by Peter Murphy
‘I suppose not, altogether. But –’
‘Dr Harvey, isn’t it true that doctors still don’t entirely understand how dissociative amnesia works?’
‘There are some aspects of it which cause difficulty, yes.’
‘And there can always be cases which don’t correspond with the usual models, can’t there?’
‘Yes.’
‘And for all you know, this could be one?’
‘As I say, I can’t rule it out.’
‘Meaning, that there is at least some doubt about it?’
‘Yes.’
‘You also find it odd that his memory returned spontaneously last Thursday afternoon?’
‘Yes, I do find that odd.’
‘Even though you have already told the jury that it could have returned at any time in response to being reminded of the facts by the police and his own legal advisers?’
‘Yes, that’s true. Nonetheless, the timing seems odd.’
‘Doctor, is it possible in a case of dissociative retrograde amnesia for memory to return as a result of a further traumatic experience related to the original event?’
‘Yes, that does happen. For example, if someone dies as a result of an accident, some time after the original event, that sometimes brings back memories in others who were involved.’
‘Yes. Dr Harvey, would you agree that going on trial for murder is a stressful experience for a defendant?’
‘Certainly.’
‘Could being brought to trial for murder properly be described as a traumatic experience occurring some time after the original event?’
Dr Harvey smiled.
‘Yes,’ he replied. ‘I suppose it could.’
54
Aubrey knocked on the door, opened it and stuck his head inside. As he had hoped, Harriet had returned from court. She was sitting at her desk reading the day’s law report in The Times.
‘Ah, I was hoping I might catch you,’ he said. ‘Merlin said you were on your way back to chambers. Is Ben around?’
‘I haven’t seen him.’ She looked at her watch. ‘But he should be back from the Bailey any time now.’
‘In that case,’ Aubrey said, ‘let’s talk in my room. Alan will bring us some tea. I want to revisit our conversation about legal privilege and our mutual friend Danny Ice.’
They walked together along the corridor. She thought he looked tired and rather pale.
‘Are you all right, Aubrey?’
‘What? Oh, yes, fine. Bit of a late night, that’s all. Come in. Have a seat.’
Alan had already left a pot of tea and a plate of digestive biscuits for them on an occasional table behind Aubrey’s desk. Harriet tested the tea for strength and poured.
‘I pored over Cross for quite some time,’ Aubrey began, ‘and as far as I can see, there is no rule that the privilege ends automatically just because the information would be useful to the defence in a criminal prosecution. Technically, the privilege relating to communications between lawyer and client lasts indefinitely, even after the client’s death.’
‘That doesn’t seem right to me,’ Harriet replied. ‘The whole purpose of the privilege is to encourage the client to speak freely to her lawyer; once the client is dead, it’s hard to see what purpose it could still have.’
‘I agree, and that’s why I think you should raise it with Conrad Rainer.’
Harriet looked at him quizzically.
‘Raise it with him, how? Val and I are not parties to the case. We have no right to a hearing, and we can’t tell Ben to raise it without violating the privilege.’
‘Write Conrad a note and ask him to see you privately in chambers tomorrow morning before court sits,’ Aubrey suggested. ‘Explain what you want to see him about, without going into detail, obviously. Tell him you have some evidence which might be important in the case he is trying, but you would need a ruling from him before you can disclose it to the parties. Then he’ll have to make up his mind. Either he will decide to make some new law, which we both agree ought to be made, or he will say he can’t interfere with the privilege – in which case you have done all you can.’
‘If he says no, there’s nothing more we can do?’
Aubrey shook his head.
‘Harriet, disobeying an order of a High Court judge is called contempt of court. You don’t need me to tell you that. It’s too much of a risk. Both you and Val could get into serious disciplinary trouble.’
‘But if it would make a difference to the defence of a man charged with murder –’
‘Harriet, you don’t know whether it would make a difference or not, but even if it would, if a High Court judge rules that the privilege survives, you can’t go against that.’
