Walden of Bermondsey

by Peter Murphy

  I rise and retire to chambers, to the accompaniment of blank stares from two rows of counsel. I haven’t enjoyed myself as much since I don’t know when. Stella finds me a sentence to while away my otherwise free morning. The defendant is an unpleasant youth of eighteen, who has committed a street robbery of a mobile phone from a much younger boy, and has form for much the same thing. His counsel has warned him to expect a custodial sentence, which he richly deserves. But I am just in too good a mood to do it. I suspect I may just have discovered how Scrooge felt on Christmas morning. I give him a suspended sentence with a lot of unpaid work and order him to pay compensation to the victim. As I rise, I am aware of counsel looking at me as if concerned that I am not entirely well. I really couldn’t care less. It’s very likely I’ll get a second chance, anyway. If his past record is anything to go by, he will fail to show up for his unpaid work and be back in front of me for re-sentencing before too long.

  And so to lunch, an oasis of calm in a desert of chaos.

  We have a full house for lunch today. Marjorie is back, and looking distinctly sheepish about what turned out to be the school’s mistaken diagnosis of mumps yesterday; she has been falling over herself to be helpful to Stella all morning, volunteering to take two sentences that Legless was supposed to do, and a bail application destined for me. Hubert is sitting quietly, inspecting his chicken dopiaza with basmati rice with an air of suspicion.

  ‘Ça va bien?’ Gulivant asks confidentially, with a sly smile.

  I positively beam. I may have to revise my views about having High Court judges to visit. It occurs to me that they can actually be quite useful once in a while.

  ‘Ça va très bien, merci,’ I reply. ‘Counsel are considering the implications as we speak.’

  Legless looks at me inquiringly.

  ‘Stephen has provided me with what may be the key to Foggin Island,’ I say.

  ‘Splendid,’ Legless replies, with the merest hint of sarcasm. ‘And how is the offensive weapon going?’

  The smile fades from Gulivant’s face.

  ‘These things are not at all easy,’ he replies. ‘Now there’s a question of what amounts to a reasonable excuse for possessing the weapon. I’m not at all sure that what the defendant says is capable of amounting to a reasonable excuse. There is no evidence that there was a baseball game in progress anywhere in the park. But leaving that aside, would it matter if he intended to use the bat as a weapon all along?’

  ‘You can leave that to the jury,’ Legless suggests. ‘Reasonable means what it says. It’s a matter for them.’

  ‘Yes, but is that capable of being a reasonable excuse as a matter of law?’ Gulivant asks. ‘If so, I surely have to rule on that before deciding whether or not to leave it to the jury.’

  Legless looks up at the ceiling.

  ‘There is no legal reason why it can’t be a reasonable excuse, Stephen,’ I reply as calmly as I can. ‘It’s a simple factual question for the jury.’

  ‘That’s what counsel say. But I don’t think I can leave it to the jury unless I am sure I have the law right,’ Gulivant objects. ‘Again, it’s a matter of making sure we have looked at all the authorities. I regret to say, Charles, that many of the cases we reverse in the Court of Appeal seem to be the result of not fully considering all the authorities. Of course, now that I have been to Bermondsey and seen the library, I understand how that can happen. But still, one must do one’s best. I’ve asked counsel to look at it in more depth and address me about it this afternoon.’

  The satisfaction I have been feeling about the events of the morning fades rapidly. In fact, I think I may be losing the will to live. Surely to God Wayne Martin is not going to last for four days.

  ‘I’m hoping to get the jury out this afternoon,’ Gulivant replies proudly. ‘If not, first thing tomorrow morning. I think I can keep my summing-up down to about forty-five minutes.’

  I sense Legless about to say something tactless, probably along the lines of forty-five minutes being an improvement over previous performances, and decide to intervene pre-emptively.

  ‘Have you thought about what you will give him if the jury convict?’ I ask.

  ‘Two years,’ Hubert says, looking up briefly from his curry. ‘What is it he is charged with again?’

  ‘Offensive weapon,’ Gulivant replies.

