened, and a little bit about your plans for the future, is that okay?’
He nodded and I smiled back.
‘And I’m going to tell him that you’re sorry, but I can only tell him that if it’s true.’
‘I am sorry,’ he answered quickly, ‘what was I thinking – I was off my tits – who steals a bag of laundry?’
I took that as remorse, of sorts, and moved on.
‘Your pre-sentence report suggests that you might be eligible for a drug rehabilitation order, what do you think about that?’
He gushed at this news, ‘I’ll do anything, Mr Winnock, absolutely anything, I just need a chance, I’ll do a curfew, a tag, anything.’
‘Good,’ I said, ‘because you’re nearly 30, Tommy, you could do with getting off the gear, mate.’
‘I’ll do anything,’ he repeated.
The pre-sentence report is a report given to the Judge that has been compiled by the Probation Service. It tells him about the offender’s background, his attitude towards his offending and it makes a recommendation as to sentence – for the old school, tap on the shoulder Judges, the PSR doesn’t always help, but for the new ones, it can do – though, of course, ultimately it is the Judge’s decision whether to send someone to prison and for how long.
We went up to the courtroom and Judge Percy looked benignly at the assembled throng. I was confident that both Tommy and I would get a fair hearing. I sat down on Counsel’s row and listened to the prosecutor. He gave a rather wordy account of Tommy Nutall’s crimes and I started to become conscious of the time – 10.35. I could hear my name being called over the tannoy: ‘Russell Winnock is required in courtroom four.’ I felt my stress level increase, but for now I had to concentrate on persuading Judge Percy not to send Tommy Nutall to prison.
Speeches in mitigation are tricky. If you get it wrong, you could end up making it worse for your client, whereas a good one may secure a good sentence and make your client and your solicitors happy.
The art, I think, is to try to make the job as easy as you can for the Judge, to guide them gently towards the answer. I started by telling the Judge that any burglary is really serious. This is a bog-standard mitigation point – if you try to give the Judge a wink and nod and tell him that stealing from someone’s garage really isn’t all that bad, you are liable to make things worse for your client and yourself.
I then told him that my client was desperately sorry for what he had done and fully expected to go to prison today. Now the Judge knows that the condemned man is sufficiently sorry and realistic enough to bow to the power of the court.
Then I went into my sob story – ‘Tommy had a difficult upbringing,’ I told the court – which is true, he was put into care at the age of seven. ‘Tragically, it’s all too familiar,’ I continued, ‘for young men with little in the way of a positive male role model, and none of the stability that most of us take for granted, to lapse into a world of drugs and public disobedience.’
I noted a movement of the Judge’s head, which I took as encouragement.
‘What Tommy Nutall needs, Your Honour, is help.’
At this point Judge Percy looked up at me. ‘Has he ever been made the subject of a drug rehabilitation order, Mr Winnock?’
Bingo. I’ve led the Judge to my way of thinking. ‘Only once,’ I told him, ‘but that was sadly a failure, but he was younger then. Perhaps if the court was thinking along those lines, it would impose a curfew as well, perhaps as part of a suspended sentence.’
The Judge thinned his lips as he contemplated this. ‘What are his personal circumstances at the moment?’
At this point I have to decide whether to tell the Judge that Tommy has knocked up his Mrs. This can go one of two ways: some Judges will see it as good motivation for someone like Tommy to change his ways, but others may see it as an act of feckless irresponsibility.
I took a punt and decided to tell the Judge about my client’s impending fatherhood.
‘Well, Your Honour,’ I began earnestly and brightly, trying to convey a happy event with the tone of my voice, ‘Mr Nutall will go and live with his partner who is expecting their first child.’
But I’ve got it wrong. Judge Percy’s mouth droops rather dramatically. ‘Oh,’ he said, ‘was that the wisest thing in the circumstances, Mr Winnock? I mean, wasn’t it a bit reckless of Mr Nutall to start a family with all the problems he has?’
Crap. I’d hoped that Percy would have been more positive. I now needed to salvage things. ‘Well Your Honour is, of course, right, but perhaps the onset of fatherhood could provide the incentive that this young man needs to finally rid himself of drugs.’
The Judge looked at me doubtfully, considered his papers again, picked up his pen and then started to chew his lips, thoughtfully.
I need to tie things up.
‘Your Honour,’ I declared, ‘Mr Nutall knows, indeed expects, to go to prison today. He knows that burgling people’s garages and stealing their possessions, their intimate possessions at that, won’t be tolerated – but, Your Honour, perhaps, on this occasion, just this once, the court can consider dealing with him in a way that will help him overcome his addiction. Because, Your Honour, if this man was clean of drugs, then this court can be absolutely confident that he would be free from crime, and a drug rehabilitation order, rather than just prison, may help him achieve that.’
