Walden of Bermondsey

by Peter Murphy

  ‘But Miss Phipson is telling me that I shouldn’t let them in because it would affect the fairness of the trial,’ Gulivant protests.

  ‘Yes, of course she is,’ I reply. ‘She is representing the defendant. It is her job to say things like that, and I am sure she said it very well. But I am sure Piers Drayford explained the prosecution’s view – that the evidence is admissible because it shows that Martin has a propensity to carry weapons in public.’

  ‘Yes, they both argued the point very well,’ Gulivant says, ‘so much so, in fact, that I decided that the only safe course was to adjourn the matter for a short time and think about it. I have looked at…’

  ‘Archbold.’

  ‘Archbold. But it doesn’t make the law clear at all. So I have sent the jury away until tomorrow, and I have asked for a short skeleton argument from both sides by two o’clock. I shall consider it this afternoon and rule tomorrow morning.’

  I am speechless for some time.

  ‘Stephen, I’m really not sure that’s going to help you,’ I say eventually. ‘It’s a judgement call. You have to ask how strong the evidence is, and balance that against the prejudicial effect on the defence, bearing in mind that you will be giving the jury a careful direction.’

  ‘Yes, but I have to make sure that we look at all the relevant decisions of the Court of Appeal,’ Gulivant insists.

  ‘That’s why you have Archbold, and that’s why you have counsel,’ I reply. ‘Trust me, Stephen, they do this kind of thing day in, day out.’

  ‘I am sure they are both very able,’ he says. ‘But it’s not like being at the High Court, Charles. We are a bit out in the sticks here, aren’t we? You don’t seem to have a full set of law reports.’

  I am experiencing a serious rise in temperature now.

  ‘Look, would you be interested in hearing how I would deal with it?’

  ‘No, Charles, I wouldn’t want to let your views affect me. It has to be my decision, after all.’

  ‘But that’s one reason we all have lunch together. We ask for each other’s views on questions like this all the time.’

  ‘Very kind, Charles, but…’

  Legless looks as though he is about to choke again. I shake my head helplessly. There is nothing I can do. I am too busy with Foggin Island. There is probably nothing I could do anyway, regardless of Foggin Island.

  * * *

  Tuesday afternoon

  This afternoon we hear from Suzy Callaghan, Minister without Portfolio, who appears in a fetching red dress, rather low cut, with lashings of lipstick and make-up and high-heeled red shoes. Mercifully, her evidence doesn’t take long, and it seems superfluous to record it in any great detail.

  In summary, she chose to exercise her right of self-determination with the defendant and Mr O’Toole, not out of any political considerations, and certainly not to evade the police, but because she has always fancied living in the Channel Islands on account of the climate being preferable to that of Liverpool. She concedes that she was a bit discouraged when she saw Foggin Island for the first time, and has been frustrated by the slow pace of development of Foggin City. But His Majesty has given her certain assurances about that, and has also committed his Government to constructing a small beach resort on the south side of the Island, where she can work on her tan, and play a modest role in welcoming the inevitable stream of tourists who will arrive from the Continent once the word gets round, and once there is a hotel available. She knows nothing about the financial affairs of the Kingdom, and proves unable to find Luxembourg on a map of Europe when invited to do so by Mr Warnock in re-examination. All in all, ‘without portfolio’ sums her up rather well.

  By the time we finish with Miss Callaghan it is about three-thirty, and all counsel concur that we should break for the day now in order to prepare for the extensive exploration of customary public international law which must take place tomorrow. Both sides will have their experts available in case their written reports are not clear enough. On my way out, I stop in chambers five to see if I can be of any help to Gulivant on the question of evidence of bad character. He is not there. I call Stella, who tells me that the judge has left for the day to ponder his decision on the bad character evidence.

