by Peter Murphy
For a precious moment, I have the illusion that Gulivant has finally confronted his own inadequacy. A High Court judge has finally acknowledged that he is out of his depth in crime. The temptation to agree is almost overwhelming, but this is not the time to indulge myself. I need this bloody case to go away. Gulivant has to do it, whether he thinks he can or not. Only one option: offer encouragement; shore up the judicial ego a bit; talk him through it. If he survives till lunch he will probably be all right. Probably best to try to convince him that it’s just like a planning appeal really, except that someone could go to prison. Once he gets into the case he will feel more at home. But my interpretation of ‘can’t do it’ turns out to have been – in words the Court of Appeal once employed when reversing what I fancied as one of my better rulings – fundamentally flawed. Confession of inadequacy is not what he intended at all.
‘My wife is an honorary trustee of the Goldbreaker Trust,’ he says apologetically. ‘I didn’t realise the Trust was involved until the case was being opened.’
I’m still trying to work out what in God’s name he’s on about when, mercifully, he explains.
‘The Goldbreaker Trust is one of the bodies defrauded by the defendant – allegedly defrauded I mean, of course. I can’t do it, not with my wife involved with one of the Trusts. I have a clear conflict of interest.’
I sit down in something of a daze. He’s right, obviously. It is the clearest possible conflict of interest and there is nothing he or I can do about it. It’s also really bad news. I see what’s coming next in an instant.
‘I told the parties, of course, and they agreed. So I said I would talk to you and ask you to take over for me.’
I hold my head in my hands.
‘I will be happy to release it to you, Charles. I have every confidence in you.’ Gulivant smiles. ‘I’m not sure it really needs a High Court judge, anyway. I don’t see why an experienced circuit judge such as yourself couldn’t manage it.’
‘Very kind of you to say so, Stephen,’ I mutter weakly. I have no choice, of course. It’s the price of high command that you have to take responsibility in a crisis. There is only one consolation, and I grab it with both hands. ‘I’ll need court one, I’m afraid. Too many papers for court five, no room to put anything.’
‘Oh, yes, of course. I’ll sit in court five. Let me take over whatever you were going to do. Were you going to start a trial?’
‘Possessing an offensive weapon,’ I reply, ‘silly little case, day and a half at most. But there’s really no need. I’m sure you have far more important things to do at the High Court. I’ll give it to the first judge who comes free during the week.’
‘Nonsense.’ Gulivant stands smartly up with the air of a man relieved of a crushing burden. ‘Sounds delightful. While I’m off the bench I might as well have a quick cup of coffee, then I’ll make a start. What’s it about?’
I close my eyes briefly.
‘Chummy thinks victim owes him money for cannabis supplied,’ I reply. ‘He asks victim to pay, politely the first time; but victim says he doesn’t have any money until he gets his benefits the following week. Chummy doesn’t buy victim’s story because he happens to know that he has been seen in the pub, as usual, and he comes back half an hour later with a baseball bat. He’s chasing victim through the park when he runs straight into two police officers, who nick him for possessing an offensive weapon. He is arrested and cautioned and replies, “I was just looking for someone to play third base. Can you spare an hour or so?” Open and shut, but he’s got form for the same thing, so he won’t plead. You can have the jury out tomorrow, Wednesday morning at the latest.’
Gulivant has been scribbling notes.
‘Good, so the defendant’s name is – how do you spell it C-H-U-M-L-E-Y or C-H-O-L-M-O-N-D-L-E-Y?’
I stare at him for a few seconds.
‘No, I’m sorry, I said “Chummy.”’
He looks blank.
‘It’s… just an expression we use. The defendant’s name is Martin, Wayne Martin. He’s one of our regulars.’
Mercifully, Gulivant leaves without asking anything else. He’s got good counsel in front of him, Piers Drayford prosecuting, and Emily Phipson defending. They will explain it all to him.
Reclaiming my seat behind my desk, I turn to Foggin Island. Sovereign immunity? They must be joking. There is nothing useful in Archbold, which means I am pretty much up the creek without a paddle unless counsel have done some work on it. There is not much chance that what passes for the library at Bermondsey Crown Court will have a volume dealing with sovereign immunity. A trip to the Inner Temple library threatens – a place I have not visited more than twice since passing my Bar finals, many years ago. As if that’s not bad enough, I haven’t read the papers since I lobbed the case over to the Old Bailey, fully expecting never to see it again.
