by Peter Murphy
‘Indeed I am. Ben Schroeder. The rape case at the Bailey, wasn’t it? What was his name?’
‘Harry Perkins.’
‘Perkins, that was the chap. And you got him off after telling Milton Janner to bugger off and stop interrupting you. I’ve been dining out on the story ever since. So has the judge, I believe. How are you, Ben?’
Ben laughed. ‘Very well, thanks. I’m not planning on doing anything similar in this case. I have leading counsel to make sure I don’t misbehave – or get out of my depth.’
‘Ah yes, the formidable Martin Hardcastle, no less. Where is Martin? Not running late, I hope, if you know what I mean. You’ll have to keep an eye on him, Ben, you know.’
‘As a matter of fact, Andrew, at this very moment he is attending church, fully robed and ready to process across the square with the judge.’
‘Really? Well, good for him.’
There was a silence.
‘I didn’t know they let you Treasury Counsel types out of the Old Bailey to visit the provinces,’ Ben said. ‘Are you being led, or are you on your own?’
Andrew took a deep breath. ‘I’m flying solo. I’ve done several capital murders as junior, led by more senior Treasury Counsel. But this is the first time they have let me loose on my own. It is easier away from home, and they thought this case… well, you know…’
‘It’s a strong case,’ Ben interjected. ‘Yes, I know. You don’t have to tell me.’
‘Even I shouldn’t mess this one up,’ Andrew added.
‘There’s no question of your messing anything up, Andrew,’ Ben smiled. He was remembering Andrew Pilkington’s grasp of detail and his pleasant, understated, but precise manner with witnesses and the jury – a potentially lethal combination. ‘And I’m sure they know that about you already. They wouldn’t have sent you otherwise.’
‘Thank you for the vote of confidence, Ben,’ Andrew replied, returning the smile. ‘I hope I can live up to it. I don’t expect you to hope for that, needless to say.’ He turned back towards the window. ‘Oh, look, I think the procession is getting ready for the long trek. I am seeing a number of people in very silly fancy dress.’
* * *
Mr Justice Lancaster was not particularly fond of pomp and ceremony. Before his appointment as a judge of the Queen’s Bench Division of the High Court some seven years earlier, Steven Lancaster had practised in Silk at the commercial bar. He accepted a judicial appointment at the third time of asking. On the first two occasions he had declined because, having two sons still at expensive schools, he preferred to avoid the reduction in income that the judicial salary would entail. But on the third occasion, the Lord Chancellor made it clear that the offer would probably not be made again, and he duly accepted the reduced income, albeit with the considerable compensation of the prestige of the High Court and a knighthood. He accepted the complicated formal dress as part of the job, though he was sure that, without his clerk Simon, who had a thorough understanding of such mysteries, he would never have sorted out the various robes appropriate to criminal and civil cases, summer and winter sittings. Simon could be relied upon to have the correct dress laid out for him in his Chambers, whether in London or on circuit. Like most High Court judges, when he was first appointed, Lancaster’s knowledge of criminal law was almost non-existent. It was a field into which most likely candidates for the High Court bench rarely strayed. But, unlike many of his colleagues, instead of trying to bluff his way through until he got the hang of it by sheer dint of experience, Steven Lancaster took a more practical approach. At his first sitting in a criminal case, which happened to be at the Old Bailey, he called counsel into his Chambers, admitted his almost complete ignorance of criminal law and practice, and asked for their help. It was given without hesitation and induced respect, rather than contempt, in the eyes of the barristers practising before him. Within three years, he was generally held to be as good as any judge of the Division in criminal cases.
It was still a bit of an ordeal getting dressed up in his formal robes, including full-bottomed wig, tights, and black buckled shoes, and walking in procession in public. But at least at Huntingdon the walk across Market Square was a short one, and once in court he could revert to his everyday robes, shorter wig, and normal footwear. He had already sat through a rather tedious service in a chilly All Saints Church, and listened to the traditional sermon on the virtues of justice given by his chaplain for the assize. As he waited for the procession to form, he felt some impatience. He knew, of course, that a capital murder case awaited him. He had dealt with such cases before. He had no particular views for or against capital punishment in principle, though he was sceptical about its claim to act as a deterrent. The persistently constant murder rate seemed to suggest that it was not.
