‘Hello, Sarah.’ I turned to see Kate approaching us. My opponent brightened.
‘Hello there,’ he said. ‘I’m sorry that you’ve been dragged along to this. What a farce. Hope you didn’t have to lose anything from your diary. I’ve just said to your colleague,’ he gestured towards me with his thumb, as though hitching a lift, ‘I’m not intending to say much today. It’s the defence’s application, so it’s all down to them. Right then.’ He turned abruptly, and left us.
Kate and I sat alongside one another on the low chairs outside the courtroom and waited to be called in. It was, of course, awkward, for we both knew I was about to accuse her of forcing her client to plead guilty. As we rattled through those subjects beloved of barristers trying to find a bond – legal aid cuts, those we knew leaving the profession for more secure employment, those swapping crime for better-paid work – I found myself trying to make her like me, trying to convince her that I knew the application was hopeless, that I was not being naïve in making it. At last, the usher came out of court. ‘Judge is ready to call it on. They’re bringing your client up from the cells now.’
It was a new judge, and although I did not know him I could see his manner was well suited to the case. He was calm, pragmatic and, in the face of flapping hands and rolling eyes from my opponent, made little fuss.
‘An unusual application, I concede, Mr Franklin,’ he said, to the prosecutor, ‘but perfectly proper. And in any event, as we know, it is not for justice simply to be done. It must be seen to be done. Miss Langford,’ he turned to me, ‘I have read your application – no need to elaborate. Would you call the witness, please?’
And so off we went. Kate was unruffled in evidence, but, unsurprisingly perhaps, at pains to emphasize her professionalism. She described the process of the abandoned trial. The defendant had, she said, a tendency to become fixated on a grievance. When she first met him, Chris had instructed two solicitors and two barristers, and chose Kate because of a conspiracy he thought the others were plotting. There had been a failed prison visit, when Chris had refused to come out of his cell to give Kate instructions. Kate said she feared Chris was mentally unfit to plead and was surprised when an existing medical report was found saying that he was. She agreed that Chris had not, in fact, ever admitted his guilt, but had told her that he did not want a trial. Kate had then told the prosecutor that her client would plead guilty before she had written down a basis and checked it with Chris. But, she said swiftly, she denied any accusation that she had hastened this decision – she had made it clear to her client that, by pleading, Chris would almost certainly go to prison. She could not explain why Chris thought that a guilty plea would mean he could leave the courthouse immediately and go home. She remembered that Chris had paused when the charge was put to him in court. Kate had gone and stood by the dock, and had checked one last time that he wished to plead guilty. Chris did. And that was that.
When Chris gave evidence after Kate, he was all that he had been in conference. I tried to coax from him the details of how the trial had collapsed, what he had understood and believed, and what Kate had told him. Although Chris repeated everything he had told me, each part of his evidence was preceded by a long silence and his cold, hard stare, and my fear that he would become distracted and fixated by something else. He repeated his assertion that a page was missing from the basis of plea, and then swung back again when the judge challenged him on it. He had expected, he said, to be able to sign the piece of paper and then go home that day, for that is what his barrister had told him would happen. But, later, in answer to another question, he confirmed that, after pleading guilty, he had expected to get a prison sentence – maybe two years or so.
When my opponent cross-examined him, he was wound around in knots as Chris made new assertions and contradictions to answers he had already given. Eventually, with visible relief, the prosecutor sat down, stating to the judge that this was my application and he had very little to add to it. Chris’s answers throughout were couched by the ‘Ma’am’ and ‘Sir’ of military parlance; his back straight, chin up, jaw squared, arms clamped to his sides, as though he were undergoing inspection on parade.
Usually, when I wait for a ruling or judgment or verdict I go to see my client. I sit with them, chew over what has been said in court, prepare them for what might or might not happen next. But after Kate left, I sat outside the court door alone, typing my attendance note. I did not want to sit in a room with Chris, nor forget anything that had just been said in court, just in case afterwards Chris decided to deny the lot.
Within the hour, the judge summoned us back. I saw that he was reading from a note he had made and I wondered whether he too was worried enough about the case to want to keep a detailed record. He went on, methodically and carefully, to list the reasons why he was not going to allow Chris to change his plea.
Chris’s claim that he had thought a guilty plea would mean he could go home that day, the judge said, stood in stark contrast to his evidence that he had expected a two-year prison sentence. This had exposed him; he was refusing to face up to what he had done. The long pauses in his evidence were down to a difficulty in finding answers to challenging questions. The defendant had known, for his barrister said she had told him, that he should not plead guilty if he had not committed the crime, but he did so anyway, without any pressure, and now regretted it. If a defendant was of sound mind, ably represented by senior counsel and the guilty plea was not equivocal, then the law was clear. Regret was not enough to allow him to change it. So, the judge said, firmly, he would move straight on to sentence. In a case with no aggravating circumstances or previous convictions, the sentence would be five years’ custody. Given the basis of plea, he felt able to go below this. He would also reduce the defendant’s sentence by one tenth, that being the amount allowed by law for a change of plea on the day of trial.6 The judge shut his notebook and pulled it towards him, signalling his intent to finish the hearing. Christopher Mira, he said, was sentenced to three years’ imprisonment. The prosecution had not applied for a Sexual Offences Prevention Order, nor a Restraining Order, and he would not have been minded to make one even if they had, given what the defendant’s wife had written.7 Because of the type of offence, the defendant would be subject to notification requirements for the rest of his life, but his barrister – he waved a hand at me, pushing his chair back – would explain all this.8 Any questions? No. Good. He nodded, turned, and left through the door behind him.