I was now giving it the full puppy-dog eyes and droopy, fat bottom lip.
‘Hmm,’ said Percy. He made me work for it, I had to persuade him of Tom
my’s living arrangements, his certificates, his motivation to work, and then I had to go through the blessed sentencing guidelines, before we all discussed whether the offence is aggravated by the fact that he stole a bag full of dirty washing, as the contents may be of sentimental value.
It was all done very pleasantly, but it took ages. By the time the merciful Judge Percy had given my client a twelve-month sentence of imprisonment, suspended for two years, it is five past eleven. I was now 35 minutes late for two other Judges.
I turned to see my smiling client disappearing from the dock and rushed out into the corridor – just in time to hear the tannoy again – ‘Could Mr Russell Winnock of Counsel go to court four immediately please.’
There was an urgent tone to the voice and I felt my stress level go up another notch.
Part 2 – His Honour Judge Marmaduke and the case of Peter Hilton
I ran to court four.
I rushed in, my gown flowing behind me, my wig sliding down my sweaty, glistening forehead and ending up at a jaunty angle.
He was already sitting there – His Honour Judge Marmaduke. Bugger. If Judge Percy is friendly and objective, then Marmaduke is hostile and prejudiced.
‘Your Honour,’ I began breathlessly, ‘can I apologise if I’ve kept the court waiting.’
‘It’s not just me you should be apologising to,’ he said viciously. ‘It’s the ushers, it’s your opponent, Miss Finnigan, it’s the dock officer and the defendant, Peter Hilton.’
Yeah, right, like Marmaduke cares about the defendant.
I turned to the defendant, Peter Hilton, who seemed slightly amused, and then to my opponent, Jenny Finnigan, who is a solicitor advocate with a reputation for being difficult. She smiled at me in a sickly sweet way that made me think of a snake.
In the case of Peter Hilton I am for the Crown, I am the prosecutor. The case is to be mentioned before the Judge because the CPS have failed to obtain some key forensic evidence from a bottle that was, allegedly, used by Peter Hilton in a fight in Spectacles nightclub. I know that the CPS have still not managed to get this done, despite an order from a Judge telling them to do so, and I know that this will cause the Judge deep consternation.
I also know that it’s not in any shape or form my fault – it’s not even my case, I am covering it for a colleague – which is something we all do from time to time – but even so, as I’m the one standing up to represent the Crown, I’m the one in the firing line, so I will have to take the hit. Again, it’s something that we all do from time to time.
‘Now, Mr Winnock, in your unexplained absence, Miss Finnigan was telling me that the CPS have still not disclosed to the defence the forensic evidence that was promised six weeks ago.’
Yep, just as I expected, judicial displeasure.
‘That’s right, Your Honour.’
I knew immediately that my answer was not a good one. I had not made the Judge happy, I had not reduced his stress, I had not assisted him at all. And, that is what Judges want.
Although someone like Marmaduke will profess not to care very much, and does everything he can to give the impression that he doesn’t care very much, the reality is that he, like almost all Judges – even the old ones, the prejudiced ones and the horrible ones – does care. And when they get stressed as a result of the pressure of their job, that is when they get cross, that is when they shout.
And Marmaduke was now shouting.
At me.
‘Well, Mr Winnock, what are you going to do about it?’
‘I’m sorry, Your Honour,’ I continued, ‘but I’m afraid that there is very little that the Crown can do other than ask for more time.’
Again, it’s not a helpful suggestion, again, I’ve not assisted the Judge. He explodes as if I’ve just asked him to give me the kidney of his firstborn grandchild.
‘More time, Mr Winnock?’
‘Yes.’
‘Why? You’ve already had six weeks to obtain this evidence, you haven’t done it, this man is waiting for his trial – why on earth should I give you more time?’
I know the truthful response to his question; the truth is that the CPS have no money, and no resources, and that the poor sod who should have been doing this task has also been forced to do umpteen other tasks. He knows this, I know this; we both know that as a result of cuts to their budget, the CPS have had to make lawyers and caseworkers redundant. They now run a vastly reduced staff, and the result is that things get forgotten, things get overlooked. Evidence which would once have been chased up and secured, isn’t, and as a result some cases are not prosecuted, or when they are prosecuted are done so in a half-cock way that makes it much more likely that the defendant will walk free.
In this particular case, the victim of the attack received 60 stitches to wounds in his face and neck – he will forever bear the scars of his night out. He wants justice. And I can understand that.