On the other hand, perhaps there was a certain justice about it. But the physical reality of it all disturbed him. The process of pronouncing the death sentence wearing the black cap was grotesque, its effect on the defendant and his family devastating. Facing a man he was to sentence, knowing that he would almost certainly be dead within a few weeks, was something no judge relished – even though the public and press sometimes entertained speculations to the contrary – and most were heartily glad when the moment passed and they could escape from the bench to the sanctuary of their Chambers. He forced his mind away from the subject while he waited. At last they were ready.
Philip Eaves, acting today as clerk of assize, led the way in formal morning dress, bearing a box perched on a small cushion. The box contained the Queen’s Commissions of Assize, Oyer and Terminer, and Gaol Delivery, which authorised the judge to sit on circuit. Behind Eaves walked the chaplain in clerical garb; behind the chaplain, the High Sheriff, wearing a morning coat resplendent with medals, breeches and buckled shoes, a ceremonial sword hanging from his belt on the left side; behind the Sheriff, Simon in morning dress; behind Simon, Mr Justice Lancaster in his summer criminal robes. Behind the judge came the Mayor of Huntingdon, wearing his chain of office and, behind him, the Town Councillors. Behind the Councillors walked Martin Hardcastle, Queen’s Counsel, fully robed. Uniformed police officers flanked the procession on both sides.
As the judge entered the Town Hall, Ben and Andrew bowed respectfully. Martin Hardcastle detached himself from the procession and walked over to join them. Mr Justice Lancaster was conducted to his Chambers, where someone from the office was making him a nice cup of tea.
Martin nodded briefly to Andrew.
‘Pilkington, a word outside, if you please. Schroeder, would you please go into court and make sure that our instructing solicitor has brought all the necessary papers with him? Please make sure you have all the documents in place in front of you to hand to me when needed. Mr Davis may place my brief, unopened, in my place on the Silks’ bench.’
Smiling, Andrew raised his eyebrows towards Ben.
‘Certainly,’ Ben replied. ‘Are you coming to see Mr Cottage before we begin?’
Hardcastle waved the question away.
‘Later. I have a number of matters to discuss with Pilkington and I am not sure how long we may have before the judge is ready to start the trial.’
He placed an arm around Andrew Pilkington’s shoulders and ushered him quickly outside. Turning to make his way into Court 1, Ben saw Martin light a cigarette as he stood close to Andrew, the two engaged in an animated conversation. In court, Barratt Davis and Jess Farrar were unpacking the documents from the boxes in which they had travelled and placing them on the second row, reserved for junior counsel, and the third row, in which they would sit. The courtroom was a hive of activity. The public gallery was filling up, resulting in constant movement and a hubbub of conversation. Simon, assisted by the High Sheriff’s secretary, was busy arranging the judge’s papers on the bench. Philip Martineau, prosecuting solicitor for the County, was talking to a representative of the Director of Public Prosecutions. Paul was con
ferring with Philip Eaves, who was doing his best to talk to him while at the same time tying the ribbons of his bands securely behind the back of his head. Counsel appearing in the matters listed before the trial of Billy Cottage were jealously guarding the small space they had been able to claim in counsel’s row as Philip Martineau and Barratt Davis gradually encroached on it with their mountain of papers. The courtroom looked as though it had shrunk, and had suddenly become very small.
‘He wants his brief placed, unopened, in front of his place in the Silks’ row,’ Ben said, with more than a hint of frustration.
‘I know,’ Barratt replied. ‘I’ve been through this before with His Majesty. Where is he, by the way? I thought the procession had finished.’
‘He is talking to Andrew Pilkington outside. I tried to get him to see Cottage, but nothing doing. He said he would see him later.’
Barratt shook his head. ‘He doesn’t like talking to clients during a trial. He says it breaks his concentration. He will be as good as his word – he will go to see him later.’ Seeing Ben’s look, he smiled. ‘Don’t worry. You will get used to it.’
