by Henry Cecil
‘What happened?’ asked Roger.
‘Never mind what happened. That’s not the point. But it’s treating a chap with respect to bring in thirty-three counts. Shows you’re frightened you might miss him here and there. Can’t afford to take chances with him. I’ve had twenty-five, twenty and never less than ten or twelve. Oh, yes, I once had seven. And now look at this – I ask you – is it fair? Is it reasonable? I’m not so young as I was, I’m entitled to a bit of respect, aren’t I? One count – one solitary, miserable count. They must think I’ve come down in the world. It hurts. That’s what it does. If you’ve got a nice lot of counts to deal with, you’ve got something to fight. But this – this – it takes all the stuffing out of a man. I tell you – I had a good mind to plead Guilty and be done with it. One count! Two can play at that game. If they won’t do the right thing, why should I? I’ve never pleaded Guilty in my life, but I tell you, I came as near doing it this time as I ever did. And then I remembered it was Ascot next week. So that wouldn’t do. But if it hadn’t been, I tell you – I’d have cut the ground from under their feet. Guilty, I should have said. That would have shaken them. There they are – counsel, solicitors, police, witnesses, judge, jury, ushers, flowers, herbs, spectators – everyone – and I say Guilty. I bet the clerk wouldn’t have believed it. What was that? he’d have said. I’d have had a game with him. Not Guilty, I should have said. Oh, I thought you said Guilty, he’d have said. Yes, I’d have said, I did. Well, which is it, he’d have said, Guilty or Not Guilty. You choose, I should have said. I hate these parlour games. One of these days a judge will say – they look at TV all right, oh, yes they do, whatever they say – one of these days a judge will say – will the next prisoner sign in, please?’
‘Now, look, Mr Green,’ said Roger. ‘I know I’m very new to the Bar, but you’re paying me to help you. Hadn’t you better tell me about the case? I love to hear your views on these other matters, but after all, if you want to go to Ascot next week the case is more important.’
‘You’ll do well, sir,’ said Mr Green. ‘You think of essentials. Ascot it is. I’ve never missed an Ascot yet – except when – well now I’m going back into past history. Dear, dear, dear. Now, let’s get down to brass tacks. No beating about the bush. All fair and above board. In for a penny, in for a pound. Who laughs last, laughs loudest. You can’t sing, I think you said?’
‘Mr Green,’ said Roger, ‘this is a little difficult to say and please don’t think I’m meaning to be offensive, but have you ever thought of pleading – that is – I mean – I hope you’ll understand – putting up a defence of – of – insanity?’
‘Cheer up,’ said Mr Green. ‘I always do this to begin with. Don’t let it get you down. Helps me find out what sort of a chap you are. Now look. There’s only one count against me. There’s nothing in it at all. We’re as good as out in the road already – only we’re not. But don’t you worry, we shall be. Now, d’you see what it says here?’
He showed Roger the indictment.
‘Obtaining money by false pretences with intent to defraud. Well, it’s ridiculous, that’s what it is. It’s laughable. It won’t stick. They’ll never wear it. Are you agreed upon your verdict? We are. Do you find the prisoner Arthur Green Guilty or Not Guilty. Not Guilty. Not Guilty, and is that the verdict of you all? It is. And out we go. Shame I couldn’t get bail or I wouldn’t have been inside at all.’
‘Really,’ said Roger. ‘Time’s getting on. You must tell me the facts. Have you a copy of the depositions?’
‘That’s a fair question. And here’s a fair answer. Yes.’
‘Can I see them, please?’
‘Don’t you think they might put you off?’
‘Mr Green, if you’re not mad and want me to defend you, you must let me see the depositions.’
‘At last,’ said Mr Green. ‘Say it louder next time. I’m not sorry I chose you, but you’re making me work. Don’t you understand, young man, that at your game you’ve got to be able to shout down the other side, the judge, the jury and all? And what hope have you got if you can’t shout me down? Eh? None at all. It’s taken me ten minutes to get you annoyed even. Come on, get tough, let’s see some rough stuff. Tear ’em to pieces.’
‘All right,’ said Roger. ‘P’raps you’d tell me what it’s all about in as few words as possible, please.’
