‘Yes, that must follow, my Lord.’
‘Thank you, Dr Burch. Would you like to review your conclusion that death occurred no earlier than three hours prior to your arrival on the scene?’
The little pathologist turns towards the judge, a look of sadness on his pudgy face. ‘My Lord, I think I must. I think this is one of those rare cases where the evidence is just inconclusive. I cannot give you even an approximation of the time of death; certainly not one about which I can be satisfied so as to be sure.’
‘You lost your bottle!’ shouts Merlin as Charles walks into the basement conference room, the judge having risen for the night.
‘No, I didn’t,’ replies Charles calmly. ‘I took the view that we were better off leaving it with his last answer, rather than getting into a long inconclusive fight over the notebook. Did you see him sweating?’
Charles tries to explain his reasoning, but Merlin doesn’t look convinced. He paces up and down the tiny room.
‘You’re just going to have to trust me, Izzy. I’ve been doing this a long time, and I think I am a better judge than you of what has an impact on a jury and what doesn’t.’
Merlin finally settles on the wooden bench, his feet still tapping. ‘OK. It’s done now. So, what’s next?’
Charles sits down next to his cousin, takes off his wig and scratches his scalp. ‘Tomorrow morning Montgomery closes his case; he gives his closing speech; I give mine; the judge sums up.’
‘Right. Do you need anything from me?’
Charles puts his hand on his cousin’s shoulder. ‘No. Try to get a decent night’s sleep, that’s all.’
‘Fat chance.’
CHAPTER TWENTY-ONE
Court sits again at half past ten the following morning. Collin Montgomery QC makes his closing speech for the Crown. It’s a model of fairness. Having run through the important parts of the evidence, he concludes by inviting the jury to convict the accused on the basis that Evans was known to be watching this barge; Evans’s body was found only a few feet from it; and although there are some unexplained features of the evidence, for example the fact that Evans appeared to have suffered his posthumous side injury while not wearing his jacket, the accused made a clear confession. Within forty-five minutes, Montgomery is finished.
‘Mr Holborne?’ invites Fletcher.
All eyes in the court turn to Charles. He puts his hands on the bench in front of him, preparing to stand, but for a moment he pauses. He is about to rise to make the speech of his life. No, he corrects himself: the speech for my life — and that of Merlin. He cannot prevent his eyes darting to the public gallery above him, seeking out the well-dressed young man, but he’s no longer in the seat he has occupied so far and Charles has no time to look for him. He looks away swiftly. No, Charlie, he instructs himself; get the Krays out of your mind and focus. Your job now is to woo those eight men and four women sitting on the far side of the court. Nothing else matters; nothing.
He stands. He can tell immediately how difficult his task is going to be. Of the twelve jurors only two or three make eye contact with him. The rest are … not quite hostile, but uninterested. Charles can always tell from their body language how much work he still has to do, from their willingness to look at him, and the ease with which they will nod or smile when he makes a point.
In any other case this would be the part of the proceedings he loves the most, the time when he can engage with these twelve strangers and drag them round slowly but surely to his way of seeing things as he sells his client’s version of the truth, which, of course, always means selling himself. The jury have to like him or, if not “like”, trust him; trust him to be an honest guide through the evidence and its different possible interpretations. He has to get inside their heads, read their thoughts and address their concerns about the evidence; understand what may be preventing them from accepting the truth as he sees it, and assuage their worries; turn the evidence on its head so they see it all differently, and through his eyes.
So Charles starts with the thing that would be worrying him most if he was sitting in those uncomfortable jury benches. He yanks his black gown up by the area where the lapels would be if barristers’ gowns included lapels, to settle it perfectly in place on his shoulders, and he smiles.
‘Ladies and gentlemen. I’m prepared to bet that some of you are sitting there wondering: why haven’t we heard Mr Conway’s version of event? If he has nothing to hide, why won’t he go into the witness box? Isn’t that suspicious?’
