by Peter Murphy
‘It was your bog standard GBH,’ Legless says. ‘Chummy’s having his usual Saturday night out. Starts off at home with a few cheap vodka concoctions from Tesco’s. Then down the pub, where he throws back ten or so pints of Fosters. At which point Chummy convinces himself that the bloke next to him at the bar is staring at his girlfriend. So he tells him to fucking stop it. The bloke tells Chummy to fuck off. Chummy asks who the bloke is telling to fuck off. The bloke clarifies this for him. After a bit more verbal, Chummy breaks a pint glass on the bar and puts the jagged edge into the bloke’s face. Blood everywhere. The bloke nearly drowns in it. The ambulance carries him off to the A and E, where they give him lots of stitches and a few pints of replacement blood. Very nasty. In fact, the poor victim is so upset by it all that it’s nearly a week before he can even bring himself to go back down the pub. Issue is self-defence; Chummy says the bloke was trying to deck him with a bar stool, you know the kind of thing. Jeffrey Biggers defending. And we come in front of Gulivant.’
‘Very competent, Jeffrey Biggers,’ Hubert observes. ‘He was in my chambers. He’s applied to join the Garrick.’
‘Nobody tells us it’s Gulivant’s first case,’ Legless continues, ‘so we just carry on as usual. I mean, he could have had us into chambers and said, “I’m a planning Silk, I don’t know what the hell I’m doing in a criminal case. Would you mind pointing me in the right direction?”’
‘That’ll be the day,’ I observe, a bit sourly.
‘No, Archie Halbert did that in his first case,’ Hubert interjects. ‘Alistair Trimble was prosecuting me down at Winchester. Fraud of some kind. Went down like a lead balloon. But I remember Archie sent the usher for us before we started. “Would counsel be good enough to join his Lordship in chambers?” and so on. He was quite honest about it. “Look, chaps, I haven’t got the first bloody idea what I’m doing with this criminal stuff. Where do we start?” So we walked him through it as the case went along, went back to chambers every time he got stuck, and we got through it perfectly well.’
‘Well, not Gulivant,’ Legless says. ‘Not a word. Everything seems fine. He seems very nice, very courteous to everyone, doesn’t interrupt. Come to think of it, he doesn’t say very much at all except, “That may be a convenient moment to break for lunch”, or “Ten thirty tomorrow morning”, and so on. So we get no warning. Case takes two or three days, perfectly straightforward. I make my closing speech; Jeffrey makes his. I’ve got the Times crossword all ready to keep my mind occupied during the summing-up, when all of a sudden…”
Unsettled by the memory, Legless has to take a draught of his coffee to steady himself.
‘…all of a sudden, I hear him say: “So there it is, members of the jury. Please retire and consider your verdict.”’
An unbelieving silence engulfs the table.
‘You mean, he said that at the end of the summing-up?’ Marjorie asks tentatively.
‘No’, Legless replies grimly. ‘I mean that was the summing-up. At first I thought I must have dozed off for a few minutes and missed it. But not a bit of it. I could tell from the way Jeffrey was looking at me. Not to mention the usher, who is poised to take the oath to keep the jury in some private and convenient place and so on, but isn’t quite sure whether she should. Even the jury are sensing there’s something not quite kosher. They’re all looking at me, of course, because I’m prosecuting. It’s my job to do something. And the bloody fool hasn’t summed up at all. Not a bloody word. Just, “There you go, that’s your lot, you’ve heard the evidence, now bugger off and make of it what you will.”’
‘Monstrous!’ Hubert exclaims.
‘Absolutely outrageous!’ Marjorie agrees. ‘What on earth did you do?’
