A Matter for the Jury

by Peter Murphy

  Ben thought for some time.

  ‘Perhaps,’ he replied. ‘But they have never held it over my head. I’m sure it still rankles with my father, but he has never brought it up. They all take a keen interest in what I’m doing. And I’ve always had confidence in myself. For me, the real question is…’

  The waiter returned with chapatis and condiments, hot pickle, and a dish of chopped onions. Jess could sense Ben’s hesitation. She wanted to reassure him that he did not have to open up to her.

  ‘Ben…’

  ‘For me, the question is whether I fit in. Barristers generally come from very different backgrounds to mine. They mostly went to public schools and either Oxford or Cambridge, they belong to the right clubs, they…’

  ‘Most of them are not Jewish kids from the East End,’ she said, matter-of-factly. ‘No, they are not. And that’s why it is so good that you have made it to the Bar. You are breaking two traditions, not just one.’

  ‘I felt it when I was taken on in Chambers. I know that there is at least one member who didn’t want me.’

  She nodded.

  ‘But here you are.’ She paused. ‘Ben, you have been very frank with me, which I really appreciate. In return, I want to tell you something which you probably don’t realise.’

  He nodded enquiringly.

  ‘Do you know why Barratt Davis likes you so much?’

  Ben shrugged. ‘I’ve always thought it was because I won that case for Sergeant Mulcahy.’

  She shook her head. ‘That is part of it. But all the barristers we use get good results in court. That’s why we go to them.’ She sat up straight. ‘No, he respects the way you have fought your way into the profession, as well as how good you are in court. He knows you have had to stand up and assert yourself, both in and out of court. That’s something Barratt admires – because it’s something he could never do himself.’

  Ben opened his eyes wide.

  ‘It’s true. Barratt is very good at what he does. He is a model solicitor. He is wonderful with clients. They trust him, they talk to him, they give him information, often without even knowing it. He is also well organised and efficient. But if he lives to be a hundred, he will never stand up in court and do what you do. He won’t even appear on his own in the magistrates’ court to do a guilty plea. The very thought of speaking in public terrifies him. His partner, Geoff Bourne, does it. He is in the magistrates’ court and the county court all the time. But not Barratt. Oh, he has a good line of banter about being a mere solicitor, and about barristers being superior, which I am sure becomes irritating after a while. But the thing is, he actually means it. He is in awe of the Bar – and of you. He will never say that to you, not in a million years, but that doesn’t mean I can’t say it.’

  Ben sat back in his chair.

  ‘What I mean to say, Ben,’ she continued, ‘is that the very thing you fear may go against you can also be your greatest strength. I don’t doubt for a moment that you are going to succeed at the Bar, and neither should you.’

  20

  10 March

  ‘Summarise the case for me, Schroeder, please,’ Martin Hardcastle said, lighting a cigarette.

  Ben was seated in front of Hardcastle’s desk, to his right. Next to Ben sat Barratt Davis, and next to Barratt, Jess Farrar. Ben had the feeling that his life was, for the time being, composed of an endless series of new and uncomfortable experiences, each no doubt designed to enable him to learn, and each hugely disconcerting. He had attended consultations with Silks as a pupil with Gareth Morgan-Davies, but always as an observer. Silks, he knew, had high expectations. They took for granted that their juniors would know the case inside out, and would take control of the mundane research and paperwork which was a necessary part of every case, leaving the Silk free to spend his time in the intellectual stratosphere, in profound contemplation of the law, strategy, and tactics. Gareth, who was close to taking Silk himself, and who was in any case senior enough to allow such pretension to flow over his head with an amused detachment, was able to hold his own, and insist on a realistic division of the work. But Ben, as junior as he was, would put himself at Hardcastle’s disposal.

  Sometimes the preparation and paperwork could be done at leisure, but not in a capital murder case. From the day the defendant was charged with capital murder, there was a relentless pressure to get the case ready for trial with as little delay as possible. The pressure affected prosecution and defence alike, with the result that all participants became extremely fraught. Ben had done what he could to master the papers he and Jess had worked their way through. Now these would be subjected to the critical eye of a leading criminal Silk.