Charles notes that three of the jury members, a woman on the back row and two men sitting next to one another on the front row — one of whom is in the foreman’s seat and so may be an important person to persuade — look at him briefly as he says this. OK, thinks Charles. His next sentences are directed particularly at those three jury members.
‘The law prevents Mr Montgomery QC for the Crown and his Lordship from drawing attention to that fact, but let’s be straight with one another: if I was sitting in those benches, without my experience of the law, I’d be asking the very same question.’
The woman in the top row gives Charles a grudging smile. Bull’s-eye! thinks Charles.
‘Well, the reason is very simple. One of the great hallmarks of our English system of justice, one of the things of which we can most be proud, which goes back centuries, is the fact that the accused is never, ever, required to give evidence. Back in the fifteenth century the Court of the Star Chamber was allowed to torture good and honest Englishmen into giving false confessions and so, for centuries since then, the law has protected any person who has the misfortune to be in that dock —’ Charles points dramatically to where Merlin sits — ‘and say: they shall not be compelled to utter a word. Until relatively recently the accused was not even allowed to give evidence on his own behalf.
‘It’s the task of the Crown to put evidence before you which satisfies you, so you’re sure of the accused’s guilt. Anything less won’t do, and the accused doesn’t have to go into the witness box to explain himself. Our constitution guarantees him the right to point at the Crown and say: “The evidence you’ve called doesn’t come close to proving guilt beyond reasonable doubt, and I’m entitled to ask the jury to throw the case out without a word.”
‘Of course, when you pause for a moment, and realise that a man’s life is at stake here, you’d imagine nothing less: unless the Crown’s evidence makes you sure, beyond all reasonable doubt, that Mr Conway killed APO Evans, how could you, in conscience, convict him and send him to the gallows? And that is why neither the judge nor Mr Montgomery is allowed to criticise or even draw attention to the fact that Mr Conway has not given evidence. Because they know that the constitution of our country gives him that inviolable right.
‘So, with your permission ladies and gentlemen, I invite you to look with me at the evidence the Crown has put before you so that you may decide for yourselves — because it is a decision that only you can take, not me, not Mr Montgomery and not His Lordship — whether the evidence put before you by the Crown is enough to make you satisfied so you’re sure beyond reasonable doubt.’
Charles watches with a faint spark of satisfaction as the woman in the top row and one of the two men in the front row, although not, unfortunately, the putative foreman, nod fractionally, if perhaps a little reluctantly, in response to his explanation. They are far from persuaded yet, but the door is not quite so completely shut as when Charles first rose to start speaking. From now on he will refer to Merlin as “Mr Conway”. To use the term “accused”, “defendant” or, worse still, “prisoner” is to distance the jury from the real human being sitting a few feet away from them, to dehumanise him. Charles wants them to remember throughout that they are dealing with a real person and, what is more, a “Mr”, someone deserving of respect and dignity.
‘The Crown’s case rests on, essentially, three things.’ Charles holds up his left hand and counts them off. ‘Firstly: the fact that Mr Evans’s body was found near to Mr
Conway’s barge, and that Mr Conway was under surveillance. Secondly, the pathology evidence, particularly that Mr Evans had only been dead for a short time when his body was discovered, suggesting he had been killed somewhere nearby. And lastly the fact that Mr Conway is said to have confessed.’
Charles notes with satisfaction that all but a couple of the jury members are at least looking at him and are interested in what he has to say. Two of them are scribbling furiously, making notes. On the other hand, one of the two who still refuses to make eye contact is the man in the foreman’s seat, a broad man in his forties with wobbly jowls like a bulldog’s, a red face and broken purple veins on his nose. A drinker? wonders Charles. Perhaps he’ll be more amenable after a pint or two at lunchtime.