The papers are neatly arrayed in front of me in a series of fifteen differently-coloured file folders. Pointless to start before I at least glance at them, so I send word to court one that I will begin Foggin Island again at two o’clock, and I leave Wayne Martin to Gulivant in court five. I begin reading. Fortunately, prosecuting counsel has produced a summary of the case. After about twenty minutes of reading, it seems obvious that they’ve got Chummy bang to rights on six counts of fraud, and very likely, on two or three counts of money laundering. I briefly feel reassured. Until I get to the section dealing with sovereign immunity. I start to explore this magical world of public international law for the first time. My, how the minutes fly by.
And so to lunch, an oasis of calm in a desert of chaos.
As I enter the dining room, only Legless is seated at the table. He is playing rather unhappily with a mackerel salad.
‘How’s it going?’ he asks. ‘I hear you had to take Foggin Island over from Mr Justice Urban Planning.’
‘I did indeed. His wife may be one of the victims. I’m starting it at two o’clock. You don’t look too happy. How is your list going?’
‘My list went very well,’ Legless says. ‘I had an attempted robbery at knife-point. Chummy pleaded at the last moment and I sent him down for eighteen months. After that, Stella gave me a bit of plea and case management, and I took your plea to burglary, and Bob’s your uncle. Then I made the mistake of asking whether I could help any of the other courts.’
‘Not Gulivant, I hope,’ I smiled nervously.
‘No. Marjorie.’
‘Where is Marjorie?’
‘Gone to the children’s school again. Simon or Samantha, don’t know which, has been detained on suspicion of having the mumps. I said I would take her list. Bloody long one, too. I’m going to be here all day.’
I make sympathetic noises. I was in a rush this morning and didn’t buy my usual lunch chez Elsie and Jeanie. I have ordered the cheese omelette, which arrives looking even drier than they usually do. As I’m making a start on it, Gulivant comes in and takes his seat at the window end of the mess, as if by divine right.
‘How’s the offensive weapon?’ I ask. ‘Almost finished the prosecution case by now, I expect.’
Gulivant has ordered a prawn sandwich on brown bread from which he is carefully removing the cellophane wrapper. He shakes his head.
‘Bloody complicated, these offensive weapons cases,’ he replies. ‘You might have warned me, Charles. It’s got some difficult issues of law.’
‘Really?’ I ask. ‘I didn’t notice anything when I read the file. What seems to be the problem?’
‘Well, it’s not the kind of thing you could really call a weapon, is it?
‘What isn’t?’ Legless inquires.
‘A baseball bat.’
Legless raises his eyebrows at me. I close my eyes.
‘Why not?’ I ask.
‘Well, a baseball bat is for playing baseball, isn’t it?’ Gulivant asks. ‘It’s not a weapo
n. I mean, you could do damage to someone with almost anything if you really put your mind to it. When I was at school, a chap caused an injury to another boy using a squash racquet.’
‘That’s the point,’ I explain. ‘There are really two kinds of offensive weapon. There are some items, such as a flick knife, which are made or adapted for causing injury to the person. They are called offensive weapons per se. A baseball bat is not made or adapted for causing injury to the person, so it’s not an offensive weapon per se, but it becomes an offensive weapon if Chu… if the defendant intends to use it as such. The prosecution say he was going to hit the victim over the head with it, so at that point, it becomes a weapon.’
‘Well, I read what it says in…’
‘Archbold?’
‘Archbold, yes. But it wasn’t at all clear. There seem to be several conflicting decisions of the Court of Appeal. For one thing, I’m not sure whether it is a matter of law for me, or a matter of fact for the jury. I have a nasty feeling this case may go further.’
I feel a sense of rising panic. The case of Wayne Martin shouldn’t be going anywhere, except away, by Wednesday at the latest.
‘The law shouldn’t be an issue in this case, Stephen,’ I reply as calmly as I can. ‘It’s a strictly factual question. Just explain the law to the jury and leave it to them to decide.’
