Cut_Throat Defence

by Olly Jarvis

  Jack stood there, staring at the judge, his mind totally blank. At that moment Lara tugged at his gown and shoved a piece of paper in his hand. The writing was her own, with Marpit’s signature at the bottom. Jack realized how well Lara had understood what made this judge tick. She was watching his back.

  He wanted to hug her. Kiss her. This time he was going to stand his ground ‒ fight ‒ speak. ‘My Lord, the defendant has formed an attachment to me which I have been unable to sever. I have signed instructions that if I do not represent Mr Marpit, he will represent himself. With much anxiety I have considered both my duty to the defendant and to the court. Knowing the delay and cost to the public purse of a litigant in person as I do, I have formed the view that representation by an incompetent barrister is marginally better than no representation at all.’

  Everyone laughed. This time with Jack.

  A trace of a smile showed on His Lordship’s face. ‘I agree, Mr Kowalski. Reluctantly, I will allow the transfer.’

  Jack moved backwards a few steps, exhausted. Astonished.

  Lara whispered in his ear, ‘What about the bail application in chambers?’ She pushed him forward again.

  ‘Would My Lord be kind enough to rise for a few minutes while I discuss some pre-trial matters with Mr Otterwood? It would be better to play a meaningful role in this hearing with the advantage of some disclosure, so that matters are not delayed on Monday.’ That would have to do, an excuse for a short adjournment so that Jack could speak to Otterwood about Marpit’s ‘status’, and make a bail application in chambers without the knowledge of the other defendants and their counsel.

  ‘Fifteen minutes, Mr Kowalski. I’ll rise.’ Then the judge was gone.

  Chapter 13

  Jack was waiting outside the courtroom for Otterwood to emerge, still in shock, trying to take in what just happened. Rogers came out first, with his junior and solicitor. The QC was fuming.

  ‘You’ve got a nerve, Kowalski. Wait till I speak to your Head of Chambers about this,’ Rogers boomed.

  Jack was frozen to the spot, but Lara fought his corner. ‘Do it. It’s about time someone told her he’s got balls. And while you’re at it, can you get a set of papers sent round to Dobkin and Co. immediately. And send a set to Century Buildings. We would hate to have to seek an adjournment on Monday with a wasted-costs order because your people didn’t give up the brief.’

  They all stared at Lara incredulously, then stormed off towards the robing room.

  ‘Feisty,’ said Jack.

  Otterwood approached. ‘Now then, Kowalski. We need to have a chat, counsel to counsel. Let’s go into this conference room.’

  Jack was still getting used to Rogers calling him by his name, but two silks in two minutes? It felt very strange.

  Otterwood sat down wearily at the table. Taking off his wig he scratched his head and sighed deeply. His stomach stretched the buttons on his waistcoat to breaking point. ‘I’m getting too old for all this,’ he said with a glint in his eye. The old QC had a kind face. ‘Sit down, lad,’ he said warmly. ‘How did you get yourself into this mess?’

  ‘I’m still trying to work that out. An hour ago I was on my way back to chambers.’

  ‘You do know that Marpit is completely bang to rights? It’s unwinnable. He was arrested unloading the drugs from the plane. It’s all on video. NCA officers were there, covertly carrying out obs.’

  ‘Why were they there? Were they following someone, or were they tipped off?’

  ‘I’m afraid that’s been PII’d, old chap. Can’t tell you.’

  ‘Oh, right,’ said Jack. ‘Was Marpit a participating informant?’

  Otterwood seemed genuinely surprised. ‘Of course not, dear boy. He wasn’t even an informant, let alone a participating one. If he had been, I would’ve had to disclose that to Rogers, and now to you.’

  ‘Will you go and specifically ask the NCA that question?’

  ‘I don’t need to. I know the answer. They would have told me.’

  ‘It is not for me, John. It’s for Marpit. I need to be able to tell him that you’ve asked. I’m then going to make a bail application in chambers, disclosing to the judge that it’s my case that to prosecute this defendant would be an abuse of the process of the court.’

  ‘Well, well. You have been busy. Give me five minutes. I’ll speak to the usher and tell her to come and take us round the back, discreetly.’