  He found Hardcastle a strangely imposing figure. He was not a large man, but he made up for any lack of size by a certain presence, the source of which was hard to define. It was partly due, no doubt, to his immaculate appearance. A dark grey three-piece pin-stripe, the pin-stripe judged to perfection – any whiter and it would undermine the serious greyness of the suit, any bolder and it would betray the wearer’s lack of height. The tie, a lighter grey with white dots, was tied firmly, yet did not look tight and had not a single crease. His room was unusually decorated for a room in Chambers. No dark colours and racing prints. Instead, the walls were painted in the palest of greens, and the modern artwork featured lines and boxes in the style of Mondriaan.

  But what disconcerted Ben most was his desk. Save for a large cut-glass ashtray, a silver cigarette box and a matching tabletop lighter, the desk was almost empty. Barratt Davis’s brief lay unopened, its contents neatly tied together under the back-sheet by lengths of pink ribbon. No notebook, no pen was visible, and Hardcastle himself sat still, his eyes nearly closed, as if to absorb everything said to him by the force of his concentration, without any need for an aide-memoire. He had greeted Barratt Davis warmly enough when they entered his room, but a brief nod of the head sufficed for Ben and Jess.

  ‘Silks don’t actually live in a different world,’ Gareth had once remarked after a particularly trying afternoon. ‘They just think they do.’

  Ben was trying hard to hang on to that thought.

  ‘At about 10.30 on the evening of 25 January of this year, a Saturday night,’ Ben began, ‘a young courting couple, Frank Gilliam and Jennifer Doyce, were seen to leave the Oliver Cromwell pub, in St Ives, Huntingdonshire, together. The pub is very close to the north bank of the River Ouse. They walked in an easterly direction through some meadows along the river bank. A witness, Mavis Brown, who works in her father’s corner shop close to where the meadows begin, sold them two packets of Woodbine cigarettes. They were never seen alive again. The same witness, Mavis Brown, says that, just a few minutes after the couple left the shop, she saw a man walking in the same direction. She had a clear view of him and gave a detailed description. She did not know the man, but she heard him singing a song to himself, the Lincolnshire Poacher. This was just before 11 o’clock.

  ‘At about 8.30 on the morning of 27 January, Archie Knights, a retired army officer, was walking his dog further downstream, by Holywell Fen, when he passed a houseboat called the Rosemary D. The Rosemary D had been owned by a couple called Douglas who are wanted by the police in connection with fraud. It seems they had to leave St Ives in something of a hurry, and they left the boat in place with all its effects. It has since been used fairly regularly by courting couples who want a private place to be together. The police surmise that is why Frank and Jennifer would have been there. Knights noticed something odd – something about the door. Something did not look right to him. He boarded the craft to take a look.’

  Ben took a slow breath as he turned a page in his notebook.

  ‘He found Frank Gilliam dead. He was lying on the floor. His skull had been fractured by multiple blows with a blunt instrument. Jennifer Doyce was lying on the bed, her dress pulled up, her underwear pulled down, exposing her genitals. She also had tr
auma to the head from a blunt instrument, and she had been raped. But she was alive – just about. There was blood everywhere. Subsequently, police recovered a winch handle from the river, which had formed part of the equipment of the Rosemary D. It is stained with blood, somewhat degraded, but identifiable as stains of blood of two different groups: group A, Jennifer’s blood group; and group O, Frank’s group. The scene of crime officer also lifted a fingerprint from the inside ledge of a window, which is identified as that of Billy Cottage. The fingerprint is next to a blood stain, identified as blood of group A.’

  Ben flicked over the pages of his notebook and continued.

  ‘Jennifer Doyce has told the police that the man who assaulted and raped her, and who assaulted and killed Frank Gilliam, was singing a song under his breath while raping her. It was the Lincolnshire Poacher. When she went to the Rosemary D with Frank that night, Jennifer was wearing a heavy and expensive gold cross and chain that had belonged to her grandmother. There were marks on her neck suggesting that it had been forcibly removed. When the police went to Cottage’s house to interview him on Thursday 30 January, they found his sister, Eve, wearing the same cross and chain. She said her brother had given it to her. When interviewed, Cottage admitted that he had given it to her. He said he had found it but, unfortunately, he gave the police several conflicting accounts of where and when he had found it. He also denied ever being on board the Rosemary D.’

