A Matter for the Jury

by Peter Murphy

  ‘Yes,’ Lord Parker intervened, to Ben’s surprise, ‘but the point Mr Schroeder is making is that, while that may be the proper course generally speaking, it was not the proper course here because the evidence to support a finding of course or furtherance was too tenuous to be left safely to the jury. Isn’t that right, Mr Schroeder?’

  Ben inclined his head slightly in gratitude.

  ‘Yes, my Lord. It seems remarkable, as the Crown invites the Court to do, to impute to Parliament an intention that a conviction for capital murder would be proper in these circumstances, in the absence of a clear provision to that effect. It seems to be a case which Parliament never considered. If they had, I submit that they might well have regarded such a conclusion as unjust, and unnecessary for the public policy purposes which underlie the Act.’

  Lord Parker looked at Mr Justice Carver.

  ‘I would like to hear from the prosecution on that point,’ he said quietly. ‘I confess that I find it far from easy. Perhaps we could move on to the final ground?’

  Carver nodded.

  ‘We have your argument on the second ground, Mr Schroeder.’

  Ben took a deep breath.

  ‘Yes, my Lord. The third ground concerns the fact that Cottage did not give evidence in his defence, and did not call a witness who was available to him. He was prepared to give evidence of an alibi, namely that he made his way home after leaving work at the Oliver Cromwell public house, and remained at home throughout the night until the following morning. His sister, Eve Cottage, would have said that, although she did not know what time her brother returned home on the night of the twenty fifth, because she has the habit of retiring early, nonetheless, he was in the house when she woke up the next morning at 7 o’clock.’

  ‘And why was that evidence not called?’ Mr Carver asked.

  Ben hesitated.

  ‘My Lord…’

  The Lord Chief Justice intervened.

  ‘You need have no concerns about seeming to giving evidence, Mr Schroeder. Our practice is to accept the facts from Counsel. We need to understand what happened.’

  ‘Yes, my Lord. My Lord, I concede that Cottage was initially reluctant to give evidence, or to ask his sister to give evidence on his behalf, simply because of apprehension. He is a person of limited education, as is his sister, and he was afraid that he would not be understood or that he might not be able to explain himself adequately. But both I, and my instructing solicitor, Mr Davis, who sits behind me, had spent considerable time with him, and we believe that we had convinced him that he had to put aside any nervousness and tell the jury about what happened on the night in question. It was our clear understanding that he accepted that position.’

  ‘You believed that there was a case to answer?’ Mr Justice Melrose asked.

  ‘Yes, my Lord,’ Ben replied immediately. ‘We were clear about that.’

  ‘But…?’ Mr Justice Carver asked.

  ‘My Lord, there came a day on which Mr Hardcastle was indisposed, because of… apparent food poisoning. This was the day on which Jennifer Doyce was called to give evidence and…’

  ‘And the day on which you cross-examined her,’ the Lord Chief Justice observed, with a smile.

  ‘Yes, my Lord. Mr Hardcastle had not raised the question of defence evidence until then. But after the court had risen on that day, he had recovered sufficiently to meet Mr Davis and myself. He advanced the idea that it was unnecessary for Cottage to give evidence, or call evidence, because we had weakened the prosecution case to such an extent that the best course was to leave it to the jury on the prosecution case, and argue that the case had not been proved beyond reasonable doubt.’

  ‘What view did you and Mr Davis take about that?’ Mr Justice Carver asked.

  ‘My Lord, I think it is fair to say that we were sceptical. We believed that Mr Hardcastle had misjudged and underestimated the strength of the prosecution case,’ Ben replied. He looked up and saw all three members of the Court nod, as if in agreement.

  ‘But before the question could be resolved,’ Ben continued, ‘I was called away for the night because of the serious illness of a close relative. When I returned the next morning, I found that Mr Hardcastle had seen Cottage and had advised him that on no account should he give evidence, or call his sister to give evidence. I went to see Cottage myself with Mr Davis, but we were unable to persuade him otherwise. It was in those circumstances that no evidence was called for the defence.’

