One Law For the Rest of Us
Page 16
‘A conspiracy, members of the jury, is an unlawful agreement. The prosecution must prove that Father Gerrard entered into an unlawful agreement with one or more other persons, and that he played some active role in giving effect to the agreement. Those other persons do not have to be before the court, and indeed, in this case, they are not. In relation to counts three and four, the prosecution say they know who some of the others were – the men we are calling Lord AB, Sir CD, and the Right Reverend EF. The prosecution have chosen not to include them in this case. It makes no difference: as long as you are sure that Father Gerrard entered into an agreement with one or more of them, or with other men whose identity we don’t know, and that he played some role in giving effect to the agreement. In relation to counts one and two, the prosecution say they are unable to identify any men, because those men who were involved in the offences against Emily wore masks to conceal their faces. Again, that makes no difference. The question is whether you are sure that Father Gerrard entered into an unlawful agreement with any such men and played some role in giving effect to the agreement.
‘The agreement must be such that, if carried out in accordance with the intentions of the parties who enter into it, would necessarily involve the commission of a criminal offence. What, then, are the offences the prosecution say Father Gerrard conspired to commit? In counts one and three, the offence is indecent assault. An assault, members of the jury, simply means the unlawful use of force against another person. Touching that person in the genital area and inserting fingers into her vagina may, in law, amount to an assault. In law, no person under sixteen can consent to an assault; and it follows, therefore, that if you accept the evidence of the three witnesses that they were touched between the ages of seven and eleven, there can be no defence based on consent. The prosecution must also prove that the intended assaults would have been carried out in circumstances of indecency. Indecency, members of the jury, means what you, as reasonable and right-thinking persons, decide it means. You would certainly be entitled to find that touching a young girl in the way alleged would be indecent. Indeed, although it’s a matter entirely for you, you may feel that you could hardly reach any other conclusion.
‘In counts two and four, the offence is gross indecency with a child. That, the prosecution say, refers to ordering or persuading a child to touch the penis of any of the men in the room. Again members of the jury, because of the age of the girls, there can be no question of a defence based on consent; and again, it is for you to say whether causing such young girls to touch a man’s penis constitutes an act of gross indecency. And again, you would certainly be entitled to find that such an act would be grossly indecent. Indeed, and again I stress, it’s a matter entirely for you; but you may feel that you could hardly reach any other conclusion.
‘The fact that Father Gerrard may not have touched the children himself in a sexual way doesn’t matter. If he conspired to facilitate the commission of the offences, by providing the girls and a safe haven for the other offenders to commit the offences, knowing what was intended and intending to give effect to the agreement, that is enough to make him guilty of conspiracy.
‘With that in mind, members of the jury, let me come to the evidence on which the prosecution rely.’
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‘Let me take counts one and two first. As you know, both counts relate to Emily. Her evidence was that she was taken from her dormitory by Father Gerrard on various occasions between the autumn of 1972 and early in 1974. She was taken after lights out, and was walked down the staircases to Father Gerrard’s private library, where men wearing masks inserted their fingers into her vagina, and sometimes told her to touch their penis with her hands. Your first task, of course, is to say whether you accept her evidence. Mr Norris invites you to say that her evidence may be the result of childish imagination, perhaps based on some conversation she had heard at home; or perhaps the result of ill-feeling of some kind towards Father Gerrard. Mr Schroeder, on the other hand, paints her as a thoroughly reliable girl, who was composed and sure of herself in the witness box, and even had the courage to leave her cover behind the screen and confront Father Gerrard in person.
‘Members of the jury, it is for you to say where the truth lies. But I am obliged to warn you that it would be dangerous to convict Father Gerrard based on Emily’s evidence in the absence of corroboration. You’ve heard the word “corroboration” used quite often during this trial, and I must now explain to you exactly what it means. There’s no magic in the word “corroboration”, members of the jury. All it means is this: evidence is corroborated if there is some other evidence, independent of the evidence that requires corroboration, which supports that evidence by tending to prove that the defendant committed the offence charged.