  Ben closed his notebook.

  ‘The other point of interest is that Billy Cottage has a previous conviction for indecent exposure. An officer found him masturbating in a garden while watching a young woman undress in her bedroom. When arrested…’

  ‘When arrested, he was singing the Lincolnshire Poacher to himself.’ Hardcastle had listened to Ben’s presentation without a word, eyes closed, inhaling deeply from his cigarette, otherwise motionless. Now, he suddenly came to life, his eyes opening wide, sitting forward, his hands folded in front of him. ‘Which means we can’t challenge Mavis Brown or Jennifer Doyce about their ability to recognise obscure folk tunes when people hum them – not without bringing in the previous conviction.’

  Hardcastle lit another cigarette.

  ‘What is Cottage’s blood group?’

  Ben looked at Barratt Davis, who shook his head.

  ‘I will find out,’ he replied, making a note.

  ‘Where exactly was Cottage’s fingerprint found?’ Hardcastle asked.

  ‘On an interior window ledge, opposite the bed, in the aft cabin.’

  ‘The cabin where Frank and Jennifer were found?’

  ‘Yes.’

  ‘Do we know whether the fingerprint was on top of or underneath the blood stain, or perhaps mixed with it?’

  Ben reached for a file from the pile he had placed by the side of his chair. Hardcastle held up a hand.

  ‘Let me save you the trouble. The answer is “no, we don’t know”,’ he said. ‘There is not a word in the fingerprint examiner’s report that tells us one way or the other. It may be that he does not know. That would be excellent news.’ He looked at Ben. ‘Because…?’

  ‘Fingerprints can’t be dated,’ Ben replied. ‘If we can’t answer that question, we can’t rule out the possibility that the fingerprint was already on the window ledge before the evening of 25 January.’

  Hardcastle pointed the cigarette approvingly.

  ‘Very good. That would mean that Cottage is a liar, but not necessarily a murderer. What is Jennifer Doyce’s condition and prognosis?’

  ‘She has made a remarkable recovery. When she first arrived at Addenbrookes they didn’t think she would last into the next day. Then they thought she would have permanent brain damage. But she woke up and confounded everyone. She is still in a wheelchair. But the doctors don’t think there are any more internal injuries. She is likely to make a full recovery, but of course, they are not sure how long that will take. She is expected to be able to give evidence, at trial, if not the committal.’

  ‘Which is both good and bad for Mr Cottage,’ Hardcastle said. ‘It is bad because it means that she will give evidence against him, Lincolnshire Poacher included. On the other hand, it is also good because it means that the prosecution will only have one indictment for murder. Of course, they are proceeding on the Gilliam murder first.’

  ‘Yes,’ Ben replied. ‘There is a second indictment waiting in the wings, alleging the attempted murder and rape of Jennifer Doyce and the theft of the gold cross and chain.’

  ‘All of which also comes into evidence on the murder indictment, unless we can find a very ingenious reason to keep it out,’ Hardcastle observed.

  He paused.

  ‘Why is this a capital murder? There was no use of a firearm, and Frank Gilliam was not a police or prison officer killed in the line of duty.’

  ‘The prosecution will argue that the murder was in the course or furtherance of theft,’ Ben replied. ‘The girl was wearing a distinctive gold cross and chain, quite valuable, which was found in Billy Cottage’s possession. Marks on her neck suggest that it was taken from her forcibly at the scene.’

  ‘But she’s not dead, is she?’ Hardcastle insisted. ‘It was her cross and chain, but it’s the boyfriend who is dead. If he stole from her, and she’s alive…?’

  Ben nodded and continued the thought.

  ‘Then how can the murder of Gilliam be in the course or furtherance of theft? Yes. That occurred to me too. It may be that we can argue that the judge should order the prosecution to amend the indictment to one for non-capital murder.’