‘Let’s look first at the suggestion that Mr Evans was in fact watching Mr Conway at all immediately before his death. Mr Vermeulen tells you that Mr Conway was under surveillance as a result of a tipoff from some informant. We only have his word for that, and I’ll come back to the value of Mr Vermeulen’s word in a while, but we’ve not heard from the informant or seen any documentary evidence about the surveillance operation. Of course, you’ll think, you can’t expect a confidential informant to give evidence. Fair enough; but not a single document? Think about that for a moment, ladies and gentlemen. HM Waterguard is part of Her Majesty’s Customs and Excise. They are tax collectors and enforcers. Have you ever heard of a government department that doesn’t keep records, in duplicate, triplicate, all signed, dated and filed? We all know the government’s love of forms, above all, the tax authorities!’
Charles sees several jury members smile with him.
‘And we know from Mr Vermeulen that several such documents would normally be completed to record what Mr Evans was doing, the shift rotas, his own personal log, the document recording the use of the vehicle. Doesn’t it strike you as a bit odd that the Crown has not produced a single document supporting the suggestion that Mr Evans had been conducting surveillance on Mr Conway for some months? And even if the surveillance of Mr Conway was genuinely occurring in a general sense, where is the evidence that Mr Evans was engaged on it that night? Is it really being suggested that he left the Harpy when his shift began at four o’clock the previous afternoon and watched Mr Conway’s barge for the next thirteen hours?
‘Of course not. Apart from anything else, these barges are in use, day in, day out. You’ve heard no evidence to suggest that for some inexplicable reason Mr Conway sat on his barge doing nothing for the whole of that period. So, the most likely scenario is that both Mr Conway and Mr Evans were off doing other things for large parts of that period. We’ve heard from Mr Vermeulen how busy a Waterguard’s life is, and how their schedules have to change at no notice in response to whatever may enter the Thames.
‘So, what are we left with? The coincidence that Mr Evans’s body was found close to Mr Conway’s mooring. And, as soon as you think about it for a moment, you realise it may just have been that, a coincidence. Mr Vermeulen didn’t disagree with my estimate of fifty-five barges in the immediate area. Any one of them may have attracted Mr Evans’s interest. He may have slipped, fallen or been struck on any one of them. And then there is the issue of the barges being used for liaisons between homosexual men at night. We will never know if Mr Evans went there for business or — and forgive me for the indelicacy — for pleasure. But we do know that he had been accused of such behaviour in the past, and the Crown did not dispute the assertion that some of these barges are used at night for such purposes.
‘So far I have assumed, in the Crown’s favour, that Mr Evans body was found at a place close to where it went into the water, but that is not an assumption we can make, is it? His body was found in one of the busiest tidal waterways in Europe. The Crown has called no evidence to suggest that Mr Evans’s body actually went into the water close to where he was found. You are perfectly entitled to ask yourself: why not? We all know that things put into moving water do not stay in one place. They’re moved by currents, tides, by the passage of other vessels. But you’re being asked to assume that, because Mr Evans’s body was found where it was, it must have gone into the water sometime during that thirteen-hour period at the same place. I suggest to you, ladies and gentlemen, that that’s not a reasonable assumption at all! Indeed, over the course of the thirteen hours during which the Crown cannot account for his movements, he could have entered the water miles upstream, and drifted to where he was found. So, the Crown cannot prove, beyond reasonable doubt, that Mr Evans went into the water at that point.
‘And, of course, it would have been so easy to call such evidence, had it existed. With all the resources at the disposal of HM Waterguard, HMS Customs and Excise and the Crown? HM Waterguard would, you might think, be perfectly placed to provide expert evidence to explain the movement of the tides and currents on the Thames. Who better? Don’t you think that, had it been possible to prove that where Mr Evans was found is where he went into the water we would have heard some evidence on that subject?