  * * *

  Wednesday morning

  Elsie and Jeanie seem particularly pleased to see me today, and Jeanie prepares my latte with great verve. Neither complains about life at all. Next door, even George can’t find a bad word to say about the Labour Party, and he has my copy of the Times ready with a cheerful ‘morning, guv, how are we today?’ It’s all so out of character that it is positively unnerving. I find myself looking around suspiciously. I am not sure whether to regard this showing of collective bonhomie as encouragement for the day ahead or an omen of impending disaster. That’s what this job can do to you. Cynicism can become a way of life.

  On my desk I find an unfamiliar black file folder with a small white label which reads, ‘Foggin Island: Further Legal Materials’. Attached by a paper clip is a note addressed to me, which reads as follows:

  Charles,

  I am really sorry that I had to land you with this case. I’m even sorrier that, in all the excitement of Wayne Martin, I completely forgot to give you this file.

  Perhaps I can make up for it partially by giving it to you now. If the author is right, I think it would mean that you need not consider the acquisition of unclaimed territory by conquest or occupation at all. It would all be completely irrelevant. I found it again last night. I knew I had it somewhere. It’s a bit of legal research I had done some time ago, when they first told me I might have to deal with the case. When I say I had it done, I mean that I used undue influence to enlist the aid of my daughter-in-law, an academic at Nottingham who happens to specialise in public international law. It’s useful to have contacts sometimes. It all seems perfectly comprehensible. I hope it helps.

  SG

  I seat myself behind my desk and start to thumb through the file. At first, I am discouraged. ‘Perfectly comprehensible’ is not how I would choose to describe a paper on customary international law – replete with the opinions of the most learned jurists from Grotius onwards; decisions of the International Court of Justice; reports of various agencies of the United Nations; and sundry other oddities far removed from the daily practice of the Bermondsey Crown Court. My thumbing picks up speed as my eyes gradually glaze over. But then – suddenly – there it is: paragraph 36, headed ‘Conclusion’. I read it carefully. I find that the conclusion is not only perfectly comprehensible, but may even be the answer to my prayers. It brings such a palpable feeling of relief that I briefly feel the urge to cry.

  For the reasons stated above, the defendant cannot make a claim to have acquired the territory of Foggin Island by conquest. For this to apply, it would have to be shown that no State had claimed sovereignty over the Island, or that any such claim had been abandoned. The defendant appears to rest his case on the proposition that the United Kingdom has not taken any positive steps to exercise sovereignty over the island. He points to the absence of any British activity on the Island, except for the lighting of beacons on certain occasions during the Armada Crisis and the Napoleonic Wars. But this is easily explained by the fact that England expressly ceded Foggin Island to France as part of the Treaty of Calais in 1360, a fact which the defendant appears to have overlooked.

  This fact demonstrates that England had already claimed sovereignty over the Island before 1360, because you can’t cede sovereignty unless you have first claimed it, and unless the party you are ceding it to recognises your claims. It also demonstrates that France acquired sovereignty over the Island with effect from the date when the treaty was signed. This, of course, would account for the lack of subsequent activity on the part of Great Britain, apart from the lighting of the beacons (which would technically have constituted a violation of French sovereignty). The French g
ained title to the Island by signing the Treaty of Calais; they did not acquire the territory by conquest; and they were under no obligation to occupy the Island to preserve their claim. I have seen no evidence that they have ever evinced any intention to abandon sovereignty. I conclude that the defendant’s claim to be King of the Sovereign Territory of Foggin Island has no merit. For more detail, see paragraph 21, above.

  I turn hurriedly to paragraph 21. It explains that the Treaty of Calais, ratified in that city on 24 October 1360 by the Kings of England and France, brought to an end the first phase of the Hundred Years War. Under its provisions, Edward III renounced all claims to the French throne, and ceded a certain amount of territory to France. But he also acquired a good deal of far more useful territory from France, which consolidated his holdings in Aquitaine; not to mention the small matter of three million gold crowns for the ransom of the French King, who had been captured at the Battle of Poitiers. Mentioned as one of the territories ceded by Edward is a certain ‘Fogeyne Isle’, or in French, ‘L’Ile des Fougains’. There is no ambiguity at all. This is the island I have been hearing about for the last three days. Apparently, Edward’s ceding of the Island was widely seen at the time as a cunning act of statesmanship. It allowed the French the satisfying feeling of acquiring land dangerously near to the English coast, while the actual cost to England was a lump of rock of no practical value at all. This no doubt explains the absence of any French attempt to colonise it since 1360.