After a sentence hearing, I sometimes, for efficiency, take off my wig and gown and pack them into my wheelie bag before going down to the cells to see my client. When my conference is finished I can then leave and go straight home, rather than trudging back up to the robing room. I am surprised how often people say I look different without the outfit. Once or twice cell guards I have got to know have failed to recognize me, and have laughed in embarrassment after I have signed in. The costume works. Of course it does all the other things it is supposed to do as well. It lends an air of associated solemnity and gravity. It identifies who you are in court, while simultaneously making you look the same as all the others, as all uniforms are supposed to do. But more than that, it disguises me. It gives me cover. When I fasten my starched white bib, shrug on my gown and jam my wig on to my head I become someone else; someone both familiar and unrecognizable.
This time, when I went to see Chris in the cells, I did not take off my wig and gown.
In our conference I tried to explain to him that, with the length of time he had already been in prison waiting for his sentence, he would have only six months left to serve before he was released on licence. Implied within my words was a plea for him to realize that the judge had been lenient. And, to my surprise, he made no fuss. I could not, however, shake the feeling that the military man in him thought he was being given an order, and that his compliance was expected rather than his views and instructions solicited.
I ran through what it meant to have to report his a
ddress and his whereabouts to the police for the rest of his life, and that his probation officer, who would be assigned when he was released from prison, would help him. There was a long pause while he stared at me. So, when should he next report to me? he asked. No, no, it was not me, I said, placing both hands on the table, leaning forward, frowning. I was not his probation officer. I was his lawyer. His face remained impassive. But what would happen when we next went to court? he asked. I looked at him, then slowly explained that we were not going to court again – this was the end of his case. A jangle of keys in metal broke into the silence and turned his attention to the cell door, which opened in a telepathic miracle. An overweight prison guard stood in the doorframe, beckoning at us – time to go, time to go – they were loading the van back to prison and Mr Mira must get in it. I stood quickly, said goodbye to Chris and hastened to the main cell door as a guard walked over to unlock it, and set me free.
11
Jude
Bristol Family Court
Family Procedure Rules 2010
16.6 Circumstances in which a child does not need a children’s guardian or litigation friend
(1) … a child may conduct proceedings without a children’s guardian or litigation friend where the proceedings are—
(a) under the 1989 Act … and one of the conditions set out in paragraph (3) is satisfied.
(3) The conditions referred to in paragraph (1) are that—
(a) the child has obtained the court’s permission; …
(6) The court will grant an application under paragraph (3) (a) … if it considers that the child has sufficient understanding to conduct the proceedings concerned or proposed without a litigation friend or children’s guardian.
I STOOD IN the entrance hall, next to a large pinboard covered in laminated notices, and wondered at the kind of smell that so often seems to belong to a school. There were the easy scents of nostalgia: new books, floor polish, gym kits, packed lunches. Underneath these was the base note of what it is to be a child, as though some fantastical perfumer had infused the pheromone scents of youth into the fabric of the building. I stood there, conspicuous in my black suit, and thought how for some children the smell might hold the prospect of misery. For others it could mean a crossing into safety away from the war raging at home. I wondered which of the two this school offered Jude – the boy I was waiting to meet.
Behind me, the main school door opened and my solicitor hurried in, smiling, full of apologies. I rebuffed them, telling him the teacher had only just left to fetch Jude from his classroom. We stood chatting until the sound of heels on wood silenced us. The double doors from the hallway opened. Behind the teacher walked a twelve-year-old boy. His hair was light brown, thick, cut neatly short. He looked directly at us with a confidence I had not expected. The grey school cardigan he wore, a crest of red and gold on its breast pocket, was over-long. It had been bought by someone, I thought, who intended him to stay at this school until it fitted him. I thanked the teacher, who was encouraging the boy to greet me. He took my outstretched hand and I was surprised at the firmness of his grip.
‘Hello, Jude, my name is Sarah,’ I said. ‘I am your barrister.’
Jude could not really remember a time that his mother and father had not been in court. He was four when his mother, Monica, left him, his older sister, Martha, and his father, Nigel, in the home where they had grown up. In the face of Nigel’s refusals to allow her to see her children, Monica applied to the court within the month. And so it began.
Over the following years Jude’s and Martha’s lives were marked by court dates and meetings with officers from the Children and Family Court Advisory and Support Service (CAFCASS), and with almost every kind of order that a court could make.1 At first a judge tried to divide the children’s time equally between both parents, but less than a year went by before this course failed. A second long contested final hearing then took place. This judge, frustrated by Nigel’s permanent hostility towards his ex-wife, ordered that the two children should move to live with Monica in her newly rented cottage near the winding River Severn in south Wales, an hour’s drive from her old home in the suburbs of Bristol where Nigel still lived.