‘Apart from the “please” that was all right. Good. I’ll tell you. It’s simple as pie. I’m charged with obtaining money by false pretences. How much money? Twenty pounds. A beggarly twenty pounds. How did I get it? By selling toffee. That’s right, toffee. I get the money, they get the toffee. What’s wrong with that?’
‘Nothing as far as I can see – if they get enough toffee.’
‘That’s quick of you. Enough toffee. Well, as a matter of fact, they didn’t, but they’re not charging me with that. Look – you see – all it says is “by falsely pretending that a letter signed G St Clair Smith was a genuine reference when in fact it was written by the accused himself.” That’s all, positively all. It’s laughable.’
‘Well – there is a Mr St Clair Smith then and he wrote it?’
‘Be reasonable,’ said Mr Green. ‘Fair’s fair and all that. But how would I get as far as this if there was a Mr Smith – St Clair or not?’
‘Then there isn’t anyone?’
‘No idea. There may be for all I know,’ said Mr Green.
‘Then who wrote the reference?’
‘Who do you think?’
‘Well,’ said Roger, ‘if you ask me to be frank, I think you did.’
‘Don’t be bashful about it,’ said Mr Green. ‘Of course I did. Who else could have done – except Mr Smith, of course, and we’re not sure about him, are we?’
‘Well,’ said Roger, ‘if you wrote yourself a reference and pretended that it was written by Mr Smith, what’s your defence?’
‘They had the toffee, of course.’
‘But not enough?’
‘They don’t complain that it wasn’t enough here. They just say about the reference.’
‘Yes, I see,’ said Roger. ‘But you had twenty pounds from them, didn’t you?’
‘Certainly.’
‘How much toffee did they get?’
‘At least a quarter of what they ordered. More like a third.’
‘But you got the full price?’
‘That’s right.’
‘Well, I’m bound to say it sounds pretty fishy to me,’ said Roger.
‘Of course it does. If it didn’t sound fishy, I shouldn’t be here, should I? I’ll tell you something else. It was fishy. But that doesn’t mean it was a crime. Oh, dear, no. It’s a postal business I run. Cash with order, I say. Fair enough? And in my first letter I always offer a reference. What’s more, I give them a reference whether they want it or not.’
‘You mean,’ said Roger, ‘you write yourself a reference under another name?’
‘I mean,’ said Mr Green, ‘precisely that. But this chap, like most of them, has too sweet a tooth, that’s his trouble. He wants his toffee. So he doesn’t bother about a reference and just sends his money.’
‘Then I can’t see why on earth you’re charged if that’s the only false pretence alleged. They’ve got to prove they relied on it and if they hadn’t had it they couldn’t have relied on it.’
‘Smart boy,’ said Mr Green. ‘You saw the point.’
‘Yes,’ said Roger. ‘But you did send a reference.’
‘You bet I did,’ said Mr Green. ‘I always do.’
‘And he must have had it before he sent the money,’ said Roger, ‘or the case wouldn’t have gone on like this. You must let me see the depositions.’
‘All right,’ said Mr Green. ‘As you are so pressing,’ and he handed them to Roger, who read them for a few minutes.
‘Well, it’s quite plain from these that he had the reference first,’ said Roger. ‘I knew he must have done.’
‘Well, he didn’t,’ sa
id Mr Green. ‘The quickness of the hand deceives the eye. I can prove be didn’t.’
‘How?’
‘Elementary, my dear – I beg your pardon, sir. I shouldn’t have done that. But it is too, too simple. Shall I explain?’
‘Please do,’ said Roger.
‘How d’you catch mice?’ said Mr Green.
‘Now really–’ began Roger.