  Jack liked Otterwood. He was known as a fair man and a fair prosecutor. Jack was finding out first-hand that this was true.

  As Otterwood left the conference room, Lara came in. ‘What did he say?’

  ‘He said Marpit’s not a participating informant.’

  She was disappointed. ‘I suppose that isn’t a surprise.’

  ‘He did say that the NCA were at the unloading, filming it. When I asked him how they came to be there he said it was PII’d.’

  ‘Public Interest Immunity? How could that apply here, Jack?’

  ‘The prosecution can withhold evidence if it’s in the public interest to keep it secret.’

  ‘Like the name of an informant – Marpit?’

  ‘Yes, but Otterwood accepts that if Marpit was an informant, it would be too important to our defence. He would have to tell me. Maybe someone else was informing?’

  ‘Otterwood has the power to decide what is and is not PII’d?’

  ‘No. Once he decides it is evidence that supports the defence, he must see the judge in chambers, ex parte.’

  ‘No Latin please, Jack. It means without the defence being present, right?’

  He smiled. ‘Yes. The judge then gives a ruling as to whether the prosecution has to disclose it. Otterwood must have been to the judge at some point since the plea hearing, maybe even a few months ago. The judge must have decided that whatever that evidence was, it was not, on balance, disclosable. But he has to keep his decision under review during the trial.’

  The lady usher knocked on the door. ‘The judge is ready for you now.’

  Jack glanced nervously at Lara. They both knew that only the advocate went into chambers.

  ‘Good luck,’ she said softly.

  Chapter 14

  Otterwood was already waiting in the judges’ corridor outside Mr Justice Skart’s chambers.

  Jack raised his eyebrows and asked, ‘And?’

  Otterwood shook his head. ‘Not an informant of any sort.’

  The usher led them into the chambers for Court One. Another first for Jack.

  ‘Come in gentlemen. Sit down.’ The judge was still in his robes, but had taken off his wig. Both barristers removed theirs.

  ‘Thank you, Judge,’ they said in unison.

  Jack glanced quickly around him, trying to take in as much as he could. A photograph of the judge with his family sat on the desk. A mini fridge and a kettle on the side. It all seemed so personal. Jack couldn’t imagine such a distinguished man, sitting in his room, brewing up.

  ‘So what’s all this about?’ asked Skart impatiently.

  ‘Judge, it is Marpit’s case that he was a participating informant, on the payroll of NCA. They instigated his involvement in this conspiracy. To prosecute this man would be an abuse of the process. If I uncover any evidence during the trial I will apply to stay the indictment.’

  ‘Did you need to tell me this in chambers?’

  ‘I want to apply for bail in the absence of other defence counsel. To reveal to the co-defendants Marpit’s status would put immense pressure on him. I am concerned for his safety. It may be you could sever the defendant and try him separately, at the conclusion of the co-defendants’ trial.’

  The judge smiled. ‘Nice try. I’m afraid it’s going to come out one way or another. It might as well be now. If you want to apply for bail you will have to do it in open court. I will not sever this defendant. You are stuck with a cut-throat defence, Mr Kowalski.’

  Jack was crestfallen by the judge’s decision, but managed to remember his manners as he stood u
p. ‘Thank you for seeing us, Judge.’

  ‘Not at all.’ He paused. ‘Mr Kowalski, I can see the huge burden you are now carrying, but I will not forgive any mistakes in my court during this trial. You understand that, don’t you?’

  ‘Yes, Judge.’

  Lara was waiting outside court as the milling crowd began to file back in. Jack broke the news to her. ‘I’ve got to do it in open court.’

  ‘Oh, shit,’ said Lara, digesting the implications.

  Once again Jack could feel his insides churning.

  ‘Jack, you can’t control what happens in there. Just make sure you put forward a good argument ‒ you may have to live with the consequences for a very long time.’

  Jack’s fear showed. ‘I know,’ he said solemnly.

  ‘You’ll be fine,’ she said.

  Jack put his wig on and walked into court. ‘Brace yourselves,’ he said to no one in particular.