‘Because corroboration must be independent of the evidence to be corroborated, what Emily told her parents on that Sunday evening cannot corroborate her evidence. That doesn’t mean that what she said is irrelevant. Indeed, the defence suggests that it is very relevant, because it may have affected her mother’s claimed recovery of memory. The prosecution also say that it’s relevant as what we call a “recent complaint” that confirms the evidence she gave in court. But what you can’t do – even though it’s an obvious temptation – is to treat her statement as corroborating the evidence she gave in court; it’s not independent evidence.
‘I must make it clear that, when I say it would be dangerous to convict on the basis of Emily’s uncorroborated evidence, I don’t mean that you aren’t allowed to do so. It’s your job to decide where the truth lies, and if you are sure that you can rely on her uncorroborated evidence to convict, you may do so. But again, the experience of the courts over many years, indeed centuries, is that it is dangerous to convict based on the evidence of children of tender years, especially those complaining of sexual offences, without some corroboration. What corroboration does the prosecution offer? For this, we have to turn to the evidence of the adult witnesses, which relates to counts three and four. Some of you may be tempted to ask: but how can their evidence corroborate Emily’s evidence, when they gave evidence about events that occurred about thirty years ago, in the early to mid-1940s?
‘The answer, members of the jury, according to the prosecution, is this: if you find that the way in which Audrey Marshall and Woman B were treated in the 1940s is strikingly similar to the way in which Emily was treated in the 1970s, you would be entitled to conclude that it couldn’t possibly be a coincidence, and that the evidence shows a pattern of conduct. It would be wholly unreasonable, they say, to believe that two witnesses could, quite independently, have fabricated stories so strikingly similar to each other. The prosecution say that the evidence shows a systematic course of conduct, which continued during that long period of time between the 1940s and the 1970s, whereby Father Gerrard would select girls to be touched by men he invited to the school for that purpose; and that the details of what occurred were remarkably similar in points of detail. The prosecution point to the way in which, in each case, the girl was taken from her dormitory to the library; the fact she was dressed only in a nightdress, and was barefooted; the fact that the men were waiting in the library; and that they touched the girl, and induced her to touch them, in exactly the same way. So the prosecution say that if you accept the evidence of Audrey and Woman B, it will convince you that Emily must be telling the truth also, and vice versa. There can really be no other explanation, the prosecution say, other than that Emily is truthfully describing her part in a long-standing pattern of sexual abuse at Lancelot Andrewes School, in which Father Gerrard played a central role.’
‘Now, of course, evidence cannot amount to corroboration unless you accept it as truthful and reliable. Mr Norris invites you to say that the evidence of Audrey Marshall and Woman B is neither truthful nor reliable. As to Audrey Marshall, he reminds you that she claims to have recalled being assaulted when she was at school, between the years of 1940 and 1945. She never mad
e any claim of being abused until she recovered her memory during that night in January of this year when Emily told her what had happened to her. Members of the jury, you must bear in mind the possibility that rather than recovering memories, Mrs Marshall was creating memories, so that what she claims to “remember” may in fact be no more than her imagination, fuelled by what she had heard from Emily. Mr Norris goes further. He suggests that Mrs Marshall and her husband, a solicitor, immediately saw the potential for a civil action against Lancelot Andrewes School, realised that Emily’s evidence would need corroboration, and provided that corroboration accordingly.
‘Members of the jury, you don’t have to go that far to question Mrs Marshall’s evidence. Mr Norris suggests that it is not to be believed that she spent six or seven years at Lancelot Andrewes School after the assaults had stopped, without having any memory of them; or that even her sister’s suicide, and that terribly sad note her sister left, failed to bring back any memories at all. He suggests that, even if you reject the idea that this is all a plot to enable the family to sue the school – even if Mrs Marshall is doing her best to be truthful – you simply can’t rely on her evidence. How, he asks, can you account for her ability to identify Lord AB and the other two men from photographs in The Times, taken thirty years later, when they had aged and looked different compared to the photographs he provided you showing them in the 1940s?
