by Peter Murphy
‘In the event, we have concluded that it can make no difference to the outcome of the appeal. It appears that Mr Hardcastle considered that it was unlikely that the jury would believe the evidence of alibi once it had been submitted to cross-examination on behalf of the prosecution. He considered that he had done not inconsiderable damage to the prosecution’s case, and that the appellant’s best hope lay in seeking to persuade the jury that the case against him had not been proved beyond reasonable doubt. Mr Schroeder and the appellant’s instructing solicitor took the opposite view, and both views were presented forcefully to the appellant, who then made his decision. It is the duty of leading counsel to advise the course of action he believes to be in the best interests of his client. It is part of the skill and judgment required of counsel engaged in such important and difficult cases to assess the chances of conviction and acquittal, and to conduct the defence accordingly. Counsel who has heard the evidence, seen the witnesses, and spoken with the client at length is in a far better position to do this than anyone else. We consider that we might have taken a different view in Mr Hardcastle’s position, but we cannot say that we would have been correct to do so, because there may have been important considerations which he took into account, of which we know nothing. At the end of the day, our system of criminal justice relies on the experience and skill of counsel to take such difficult decisions. It is not for this Court to substitute its own view for that of counsel engaged in the case. It is the common experience of the members of this Court that, however much damage is done to the prosecution case by cross-examination, the pendulum swings back very quickly if the accused’s evidence is not to be believed, and we have no doubt that Mr Hardcastle had that reality very much in mind.
‘The appellant was represented by experienced leading counsel, and there is no basis for finding that he was denied a fair trial. The prosecution case was left to the jury, it was summed up to them properly, and they made a decision. The appellant’s guilt or innocence was for them to decide. It was, as Mr Pilkington said on behalf of the Crown, a matter for the jury. For these reasons, the third ground also fails and the appeal must be dismissed.’
Ben rose slowly.
‘My Lords, the second ground of appeal, in my submission, involves a point of law of general public importance. I seek leave to appeal to the House of Lords on that ground.’
The three members of the Court conferred briefly.
‘We are against you, Mr Schroeder,’ Lord Parker replied. ‘In our view this is a question of mixed law and fact, and we do not think it is one of general public importance.’
Ben bowed and collapsed back into his seat.
‘That doesn’t prevent you from seeking leave from the House, of course,’ Lord Parker added.
‘Yes, I’m much obliged to your Lordship,’ Ben replied.
* * *
‘Come on,’ Barratt said, putting his hand on Ben’s shoulder. ‘Let’s go down to the crypt and have a coffee.’
They had left court as the next appeal was getting underway, and as the reality of what had just occurred was becoming clear. Ben nodded wearily. He took off his wig and followed Barratt as he led the way through the labyrinthine corridors of the Royal Courts of Justice to the basement café. They sat in silence, sipping their coffee, for some time.
‘That was probably his last chance,’ Ben said. ‘And I feel as though I’ve just been mauled by a pride of lions.’
‘That’s the Court of Criminal Appeal for you,’ Barratt replied sympathetically. ‘You did all you could have done, Ben. As the Court said, the case was put as clearly as it could have been put.’
Ben nodded. ‘Yes.’
They fell silent again.
‘Will you ask the House of Lords for leave to appeal?’ Barratt asked eventually.
‘Yes,’ Ben replied. ‘But I don’t hold out much hope. The Court we had today seemed to think it was a pretty clear case. That’s why they refused leave to appeal. The test is whether the case raises a point of law of general public importance. Our problem is that it’s essentially factual. It’s simply a question of what is meant by “in the course or furtherance”, which is generally a jury question. We will be asking the House of Lords to interpret an Act of Parliament which is not obviously ambiguous on its face. I doubt they will want to do that. Still, we can but try.’
Barratt nodded. ‘I think the Court today got it wrong, but I agree with you about the House of Lords. So, now I have to put together my package for the Home Secretary on the subject of a reprieve. Your job is done, Ben, but I would value your thoughts when we have got the materials together.’