‘Well, I was a bit lost for words at first, I don’t mind telling you,’ Legless admits. ‘But after a couple of seconds I recover enough to stand up and ask Gulivant if the jury might retire for a few minutes. He looks puzzled. “Apparently you haven’t been following the proceedings, Mr Dunblane,” he says, “I’ve just asked them to retire.” “Yes, your Lordship is quite right,” I reply. “But what I meant was, not retire to consider their verdict, but retire so that I might address your Lordship on a point of law.” So now I’ve used the magic words, haven’t I? I mean, surely, they’ve told him that much: once you hear the words “point of law”, you get the jury out quicker than you can say Court of Appeal. Not a bit of it. Gulivant considers for a moment or two and says, “I’m not sure that’s necessary. If it is a matter which concerns their deliberations, I think they ought to hear it.”’
‘Oh, for heaven’s sake,’ Marjorie protests, ‘you were trying to bail him out. He was making a complete fool of himself.’
Legless thumps the table.
‘Exactly, Marjorie. He’s in the water, waves breaking over his head, sharks circling, I’m throwing him a bloody lifeline, and it doesn’t even cross the stupid man’s mind to grab it. I turn to Jeffrey for inspiration. Nothing. Jeffrey’s gone, in a coma, eyes glazed over. So I have to press on alone. “With great respect, my Lord,” I say, “it may be better for my learned friend and I to mention this matter in the absence of the jury, just in case we have to go into matters that may not concern them” (“such as your total bloody incompetence,” I’m thinking to myself). Long seconds pass, Gulivant eyes the lifeline: will he take it, or won’t he, will he, won’t he? “We’ll cross that bridge if we come to it, Mr Dunblane,” he says. By now, of course, the jury are all ears. They know the case is about to get screwed up. No point in buggering around. He’s going down for the third time, and there’s nothing I can do to stop it.’
‘What a prat!’ Marjorie exclaims. ‘Where do they get these people from?’
‘The Planning Bar,’ Legless mutters venomously. ‘So I say, “As your Lordship pleases. I was simply going to remind your Lordship, respectfully, that it is the usual practice in these courts to offer the jury some direction about the law before they retire to consider their verdict.” At last I get a response. Gulivant gives me a look that says, “Oh, God, yes, that rings a distant chord. I’m sure they told me something about that before they sent me here. What the devil was it?” Even now, he could be saved. If he sends the jury out, he can sit there for a few minutes while I tell him the facts of life. He will look stupid in front of the Bar, but at least he can rise until after lunch and give himself the chance to cobble something together for the jury. But no. He still doesn’t quite believe me, so he reaches for Archbold. What does he think he’s going to find in Archbold, for God’s sake – a passage that says summing up is optional? Of course, ten seconds later he’s realised what a total tosser he looks, and he’s trying to put Archbold back down again without anyone noticing. “Yes,” he says slowly, “I take your point, Mr Dunblane. What would you like me to tell them in this particular case?”’
Marjorie gasps. ‘Oh no!’
‘At this point, for all I care, he could bloody well drown in full view of the jury. Jeffrey has emerged from his coma by now, and is silently mouthing some suggestions. “Well, my Lord,” I say, “it’s usual to begin by explaining to the jury their function and your Lordship’s function in the trial, and then to mention the burden and standard of proof.” Finally I’ve said something he recognises. “Ah yes, you mean, the prosecution must prove its case against the defendant,” he says, “that kind of thing?” “Your Lordship puts it perfectly,” I say. “Many judges also remind the jury that the prosecution must prove the case so that they are sure of the defendant’s guilt. That kind of thing.” He nods doubtfully, as though he thinks that might be going a bit far. “Yes, I’m most obliged, Mr Dunblane,” he says. And then…’
Legless has to reach for his coffee again.
‘…and then, bugger me if the stupid sod doesn’t turn to the jury and say, “Well, there you are, members of the jury, you’ve heard what counsel has said, and of course that’s exactly right. Bear that in mi
nd.” Whereupon he invites them once more to retire to consider their verdict.’
Around the table we are shaking our heads sadly.
‘What on earth did you do?’ I ask.