Before he could reply, Philip Eaves called for silence and asked whether everyone was ready for the judge to make his entrance. Mr Justice Hardcastle entered court in his red robes, flanked by the High Sheriff and the chaplain – another relic of the assize. They would quietly disappear after lunch, by which time the real work of the assize would have begun.
32
Billy Cottage’s case was called on just after 11.15. A jury panel had been assembled and was waiting outside Court 1. Martin Hardcastle had asked that they remain outside until he had addressed the judge on a point of law. This was it, Ben thought. The battle for the life of Billy Cottage begins here.
‘My Lord, before the jury is sworn,’ Martin said, rising to his feet, ‘there is a point of law I must raise, and it is one which must be dealt with now, as a preliminary point.’
‘Yes, Mr Hardcastle?’
‘My Lord, your Lordship has seen the indictment. The Crown proposes to try William Cottage for capital murder, the allegation being that he murdered Frank Gilliam in the course or furtherance of theft. While there is some evidence that whoever attacked Frank Gilliam later stole a gold cross and chain from Jennifer Doyce, it is the Crown’s case that Cottage raped Jennifer Doyce, and that he killed Frank Gilliam to facilitate that crime. Moreover, I do not think my learned friend will dispute that the evidence he proposes to call will show that Frank Gilliam was already dead by the time the attacker, whoever he was, stole the cross and chain. The killing could not, therefore, have been in the course or furtherance of the theft; and it is clear that he stole from Jennifer Doyce, not from Frank Gilliam. I invite your Lordship to direct the Crown to prefer an indictment which alleges non-capital murder, and to quash the present indictment.’
Mr Justice Lancaster had been listening intently, scribbling notes as Hardcastle spoke. Now, he looked up.
‘But Mr Hardcastle, it will surely be a matter for the jury whether they find that the murder was committed in the course or furtherance of theft. If they are not sure of that they will convict, if at all, only of non-capital murder. They are entitled to return that alternative verdict, are they not?’
‘They are, my Lord.’
‘Then, it would seem to me that your application is premature.’
‘My Lord, with respect, no. This is a case where it would not be possible for a jury, properly directed, to return a verdict of capital murder. The evidence does not allow it. I submit that your Lordship would be obliged to withdraw the question of capital murder from them at the close of the prosecution case. Nothing but prejudice to Mr Cottage can result from allowing them to consider it until that point, and then have it withdrawn from them on what may seem to them to be technical grounds. The right course is to deal with the matter now, and withdraw that question before the trial begins.’
The judge nodded.
‘I see. Yes, thank you, Mr Hardcastle. Mr Pilkington, what do you say about that?’
‘My Lord, in my submission, a jury, properly directed, would be fully entitled to convict of capital murder. Grateful as I am to my learned friend for telling me what the Crown’s case is, perhaps I may be permitted to explain that to your Lordship myself?’
Both the judge and Hardcastle smiled.
‘My Lord, I do propose to adduce evidence that William Cottage raped Jennifer Doyce. I do contend that he killed Frank Gilliam to facilitate that crime. But I do not concede that the rape was the only purpose in his mind on that night. Indeed, the evidence shows that Cottage also stole the gold cross and chain she was wearing…’
‘Mr Hardcastle says that he stole it from her, not from Frank Gilliam, the person he killed.’
‘With respect, my Lord,’ Pilkington replied at once, ‘that makes no difference at all. I am sure your Lordship is familiar with section 5(5)(e) of the Homicide Act 1957, to be found in chapter twelve of Archbold, which provides that: “theft includes any offence which involves stealing or is done with intent to steal”. There is no suggestion that the person who is killed must be the victim of the theft. Take, for example, a case in which a bank robber kills a security guard in the course of a robbery. The robber is not stealing from the guard, he is stealing from the bank. But surely my learned friend would not argue that a charge of capital murder would be misconceived under the Act? It is the very mischief Parliament had in mind when the Act was passed and the categories of capital murder were defined.’
Mr Justice Lancaster was nodding.