  The author offers an alternative view. She speculates that the inclusion of L’Ile des Fougains might have been no more than a bit of late-night treaty-drafting humour. The negotiators on both sides, she says, all knew each other quite well and often got together for a few jars once the day’s work was done. She thinks the island may have been written into a draft for a laugh one evening after a few glasses of Malmsey. The intention was to take it out before the final draft was prepared, but it was somehow left in – the opposite of what happened to the city of Berwick-upon-Tweed, which apparently remained at war for several centuries after the rest of the country was at peace, as a result of being left out of a peace treaty. Either way, the result is the same. L’Ile des Fougains is as much a part of France as L’Ile de la Cité.

  I am not sure I can adequately describe the sense of relief this report brings me. The prospect I have been facing is of two days of legal argument in the alien field of public international law, the question being whether international law continues to recognise the right of acquisition of territory by conquest or occupation; and if so, whether a group consisting of Walter Freedland Orlick, Eustace O’Toole and Suzy Callaghan is entitled to exercise that right. There will be a side trip into the area of the right of self-determination of peoples. Not only will I have to read numerous learned treatises and articles dealing with these subjects, but I will also have to hear from experts, professors of international law, one of whom is being whispered about as a future judge of the International Court of Justice. As if this were not bad enough, at the end of it all I, Charles Walden, Resident Judge at the Bermondsey Crown Court, will have to make a decision about who is right; a decision which will be subject to intense scrutiny by people who know far more about this than I do – including the Court of Appeal and the Supreme Court. But now, suddenly, I sense a reprieve. I feel like a condemned man suddenly pardoned and set at liberty.

  I make my way into court and take my seat on the bench with a new spring in my step. Warnock is standing, positively beaming at the prospect of the mouth-watering legal argument he is about to launch. I decide not to intervene immediately. After all there is no hurry now. Best to bide my time, make him commit himself to his propositions of law.

  ‘Your Honour,’ he begins, ‘we submit that conquest or occupation remains an acceptable way of acquiring territory for the purposes of public international law. My learned friend Mr Mapleleaf concedes that this was once the case, but will seek to argue that it is no longer recognised. He asserts that today, international law does not support wars of conquest, or even peaceful conquest as a method of acquiring territory. Your Honour will have seen the authorities on which we rely, and our expert witnesses on international law are ready to give evidence. I do, however, draw your Honour’s attention to one matter which arises in connection with Great Britain, which may differentiate the case from those involving some other countries.’

  I look up questioningly.

  ‘What would that be, Mr Warnock?’

  ‘Well, it’s a question of the pot calling the kettle black, isn’t it?’

  Warnock is looking at me with his usual smile, as if his point is an obvious one which requires no further elaboration.

  ‘Is it?’

  ‘But, of course, your Honour. For this country to complain about conquest and occupation is absolutely outrageous, given the proportion of the earth’s surface Great Britain colonised by means of military invasion and occupation over the years. I don’t know whether your Honour had the same sort of map as I had as a child, with much of the world coloured pink?’

  Mapleleaf is holding his head in his hands.

  ‘I did have such a map,’ I concede, ‘as I am sure we all did in those days. But I have the impression that they are regarded as a bit politically incorrect these days.’

  ‘Well, they are,’ Warnock concedes. ‘But the point is that it’s a bit much for the Government of this country to criticise someone for doing what the defendant has done in this case, given that it presided over an entire Empire well within living memory. One only has to consider England’s annexation of Wales in the time of Edward I. An act of the most blatant military occupation and conquest.’