  ‘Oh, that’s a shame,’ Hubert says, sounding disappointed. ‘You may not be able to go as high as two years for that.’

  ‘I think, Stephen,’ I interpose hurriedly, ‘that you will have to order a pre-sentence report before proceeding to sentence.’

  ‘I’m not sure that is necessary,’ Gulivant says. ‘After all, Chummy did chase the victim through the park with a baseball bat, intending to hit him with it, and he has form for the same thing.’

  Gulivant’s belated adoption of the jargon makes Marjorie crack up, and she infects Legless. I look at them sternly.

  ‘Yes,’ I say. ‘But bear in mind his age. You have to consider whether there are alternatives to custody, and you will need a report for that.’

  Otherwise, I add in the silence of my mind, you will find yourself getting reversed by three of your mates for not considering all the authorities. And serve you bloody well right, too. But then, Wayne Martin will end up with a conditional discharge or some such nonsense.

  ‘I got reversed the last time I gave someone two years,’ Hubert says apparently à propos of nothing. Please don’t ask, I pray silently to the room at large.

  ‘On what basis?’ Gulivant asks.

  ‘Some technical rubbish,’ Hubert mutters non-committally, ‘something to do with the maximum for the offence.’

  After staring at Hubert for some moments, Gulivant excuses himself to prepare for the afternoon’s legal argument. Marjorie and Legless can contain themselves no longer, and laugh uproariously.

  ‘Very funny,’ I comment.

  ‘What’s the UK and All Comers record for the length of an offensive weapon case?’ Marjorie asks. She and Legless are now almost hysterical.

  ‘Three weeks,’ Hubert replies.

  Somehow, this restores a delicate silence to the room.

  ‘Three weeks?’ I ask. ‘For an offensive weapon?’

  ‘Oh yes,’ Hubert replies. ‘Down at Winchester, it was. I was defending, Roger Bertrand prosecuting – first rate prosecutor – it was about a year before he took Silk. We were in front of that awful man Waterstone. Yes, I remember it well. Three weeks.’

  ‘How on earth did it last three weeks?’ Legless asks. ‘What kind of weapon was it?’

  ‘A number three iron,’ Hubert replies. ‘No, I tell a lie, it was a wood, a driver. In any case… yes, there were a lot of witnesses, you see.’

  ‘Where was the offence committed?’ Marjorie asks. ‘On a crowded golf course?’

  Hubert shakes his head.

  ‘No, in the city centre. Of course, what took the time were the other charges.’

  ‘Other charges?’ Marjorie asks.

  ‘Oh yes. My chap was charged with the offensive weapon, but there were five other defendants charged with affray and GBH and so on, all separately represented, of course. Oh, I’m sorry. Didn’t I mention that? Well, anyway, we went down, all of us, needless to say, with Waterstone trying it. He wasn’t one to beat about the bush, was he? More or less told the jury to convict when he summed up. Always did. But it did take three weeks.’

  With Marjorie’s repentant appetite for work coming to the rescue of the day’s list, Stella has nothing for me to do for the afternoon. I am about to head for home when I remember that the Reverend Mrs Walden has invited the good ladies of the parish to tea for the purpose of planning the annual service for children and pets, a ghastly event which has unspeakable consequences for the church lasting for weeks afterwards. I can’t face it. Instead, I head into town to the Oxford and Cambrid
ge Club for tea – and, come to think of it, quite possibly dinner as well.

  * * *

  Thursday Morning

  Elsie and Jeanie have reverted to type today. Elsie’s grandson has been caught smoking a substance other than tobacco in the toilets at school and a community support officer has been round for a little chat. Jeanie’s Frank has been spending too much time, and too much of his benefits, at the betting shop again. George looks as though he has had a heavy night and almost hands me the Mail by mistake. But nothing can disturb my equanimity this morning. Last night, buoyed by the memory of a splendid dinner at the Club, I was able to listen with apparent enthusiasm for almost an hour before falling into a contented sleep as the Reverend Mrs Walden related the plans for the children and pets service. And this morning I am looking forward to court.

