A Matter for the Jury

by Peter Murphy

  Barratt Davis had taken Ben’s advice, and had asked Merlin to send Clive to Huntingdon to take a note of the evidence in Ben’s absence. Gareth Morgan-Davies had been only too pleased to part with his pupil for the day to expose him to the experience of a trial of this kind. Arnold had already taken the oath when his eyes settled on Overton, and Andrew Pilkington’s first question, asking him to identify himself, bypassed him completely. He simply stared at Clive in disbelief.

  Clive gave no sign of recognition, even though, when he had arrived at court and spoken to Barratt Davis, Arnold’s name was immediately familiar. For a moment he experienced a sense of rising panic. He had a sudden flashback to the time of his arrest. He had been lying, in a drunken sleep, on his bed in his room at college when Arnold and Phillips came for him. It had been after 3 o’clock in the morning. He had been taken to the police station and thrown, hung over and dishevelled, into a cell until the time came for his first appearance before the Cambridge magistrates. It had been just over three years ago, but it felt like another life. He had moved on. He had fallen in love in America and Bonnie had come to England with him as his wife. He had completed his degree and been called to the Bar. He was a new man. But he had always known that there would be reminders. He had to learn to deal with them when they came. He had to concentrate. His head was bent over his blue notebook, ready to record every word Arnold said.

  ‘Your name and rank, please,’ Andrew Pilkington was saying for the second time.

  Arnold suddenly became aware that Clive Overton was the only person in court not looking at him. He turned towards Andrew.

  ‘I’m sorry, sir. Stanley Arnold, Detective Superintendent, attached to Cambridge Police Station, my Lord.’

  ‘Are you the officer in overall charge of the case?’

  ‘I am, sir.’

  ‘And did you make notes of your activities during the investigation?’

  ‘For the most part, sir, I did, yes. There were occasions when my colleague DI Phillips made notes of certain things and I verified them at or near the time, while the events were fresh in my memory.’

  ‘I see. Thank you, Superintendent. Then, if you would produce your notebook, please.’

  Arnold glanced across once more at Clive, which caused him to fumble more than usual while extracting his notebook from his inside pocket. Then he wrenched his eyes away and began to focus on his evidence.

  More than an hour later, Arnold’s evidence in chief having been completed, Mr Justice Lancaster decided on a short break, and Arnold gratefully left the court and walked out of the building into the fresh air of Market Square. Turning to his left he almost bumped into Clive Overton, who had felt the need of the same relief. Arnold’s first reaction was to turn and walk the other way. But this time, Clive was looking at him.

  ‘Superintendent,’ he said, with a courteous nod.

  ‘Mr Overton.’

  ‘I’m sure you are surprised to run into me here,’ Clive said.

  ‘To be honest, sir, there’s not a lot that surprises me these days.’ He paused. ‘I had heard that you had come back from America.’

  ‘Yes. Some time ago.’

  ‘And you have qualified as a barrister. Congratulations.’

  ‘Thank you.’

  ‘Are you in your father’s Chambers, with Mr Hardcastle?’

  ‘No. No, I am with Bernard Wesley QC, with Mr Schroeder.’

  ‘I see.’ Arnold smiled thinly. ‘Your father cross-examined me once,’ he said, ‘at the Cambridge Assize. It was not a pleasant experience.’

  Clive smiled.

  ‘I’m sure it wasn’t. I know all about that. I grew up with it, believe me.’

  There was an awkward silence.

  ‘Superintendent,’ Clive began, ‘I know you must have been angry about what happened, with the charges being dropped…’

  Arnold shook his head.

  ‘Nothing to do with me, sir,’ he replied. ‘All the decisions were taken by the Director of Public Prosecutions. I am sure he had good reasons for whatever he decided.’

  He allowed a moment to pass before turning back towards the entrance to the Town Hall. He began to walk away, then suddenly turned back to face Clive.

  ‘I heard that you went to visit William Bosworth’s family in Yorkshire?’

  ‘Yes, I did,’ Clive replied.

  Arnold nodded.

  ‘That must have taken a great deal of courage,’ he said.

  He pulled the door open and entered the Town Hall without waiting for a reply.

  49

  When Ben and Jess arrived back at the George, it was after 1 o’clock. Ben was about to go upstairs to his room to change for court when he noticed Barratt Davis and Martin Hardcastle sitting at a table in the lounge, each with a pint of beer in front of him. Glancing at Jess with surprise, he walked over to join them. Jess followed and took the fourth seat.

  ‘Early day?’ Ben asked.

  Barratt nodded. ‘Adjourned until tomorrow morning,’ he confirmed.

  ‘Oh? Have we finished the prosecution’s case?’

  ‘Yes,’ Barratt replied. ‘Nothing very interesting in the police evidence. The interviews hurt us, of course, but we knew that was coming, and Cottage didn’t challenge the evidence.’

  ‘And we are not starting Cottage’s evidence today?’

  Barratt looked down at the table and then up again.

  ‘There will be no evidence from Billy Cottage,’ he replied. ‘The judge adjourned to allow us to prepare our speeches for tomorrow morning.’