‘Will the evidence show that Frank Gilliam was dead before the cross and chain was stolen?’
Pilkington hesitated.
‘My Lord, we cannot say exactly at what time Frank Gilliam died. But I am prepared to accept that the jury could very properly draw that conclusion, and I would not seek to resist it. Nonetheless, it is also open to the jury to conclude that the killing of Frank Gilliam facilitated whatever offences Cottage intended to commit, or did commit, on that evening, and if they draw that conclusion, the killing was in the course or furtherance of theft. There is no language in the Act which prevents that result. It is a matter for the jury.’
He paused to observe the judge’s reaction. Mr Justice Lancaster thought for some time, his head down over his notebook, before looking up again.
‘I am against you, Mr Hardcastle. There is evidence from which the jury could conclude that the killing was in the course or furtherance of theft. I will direct them carefully about that, and about the alternative open to them. And, of course, let us not forget that before they convict of anything, they must be sure that it was William Cottage who was the attacker.’
Hardcastle stood and bowed.
‘As your Lordship pleases. In that event, may I invite your Lordship to rule that the Crown should not be permitted to adduce evidence of rape? If the underlying crime is really theft, the allegation of rape can have no effect but to prejudice the jury against him.’
Pilkington leapt to his feet.
‘My Lord, I have already made it clear that the Crown does not suggest that the theft was the only…’
But the judge was holding up a hand.
‘Mr Hardcastle, I am rather surprised by your submission. It sounds rather macabre, but is it not in Cottage’s interest to have the jury focus on the rape, rather than the theft?’
Hardcastle smiled broadly.
‘I don’t press the point, my Lord,’ he conceded.
‘Very well,’ the judge said. ‘Let’s proceed.’
Throughout this exchange Billy Cottage had sat impassively in the dock, but now Philip Eaves ordered him to stand.
‘William Cottage, you are charged in this indictment with capital murder. The particulars of the offence are that you, on the night of the 25 to the 26 of January 1964, in the County of Huntingdon, murdered Frank Gillia
m, and the murder was in the course or furtherance of theft. How say you? Are you guilty or not guilty?’
Billy looked around the court before replying.
‘Not guilty.’
Martin Hardcastle had already decided that, unless his professional instincts literally screamed otherwise, he would not exercise any peremptory challenges. This would be a trial about the merits of the case, not about lawyers’ games. The defence would accept the first twelve citizens selected at random and trust them to do their duty. The result was an all-male jury, but with three generations represented and with dress varying between the most formal business suits and sports jackets with grey slacks. Running an experienced eye over them, Martin concluded that they were as good as he was likely to get.
33
Mr Justice Lancaster nodded in Andrew’s direction.
‘Yes, Mr Pilkington.’
Without undue haste Andrew placed his notebook on his podium and turned slightly to his left to face the jury.
‘Much obliged, my Lord. May it please your Lordship, members of the jury, I appear for the Crown in this matter. My learned friends Mr Hardcastle and Mr Schroeder appear for the accused, William Cottage.’
Hardcastle remained staring fixedly ahead. Ben, however, turned slightly and gave an almost imperceptible nod of the head in the direction of the jury.
‘Mr Cottage is the man seated in the dock at the back of the court.’
The jury glanced nervously to their right. Billy Cottage sat motionless beside the prison officer, his eyes apparently fixed on the floor of the dock.
‘You already know, members of the jury, that the accused is charged with capital murder. His Lordship will direct you as to the law later in the trial but, with his leave, I will make it clear now that it is no part of your duty to consider the consequences of your verdict. That is a matter for the law. Your duty is to consider the evidence and to say by your verdict whether or not the Crown has proved its case beyond reasonable doubt. Under our system of law, no accused has any obligation to prove his innocence. It is always for the Crown to prove his guilt. His Lordship will direct you later in the trial and, with his leave, I make it abundantly clear now that you may not convict Mr Cottage unless the evidence proves his guilt beyond reasonable doubt. The Crown contends that the evidence does so, and does so very clearly, but that is a matter for you to decide.’