  ‘I wasn’t aware that the pot calling the kettle black had entered the sphere of jurisprudence, Mr Warnock.’

  Mapleleaf looks up and actually gives me a thin smile – a rare compliment for him to bestow on a circuit judge.

  ‘I will come to that in due course, if I may?’ Warnock replies. ‘May I first summarise my arguments? I submit first that the evidence given yesterday by Mr O’Toole and Miss Callaghan makes it quite clear that there was an occupation of Foggin Island by the defendant and the two witnesses. On that basis, my argument will have five main strands.

  ‘First, I maintain that occupation and conquest remain valid ways of gaining sovereignty over territory in appropriate circumstances.

  ‘Second, I will advance the estoppel argument, which I believe to be a new one in international law: that it would be wrong to allow Great Britain to oppose the defendant’s claim to sovereignty, given the way in which so much British territory was acquired in the past. It would simply not be right to allow the Government of this country to make the argument that conquest and occupation are no longer recognised.

  ‘Third, I will demonstrate that the defendant, Mr O’Toole and Miss Callaghan are capable in law of constituting a “people” for the purpose of enjoying the right of self-determination of peoples.

  ‘Fourth, I will argue that as a “people”, they are entitled to the democratic right of choosing the system of government of Foggin Island.

  ‘Lastly, I will show that, as they have recognised the defendant as King of Foggin Island, and as such the defendant is entitled to advance the plea of sovereign immunity, the courts of this country have no jurisdiction over him and he is entitled to be dealt with on Foggin Island in accordance with Foggin Island Law.’

  I resist the temptation to inquire about the sources of Foggin Island Law and the details of the Island’s court system. These things take time, after all.

  Warnock pauses for breath and turns over a page in his notes.

  ‘I begin with my first point.’

  But I’m not sure I can reconcile myself to a day of listening to Warnock’s five points and having his experts tell me that Great Britain has forfeited the right to protect its territory against invasion because of Edward I’s annexation of Wales. Besid
es, if the information I have is right, it can’t make the slightest difference. The time has come. I abandon my original plan, and jump in without further delay.

  ‘Mr Warnock, I am sorry to interrupt you, but am I right in thinking that your argument, that the defendant acquired the territory of Foggin Island by conquest or occupation, depends on the proposition that there is no evidence to show that Great Britain has claimed or exercised sovereignty over the Island?’

  ‘Yes, your Honour.’

  ‘The lighting of a few beacons at intervals of a few hundred years being insufficient for that purpose?’

  ‘Yes, your Honour.’

  I can tell that Warnock is a bit taken aback. I don’t think he had expected me to do my homework.

  ‘And of course, on the proposition that no country other than Great Britain has claimed or exercised sovereignty over the Island?’

  This, Warnock regards as self-evident. How could that ever have happened?

  ‘Yes, of course, your Honour.’

  ‘In that case,’ I continue, ‘I think it advisable to adjourn the matter for a suitable period of time, to allow both parties to remind themselves of the provisions of the Treaty of Calais, 1360.’

  There is total silence in court. I see Warnock and Mapleleaf eye each other nervously, as their juniors flick rapidly through their files. I smile. I know they are not about to find anything there. If they knew about the Treaty, I would have heard about it from somebody by now. Both counsel are waiting patiently for me to elaborate. I have no intention of doing so. That would make it far too easy. But to avoid wasting too much time, I provide them with references to the sources referred to by Gulivant’s daughter-in-law.

  ‘Once you have had the opportunity to consider the Treaty, you may wish to revise your arguments to some extent.’ I pause, deliberately, for effect. ‘And if I may make a further suggestion, you may think it advisable to inform someone at the French Embassy of your findings. It occurs to me that the French Government may want to be heard before I make my decision, and it would be quite wrong of me to deny them that opportunity. Shall we say ten-thirty tomorrow morning, for now? If you need further time, let the court know during the afternoon.’