‘In that case, maybe it would be better not to ask the judge to make an order. Maybe I should just tell Ben and let him handle it with the judge.’
‘How would that help? You would still have violated the privilege.’
‘But I would have done it for the right reason, wouldn’t I? It just seems wrong to let it go without doing everything I can.’
‘That wouldn’t help you with the Bar Council, and it wouldn’t help Val with the Law Society. You would both be in hot water.’
‘Unless they agreed with us. There are times when you have to stand up for what you believe to be right.’
Aubrey shook his head, but smiled. ‘That’s the pupil I know talking.’
She returned the smile. ‘Don’t give me that, Aubrey. You’ve tilted at a few windmills yourself in your time.’
‘Yes, but I tilted as counsel on behalf of others, Harriet, not as a potential witness.’
‘You sailed close to the wind once or twice when you thought you were right – and you were right.’
‘Talk to Conrad first,’ Aubrey advised. ‘If he says no, let’s think about whether there’s a way to go to the Court of Appeal. I will represent the two of you there and perhaps we can have a second bite of the cherry.’
‘Thank you, Aubrey. That means a lot to me –’
‘But if we lose in the Court of Appeal, you have to promise me that it will end there. I can’t live with watching my star pupil get disbarred after all the efforts I made to get her taken on in chambers.’
‘I have no intention of letting myself get disbarred – if I can help it,’ Harriet replied. ‘I need to think this through, and I need to talk to Val.’
‘You need to talk to Conrad,’ Aubrey said. ‘And take Cross with you. There’s no rule at present that the privilege must yield if it may affect the question of guilt or innocence in a criminal trial, but unless I’m misreading him, Cross thinks there should be. Perhaps it will persuade Conrad to go out on a limb.’
Aubrey’s phone rang as Harriet was leaving.
‘I have Mr Phillips QC on the line from Crown Office Row, sir,’ Merlin said.
‘Thank you, Merlin. Put him through.’
‘Aubrey, how are you?’
‘I’m very well, Stephen. I hope you are too.’
‘Yes. Thank you. Aubrey, look, I don’t want to stick my nose in where I shouldn’t, but my clerk tells me you’ve asked for a confidential meeting with three members of my chambers, and I must admit I’m a bit curious as to why. You and Gareth are not trying to lure anyone away to Two Wessex Buildings, are you?’
Aubrey laughed.
‘No, Stephen, certainly not. You’re quite right. I’ve asked to see Frank Reilly, Jonathan Weatherall, and Martin Cohn, and your clerk suggested Thursday afternoon, after court. But I can assure you that neither Gareth nor I have any improper designs on them.’
There was a silence on the line.
‘As I say, Aubrey, I don’t want to pry, but you must admit, it is a bit irregular to see members of another set of chambers in this way without asking first. I am their head o
f chambers after all, and if only as a matter of courtesy –’
‘I apologise, Stephen. All I can tell you over the phone is that it’s a very sensitive matter.’
‘Have they done something wrong that I ought to know about?’
‘No, not at all.’
Aubrey thought for some moments.
‘Look, Stephen, if you’re concerned, why don’t you join us on Thursday? You’d have to be involved eventually, whatever happens, so there’s no reason why not. Please, just keep it confidential for now. I think you’ll understand why once you know what it’s about.’
Another silence.
‘All right,’ Stephen replied. ‘We can meet in my room. We won’t be disturbed there. But I must say, Aubrey, I still find it all rather extraordinary.’
‘Extraordinary doesn’t begin to cover it,’ Aubrey replied.
55
‘Is the plan still for Jess to take Mrs Pettifer on cross?’ Barratt asked.
‘Yes,’ Jess replied.
They had gone over every line of Mrs Pettifer’s long, rambling witness statement in detail. It had taken well over two hours, and they had almost exhausted the subject of the cross-examination that would be required the next morning.