  Chapter 15

  The front row was reserved for silks. Otterwood for the prosecution on the left, facing forwards, always furthest from the jury, who were to counsel’s right. Next to Otterwood, counsel for the first defendant on the indictment, Humphrey Bingham, QC, for Rako, and then Lionel Katterman, QC, for Purley. Their juniors sat behind them and their solicitors behind them. They were all seated when Jack came in and stood at the side of the second row. At first, the other junior counsel ignored him. Eventually, Katterman’s junior, Paul Effiong, grudgingly moved up. Jack squeezed in and sat down. Effiong’s solicitor followed suit, allowing Lara to sit down behind Jack.

  Jack was conscious of the fact that Paul Effiong was one of the up-and-coming barristers at Paramount Chambers. Black and proud of his roots, he had grown up in Moss Side. He’d managed to get various scholarships that paid his way through Bar Finals. Effiong had beaten down all sorts of barriers to make it. Ultimately, his ability as an advocate was impossible to ignore. Yet at ten years’ call, he was only a junior in the case, unlikely to conduct any cross-examination. Even without his leader, Lionel Katterman, Effiong could run rings around Jack. To win this case, Jack was going to have to try and cut the throats of Katterman and Effiong, amongst others.

  The defendants were brought up from the cells by way of steps that led directly into the dock.

  ‘All rise!’

  ‘My Lord, we are grateful for the time allowed which has helped to narrow the issues.’ The judge nodded as Mr Otterwood continued. ‘I have spoken to my learned friends and I think we are trial ready, My Lord.’

  The judge was pleased. ‘Can I say how grateful I am to all counsel for ensuring the pre-trial timetable has been adhered to. I am sure you have all been working very hard.’

  The silks nodded, lapping up the praise.

  ‘And what about conspirators who have already pleaded guilty?’

  ‘My Lord, those defendants, all arrested at the unloading of the plane and now in custody will be produced at the conclusion of the trial, so that they can be sentenced with those convicted by the jury.’

  ‘Very good, that just leaves the question of bail?’

  ‘The defendant Mr Rako is in custody, My Lord. There is no application,’ said Bingham matter-of-factly.

  ‘And Mr Purley, My Lord. No application,’ said Katterman, only half getting up.

  This was the moment Jack had waited for all his life. The reason he had studied for all those years – to have somebody’s life in his hands. He had wanted that responsibility. Now he wasn’t so sure. Getting to his feet he breathed in, ‘I wish to apply for bail, My Lord.’

  Co-defending counsel shook their heads and muttered about the complete waste of time, how inexperienced he must be to apply for bail in a case like this, and so near the trial date. ‘What are the objections, Mr Otterwood?’ enquired His Lordship, almost yawning.

  ‘Likely to fail to surrender to his bail on Monday, My Lord. The evidence against Marpit is very strong. He knows he faces a very long prison sentence on conviction. He has been in custody throughout and there has been, rightly, no application made.’

  ‘Mr Kowalski?’ asked the judge in a tone that indicated he was merely going through the motions.

  Jack got up again and instinctively turned towards the dock. Marpit was wide-eyed, perspiring. Rako and Purley showed no emotion. As he turned back he caught the anxiety in Lara’s eyes. ‘The defendant is in real danger, My Lord. He has been threatened.’ Jack knew it sounded weak as he said it.

  ‘By whom?’

  ‘He doesn’t know, My Lord. The threat was in writing. He received it this morning. I am deeply concerned for his safety.’

  ‘Are you able to call some evidence about this danger, Mr Kowalski?’ The judge wasn’t having any of it.

  ‘No, My Lord.’ Jack was going to have to cause a commotion. It was his only chance of bail. ‘My Lord, it is the defence’s case that Marpit was a participating informant, working for the National Crime Agency, assisting them to bring down an international drugs ring of which the defendants Rako and Purley were members.’

  It was as if a bomb had gone off.

  ‘Silence!’ shouted the judge, trying to regain control of his court.

  Suddenly, a noise from behind Jack. Purley had jumped on Marpit and pulled him to the ground. He was strangling him. The courtroom setting made it all the more shocking. Defence counsel exchanged glances, bracing themselves for the cut-throat that lay ahead.

  Three dock officers quickly moved in to pull Purley off. They eventually succeeded. He was handcuffed.