‘With bait,’ went on Mr Green. ‘I send my little reference on the 24th but I actually date it the 20th. What happens? Complaints are made by the public about my toffee. Not enough of it. Stale, bad, rotten toffee, and so on. Now, for one reason or another I didn’t want the police prying into my affairs, looking at my books (if any), and so on and so forth. So, after I’ve had the money, I send this nice little reference in pretty obviously disguised handwriting. Aha, say they, we’ve got him. Handwriting experts and all that. His handwriting. And the date? Just before the customer sent the money. We’ve got him, they say. The customer doesn’t want much persuading that he had the reference before he sent the money, particularly when the police point out the date. “You must have done,” they say. “So I must,” says he. So they don’t bother to look into my affairs except quite casually. A false reference is good enough for them. Saves them a lot of trouble. He’s in the bag, they say. But, you see, he isn’t. That’s just where he isn’t. Proof of posting isn’t proof of delivery, eh? But it’s proof of non-delivery. I get a receipt for my letter. And here it is. Shows I sent the letter after he sent the money. I tell you he had too sweet a tooth. They all have. Of course, when they come and see me and show me Mr St Clair Smith’s letter I pretend I haven’t seen it before, but I look nice and uncomfortable when I say it and what with the date on it, my other letter and the handwriting expert, they’re happy as sandboys.
‘“Did you believe it to be a genuine reference, Mr Sweet Tooth?”
‘“I did.”
‘“If you had not believed it was a genuine reference, would you have sent the money?”
‘“I would not.”
‘“Thank you, Mr Sweet Tooth.”’
‘Are you sure,’ said Roger, ‘that you only sent one letter to him at about that time?’
‘Ah,’ said Mr Green. ‘I’m not so bad at choosing counsel after all. And you’re not such a – now what am I saying? That’s the one question you’ve got to ask. “Did you have any letter from the defendant?” I prefer that to “prisoner,” but I don’t really mind if you forget – “did you have any letter from the defendant at about the time you received the reference?” Well, he’ll have to say “no” – but that’s the one point you’ve got to be careful of. Once you’ve held him down to that, we’re home. Out comes the receipt for posting and I can go and lose all the money I haven’t paid you at Ascot. Right?’
‘I see the point,’ said Roger. ‘I must think about it.’
Later that day when Roger returned to the Temple after completing his conference with Mr Green, he consulted Henry on the matter.
‘You can never tell,’ said Henry. ‘If the chap admits that no other letters were sent to him at that time it looks like a winner. But don’t you be too sure about getting that admission. And if you get the admission don’t go on pressing him about it. That’s a mistake beginners often make. They get the admission they need and they’re so pleased about it they go on asking questions about it and before they know where they are, if the witness hasn’t actually withdrawn the admission, he’s what you might call blurred it, by adding words like, “Well, I’m not quite sure” or “perhaps I’m wrong” and “now I come to think of it there may have been another letter.” Economy in cross-examination is very necessary.’
‘Thanks very much,’ said Roger. ‘Yes, I see. I am grateful. Now, another thing. It won’t arise in this case because I haven’t any witnesses except the prisoner. But I always thought counsel wasn’t supposed to see witnesses and I saw one or two counsel with a lot of people round them. I didn’t hear what they were saying, but I should have thought some of them probably were witnesses.’
‘Well,’ said Henry, ‘a good deal of latitude is allowed to counsel for the defence in criminal cases, but you’re quite right in thinking that, generally speaking, counsel shouldn’t talk to the witnesses except his own client or expert witnesses. But it’s a matter for counsel’s discretion, and in an exceptional case he certainly can. But don’t you try to pretend to yourself that a case is exceptional when it isn’t. We don’t want you to get like old Ian McTavish, though I’m sure you won’t.’
‘Who was he?’
‘He was a lovable old man, whom everyone liked, but he was an old rascal. The story goes that his opponent in a fraud case at a County Court found the old boy in the consultation-room surrounded by witnesses, saying: “Now then, boys, all together. ‘We relied upon the representations.’”’
Chapter Twenty
Dock Brief
Roger had a difficult decision to make the day before the case of Mr Green came on for trial at the Old Bailey. Should he ask Sally, Joy and his mother, or alternatively one or more and which of them? He would dearly have liked his triumph – if it was to be one – witnessed, but on the other hand, suppose things went wrong and he made a fool of himself again? Eventually he decided to ask Sally her opinion.
‘Roger,’ she said, ‘I should love to hear you, I really should. But d’you know, if I were you, I should wait until you’ve got more confidence. It’s always possible the thought of one of us – never mind which – will distract or worry you. Then again – you might actually start to act for our benefit and that would be really bad. I’m doing myself out of a lot in saying this, because I’m sure my Mr Sharpe would let me go if I wanted to.’