  ‘What’s the argument against that?’

  ‘He could have killed Frank to enable him to steal from Jennifer. He doesn’t have to kill the person he steals from. A bank robber kills a security guard. But he steals from the bank. It’s still capital murder.’

  ‘Yes,’ Hardcastle agreed quietly. ‘Still, the motive they really want to put before the jury is rape, not theft, isn’t it? What if the theft was an afterthought? What if he kills Gilliam so that he can be free to rape Jennifer Doyce? Only when he’s finished with her does he notice the cross and chain, and thinks, “that might fetch a bob or two down the market” or “that would look good on my sister”, so he takes it as an afterthought. By that time, Frank is already dead.’

  Ben nodded and made a note.

  ‘Look at every case you can find,’ Hardcastle instructed brusquely. ‘Not just under the Homicide Act. Go back to the common law felony-murder rule. If you can’t find any helpful cases here, try the main Commonwealth jurisdictions. The intent to steal ought to be formed before the murder is committed. If the prosecution can’t prove that, it shouldn’t go beyond non-capital murder.’

  Hardcastle stubbed his cigarette out firmly.

  ‘Very good, Schroeder,’ he said. ‘Now, Barratt, what does Mr Cottage have to say for himself?’

  Barratt had opened his file. ‘He worked at the Oliver Cromwell that Saturday evening. He did not notice Frank and Jennifer in particular, though he has no reason to doubt that they may have been there. It was a fairly busy night. He did not leave the pub until well after 11 o’clock. He can’t be exact about the time, but whatever time it was, he went straight home, and stayed there, in bed, until the next morning. He didn’t follow Frank and Jennifer, and he had no reason to know that they were aboard the Rosemary D. She is moored on the opposite bank of the river, so he would have had no reason to be there. Mavis Brown is mistaken and, in any case, she doesn’t identify him.’

  ‘Yes, she does, unfortunately,’ Hardcastle responded quietly. ‘So does Jennifer Doyce. What about the gold cross and chain?’

  ‘He found it in some long grass by the river bank on the Tuesday, when he was in the area cutting back reeds and grass to keep the river clear of obstructions to navigation. It’s part of his job. It was some distance from the crime scene area, which is why the police would have
missed it. He admits that he lied to the police about where and when he found it, but he says he was frightened and panicked. He also accepts now that he should have handed it in, but it looked nice and it was obviously worth a bit.’

  ‘Talking of lying to the police,’ Hardcastle asked, ‘how does he account for his fingerprint being found on the window ledge?’

  ‘He now admits that he did board the Rosemary D on one occasion, probably two or three weeks before the murder. He was worried that she was a hazard to river traffic, and he wanted to see whether there was any information he could find to hand over to the River Board. He was hoping they would move her.’

  ‘No good reason not to tell the police about that,’ Hardcastle observed.

  ‘No,’ Barratt agreed quietly.

  ‘I hope he’s telling the truth about that,’ Hardcastle said, after a pause. ‘I really do. Because if the prosecution were ever able to prove that the blood stain got on to the window ledge before the fingerprint, or even at about the same time, Billy Cottage would hang. I don’t think there would be anything we could do about it.’

  21

  Flashback

  Arthur Ludlow had left the long brown envelope undisturbed on the telephone table by the front door, where his mother had placed it, in accordance with Ludlow family tradition, on the day it arrived. He left it there to preserve the memory; so that it would be waiting for him every day on his return from work; so that every day, he could re-live the moment when his life changed for ever. As he gently lifted the envelope from the table, feeling the familiar touch of the coarse brown paper, he would remember the heart-stopping moment when he carefully teased the top of the envelope open. He would read, as if for the first time, his name and address, written in black ink by someone with a neat hand: Arthur Ludlow Esq, (‘Esq’, no less) 23 Borough View Road, Blackburn, Lancs; and above his address, at the top of the envelope, the printed capital letters: OHMS – On Her Majesty’s Service. It was a daily pleasure that never grew old, never lost its sheen.