‘I’m not so sure,’ he says.
‘Look, can I suggest that you ask counsel? You’ve got Piers Drayford and Emily Phipson. Both very good. They will tell you all about it. Piers will set it out in his opening.’
Gulivant shakes his head.
‘I don’t want to have it opened to the jury until I am satisfied about the law. Anyway, I have asked counsel to address me about it at two o’clock.’
I take a deep breath. I can’t allow this to upset me. I have too much to do. I do my best to relax. Piers Drayford and Emily Phipson will explain it all to him. If he gives them the chance.
* * *
Monday afternoon
Despite my reading this morning, my knowledge of the Foggin Island case is still rather vague. So I’m depending on Derek Mapleleaf QC, who is prosecuting, to explain it all to me. I’ll have to take copious notes, bluff my way through until four o’clock, and then have another quick scan through the files before I go home.
Mapleleaf is tall, emaciated, and bespectacled. He believes himself to be a High Court judge in waiting. You can tell by the air of superiority. Circuit judges are a bit beneath him, as indeed is the Bermondsey Crown Court. He looks around as if he is perplexed about how he came to be here, and must speak to his clerk to make sure it doesn’t happen again. Mapleleaf is thorough and detailed, boring to the point of stupefaction, and had his sense of humour surgically removed before coming to the Bar. But he may be just what I need in this case. My only hope is to pick up as much about the case as I can in the shortest possible time. Behind him are seated two juniors, plus a number of men in dark suits, presumably government lawyers, and a sprinkling of young people with Apple laptops whose reason for being in court is unclear. All a bit intimidating. I’m actually beginning to believe my own propaganda to the Old Bailey about this being a case that should be tried by a High Court judge. But it’s too late for that now.
‘May it please your Lordship – I’m so sorry, I mean your Honour, of course,’ he begins, unable to resist rubbing it in. ‘I appear for the Crown, together with my learned friends Mr Stewart and Miss Anderson. My learned friends Mr Warnock and Mr Gatley appear for this defendant, Walter Freedland Orlick.’
Walter Freedland Orlick is sitting in the dock wearing a dark suit and a grey tie with white spots, of the kind that was in vogue for weddings in the early seventies. He has his hands folded across his lap, and is looking up and away to the right, affecting disdain for the proceedings. His counsel, Kenneth Warnock, lunatic of this Parish, sits to Mapleleaf’s left. As is his wont, Warnock is smiling up at the bench for no apparent reason. The smile, together with his slightly dishevelled appearance and tattered wig, is actually quite disturbing. We don’t see a lot of him at Bermondsey, but when we do, it’s always memorable. Warnock inhabits a different plane, from which he returns to earth from time to time to put forward a theory of law so novel and original that it is difficult to respond to. This case was made for him.
‘As your Honour knows,’ Mapleleaf is saying, ‘the defendant is charged with six counts of fraud, three counts of money laundering, and three counts of possession of criminal property. All the counts relate to activities undertaken by the defendant in his capacity as managing director of a company called Foggin Island Enterprises SA, which is incorporated in Luxembourg, and whose directors are the defendant himself, a Miss Suzy Callaghan, described as secretary, and a Mr Eustace O’Toole, described as treasurer. I anticipate that Your Honour may hear from them in the course of these proceedings.
‘Essentially, your Honour, the Crown say that over the course of about five years, the defendant obtained almost two million pounds by fraud from a number of trusts, by offering to undertake various accounting and business development services which were never in fact provided. That money was placed in a number of bank accounts in Luxembourg, the accounts being held in the names of companies which appear to have no real existence, and which are no more than alter egos of the defendant, and one of these companies being Foggin Island Enterprises SA.
‘But when asked to plead to the indictment, the defendant submitted a written plea disputing the jurisdiction of the English courts, and asserting sovereign immunity. Of course, that issue must be determined before the case can be tried. So, rather than take your Honour’s time with the detailed facts now, it may be more appropriate for me to defer to my learned friend Mr Warnock. It is a matter on which my learned friend has the burden of proof.’
Mapleleaf sits down abruptly. Warnock rises without interrupting his smile at all.
‘I’m grateful to my learned friend. Has your Honour had the opportunity of reading the papers?’