  When I take my seat on the bench, I see that we have an additional presence, as I thought we very well might.

  ‘Your Honour,’ Mapleleaf begins, ‘the representation for the prosecution and the defence is as it was yesterday. But in addition, my learned friend Miss Sinclair appears today on behalf of the Government of France.’

  ‘Yes,’ I say with a nod to our newest participant. Well, well, we are moving in distinguished circles now. Abigail Sinclair QC, prospective leader of the Circuit Bar, is what is called a heavy hitter. It’s nothing new to her to represent foreign governments, and even with such short notice, she is likely to be well prepared.

  ‘This arises from the invitation your Honour extended to counsel yesterday to examine the Treaty of Calais,’ Mapleleaf continues. He is smiling in such a way as to indicate that he has taken full advantage of the invitation, and rather likes the results. ‘As your Honour foresaw, the prosecution thought it proper to notify the French Government, through proper diplomatic channels, that its national interests might potentially be affected by the present proceedings. Having considered the matter, the Government of France asked to be heard today, and it may be best if I defer to my learned friend Miss Sinclair without delay.’

  ‘Yes,’ I reply.

  Miss Sinclair stands. She is almost as tall as Mapleleaf and has the same High Court demeanour. She looks every bit the distinguished Silk she is.

  ‘I am obliged to your Honour for hearing me on behalf of the French Government in this matter,’ she begins. ‘The Government is concerned that any finding your Honour may make may be interpreted as one affecting the Government’s title to L’Ile des Fougains.’

  ‘That is a proper concern, Miss Sinclair, of course,’ I reply. I can’t resist it – ‘though I must say that before today, the French Government seems not to have taken very much interest in L’Ile des Fougains since 1360.’

  ‘Perhaps not, your Honour. But having been alerted to the possibility of a challenge to its sovereignty over the Island by someone calling himself the King of the Territory of Foggin Island, France is taking a definite interest in it now, as I believe is the British Government. With some reluctance, I must ask your Honour to take one of two courses.’

  Understandably, Miss Sinclair is trying to soften what she assumes is the blow of my having this case removed from my jurisdiction. She starts, of course, with the presumption that a humble circuit judge such as myself would be most reluctant to give up such a sensational case as Foggin Island. Little does she know that, on the contrary, I cannot wait for it to go away. All I have to do now is avoid betraying my true feelings.

  ‘The first possibility, your Honour, is to adjourn these proceedings pending an application by France to the International Court of Justice in The Hague to determine the question of sovereignty over the island under the Treaty of Calais. The ICJ is the proper venue for territorial disputes between sovereign States, and of course, the British Government would be a party to those proceedings. That may take some time.’

  ‘How much time?’ I ask.

  ‘Certainly not less than five years. Probably more like ten. The wheels tend to grind rather slowly over there.’

  ‘What is the second possibility?’ I ask.

  ‘The second possibility is that your Honour finds, in the light of the clear and unambiguous wording of the Treaty of Calais 1360, that France has sovereignty over L’Ile des Fougains as a result of the Island being ceded to France by Edward III. That finding would mean that the defendant’s actions, and the actions of his accomplices, would be a violation of French sovereignty, and would make them amenable to the jurisdiction of the French courts. In that case, we would apply for international arrest warrants and commence extradition proceedings to transfer them to France and prosecute them there. There could be no prejudice to the defendant. He would be free to renew his plea of sovereign immunity before a French court, if he wishes to do so.’

  I smile. I hadn’t thought of that one. This is even better than I had imagined.

  ‘Tell me, Miss Sinclair,’ I ask, ‘if you know: on average, how long would a defendant have to wait on remand in custody for trial in France, on charges of this kind?’

  She shakes her head.

  ‘It can be a long time, your Honour, sometimes as long as two years.’

  ‘I see.’

  I look around the courtroom. The King of Foggin Island seems to have turned rather pale, as have his accomplices and his counsel. Warnock forces himself to his feet. Abigail graciously gives way.