  There was a lengthy silence. Ben bit his lip.

  ‘With considerable regret,’ he said, ‘I believe it to be my duty to submit to your Lordships that Mr Hardcastle was guilty of a serious error of judgment, which deprived the jury of vital evidence – evidence, which, if believed, might very well have resulted in an acquittal.’

  The Lord Chief Justice sat up in his chair.

  ‘Mr Schroeder, it was for the appellant to decide whether or not to give evidence, was it not?’

  ‘Yes, my Lord.’

  ‘Of course, he would listen to the advice of leading counsel but, at the end of the day, it was his decision. He listened to all points of view put to him and made his decision. Isn’t that right?’

  Ben drew himself up to his full height.

  ‘My Lord, as a matter of legal theory, your Lordship is quite right. But this appellant is a man of limited education, a lock keeper by trade, charged with a capital offence. I am sure your Lordships can imagine only too well the strain of his situation. A man in his position is unlikely to go against the advice of leading counsel. And if leading counsel makes an error of judgment as egregious as that made by Mr Hardcastle in this case, I submit that the interests of justice demand that your Lordships should intervene. It is a matter of basic fairness.’

  Ben stood back to try to assess the effect his words might have had. But the judges gave little away.

  ‘Unless I can assist your Lordships further?’

  ‘No,’ the Lord Chief Justice said. ‘Thank you very much, Mr Schroeder. We are much obliged to you. Mr Pilkington?’

  * * *

  Andrew Pilkington stood, but did not begin immediately. He saw that the three judges were conferring quietly. At length Mr Justice Carver looked down from the bench.

  ‘Mr Pilkington, we require your assistance only in relation to the second ground of appeal. It does seem strange, does it not, that a man can be convicted of capital murder in the course or furtherance of theft when there is no evidence of theft, or an intent to steal, before the killing takes place?’

  Andrew nodded.

  ‘My Lord, if that were the case, it would be somewhat strange. But that was not the state of the evidence. My learned friend Mr Schroeder has argued, with his customary eloquence, and as his leader did at trial, that the prosecution’s case was based solely on the motive to rape Jennifer Doyce. That was not the case. The prosecution’s case was that the appellant intended to commit whatever offences he could find to commit for his own gratification. The rape was, of course, one such offence. But, by the same token, so was the theft. If the jury found that the appellant stole Miss Doyce’s gold cross and chain, as they were entitled to find, it was also open to them to find that the appellant had formed the intent to steal anything he found worth stealing once he had boarded the Rosemary D, and once he had overcome resistance by killing Frank Gilliam. The jury’s verdict shows that that was the conclusion they reached, after a careful summing-up by the learned judge, of which no complaint is made. My Lords, that verdict is consistent with the intent of Parliament, as expressed in section 5 of the Homicide Act 1957, that murder in the course or furtherance of theft should be prosecuted as capital murder. With respect, it is not for your Lordships’ Court to seek to overturn that parliamentary intent, which is what my learned friend, in effect, seeks to persuade your Lordships to do. On the contrary, your Lordships are bound to give effect to the plai
n wording of the Act. No real question of law was involved here. It was a question of fact. It was a matter for the jury.’

  After a respectful pause to await any questions from the bench, Andrew resumed his seat. The judges conferred again.

  ‘We will retire to consider our decision in this case,’ Lord Parker announced. In a second or two, the judges were gone.

  54

  A member of the Bar whom Ben did not know smiled at him from his left.

  ‘Well done,’ he said. ‘It’s not often you get this lot to retire. It’s usually a quick mutter to each other, appeal dismissed, and on to the next one. Someone said this was your first time, is that right?’

  ‘Yes,’ Ben replied quietly.

  ‘Well, bloody well done. The first time is the worst. Once you’ve lost your virginity it’s not quite as bad. But I must say, I’ve been doing it for a few years now, and it still gives me the willies before I’m even on my feet.’