Warnock and I both know the answer to that question, and we both know the answer I will give.
“I’m sure I must have read them on a previous occasion, Mr Warnock, before the case was sent to the Old Bailey. But I’m afraid my recollection is far from complete. It was only this morning I learned that I would have to take it over from Mr Justice Gulivant, and I have only had a short time.’
In other words, no.
‘Then, I will start from the beginning’, Warnock beams. ‘The defendant enters a plea of lack of jurisdiction based on sovereign immunity. While he is named in the indictment as Walter Freedland Orlick, the defendant is in fact His Majesty King Walter I of the sovereign state of Foggin Island.’
Warnock turns in both directions to glance at those around him, as if expecting a round of applause. Everyone in court knew what was coming, of course, but it is a striking moment nonetheless. I find myself speculating about who might have been the last person to offer a plea of sovereign immunity in an English court. Possibly Charles I, come to think of it, or Queen Charlotte perhaps – not a good omen for the defendant in either case.
‘Accordingly I shall refer to him as “His Majesty” or “the King”.’
‘You will do no such thing, Mr Warnock,’ I protest, ‘at least until such time as I find that to be his proper title. His title at present is Mr Orlick.’
‘As your Honour pleases. To illustrate my submissions,’ Warnock continues, ‘I must take your Honour to the small but significant plot of land known as Foggin Island. Virtually speaking, of course. I am not applying for the Court to visit the island for a view.’
‘I am glad to hear it,’ I say.
‘No. No need. I have a map.’
Warnock snaps his thumb and middle finger, and before you can say sovereign immunity, his junior, Mr Gatley, leaps energetically to his feet, leaves counsel’s row, and seizes an easel which has bee
n leaning against the side wall of the court. The easel has something on it covered by a sheet. Gatley moves it to the front of the court, arranges it so that we can see, and with a final flourish tears the sheet away. The exhibit is a large map entitled ‘Foggin Island and Environs’, which is a bit of an odd way of putting it, as the environs seem to be confined to the waters of the English Channel. Still, it has nice big letters and an amusing representation of a smiling fish emerging from a wave, just so that we are clear we are dealing with water. Warnock edges out of counsel’s row slightly so that he can stand next to the easel. He is armed with a pointer, rather like a conductor’s baton but longer.
‘Foggin Island, as your Honour can see, is situated in the English Channel, just a few miles from Sark. It is a small island, no more than some two thousand metres from north to south and some sixteen hundred metres east to west. Not that it runs exactly north to south, or east to west for that matter, but I’m sure Your Honour follows me.’
I nod.
‘To explain the defendant’s position in this matter, I have to take your Honour briefly through certain aspects of the Island’s history. Of course, I shall make it as short as possible. The origin of the Island’s name is lost in obscurity. Some say it is a reference to the Island’s propensity to morning and evening fog at certain times of year. Others, noting its French title, l’Ile des Fougains, have speculated that it derives from the French word fou, meaning mad, perhaps indicating a French perception that one might have to be mad to live there; though my client would dispute that, of course…’
‘Can we get on, Mr Warnock?’
‘Yes, of course, your Honour. Foggin Island seems to have come to prominence first in the twelfth century, during the reign of Henry II, a monarch who, as Your Honour will recall, was in the habit of making a circuit between his various possessions in England and France…’
There are times as a judge when, with the best will in the world, you go into a time warp when listening to counsel. It’s a form of hypnosis, I think. The monotony of the voice, the efforts to focus on what is being said, a few stray thoughts about the weekend, and suddenly you can come to and not be quite sure where you are or what case you are listening to. It is not necessarily related to how interesting or uninteresting the case is. It’s just something that happens sometimes and takes you by surprise. I recall a fairly long passage in Warnock’s address about the Armada, and later the Napoleonic Wars, when beacons were lit on Foggin Island. But other than that, the centuries pass by rather vaguely. When I return to my body I realise that some time must have elapsed, because Warnock is saying something about the Second World War, which is some centuries from where he started with Henry II. But I have no idea how much I have missed or whether any of it matters. My judicial instinct says no. I glance up at the clock. Mercifully, it indicates almost four o’clock. Time to rise for the day, and see what I can glean from the papers.