‘You will also, no doubt, ask yourselves whether you can exclude the possibility that Mrs Marshall’s recovered memory, in particular her identification of one or more of the three named men, owed something to her discussions with Woman B in the early 1940s. On the other hand, you should also bear in mind the question Mr Schroeder posed to you: is it conceivable, he asked, that Audrey Marshall would have sent her daughter Emily to Lancelot Andrewes School if she’d had any memory of being the victim of sexual abuse there herself?
‘Members of the jury, those are matters which you must consider extremely carefully. If you are not sure you can rely on Mrs Marshall’s evidence, then two things follow, don’t they? Firstly, unless there is other evidence that you do find reliable, you can’t be sure that the prosecution has proved the case on counts three and four beyond reasonable doubt. Secondly, you can’t use Mrs Marshall’s evidence as corroboration of Emily’s evidence.
‘You must take the same approach to the evidence of Woman B. Firstly, is her evidence truthful and reliable? Again, Mr Norris suggests that it is not. He points out, quite correctly, that at the time she came forward, Woman B had not mentioned having been abused as a child for more than thirty years. It is true that she reported the abuse to her parents at the time, and that it then stopped, in her case, at the age of about nine. But she has since married, and she had not even told her husband about it. Mr Norris also notes that, having refused to give evidence when asked to do so by Detective Inspector Walsh, Woman B agreed when approached by Miss Cathermole, Mrs Marshall’s solicitor, who, Mr Norris says, is presumably involved in the plot to sue the school. I think there was some suggestion that Woman B might join in that civil action for her own benefit – a suggestion she strongly denied. I should add, in fairness to Mr Norris, that the word “plot” is my word. Mr Norris did not suggest that there would be anything wrong with suing the school if there is a valid ground: indeed he says it would be the logical thing to do. Fabricating evidence in support of such an action, on the other hand, would obviously not be right, and indeed, would be a serious criminal offence in itself.
‘Again, members of the jury, if you are not sure that Woman B’s evidence is both truthful and reliable, two things follow. Firstly, you can’t rely on it to convict Father Gerrard on counts three and four. Secondly, her evidence can’t be used as corroboration of Emily’s evidence. So, the evidence of Audrey Marshall and Woman B is of the greatest importance: not only in relation to counts three and four, in which they claim to be the victims of the abuse; but also in relation to counts one and two relating to Emily.’
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‘Some of you may ask: what was Father Gerrard’s motivation in all this? No one suggests that Father Gerrard touched these girls in a sexual way himself. The case against him is that, for whatever reason, he made young girls available in the secure setting of his private library to a group of paedophiles – the composition of the group perhaps changing over the years. The prosecution has offered no evidence about what Father Gerrard’s motive was in acting in this way. Members of the jury, you may not speculate about matters about which no evidence has been given. No evidence has been placed before you about motive. But the prosecution are not obliged to prove what a defendant’s motive may have been for committing an offence. It may assist a jury to know what a person’s motive was, or may have been, but it’s not essential for the prosecution to prove motive. If the defendant’s guilt is proved beyond reasonable doubt, your duty is to convict, even if the motive remains unclear.
‘There are, however, two further matters you must consider. Firstly, as I said earlier, you may not draw any inferences from the fact that Father Gerrard has decided not to give evidence or call witnesses. The prosecution has the burden of proof, and no defendant in our courts is ever obliged to give evidence. You may not draw any conclusion against him because of his decision not to give evidence, and you must not speculate about the reasons for that decision. He was fully entitled not to give evidence, for any reason, or for no reason.