  Ben smiled.

  It was ten minutes before the judges returned. The same member of the Bar leaned over towards Ben as they rose to their feet. ‘It’s especially unusual to get them to rise for ten minutes,’ he said.

  Lord Parker looked up.

  ‘Mr Justice Carver will give the judgment of the Court in this case.’

  Carver picked up his reading glasses from the bench and put them on. He pulled together a number of sheets of paper from the bench in front of him and arranged them in order. He glanced down at counsel before returning his gaze to his papers.

  ‘On the 26 June of this year,’ he began, ‘the Appellant William Cottage was convicted of capital murder before Mr Justice Lancaster and a jury at the Assize at Huntingdon, and was sentenced to death. The facts of the case can be stated quite shortly…

  ‘Whenever a judge says that the facts of the case can be stated quite shortly,’ Gareth had said one day after they had listened to a judgment in a civil case, ‘you can resign yourself to a long wait before you know which way they are going to go. They love to make you wait for the result while they show off how well they have mastered the facts of the case. It gives them a feeling of power.’

  Gareth’s words came back to Ben as he listened to Mr Justice Carver recite the history of the conviction of Billy Cottage. There was nothing to do but wait. Ben tried hard to look more confident than he felt as he made a pretence of writing a note, or studying the hand-carved coat of arms above the bench. But the wait seemed like an eternity. At last, Mr Justice Carver seemed to be getting to the point.

  ‘In the judgment of this Court,’ the judge was saying, ‘the evidence to which I have referred fully justified the verdict of guilty of murder returned by the jury. They were aided by an impeccable summing-up by the learned trial judge, of which no criticism has been made, or could be made, before this Court. But the appellant has taken three points which we must consider. They have been very ably put to us by Mr Schroeder who, for reasons which will become clear in the course of this judgment, did not have the assistance of leading counsel who appeared at trial, Mr Hardcastle QC. In our judgment, the appeal did not suffer because of that. The grounds of appeal could not have been more clearly presented and we are grateful to Mr Schroeder.

  ‘The first ground is that the learned judge erred in permitting evidence to be given that Jennifer Doyce was raped. The Crown alleged that this was a case of capital murder because the murder was committed in the course or furtherance of theft. The defence say that, on that basis, evidence of the act of rape was irrelevant and inadmissible, and caused the defence such prejudice that the verdict of the jury was not safe and satisfactory. We deal with this point very shortly. In our judgment, the learned judge was entirely correct in admitting the evidence. It was a part of the assault committed against Jennifer Doyce, which in turn formed part of the background, not only of the killing of Frank Gilliam, but also of the act of theft. Moreover, we note that Mr Hardcastle did not press his application to exclude the evidence before the trial judge – in our view, quite rightly. There is no merit in that ground of appeal.

  ‘The second ground is that the learned judge erred in law by holding that the appellant could be convicted of capital murder on the facts of the case. At most, it is said, this was a non-capital murder. The Crown alleged that the murder of Frank Gilliam was committed in the course or furtherance of theft. This would make the murder a capital crime under section 5(1)(a) of the Homicide Act 1957. This allegation depended on the jury being satisfied that the appellant stole Miss Doyce’s gold cross and chain. Mr Hardcastle took the point before the accused was arraigned, and again at the conclusion of the evidence, and invited the learned judge to order that the indictment should allege non-capital murder only, and to direct the jury that non-capital murder was the only charge for them to consider. The judge declined to do so. As I have indicated, the evidence tendered to support the allegation of theft was circumstantial, and depended on the appellant’s possession of the cross and chain and his unsatisfactory attempts to explain how he had come by it. In the view of this Court, the jury was perfectly entitled to reach the conclusion that the appellant stole it. But Mr Schroeder argues that, even if the jury were to reach that conclusion, they could not properly convict of capital murder because the killing of Frank Gilliam was not “in the course or furtherance of theft”. He argues that the evidence showed that the main motive for the killing of Mr Gilliam was not theft, but the rape of Miss Doyce; and that, even if the appellant took the cross and chain from her person, Mr Gilliam must already have been dead some time before that. The first of those arguments is, if we may say so, rather ironic, given that in the first ground of appeal argued before us today it was suggested that evidence of the rape should not have been admitted, but we understand that counsel has a duty to advance every arguable ground on his client’s behalf.