‘Yes, of course. What avenues are you exploring?’
‘I’ve set wheels in motion on two fronts,’ Barratt replied. ‘First, I have asked John Singer to comb through any school or medical records he can find in St Ives that might tend to suggest any mental slowness in Cottage – anything, really. I’m clutching at straws. I’m not very hopeful. Second, I have been in touch with Sydney Silverman MP. He is a bit of a maverick, but he is the acknowledged leader of the abolitionist movement, and he is widely respected for that.’
Ben sat up in his chair. ‘And Silverman is prepared to help?’ he asked.
‘I think so,’ Barratt replied. ‘But there is a limit to what he can do. Most reprieves are granted in cases where the defendant is sympathetic in some way, or the case has exceptional features which would make it wrong to apply the death penalty. None of that applies to Cottage. It was a brutal attack for which there is no mitigation at all.’
‘So, what would he…?’
‘Silverman’s view is that everyone knows abolition is coming. Legislation is on the way, and there is probably enough support in both Houses of Parliament, or there will be soon. So Silverman’s argument is that it must be wrong to execute anyone so late in the day, when capital punishment will end in a year or two anyway.’
‘That’s not a bad argument,’ Ben observed.
‘No, it’s not. Silverman will write to the Home Secretary, Henry Brooke, and he will try to arrange a meeting with him at the House of Commons. Our job will be to provide him with any materials which may help but, to be honest, I’m not sure what those would be in this case. Our problem is that, once Cottage is convicted, this is a bad case – a really bad case.’
‘What is Brooke’s record on capital punishment?’
‘Little known, but not all that promising. He is on record as having no objection in principle to the death penalty, though he is said to be a stickler for the law, and he has said that each case has to be judged on its merits.’
Ben reflected for a moment.
‘I think the law may help us with Brooke,’ he said, ‘despite what happened today.’
‘Oh?’
‘Yes. All right, the Court of Criminal Appeal decided that we fall within the “course or furtherance” provision. Let’s concede that for the sake of argument. Let’s assume they have interpreted the Act correctly. Even so, there must be a question of whether Parliament really intended it to be capital murder when the murder was complete before any intention to steal was formed. It seems that Parliament failed to consider that point when they enacted section 5.’
‘They told us what “course or furtherance” means.’
‘Well, not really, because they ignored the question of when the intent to steal is formed – they didn’t really address the timing point.’
Barratt was nodding.
‘And if they had considered it…?’
‘They might have provided a more precise definition of “course or furtherance”. It’s a point Silverman may be able to make with the Home Secretary. We don’t even have to say that the Court of Criminal Appeal got it wrong today. We can simply say that the law is in an unsatisfactory state because Parliament has not defined its terms, and that it must be wrong to execute a man when we don’
t know what the boundaries of this kind of capital murder are.’
Barratt clapped his hands together.
‘Can you write me an opinion, saying that?’
‘I will have it with you tomorrow.’
‘Good,’ Barratt said. ‘I’m afraid we may not have much time. A date for execution is usually fixed quite quickly once the appeal is out of the way – usually within two or three weeks. The House of Lords may buy us a few days, but not long.’
‘I’ll make a start as soon as I get back to Chambers,’ Ben promised. ‘Keep me up to date, so that I can look at the full package before you send it off.’
‘I will,’ Barratt replied.
* * *
The three judges of the Court of Criminal Appeal had just risen for lunch, and were standing in the corridor outside their court. Lord Parker turned to Mr Justice Carver.
‘Young Schroeder did very well, didn’t he?’
‘He did indeed,’ Carver replied. ‘We didn’t give him an easy ride, but he didn’t seem intimidated, did he?’
The Lord Chief Justice thought for a moment.
‘What do you think we should do about Hardcastle?’
Carver shook his head.