  Katterman quickly got to his feet to try and limit the damage. ‘I apologize on my lay client’s behalf for that outburst, My Lord. That sort of behaviour is unacceptable in your Lordship’s court. In mitigation, I would submit that it must have been a considerable shock for an innocent man to be so tainted by the rantings of his guilty co-defendant, with the intention of trying to save his own skin.’ Katterman half-turned to Jack and mouthed, ‘Fool.’

  ‘Mr Katterman, you would do well to tell your client that if there is another outburst like that he will spend the rest of this hearing and for that matter, the trial, in the cells.’

  ‘My Lord.’ Katterman bowed.

  Jack continued. ‘My Lord, the question of Marpit’s involvement with the National Crime Agency is inextricably linked to the threats. It would be premature to make a finding of fact about that at this stage. It is an issue for the trial. However, as a matter of housekeeping, I have two concerns. The first is that the logistics of having to keep Marpit separately from the other defendants will be, if I can use the vernacular, a “nightmare”. This is bound to lead to delay. Further, your Lordship may be aware that the regime at Strangeways does not allow legal visits over the weekend. Should the defendant be admitted to bail, it would allow my solicitor and I to take a full proof of evidence before Monday, so that breaks would not be required to take instructions as the witnesses give their evidence.’ Jack studied the judge, who was actually wavering. He couldn’t believe it. Neither could anyone else. Skart had to be toppled now, before he could think too much about it. Jack continued, ‘Of course, I should say that the defendant knows that if he does not surrender on Monday, he will be tried in his absence, and very likely convicted and sentenced, without delay.’

  The judge pondered, ‘I would need conditions.’

  He had him.

  ‘A condition of residence for a start.’

  The entourage of Crown Prosecution Service lawyers and officers from the NCA moved restlessly in their seats. A sense of shock pervaded the courtroom.

  ‘My Lord, might I hand forward the proposed bail address, written on this piece of paper, which could remain on the court file. I would be grateful if it was not read out in open court.’ Jack handed it to the usher who took it up to the judge. ‘And a condition that my solicitor checks on him on Saturday and Sunday at four o’clock and notifies the prosecution before five o’clock that he has been seen at the bail address.’

  His Lordship examined the not
e. ‘Yes, very well. You have heard what the conditions are, Mr Marpit. You can have bail.’

  Jack sat down.

  He had never known elation like this before.

  Paul Effiong, Katterman’s junior, nodded at Jack. ‘Impressive,’ he whispered.

  ‘If that is all gentlemen, I will adjourn until Monday morning at ten-thirty. Thank you, everyone.’

  Marpit was taken back down to be processed and released.

  Lara had a beaming smile. ‘Amazing,’ she said to Jack, almost in awe.

  ‘What a day,’ he replied, taking in the contours of her face. The moment lingered.

  Lara spoke first. ‘I’ll get Marpit sorted. See you at your chambers in a bit, hopefully with some papers.’ She shot off towards the cells, leaving Jack standing on the concourse. He felt a mixture of emotions: fear, nerves, excitement, satisfaction.

  Above all, he felt alive.

  Chapter 16

  As Jack set off across the square, Jim Smith, standing outside with the other journalists and photographers, called after him, ‘Anything I can do to help, Mr Kowalski?’

  Local journalist, Jim Smith, had spent thirty years reporting on cases of note in the Manchester courts. He was known by all in the legal community, often the person to publicize losses in court that many barristers would rather forget. His scruffy, slightly spivvy appearance concealed an intelligent and enquiring mind. He looked older than his fifty-five years. It didn’t bother him. He always said journalists were born old. The Manchester Evening News was Jim Smith’s life. As a Mancunian he was immensely proud to work for a paper that had been around since the 1860s. He’d read it as a lad, over his father’s shoulder, gripped by the great criminal trials at the local courts. Now he was writing the stories.

  Jack ignored Jim Smith’s offer, despite feeling some pride in registering on his radar. Involving the press in a defendant’s case was invariably a big mistake.

  Chambers’ reception area was full of solicitors and clients awaiting conferences with their barristers. A wall-mounted TV was pumping out Sky News. Jack could see through the glass panel into the clerks’ room.