  ‘Mr Schroeder referred us to the decision of this Court in the case of Jones in 1959, in which the appellant stole property from a cooperative store, and was about to leave the premises when he saw the manager enter. Fearing detection, he struck the manager on the head, causing several fractures of the skull, from which the manager died. He argued on appeal that, even if he were guilty of murder, it could not be capital murder because the theft was already complete when the blow was struck. My Lord, Lord Parker, gave the judgment of the Court, rejecting the argument. He said:

  “This was a case where the appellant was caught, if one may use the expression, red-handed, and in order to avoid detection, and while still on the scene of his theft, he committed murder. It is difficult to see why that should not be within the words ‘in the course of theft’.”

  ‘Although the present case is not identical to Jones on the facts, we see no reason to depart from the clear decision reached in that case, merely because the killing in this case preceded the theft, rather than following the theft as it did in Jones. The appellant, as My Lord put it, was “still on the scene”. We take the view that the jury was entitled to find that the killing was “in the course of theft”. But in any case, we have concluded that, even if it was not in the course of theft, the jury was clearly entitled to find that it was “in furtherance of theft”. Under the Act, either is enough to found a charge of capital murder. Mr Schroeder rightly pointed out that the Court in Jones left open the meaning of the phrase “furtherance of theft”. In this case, unlike Jones, it was open to the jury to infer that the appellant intended to steal anything of value he might find, and that the killing of Frank Gilliam facilitated, and was intended to facilitate, the appellant’s act of theft of the cross and chain from Miss Doyce. In those circumstances, the killing of Frank Gilliam was in furtherance of the theft as well as in the course of theft. The fact that the killing also facilitated the rape of Miss Doyce makes no difference to that conclusion at all. For these reasons, the second ground of appeal is dismissed.

  ‘The third and final ground is that the appellant was deprived of a fair
trial because his leading counsel made a strategic decision not to call the appellant, or his sister Eve Cottage, to give evidence in support of an alibi. Mr Schroeder has told us that the appellant maintains that he went straight home on the night in question after completing his shift as a barman at the Oliver Cromwell public house in St Ives, and remained at home until the next day. Eve Cottage, it is said, would have given evidence in support of that contention. If that account of events were to be accepted, then of course it would follow that the appellant could not be convicted of the murder of Frank Gilliam, or indeed of any offence committed aboard the Rosemary D. That the appellant was working at the Oliver Cromwell earlier that evening was not in doubt. Indeed, it was a part of the Crown’s case that he was working, because it was said that the appellant saw Frank Gilliam and Jennifer Doyce drinking in that public house immediately before walking along the river bank to the Rosemary D. The landlord of the house, Charles Edwards, was called to prove that the appellant had been working on that evening, though he also said that the appellant had left somewhat early, and shortly after Mr Gilliam and Miss Doyce had left the premises.

  ‘We begin with two general observations. Firstly, the decision whether to give evidence was the appellant’s decision, and not that of his counsel. Of course, it is part of counsel’s duty to give appropriate advice on that question, and sometimes that advice will and must be robust. But at the end of the day, the appellant must make his own decision. Secondly, we regard it as unsatisfactory that leading counsel should not appear before us to give some account of the sequence of events which led to the appellant deciding not to give evidence. We were told that Mr Hardcastle considered it more prudent to allow Mr Schroeder to make the argument, so that he could be free to criticise the conduct of leading counsel. Having heard Mr Schroeder, we do not consider it to be in the least likely that he would have been inhibited from making such a criticism, and it would have been of some assistance to us to hear about what happened directly from Mr Hardcastle.