‘Secondly, it is agreed that Father Gerrard is a man of previous good character. Indeed, not only is he a man of good character in the narrow sense of having no previous criminal convictions, but he is also a man of good character in the wider sense: he is a clergyman of the Church of England who has occupied a responsible position as headmaster of Lancelot Andrewes School for many years, and has a reputation as a knowledgeable figure in the world of education. Members of the jury, it is not a defence to a criminal charge that the defendant is a man of good character. If it were, no one would ever be convicted of anything, because we all start life as persons of previous good character. But good character is important in this way: you are entitled to consider whether it is likely a man of Father Gerrard’s character and background would commit a criminal offence, especially an offence of the kind charged in this indictment. You must take Father Gerrard’s good character fully into account in that sense, when you consider whether the case against him has been proved beyond reasonable doubt.
‘Members of the jury, I’m not going to send you out to begin your deliberations this afternoon. I’m going to wait until tomorrow, so that you are fresh, and then you will have as long as you need to reach your verdicts. I will conclude my summing-up tomorrow and I will adjourn now until ten thirty tomorrow morning.’
Anthony Norris waited for the jury to leave court, then stood.
‘My Lady, Father Gerrard has been on bail throughout, and he has appeared at court in good time whenever called upon. Given that record and his good character, I would invite your Ladyship to say that he may remain on bail until the jury has reached a verdict.’
Judge Rees nodded. ‘In the circumstances, I will extend Father Gerrard’s bail until delivery of the verdict,’ she agreed. ‘In the event of a conviction, you can address me further at that time.’
‘I’m much obliged, my Lady.’
Ben made his way back to chambers and put his head around the door of the clerk’s room to announce his return. It was almost four thirty, the busiest time of the afternoon. The senior clerk, Merlin, and his junior, Alan, both had a phone in each hand, arranging work with solicitors and court listing officers, while keeping track of when their barristers returned from court, and when they expected to be available for a new case.
‘Part heard, jury out tomorrow morning,’ he said quietly, trying to provide the necessary information without being too disruptive.
Merlin nodded, and put his hand over the speaker of the phone on which he had been talking to a solicitor.
‘Yes, shouldn’t be a problem.’
On the way out, he bumped into his head of chambers, Gareth Morgan-Davies QC, on his way in.
‘How are you finding prosecuting, Ben?’ Gareth smiled. ‘Going well?’
‘The jury’s still out,’ Ben replied, ‘metaphorically speaking, that is. The literal jury will go out tomorrow.’
‘Are you going to get him?’
Ben shook his head. ‘I don’t know, Gareth. It’s in the lap of the gods. We might, but it’s a close-run thing.’
‘It often seems that way from the Crown’s side,’ Gareth observed. ‘Didn’t your witnesses do well?’
‘The witnesses did fine. Without the corroboration rules, I’d be pretty sure of potting him on at least two of the four counts. But as things are, it’s touch and go.’
‘It’s about time they did away with the corroboration rules, or at least made them less technical,’ Gareth said. ‘I think they will, eventually. But that doesn’t help you in this case, does it?’
‘No, it doesn’t,’ Ben replied.
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Ben sank wearily into the chair behind his desk. Merlin had left a number of phone messages, all marked ‘urgent’, in the centre of the desk, where he could hardly miss them; together with several requests from solicitors for an opinion, all marked, ‘For Counsel’s urgent attention’. He ignored them for some time, turning his chair around to gaze out over the Middle Temple gardens, their colourful beauty rapidly fading from view in the darkening gloom, and the lights from surrounding buildings and the traffic on the Embankment. Eventually he scanned the messages. His wife, Jess Farrar, had called from her chambers, and would he please call her back. Jess had a busy family law practice, and had been in the High Court for the past two days, arguing about the division of matrimonial assets as trivial as the kitchen table, in the case of two people who had enough money to go their separate ways in great comfort: the kitchen table, and other similar items, simply excuses for venting their spite on each other in court.