Legless shakes his head dismissively. ‘Nothing I could do, short of giving him a summing-up-for-beginners lecture. As soon as he had risen, obviously, I told Jeffrey I wouldn’t resist the appeal, so worst case scenario, his client would be out on bail pending appeal within a few days. Mercifully, the jury acquitted. I think they realised what a bloody shambles it all was and decided to pull the plug.’
‘You see, that’s the problem,’ Marjorie says. ‘What was needed was for the poor sod to be convicted, for Jeffrey to appeal, and for you to stand up and say you couldn’t in all good conscience seek to uphold a conviction obtained following such a monumental judicial cock-up. Then Gulivant gets a bloody good bollocking from the Court of Appeal. They would have moved him out of the criminal courts in double quick time then.’
Legless nods.
‘Yes. As you say, Marjorie, that’s what it needed.’
All of which may help to explain the look on Stella’s face – and mine – when she comes into my chambers just before I am due to go back into court at two o’clock with terrible news. As I may have mentioned before, our list officer has a gloomy disposition at the best of times, but when she has bad news to impart you actually feel the angel of doom hovering above the room.
‘Mr Justice Gulivant will be with us next Monday,’ she says in a tone of voice she might have used to announce the sinking of the Titanic. ‘He’s coming to try the Foggin Island case.’
I look at her blankly. I don’t know how we ever got the Foggin Island case in the first place. It has no geographical connection with Bermondsey at all. I seem to recall that it had been passed round a number of Crown Courts on the circuit, including Bermondsey, while the Grey Smoothies tried to find one mad enough to take it. It was like pass the parcel, and I had been fairly sure that we were not left holding it when the music stopped.
It had taken some effort. Stella and I tried every Crown Court on the south coast, because of the maritime connection. We tried Southwark, where they do a lot of fraud cases. At one point I even approached the High Court to suggest that it was really a case for the Admiralty jurisdiction, and so belonged in the Queen’s Bench Division. No luck. It was only when I approached the Old Bailey that I was able to move it. I played shamelessly on their sense of their own image. They are always flattered over there when you offer them what seems to be a complicated, sophisticated case with a bit of law in it. They said they would take it. How in God’s name has it found its way back to Bermondsey?
‘We got rid of that to the Bailey,’ I protest. ‘Too complicated, we told them, matters of law, possible diplomatic repercussions, should be tried by a High Court judge or at least an Old Bailey judge, that kind of thing.’
‘They sent it back,’ Stella replies. ‘They claim they don’t have a courtroom to spare, and it’s got to come on this week, so they’re sending Mr Justice Gulivant here to try it. I suppose I’ll have to put him in court one, won’t I?’
That’s another annoying thing. Question of rank. I have to vacate my courtroom and chambers and move to a broom cupboard laughably known as court five for the week. In addition, I lose a courtroom for our usual workload, which doesn’t go away. And I have to defer to him at lunch, listen patiently to those marvellous old jokes from the world of urban planning. We don’t often get a High Court judge visiting at Bermondsey, but when we do it buggers up the whole court for a week.
‘I suppose so,’ I reply. ‘Well, you never know. Perhaps it will plead.’
I know better than that, obviously. They never plead when you want them to. The Foggin Island case is especially unlikely to plead. The defendant is barking mad; he thinks he is about to make history in the sphere of public international law; and he is represented by counsel only marginally less delusional than he is. Plus, they’ve got Stephen Gulivant trying it. Plead? You could get shorter odds on Tranmere Rovers winning the cup. No, Foggin Island is not going to plead. It’s going the distance, and so am I. Oh, and did I mention that it’s not a simple matter of guilty or not guilty? The defendant is pleading sovereign immunity. Gulivant will have to sort that one out, first.
* * *
Monday morning
‘Stephen,’ I exclaim, as Stella shows him in. ‘How delightful. Welcome to Bermondsey. And we will have you for at least a week, I understand.’
‘It’s awfully kind of you to let me use your court and chambers, Charles. Quite uncalled for, but very much appreciated. I’m sure I shall feel quite at home at Bermondsey.’