‘Our Mr Sharpe?’
‘Roger,’ said Sally, ‘you’re not jealous?’
‘Of course not,’ said Roger.
‘No, I was afraid I must be mistaken.’
‘Surely you don’t want me to be jealous?’
‘Oh, Roger, you are young. Never mind. Forget it. Will you ask Joy to go to the Old Bailey?’
‘Of course not,’ said Roger. ‘I nearly always take your advice. I’ve never known you wrong yet.’
‘Dear Roger, you’re so sweet – and unformed.’
‘You think I’m an awful ass.’
‘I don’t think anything of the sort. F E Smith was unformed once and all the others. You’ve lots of time. And d’you know – I think you’ve come on, even in the last six months.’
‘Do you really? You’re not just trying to be nice?’
‘Have you ever known me? No, I’d really like to come to the Old Bailey to see the difference. I’m sure it’ll be considerable.’
‘Do come, Sally – I’d love you to be there.’
‘Don’t tempt me, Roger. It isn’t fair. You tell me all about it when it’s over.’
That evening Roger had an appointment to dine with Mr Merivale.
‘My dear Roger,’ said Mr Merivale. ‘How very nice to see you. Very good of you to give me the time. You won’t be able to go out in the evenings much longer. Nose to the grindstone, my boy. But that’s the Bar. Either too much work or too little. How are things going?’
‘As a matter of fact,’ said Roger, ‘I’ve got a brief at the Old Bailey tomorrow.’
‘Dear me,’ said Mr Merivale. ‘For the prosecution or defence?’
‘Defence.’
‘Pleading Guilty?’
‘Oh, no. I hope to get him off.’
‘That’s the way, my boy. Be a fighter. Ah, here’s Joy. She’ll have to give me a report on you. In case we have any big criminal cases.’
‘Oh, what’s all this?’ said Joy.
‘I’ve got a case at the Old Bailey tomorrow.’
‘Oh, how lovely,’ said Joy.
‘And you’re going to report it for me,’ said Mr Merivale. ‘I shall send you both in my car.’
‘Oh, uncle – you are sweet,’ said Joy and gave him a kiss.
‘It’s most kind of you,’ said Roger, who did not see how he could possibly get out of it.
Roger did not tell his mother about the case. He decided to wait until it was over. It would be more effective and she’d be more likely to listen. On the day before the trial she was particularly difficult.
‘Oh dear, oh dear,’ she kept on saying. ‘I’ll forget my own name next.’
Roger was quite used to this sort of thing, but he asked politely: ‘What is it, Mother darling?’
‘If I knew, my pet, would I be asking? But there’s something I’ve forgotten that I’ve got to do. And terrible things will happen if I don’t do it.’
‘What terrible things?’
‘My dear, darling Roger, how should I know until they happen? Then it’ll be too late. Of course if I could think what it was I had to do, they wouldn’t happen. Be an angel and think for me. You know I don’t do it very well.’
‘I expect you’ve got to do something for Aunt Ethel.’
‘No, I think it’s more important than Aunt Ethel.’
‘It must be serious then,’ said Roger. ‘I’ve got something important to do tomorrow too, but I’ll tell you that later.’
‘Another examination, Roger darling? Surely not?’
‘Now Mother, really! You know I’m qualified. You’ve seen me in Court.’
‘But you could still have examinations. Doctors do. The one who helped me with you said he wanted to be a gynaecologist. I was very flattered.’
The next day Mr Merivale sent Joy in his car to fetch Roger and take them both to the Temple and thence to the Old Bailey.
‘Oh, Roger, I’m so excited,’ said Joy. ‘Now you really are starting. I’m sure no one as young as you has ever had a case at the Old Bailey. Oh, Roger – I do love you – and you do love me, don’t you, Roger? It’s at times like these when I feel it so terribly.’
She squeezed his hand. He squeezed hers.
‘If I don’t sound very affectionate, Joy, it’s because I’m thinking about the case. A man may go to prison because of me – or be free because of me. It’s a dreadful responsibility.’