  Ben stared at him for some time. He found himself struggling for words.

  ‘What? We told the judge that Cottage would not give evidence?’

  ‘I gave the judge that information, yes,’ Martin Hardcastle said. ‘Do you have something you want to say about it?’

  Ben fought to keep his composure.

  ‘Yes,’ he replied. ‘I do. We were still discussing the question of whether to call him when I left. No decision had been taken.’

  ‘I took the decision while you were away, Ben,’ Hardcastle replied, ‘to advise Cottage not to give evidence. I took your views into account, but as leading counsel, it was a matter for me. In fact, regardless of any advice you or I might give him, Cottage does not want to give evidence, and he does not want his sister called to give evidence. It is his decision, after all.’

  Ben shook his head in frustration. His voice was animated.

  ‘I’m perfectly aware that it is his decision,’ he replied. ‘But you know as well as I do that he has been shaky about it all the way through. Of course he’s not keen on giving evidence. How could he be? But we have been working with him, and he had come to see that he has no choice. He would have given evidence if we told him to.’

  ‘I don’t think that would be the right thing to do at all,’ Hardcastle said.

  ‘Well, I do.’

  Hardcastle shook his head.

  ‘Ben, listen to me. If he gives evidence he won’t last five minutes. I’m not even sure he could get through evidence in chief, let alone cross-examination.’

  ‘Why not? Don’t you think he would be telling the truth?’

  ‘If I thought that, I couldn’t call him to give evidence,’ Hardcastle pointed out. ‘I can’t put evidence I believe to be false before the court.’

  ‘Not if you know it’s false,’ Ben replied. ‘But that’s not what we are talking about here. We have no basis for saying he is not telling the truth. In fact, he could perfectly well be telling the truth. And his sister supports him.’

  ‘His sister says he was at home when she woke up on Sunday morning,’ Hardcastle said, ‘which no doubt he was. Her evidence doesn’t help us in the slightest, and Andrew Pilkington will be asking questions about whether she saw him during the night.’

  ‘I agree the
re is a risk that we will be hurt by the cross-examination,’ Ben said. ‘But that’s a chance we have to take. We cannot justify advising this man not to give evidence of a plausible alibi which is not contradicted by the prosecution’s evidence. It may be his only hope.’

  There was a silence.

  ‘Ben,’ Hardcastle said, ‘the time has come for us to face up to reality. Cottage’s best hope is that the jury will not buy the prosecution’s argument that the killing was in the course or furtherance of theft. In that case, he will be convicted of murder, but the sentence will be life imprisonment rather than death. At this point, I think that result would represent a success.’

  ‘We can’t concede that he is guilty of murder.’

  ‘We are not going to concede anything,’ Hardcastle replied. ‘We can argue that the prosecution’s evidence is insufficient for a conviction. But our back-up is that, if he is guilty, he is guilty of non-capital murder only. It offers the jury a compromise if they are undecided, and it still keeps us in the game for a not guilty.’

  He paused.

  ‘If we let him give evidence and Andrew tears him limb from limb, which I believe to be the most likely outcome – because, let’s be honest, if we put his intelligence and his sister’s together, it hardly registers on the scale – we may have lost the theft point beyond any hope of recovery. The jury will still have the interviews ringing in their ears. Let’s not forget – he couldn’t even give the police a consistent account of something as simple as where he found the cross and chain. Andrew is bound to ask him about that, and he’s got ammunition to contradict him, whatever he says. It would be a disaster. Andrew may well prove course and furtherance of theft once and for all, and then we have no straws left to grasp at.’

  Ben took a deep breath, waving away a waiter who was asking whether he wanted anything.

  ‘Barratt, what do you think about this?’

  ‘Barratt agrees with you in principle,’ Hardcastle said. ‘But I think he has begun to see that I am right about what might happen. I’m sorry, Barratt, I shouldn’t presume to speak for you.’

  Barratt thought for some time.

  ‘Speaking as a solicitor,’ he said, ‘it is my view that whatever we do is a gamble. The prosecution has built a pretty strong case against Cottage and, whatever we do, we can’t guarantee that it won’t go horribly wrong. That being said, Cottage has maintained from the beginning that he has an alibi and, in my mind, I can’t justify not calling him to give evidence about it. If he is exposed as a liar, then so be it. But Martin, just think for a minute about him being hanged without telling his story. I think that he ought at least to hear what Ben has to say tomorrow morning.’

  Hardcastle shrugged.

  ‘All right,’ he replied. ‘Let him hear what Ben has to say. But he’s going to hear from me again at the same time.’

  There was another silence. Hardcastle drank the remains of his pint, and stood.

  ‘I’m going to my room now, to think about my speech,’ he said. ‘But before I do, Ben, let me make one last point which you may not have thought of. If Cottage is convicted after not giving evidence on my advice, it gives you something extra to complain about to the Court of Criminal Appeal, doesn’t it? Just in case they get bored with the course and furtherance of theft.’

  He began to turn away.

  ‘How is your grandfather, by the way?’

  ‘He is going be all right,’ Ben replied. ‘Thank you.’