‘It’s a problem,’ he replied. ‘On his day, the man is as good as anyone at the Bar, capable of brilliance at times. But we have been hearing rather disturbing rumours for quite some time now, haven’t we?’
‘I’ve certainly heard rumours of drinking, and not turning up at court from time to time,’ Lord Parker said. ‘And what’s worse is that the rumours come from a number of sources. If you hear such things from one man – well, you know what the Bar is like, it’s the world’s biggest rumour mill – you might be disposed to disregard it. But when you are hearing it from everyone, it’s a different matter. You saw the letter Steven Lancaster wrote to me about the Cottage case once the grounds of appeal had been filed.’
‘Yes.’
‘I didn’t think it would make any difference to the way we looked at the case, and it didn’t. But Lancaster said that Hardcastle failed to appear on a rather crucial day during the trial, claiming to be suffering from food poisoning, and left Schroeder to cross-examine Jennifer Doyce.’
‘What do you think?’ Carver asked.
‘Well,’ Lord Parker replied, ‘the problem as I see it is that, like all Silks, he may be carrying on in the happy expectation of a tap on the shoulder for the High Court bench one of these days. I think we need to bring that expectation to an end.’
‘So you will…?’
‘Unless either of you disagrees, I will have a quiet word with the Lord Chancellor’s people and suggest that they offer him something at the County Court level. Hopefully, he can’t do too much damage there, and even if he does, the Lord Chancellor can dismiss him for misconduct.’
‘I don’t disagree at all,’ Carver replied.
‘Neither do I,’ said Mr Justice Melrose.
55
Ben put his head around the door of the clerks’ room for the briefest of moments and exchanged a wave of the hand with Merlin to signal his return to Chambers. The senior clerk did not press him to come in. His experience had long ago taught him that there were times to talk to his barristers, and there were times to leave them alone with their thoughts.
Ben was grateful for Merlin’s consideration. He walked quickly across the narrow landing which ran between flights of stairs and led to his room on the opposite side of Chambers. Closing the door behind him, he threw the bag containing his robes on to the floor in the corner of the room behind his desk and flopped into his chair. He hurriedly opened a notebook and wrote a heading: ‘Application for Leave to Appeal to the House of Lords’. It sounded hopeless even before he had completed the title. He sat and stared at it blankly, incapable of making a start.
As he gazed through the large windows of his room out into space and began to come to terms with his feelings, they seemed unexpectedly familiar to him and, to his surprise, memories quickly came flooding back. He had been here before. At the Old Bailey, during his first jury trial, he had found himself having to stand up to the fearsome Judge Milton Janner who was interfering with his vital cross-examination of the prosecution’s main witness. Ben had bluntly defied the judge at 1 o’clock, just before lunch, and had been rewarded at 2 o’clock when the judge, recognising his error, apologised. But during that lunch hour, the same demons had come. Seated in a dark corner of the bar mess with a cup of coffee, fully expecting to be disciplined and expelled from Chambers, he had asked himself why he was there. During that one hour, he tortured himself with every imaginable doubt about his ability to succeed as a barrister. Now the demons returned with a vengeance. He had spoken with Billy Cottage. He had shaken his hand. Cottage had placed his trust in him. But Billy Cottage had been sentenced to death, and today Ben had lost him his last real hope of avoiding the gallows. His rational side told him that he must keep his role in perspective. He was junior counsel, and he lacked the power to restrain a forceful but wayward Silk like Martin Hardcastle. But his feelings did not end there, with the rational view. They never did.
Darkest of all was the thought that he did not belong to the barristers’ club – the white Anglo-Saxon public school and Oxbridge clique which seemed to surround him everywhere he looked – and that he did not belong to it, not because of any lack of ability, but because of who he was. He was a Jewish kid from the East End. He came from the wrong family. He had been to the wrong school, the wrong university. Who did he think he was? During that lunch hour at the Old Bailey, he had almost talked himself into taking the next bus to Whitechapel and announcing that he was, after all, ready to devote his life to a career at Schroeder’s Furs and Fine Apparel.