Ben nodded. ‘We want to avoid getting into a pitched battle with her if we possibly can. She’s on Susan Lang’s side, she makes no secret of it, and she’s fairly hostile about it. If I go after her, I will just come across as aggressive, and it will all become very confrontational. Jess’s style of cross will be more effective with her.’
Barratt nodded, and suddenly seemed to relax a little, leaning back in his chair.
‘What style is that?’ he grinned.
Jess leaned forward in her chair and punched him playfully on the arm.
‘I’m a Siren, Barratt. I lure them on to the rocks with my sweet singing, and they never know what hit them.’
Barratt nodded.
‘Of course. I remember that ability from the days when you used to work for me. Is she like that at home as well, Ben?’
‘No comment,’ Ben smiled. ‘But I think there’s every chance Mrs Pettifer will end up on the rocks tomorrow, and in any case, Jess will give the jury a welcome break from having to listen to me all the time.’
Barratt nodded in agreement. ‘I have every confidence in you, Jess,’ he said more seriously. ‘You know that. It’s just that I’m nervous about Mrs Pettifer. She’s the only witness who paints Henry Lang as the kind of man who might actually decide to kill his wife.’
‘Yes,’ Jess agreed, ‘but if she goes after Henry too much, the jury will see right through her. If I can give her enough rope, she’ll hang herself, and if we can make the jury see her as someone who’s taken sides and isn’t interested in being fair-minded, they won’t be very impressed with her.’
‘I hope you’re right.’
‘In the end, Barratt,’ Ben said, ‘this case is going to come down to Henry, not Mrs Pettifer. If he makes a good impression in the witness box, and we can show he has a serious case of provocation, I don’t think the jury will be too concerned about what Mrs Pettifer may or may not have heard going on upstairs. All that is going to fade into the background once they hear what happened at Harpur Mews.’
‘Sorry to interrupt,’ Harriet said.
She had knocked softly at the door and waited until Ben had responded before she entered. Val Turner, formally dressed in a black two-piece suit, followed closely behind her.
Ben looked at his watch.
‘Oh, I’m sorry, Harriet. How long have you been waiting? You should have banged on the door earlier. We can move on if you need the room.’
‘No, no, we don’t need the room. We’d agreed that you would have it tonight. No, Val and I have been over to the Devereux for a drink.’
‘Lucky you,’ Barratt said. ‘You’ve been having more fun than we have.’
‘Not necessarily,’ Harriet replied. ‘Barratt, Ben, this is Val Turner, who was Susan Lang’s solicitor. Val, this is Geoff Bourne’s partner, Barratt Davis, and Ben Schroeder, who’s leading Jess in Henry’s trial.’
They shook hands.
‘If it’s a bad moment, we can come back later.’
‘No need,’ Ben replied. ‘We’re just about finished.’
‘Perhaps it’s our turn to pop into the Dev?’ Barratt suggested, turning towards Ben and Jess. ‘Are you up for a quick one?’
‘No, actually, Barratt,’ Harriet said, ‘we are here to see you. Val and I have something we feel we should tell you.’
She walked to her desk, opened a drawer, and took out a number of sheets of paper.
She looked at Val.
‘Last chance. Are you still OK with this?’
Val nodded. ‘I’m OK.’
‘These are draft witness statements Val and I have made,’ Harriet said. ‘We haven’t signed them yet. There’s also a transcript of a conversation which we refer to in the witness statements. Why don’t you read these first, and then we can talk about them?’
Harriet placed the documents on Ben’s desk, and returned to her own desk to sit down. Jess and Barratt stood behind Ben and read over his shoulder. When they had finished reading, Jess and Barratt quietly resumed their seats. No one spoke for a considerable time.
‘What you’re saying,’ Ben began, ‘is that Susan Lang told you she had asked Daniel Cleary to threaten Henry, to persuade him to drop his custody application?’
‘In effect, yes,’ Harriet replied. ‘She tried to back off when we challenged her, but that’s what she told us.’
‘Cleary was going to strong-arm Henry into giving up the children?’ Barratt asked.