‘So, on the issue of what Mr Evans was doing in the thirteen hours after he was last seen and what conclusions can be drawn from the position of his body at the end of that thirteen-hour period, you are being asked to make some very big assumptions. Firstly, that he and Mr Conway were both in the same place at the same time when Mr Evans went into the water; secondly, that he came into contact with no other person who might have been involved in his death, someone working on the river or someone there for more immoral purposes; thirdly, that his death was not simply an accident such as slipping or falling and banging his head; fourthly, that his body remained in the same place as where it fell in, up to thirteen hours earlier. Remember that, members of the jury: the Crown cannot prove any of these essential features. They ask you simply to make assumptions. And I suggest to you —’ Charles delivers the next words with a tiny pause between each for emphasis — ‘that just won’t do. It won’t do in any trial, and it certainly won’t do when someone’s life hangs in the balance.’
Charles’s eyes scan across the top row of jurors and back along the bottom row. They are now all listening to him. He has learned not to read too much into the facial expressions of jurors but at least half of them look concerned, as if Charles’s arguments bother them. Charles drops his voice a little as he comes to the central point on this part of the evidence. He wants them to have to lean forward to listen; it creates a more intimate conversation. He doesn’t want to be a barrister making a speech to a packed and hushed public courtroom; he wants to be the jury’s honest guide, talking to them directly and confidentially. And they do all lean forward.
‘The point is this, members of the jury: unless you’re sure there cannot be an alternative explanation for Mr Evans’s being found where he was; unless you’re sure no other reasonable explanation exists; unless you are sure this cannot have been a coincidence; then you cannot convict and keep to your oaths, because you cannot be sure beyond reasonable doubt that Mr Conway killed him.’
Charles lets a few moments pass to let this final point sink in. The eight men and four women of the jury sit back in their seats and Charles can almost see the cogs in those twelve heads clicking and whirring as they think about Charles’s words. Two members of the jury, one at each end of the top rank, smile grimly at him and nod slowly. They may not like it, but they are no longer sure they are sure.
Charles moves onto his second point, his voice brisk and more business-like. He has learned over the years that it is essential to vary the pitch and tone of his voice. There is nothing worse than a barrister droning on in a monotone, regardless of the content of his speech. This is a performance, and Charles knows it.
‘Next, we have the pathology evidence. I can deal with time of death quickly: you heard Dr Burch give his careful and considered evidence. He was, you will remember, a witness called by the Crown, and therefore someone the Crown says will give you truthful and accurate evidence. And as you know Dr Burch retracted his earlier v
iew that Mr Evans probably died within three hours of his body being discovered. He agreed that, in short, we have no idea at what time Mr Evans met his death; it must have occurred between four o’clock in the afternoon of the previous day and shortly before the discovery of the body. Perhaps the relatively small drop in body temperature suggests that it was the second half of that period, perhaps not. We just don’t know. So the link the Crown asks you to draw, that Mr Evans had been dead only a short time, and therefore is likely to have been killed near to where he was found, is broken. Mr Evans could have been killed half a day earlier, and simply drifted to the point where his body was found.
‘Then there is the head injury. Dr Burch cannot tell you whether it was inflicted deliberately or it might have been caused by Mr Evans falling and striking his head on something hard. Let us recall the sort of work Mr Evans and other members of the Waterguard do. They board dozens if not hundreds of vessels every week while still on the water. Vessels which move, which have slippery gunwales, and which have ropes, chains and other obstacles littered across their surfaces. Mr Evans was doing this in the dark. How can we possibly exclude accident as the cause of death in those circumstances?’
Charles pauses to make eye contact with several of the jury members. All twelve are now looking intently at him, waiting for him to speak again.
‘But the evidence which I find most odd, and I suspect you will, too, is this hole in poor Mr Evans’s side. We know it must have been created after he died, but while the top part of his body was unclothed. And the question I keep asking myself is: what on earth was Mr Evans doing taking his clothes off? He’s a uniformed officer of the Customs and Excise. You saw Mr Vermeulen’s uniform. Mr Evans wore the same uniform, although with less braid round the cuffs. Mr Evans’s job didn’t require him to swim, in the middle of the night, across the Thames!
The Lighterman: The Kray Twins are out for revenge... (Charles Holborne Legal Thrillers Book 3) Page 22