The memory of his trial at the Old Bailey led him to remember his grief for his mentor, Arthur Creighton. Ben had only just returned from Arthur’s funeral in Scotland when Merlin presented him with the Old Bailey brief, and it was Arthur Creighton who had, as if by premonition, reminded him of the duty to stand up to unfair judges, the last time they had met. He wondered what Arthur would have had to say about his first foray into the Court of Criminal Appeal. He smiled despite himself, remembering what Arthur had said on another occasion when all seemed hopeless. ‘Remember, Ben, we don’t make the facts. The clients do that all on their own and, having made them, they sometimes have to live with them.’ Perhaps that was what had happened to Billy Cottage. He had made the facts and now he was living with them – and dying with them.
He started as the door opened. Harriet Fisk came in and stopped awkwardly in her tracks as she saw him.
‘I’m sorry, Ben. I didn’t know you were back.’ She paused. ‘I hear it didn’t go too well over the road this morning.’
‘Bad new travels fast,’ Ben replied. ‘Merlin had heard all about it by the time I got back, I’m sure. He didn’t say anything, but I could tell.’
‘Merlin would have heard before anyone, with his network,’ she smiled. ‘I really am sorry, Ben. But I heard they were nice to you…?’
He looked up at her as if considering the question carefully.
‘Yes, in their own way, I suppose they were,’ he replied. ‘They didn’t have me thrown in the Tower, or disbar me, or order me to pay all the costs.’ He laughed. ‘It’s strange what passes for niceness when you’re over there in front of that lot. Anything other than outright abuse, I think.’
‘I heard they were a lot nicer to you than that,’ she said. ‘And… well, you had grounds that could have… well… could have gone either way, couldn’t they?’
‘Hopeless, you mean?’
‘No… I…’
‘No, I’m sure you’re right,’ he said. ‘You have to believe in your own grounds of appeal, don’t you? If you don’t believe in them, why should the judges? But that doesn’t mean you are going to win the appeal. I’m sure I will see it all
in a more objective light at some point. Just not today.’
She walked across to her desk and threw down the heavy brief she had hauled back from her hearing in the Queen’s Bench Division’s applications court, in a recess of the Royal Courts of Justice affectionately known as the Bear Garden.
‘Come on,’ she said decisively. ‘On your feet.’
‘Why? Where are we going?’
‘The Edgar Wallace, for lunch,’ she replied. ‘On me. There’s no point in sitting here getting ever more depressed. Let’s try a pint and some bangers and mash. If it doesn’t work, you’re no worse off. And let’s not pretend you’re going to get any work done today.’
He shook his head.
‘I have to start a petition for leave…’
‘Anything you write today, you will tear up tomorrow,’ she said. ‘Aubrey taught me that. Never try to draft grounds of appeal on the same day you lose a case. You have to give yourself a day to get over it – sometimes more than a day. “You can’t take a case to the next level until you have come to terms with the last level.” – A Smith-Gurney, circa 1963.’
Ben reluctantly pushed his chair back.
Oh, Harriet,’ he said wearily. ‘The trouble with you is that you are always so bloody logical.’
‘Thank you,’ she replied, smiling.
* * *
The Edgar Wallace, which stands on Essex Street, just outside Middle Temple and a stone’s throw from the offices of Bourne & Davis, has a pleasant, airy dining room upstairs and, as they arrived just before the 1 o’clock rush, they were able to secure a corner table for two.
‘The truth is, Ben,’ she said, once the drinks and bangers and mash had been ordered, ‘that I can’t imagine what you are feeling. Aubrey would never touch crime, so I’ve never seen a client go to prison, much less sentenced to death. You are fully entitled to be as miserable as you like. I will listen until you can’t stand the sight of me any more, then I’ll go.’