The evidence against Peter Hilton consists of some grainy CCTV footage, which doesn’t really show the actual fight, and the witness statements of a couple of drunk people who were present. Peter Hilton says that they’ve got the wrong man. He may be right, I don’t know. But I do know that any forensic evidence will be absolutely crucial. It may well prove beyond doubt that at some point Hilton held the bottle that was used in the assault. It may mean the difference between justice being done or not. And if a guilty man goes free, that will not be the fault of any lawyer, it will not be the fault of the system – it will be the fault of the state, who can’t pay for the investigation to be carried out properly.
I realised that Judge Marmaduke was now considering making an order that the Crown be prevented from relying upon any further evidence – this would significantly undermine the chances of the Crown getting a conviction. Jenny Finnigan realised it as well – she sniffed an opportunity, and got to her feet.
‘Your Honour,’ she began with a greasy confidence, ‘the Crown have had the bottle since this offence was committed, that’s more than enough time to have it tested for DNA or fingerprints. It is surely about time for the Crown to either drop this weak case against him, or go to trial with what they’ve got.’
Marmaduke harrumphed and moved in his chair, then screwed his eyes up and focused on me.
‘Well, Mr Winnock, what do you say to that?’
It was now time to think on my feet, to remind Marmaduke, who is normally such a pro-prosecution Judge he would probably bring back trial by fire if he could, about the implications of doing this.
‘Well, Your Honour,’ I said, ‘of course I sympathise with Miss Finnigan and the plight of her client.’
‘He doesn’t want your sympathy, Mr Winnock,’ bellowed Marmaduke.
‘No,’ I said quietly, ‘but we must also remember the plight of Mr Steven Brown in all of this.’
‘Who’s he?’ shouted the Judge.
‘He, Your Honour, is the unfortunate victim – perhaps I can invite Your Honour’s attention to the photographs of Mr Brown taken the morning after he was bottled.’
Marmaduke declined my invitation, but I’d done enough. He has remembered that even though the CPS have messed up, even though the state has messed up, even though he hates me – he hates Mr Hilton a whole lot more.
‘Well,’ he said, his face contorting, ‘the CPS can have three more weeks.’ He now pointed at me: ‘That is the final order of the court, Mr Winnock, if they have not obtained the evidence by then – tough. Do you understand me, Mr Winnock?’
‘Yes, Your Honour.’
I nodded again then cast a glance towards the clock. It was now 11.30 – one more case to go. One more Judge to placate.
Part 3 – Judge Mariner QC and thecase of Yusuf Salam
Judge Mariner QC was a different type of Judge again.
He is not a shouter like Judge Marmaduke, nor a liberal like Percy, he is an intellectual, a proper lawyer, a former commercial Silk, who enjoys coming into the Crown Court from time to time to show everyone just how clever he is
.
And he is clever.
I reckon that if his brain was taken out of his cranium and set free, it would unravel to the size of Croydon.
But for Judge Mariner QC, having a brain the size of a London suburb has one drawback, it means that he is quite slow; constantly proving how clever he is takes time. But on this particular morning, that suited me, as it meant that by the time I had rushed into his court, he still hadn’t got round to doing my case. I felt relieved. At least I wouldn’t be getting a telling-off for being late.
The atmosphere in Judge Mariner’s court was heavy, with a confused air about it, like the astro-physics section of a university library. I sat down at the back of court and saw that my friend, a young barrister called Danny Utaka, was on his feet. He was looking at Judge Mariner QC with the facial expression of a man who has no idea what the other is talking about.
‘So,’ said Judge Mariner, ‘I suppose the case you’ll really want me to consider is the recent Court of Appeal decision in R v Clarke?’
I knew straight away that Danny Utaka had no idea what the case of Clarke is about. In fact I’d have put a lot of money on Danny having never even heard of the case. And I knew that he now had a split second to make up his mind about whether to try to bullshit and claim to know about the case, or come clean and admit that he hasn’t the foggiest what the Judge is going on about.
I felt for Danny. He was about five years call. He was young and eager and appeared mainly in the Magistrates Court. He was still at the stage when he thought that he had to know every answer to every question posed by a Judge. He hadn’t learnt that it’s actually alright not to know everything. It is a process every barrister goes through. But, until we know that it is actually sometimes okay to be less than ‘learned’, the trap of pretending to know something is one we all fall into. And poor Danny was falling headlong, arse over tit into it.
‘Yes,’ he said earnestly, ‘the case of Clarke …’
The Judge leant towards him, imploring him to continue, he looked deep into Danny’s eyes, testing him. Don’t get me wrong – he wasn’t doing it in a vindictive way, Judge Mariner, bless him, believes that most people should be as brainy and well informed as he is. He didn’t realise that poor Danny had no idea about the case of Clarke and was trying desperately to sound clever and informed because he has yet to learn how to be stupid and clueless in a confident way.
Confessions of a Lawyer Page 7