‘It’s the least we can do. Please ask your clerk to let me know if you need anything. I’m just along the corridor. Dawn will be your usher. She will bring you your order form for lunch.’
‘Marvellous. Look, if you have any odds and ends, sentencing, a dangerous driving perhaps, something like that, I’m only too happy to pitch in and help.’
‘Very kind, Stephen,’ I reply. ‘Very kind indeed. Stella will let you know if there’s anything.’
That is not about to happen. High Court judges always make a show of offering to help, in that ‘we’re all on the same team’ sort of way, to show they can get down and dig dirt with the rest of us. But one of the first lessons you learn as an RJ, often the hard way, is that you can’t afford to indulge them. Let Stephen Gulivant loose on sentencing a dangerous driving? I feel the ice forming on my spine just thinking about it. He would either disqualify some poor sod for fifty years or give him an absolute discharge, and that would be just for starters. No. Gulivant won’t be getting his hands on anything at Bermondsey except Foggin Island. To which he’s welcome.
I sit at ten-thirty. Everything is fine until just before eleven o’clock. I’m due to try an offensive weapon case, a day to a day and a half, perfectly straightforward. But first, I am hearing a bail application. Chummy is charged with three counts of fondling his partner’s ten-year-old sister, plus an ABH against the partner by pushing her down the stairs and kicking her in the head when she confronts him about it. He has a long record, mostly for petty dishonesty and possessing cannabis. But he also has one for indecent assault on a fourteen-year-old from about five years ago. His counsel calls this an ‘historic’ conviction, as if to suggest that it belongs to some distant time, so long ago and far away that it would obviously be unfair to hold it against him now.
‘The facts of the case are very much in dispute,’ she says without elaborating. ‘In addition, your Honour, it would be counter-productive to leave him in custody. He’s in regular work as a roofer with his brother’s company in Bow. He is supporting his elderly mother, who is confined to the house, as well as his seven-year-old son.’
‘That would be his son by his present partner, would it?’ I ask.
Miss Phipson purports to study her brief carefully. I feel a bit sorry for her. I like Emily Phipson. She’s rather short with severe black-rimmed spectacles, and always wears the same conventional black suit. She sometimes comes across as a bit nervous, and she certainly doesn’t set the courtroom on fire. But she’s good on the law, always well prepared, and she doesn’t take too much time, virtues that more than outweigh any faults she may have. The bail application is hopeless. She knows it, and she knows I know it, but she is doing her best, showing some enthusiasm as she goes through the motions.
‘Well, actually, Your Honour, no, a previous partner.’ She moves on quickly. ‘He has strong ties to the community. He can reside at his mother’s house. There can be a curfew each evening. He can be ordered not to approach his partner or the alleged victim. He will report every day at his local police station. In my submission, those conditions would be enough to satisfy the prosecution’s concerns.’
She looks up at me. I tell her she has said all she could, which she has. I explain
to Chummy that despite his counsel’s excellent and persuasive arguments, I feel unable to extend him bail at this time because there are substantial grounds for believing that he might commit further offences. By which I mean, though I don’t spell it out, having another go at the little sister or bullying her into retracting her story, or, probably, both. Chummy submits to being taken down with ill grace. Next I’m due to sentence a habitual burglar, something I always enjoy. But it’s not to be. My clerk, Carol, stands and whispers confidentially.
‘Sorry, Judge. Message from Mr Justice Gulivant. Something has come up in court one. Would you mind rising and speaking with him in chambers?’
I glance at the clock.
‘But it’s only just after eleven,’ I whisper in reply. ‘He hasn’t had time to…’
She looks at me questioningly. I stop myself before I say anything undiplomatic.
‘I’m sorry. I have to rise for a short time,’ I announce to a mystified courtroom.
I make my way quickly along the corridor to chambers one, removing my wig en route. Gulivant is already there pacing up and down, looking mortified. I’m assuming the worst, though I can’t imagine what it could possibly be.
‘I can’t do it,’ he says.
‘Can’t do what?’
‘Foggin Island. I can’t do it.’