  ‘Your Honour,’ Warnock says, ‘if you would allow me some time, it may be that a third possible way forward may be found, a way which would save everyone a good deal of time and trouble.’

  ‘Certainly, Mr Warnock,’ I reply. ‘Let me know when you are ready.’

  We reassemble in court about an hour later. Warnock stands. He does not look well.

  ‘Your Honour,’ he says, ‘the defendant asks to be allowed to withdraw his plea of sovereign immunity and to be arraigned on the indictment.’

  There seem to be no objections to this course. And there it is. The charges are put and he is invited to plead. The King of Foggin Island duly pleads guilty to six counts of fraud and three counts of money-laundering. I remand him in custody for a pre-sentence report, and to allow the prosecution to prepare a timetable for confiscation proceedings, with a view to recovering as much of the Foggin Island loot as can be recovered. Whether or not this result will remove the necessity for proceedings in the International Court of Justice remains to be seen. One suspects that there may be some quiet diplomatic activity taking place between France and Great Britain before too long, hopefully without recourse to the Malmsey. But none of that will involve the Bermondsey Crown Court, and for today the prosecution and the Government of France seem quite satisfied with the outcome. The same cannot be said of Eustace O’Toole and Suzy Callaghan, who try to creep quietly out of court without being noticed. But it seems that the officer in charge of the case wants a word with them, and they don’t quite make it.

  Poor Warnock. I feel a bit sorry for him. He really did think he was going to make his mark on the world of public international law. He gazes sadly after his client as he is taken down to the cells. But now it is time for him to return to the Mother Ship.

  ‘Well, your Honour,’ he says as a parting gesture, ‘it seems that Shakespeare was right. “Uneasy lies the head that wears a crown.”’

  I reflect briefly on my week, and indeed on my whole tenure as RJ at Bermondsey in general.

  ‘Never was a truer word written, Mr Warnock,’ I reply.

  And so to lunch, an oasis of calm in a desert of chaos.

  On my way to the mess for lunch, I make a diversion to chambers five, where I find Stephen Gulivant sitting at his desk, jacket off, sleeves rolled up, writing busily in his red judicial notebook. Not only that, he has Archbold open in front of him. Since I cannot conceive of any possible point of law in his case which has not been beaten to death already, it seems possible that he may actually be preparing a summing-up. In the light of t
he experience Legless had with him, I take this as an encouraging sign in itself. But I am a bit concerned about its content, and I am determined to find a diplomatic way of offering my help. Drawing on my experience at lunchtime this week, I feel fairly confident that he will bombard me with questions. But to my astonishment, he seems to be forging confidently ahead on his own. His handwriting is not the clearest, but I can make out the words ‘burden of proof’ and ‘evidence of bad character’, both underlined several times, followed by a whole screed, hopefully copied word for word from Archbold.

  ‘Ah, hello, Charles,’ he greets me cheerfully, ‘just putting the finishing touches to my summing-up.’

  ‘So I see. Anything I can help with?’

  ‘No, I don’t think so,’ he replies. ‘You know, this offensive weapon stuff isn’t as difficult as I first thought, really. Once you tackle the question of why a baseball bat is a weapon, and what is meant by “reasonable excuse”, it all falls into place, doesn’t it?’

  ‘It does,’ I agreed.

  ‘Well, I am glad I took my time to make sure I got the law right. This is what I’m going to tell them, Charles. Stop me if you think I’m going down the wrong track.’

  ‘Of course,’ I said, sitting down in front of the desk.

  ‘I will start with the fact that it’s my job to deal with the law, their job to deal with the facts. Then I will tell them about the burden of proof, and the prosecution’s duty to prove the case so that they are sure – except for the question of reasonable excuse, which the defendant has to prove on the balance of probabilities.’

  He looks up. I nod encouragingly.

  ‘Good.’

  ‘Then I will take them through the elements of the offence in a bit more detail. I will explain the relevance of the evidence of his previous convictions, the question of his propensity to commit this kind of offence. I remind them of the evidence, and Bob’s your uncle. What do you think?’