Four years then passed, all full of litigation. At a third final hearing, a different judge – faced with the opposition of both children to their mother and her new relationship and baby – hesitantly returned them to Nigel’s care. He did so with a warning: were Nigel to frustrate the children’s relationship with their mother again, then this order would be immediately reversed. Nigel, for reasons he felt were justified, did not do as the judge had asked and began again to edge Monica out. It started with excuses over why they could not see her, with claims of inconvenience, and soon turned to slights, allegations, accusations. The weeks when Monica would not see or hear from the children began to turn to months. When she once again brought the matter back to court in an effort to see them, both children told anyone who would listen that they hated her. Jude, then eight years old, when asked by a social worker how he felt about his mum, said he wished she were dead.
Some three years later, Martha turned fifteen. Nigel had been home educating the children but had finally bowed to fears that he was trying to isolate them and placed them back in mainstream school. This, along with Martha’s age, brought with it a sense of autonomy and she started to question the established order. Slowly, she began to make contact with Monica, began to argue with Nigel. Then Martha packed her bags, left the terraced house that was her home, and moved to live with her mother and her two half-brothers. Jude, now eleven, swore that Martha now meant nothing to him. She had betrayed them both, and he never wanted to see her again. Monica, unable to get Nigel to consent to Martha moving to a school nearer her new home, was forced to drive her daughter the long daily journey. Jude had just moved up to join the same school, and so it was that Nigel and Monica now both went to the gates, waiting for one child each. Jude’s home was so close to the school that he had, in the past, walked home from his primary school right next door, sometimes chaperoned by his sister, sometimes not. But Nigel could not stand to miss the opportunity of facing his adversary and insisted on picking Jude up. He would wait in the car park, leaning on his car, scanning the tarmac until he saw where Monica had parked. Sometimes he just stared at her. Other times he would seem to walk towards the school’s entrance but then stop, draw out his phone and take a photograph of her. If Monica waited inside the school building, she would come out to find notes on her car – requests to tell Martha she could come home whenever she wanted. It was both nothing and everything, which was Nigel’s skill. Individually innocuous; collectively menacing.
Slowly, in her mother’s care, Martha began to tell stories of life under Nigel’s rule. How the children had been told to say they hated Monica; how they had been instructed to misbehave when they were with her; how they feared his mood after they returned home from seeing her and all the questions he would ask them. Nigel had used Monica’s new life and new children as certain proof that she did not love them any more. All this Monica had already suspected, but bolstered by Martha’s pleas she now made a further application to the court, this time for Jude to come to live with her. So the two children found themselves once again at the mercy of a judge and the ever-changing pack of social workers and experts called upon to decide their future. Their case made its way into the list of Judge Francis. It would be the first time they had ever come before her, and it would also be one of her last cases, for she was soon due to retire.
A lawsuit brought by one parent against another is a private rather than a public one and would normally not involve the state. But once Judge Francis heard of the children’s courtroom legacy, she appointed a guardian as a third party to represent them. Gabriella, the guardian assigned to the case, was an experienced social worker. With this experience came a belief that her voice was the most important and so, faced with Nigel who thought the same, the two clashed in a power struggle that threatened t
o take centre stage. But, in truth, Gaby was right. The law saw her both as the children’s messenger and as their protector, and so her words came to the court with greater weight than those of a parent who came to the courtroom with their own agenda. In her report, Gaby described parental alienation, implacable hostility, poison dripped into small ears until the parent the children should love had grown rotten in their minds. Her view was clear. The judge needed to act urgently and with great care to ensure that any damage Nigel had wreaked on the children’s relationship with Monica was not permanent. Martha was safe, and the shredded bonds with her mother had started to mend. But Jude must be removed from Nigel’s care before his relationship with Monica was broken beyond repair.
But Jude said no. No, he would not go; no, he did not agree. Gaby, he said, was wrong. His mother had left them, deserted them, made a new family for herself, and now Martha had too. He hated them both. He wanted to stay with his dad. If they made him go then he would just keep running away until they left him alone.
I will never know what was in Judge Francis’s mind when she read the report of Gaby’s conversation with Jude, but her ruling went to the heart of the law. It was not enough to make the right decision. The only way those within this flawed system can feel they have been given justice is if they feel heard. And so Judge Francis decided that if Jude objected to what Gaby said on his behalf, then he should be entitled to say what he wanted for himself.2 While Gaby must continue to give a voice to Martha, this young boy, just turned twelve and sufficiently competent to understand what was going on must have his own solicitor and barrister to make representations in court on his behalf. Yes, she said, she was aware that the final hearing was only nine days away, but a solicitor willing to take on the case could be found then and there at court, and they in turn could instruct a barrister to represent Jude in the final hearing. She was sure someone could be found who could manage to get themselves up to speed. That was how I came to be standing in a school shaking the hand of a boy who, for the next year, would be my client.
In Your Defence Page 23