  50

  26 June

  ‘Mr Hardcastle is my main barrister,’ Billy Cottage said. ‘I’m going to do what he advises. So is Eve.’

  It was just after 10 o’clock, less than half an hour before closing speeches were due to be made, and Court 1 was filling up for what the public expected to be a dramatic session. Ben and Martin had once more made their way along the narrow corridor and were standing outside Billy Cottage’s cell with Barratt and Jess.

  ‘You are entitled to do that,’ Ben replied. ‘But I have a responsibility to tell you what I think. So does Mr Davis. We have talked about this before, haven’t we? I know you don’t want to give evidence and be asked lots of questions. Of course, you don’t. No one would. But there is no other way for the jury to know that you weren’t there on the Rosemary D that night. I thought you understood that.’

  ‘Mr Hardcastle can tell them,’ Cottage replied.

  ‘No, I can’t,’ Hardcastle intervened at once. ‘I told you that yesterday. I can’t give evidence. All I can do is argue to the jury based on the evidence.’

  ‘But you said…’

  ‘I said that my advice was not to give evidence. I have listened to what Mr Schroeder has said, and that remains my advice. But I can’t tell them what happened for you. That is up to you.’

  Cottage turned his back and walked slowly around his cell once or twice.

  ‘But you still think I should not give evidence?’ he asked Hardcastle.

  ‘That is my advice,’ Hardcastle replied.

  ‘Mr Hardcastle is my main barrister,’ Cottage said. ‘I’m going to take his advice.’

  He folded his arms across his chest defiantly.

  * * *

  The trial ended just before 3 o’clock. Mr Justice Lancaster had the gift of summing a case up clearly and succinctly, and he had chosen to sit through the usual lunch hour to make sure of getting the jury out that afternoon.

  ‘So, in conclusion, members of the jury’ he said, as he ended the summing-up, ‘remember what counsel has told you. Mr Pilkington says that the evidence in this case, although circumstantial, is overwhelming. Mr Hardcastle says that the evidence is not sufficient for proof beyond reasonable doubt – that the prosecution has simply failed to prove its case. He adds that even if you were to convict of murder, there is no evidence that the murder was in the course or furtherance of theft.’

  ‘As I said before, ask yourselves first whether the prosecution has proved beyond reasonable doubt that the accused, William Cottage, and no one else, murdered Frank Gilliam. If that is not proved beyond reasonable doubt, Cottage is not guilty of anything. If you do find it proved beyond reasonable doubt that Cottage murdered Frank Gilliam, then you must also consider whether it is proved, to the same standard, that the murder was in the course or furtherance of theft. If it is, then your verdict will be one of capital murder. If not, your verdict will be one of non-capital murder.’

  After a few more words, the judge sent the jury to their room to begin their deliberations.

  51

  Paul, the usher, suggested that they return to the George to await the verdict. He would summon them to court by phone when the time came. There was no way of telling when that might be. The members of the jury were not permitted to separate now until they reached a unanimous verdict, and if they found it difficult to agree, it might mean a very late night. The press and the public appeared to have no intention of leaving the Town Hall either, and there was nowhere quiet or comfortable to wait there. They gratefully took Paul’s advice.

  They spent about an hour together in the lounge, drinking coffee and toying with sandwiches. The conversation was spasmodic and strained. Eventually they abandoned the effort altogether and went to their respective rooms to pass the time as comfortably as they could. There was never an easy way to wait for a jury. Even in a less serious case it could be a nerve-wracking time. In this case, it was almost unbearable. Dinner time came, but the thought of food was not appealing. It was 9.30 when Paul phoned through and asked them to return to court.

  * * *

  The judge entered court with his chaplain and his clerk, who both sat to his right. There was total silence as the judge took his seat. Philip Eaves picked up the indictment from his bench, turned to the judge, bowed, then turned to the jury.

  ‘Members of the jury,’ he called out ‘who shall speak as your foreman?’

 
The foreman of the jury was a tall, distinguished-looking man who had taught mathematics locally before his recent retirement.

  ‘I am the foreman, sir,’ he replied.

  ‘Members of the jury,’ Eaves continued, ‘has the jury reached a verdict on which all twelve of you are agreed?’

  ‘We have, sir.’

  ‘Members of the jury, on this indictment, charging the accused William Cottage with capital murder, how say you? Do you find William Cottage guilty or not guilty?’

  The foreman turned briefly towards the dock and then back to Philip Eaves.

  ‘We find the accused, William Cottage, guilty of capital murder,’ he replied.

  ‘You find the accused guilty of capital murder, and that is the verdict of you all?’

  ‘It is, sir.’

  Eaves turned and bowed to Mr Justice Lancaster, handing him the indictment, on which a verdict had now been returned, to symbolise the end of the trial.

  As a matter of courtesy, the judge looked briefly down at Martin Hardcastle, who shook his head. There was nothing to say, no question of mitigation. The penalty was fixed by law. The judge’s clerk approached with the black cap, which he placed on top of the judge’s wig.

  ‘William Cottage,’ the judge said, ‘the jury has convicted you of capital murder. Have you anything to say before sentence is passed upon you?’