‘Who better?’ Harriet replied. ‘You’ve seen his record, Barratt. He’s already done four years for GBH with intent.’
‘Not to mention demanding money with menaces,’ Val added.
‘He’s the kind of man who wouldn’t think twice about doing a little favour like that for one of his street drug runners, to keep her sweet,’ Harriet said, ‘especially if she was giving him a bit on the side.’
Ben ran his hands through his hair, and stared at them.
‘Harriet, when Susan told you all this –’
‘She was our client, yes. We are very aware of the privilege, Ben. That’s what we’ve been talking about all evening.’
‘But if she was speaking to you as her legal advisers –’
‘Hear me out, Ben, please. Look, this has been preying on my mind for a long time now. I know privilege is important; I understand that. But Susan Lang is dead, and Henry Lang is on trial for her murder. I suspected his defence might be provocation and, if so, I knew immediately how important this was. Just to make sure, I was at the Bailey for the start of the trial. I skulked at the back of the court just long enough to confirm my suspicion.’
‘Really? We didn’t see you,’ Jess said.
‘I was fiendishly disguised as a member of the public,’ Harriet smiled. ‘Once I knew for sure, I went to see Aubrey to get some advice. He’s my pupil-master, after all. Who else would I go to?’
‘No one better,’ Ben agreed. ‘But surely Aubrey, of all people, would have told you that you couldn’t tell anyone – least of all Henry’s counsel and solicitor?’
‘Ben, I don’t feel right about defending the privilege in this situation, and I asked Aubrey to find me a way around it. We looked at Cross and we talked about it, and we agreed that the law ought to be that the privilege ceases to apply if the privileged information would tend to establish the innocence of a person accused of a serious criminal offence.’
‘Ought to be?’ Ben smiled.
‘Yes. We can’t actually find any such rule, but we think that should be the rule, and so does Cross. Ben, I’m right aren’t I? This could make a difference to Henry’s case, couldn’t it?’
/>
‘It would make a massive difference,’ Ben replied quietly.
‘Well, then…?’
Ben thought for some time.
‘You do both understand that, even if there were such a rule, the only way to get the information in front of the jury –?’
‘Would be for one or both of us to give evidence? Yes, we understand that. But before we can give evidence, you’ll have to convince Conrad Rainer to create a new rule of law.’
Ben took a deep breath.
‘I can give it a try. It’s not a bad argument: you have a client who has no further use for the privilege, and allowing the jury access to the information might help to prevent a miscarriage of justice. I can argue that with a straight face.’
‘I think we’re making this more difficult than it has to be,’ Jess said. ‘There’s another argument we can make, surely, based on existing law?’
Every eye in the room turned to her.
‘Pray, tell,’ Barratt said.
‘There’s no privilege between a lawyer and her client if what is said between them is in furtherance of a crime by the client. Making threats of violence to get someone to drop a case has to be a criminal offence, doesn’t it? I don’t see how there can be any privilege for that. That’s old law. We don’t have to ask Rainer to create a new rule.’
Ben nodded slowly, and smiled.
‘That sounds right to me, Harriet. Didn’t Aubrey come up with that one?’
Harriet laughed.
‘Neither of us came up with that one; it never occurred to us – or to you, apparently, until Jess thought of it. Well done, Jess.’
‘Amen to that,’ Barratt agreed, ‘But you still have a problem, don’t you? The moment Ben gets up to make the argument, it’s obvious to everybody that you two have already violated the privilege.’
‘That’s what we were talking about at the Dev,’ Harriet agreed. ‘Aubrey suggested that we should ask to see Rainer in chambers without telling you, and make the case to him ourselves. Then, if he turned us down, we would go to the Court of Appeal, to see if they would listen. But we didn’t like that idea. If Rainer turned us down and we said anything to you, we would automatically be in contempt of court. Aubrey knows Rainer well, and he thinks there’s every chance he will go for it, but –’