Calling Down the Storm

by Peter Murphy

  The judge shook his head.

  ‘There’s no need, Mr Schroeder. I did my homework during the lunch break. You say, firstly, that there can be no privilege because the statements Susan Lang made were in furtherance of a crime – namely threatening violence with the intention of improperly influencing the outcome of the family proceedings. Secondly, you say that I should make new law and hold that the privilege cannot be maintained where it would deprive a defendant accused of a serious crime of evidence relevant to his defence. Is that correct?’

  Ben smiled. ‘I couldn’t have put it better, my Lord.’

  ‘Yes,’ the judge said. ‘Well, I should have thought that both those arguments were plainly right. Let me hear what Mr Pilkington says about it.’

  Andrew stood slowly.

  ‘My Lord, the privilege between lawyer and client is a strong one, and there is no authority that a court can set it aside merely because it may be convenient to the parties in other proceedings.’

  ‘Even when the evidence may be necessary in the interests of a fair trial for a man accused of murder?’ the judge asked.

  Andrew hesitated.

  ‘There is no authority that allows the court to set the privilege aside.’

  Mr Justice Rainer nodded.

  ‘What do you say about the argument that the statements were made in furtherance of a crime?’

  ‘The statements may have indicated that Mrs Lang was involved in a crime, my Lord, but the statements she made to her lawyers weren’t in furtherance of a crime. In fact, quite the contrary. Telling the lawyers made it likely that something would be done to discourage her from continuing with her plan to commit the crime.’

  Andrew sat down.

  Ben was about to rise, but he saw the judge shake his head. It wasn’t necessary for him to reply to what Andrew had said.

  ‘I can deal with this question quite shortly,’ the judge said. ‘The prosecution say that I have no power to allow relevant evidence to go before the jury, even though it may make a decisive difference to the way in which the jury view the case. I would have to be given a very strong reason to keep from a jury evidence that may assist the defence in a case of murder, and I have been given no such reason.

  ‘Mr Schroeder argues that the statements were made in furtherance of a crime, and therefore, are not privileged in the first place. Mr Pilkington agrees that the privilege would not arise if that were correct, but he says that for Mrs Lang to tell her lawyers what she had done would not have been in furtherance of the crime. Firstly, a crime was certainly involved. If the evidence is correct, it suggests that both Mrs Lang and Mr Cleary were committing the offence of blackmail and perhaps other offences, such as perverting the course of justice. Secondly, for Mrs Lang to take her lawyers into her confidence about it, perhaps hoping to persuade them to conduct the proceedings in a certain way, or perhaps to persuade them to cover up for her, seems to me to be clearly in furtherance of crime. For that reason, I do not need to set a privilege aside. There was no privilege to begin with.

  ‘If I am wrong about that, Mr Schroeder argues that I should make new law and hold that the privilege must be set aside when it would prevent a jury from hearing evidence relevant to the defence of a man accused of a serious crime, such as murder. I am clearly of the opinion that, if that is not already the law – and it seems from a perusal of Cross and Archbold that there is at present no rule to that effect – it certainly should be the law. Professor Cross, an eminent authority on the law of evidence, seems to support that view.

  ‘Quite apart from that, this man Daniel Cleary – or “Danny Ice”, as he likes to call himself – has hung over this trial like a black cloud, and it is time to let some light back in. Cleary has an appalling criminal record for offences similar to the one he threatened to commit against Henry Lang, and it cannot be doubted that he is a wicked and dangerous man. It would be outrageous to prevent the jury from hearing independent evidence that Cleary drove Mr Lang to desperate measures at the instigation of his wife. It might very well lead to a miscarriage of justice.

  ‘It is important to note that Mrs Lang – the client and the beneficiary of the privilege – is dead, and can have no continuing interest in the privilege. Whether the law should be the same where the client is still alive, I need not decide today, and I leave that question open. But in this case, I declare the law to be this: that, where privileged information is relevant to the defence of a man accused of a serious crime, and where it may make a difference to the jury’s determination of the question of guilt or innocence, the legal privilege cannot be allowed to stand in the way of the evidence being presented to the jury. I will allow the defence to present the evidence. Let’s have the jury back.’

  ‘I’m much obliged,’ Ben said.

  Andrew stood again.

  ‘My Lord, while the jury are still out, with some reluctance, I ask your Lordship to discharge the jury and order that this case begin again in front of a different judge.’

  Mr Justice Rainer smiled.

  ‘Why, Mr Pilkington? Because I have ruled against you?’

  ‘No, my Lord. Before lunch, your Lordship intervened to question the points I was making to Mr Lang in cross-examination, in such a way as to suggest that your Lordship was taking sides. The prosecution is just as much entitled to an impartial judge as the defence.’

  ‘I was simply drawing attention to the obvious,’ the judge replied.

  ‘Your Lordship was doing it in such a way as to discredit my cross-examination,’ Andrew said. He paused. ‘In addition, I am disturbed that your Lordship was able to anticipate, not only the application my learned friend Mr Schroeder was going to make this afternoon, but also the arguments he was going to present, to such an extent that your Lordship was able to research them over lunch.’

  There was a silence.

  ‘I am disturbed that your Lordship was able to do all that before he was even shown the witness statements in question. It implies that your Lordship has been receiving input into this case from some outside source, rather than relying on counsel, which, with respect, is improper.’

  ‘Andrew…’ Ben whispered.

  Mr Justice Rainer did not reply immediately.

  ‘Mr Pilkington,’ he said, ‘I am not going to be drawn into an unseemly argument with you. I strongly advise you to be cautious before you address a judge of the High Court in the manner in which you have addressed me. There is no basis for discharging the jury, and your application to do so is refused.’

  Ben saw Andrew opening his mouth to respond.

  ‘Andrew,’ he repeated, this time loudly enough to make sure he was heard.

  Andrew looked at him sharply.

  Ben shook his head vigorously.

  ‘No.’

  Reluctantly, Andrew sat down.

  ‘Jury, please,’ the judge directed.

  76

  ‘Harriet still insists on giving evidence first,’ Barratt whispered to Ben. ‘She feels responsible.’

  ‘But –’

  ‘I’ve told her how you feel, but she’s adamant.’

  Ben nodded, and turned back towards the bench.

  ‘My Lord, I call Harriet Fisk.’

  Harriet seemed very composed. She was dressed in her best black suit, with a crisp white blouse and moderate heels, her hair up, held in place with an elegant silver pin. She took the New Testament from Geoffrey.

  ‘I swear by Almighty God that the evidence I shall give shall be the truth, the whole truth, and nothing but the truth.’

  ‘Are you Harriet Fisk, and are you a practising barrister with chambers at Two Wessex Buildings in the Temple?’

  ‘I am, my Lord.’

  Ben smiled.

  ‘Miss Fisk, there is one matter I want to deal with straight away, so that the jury will be aware. Are you and I in fact members of the same se
t of chambers?’

  She returned the smile. ‘Yes.’

  ‘Until her death, did you represent Susan Lang in the family proceedings in the High Court?’

  ‘Yes, I did.’

  ‘The jury may find it strange that you represented Susan in those proceedings, while I am representing Henry in this case. Can you confirm that it is in fact quite usual for members of the same chambers to be on opposite sides of a case?’

  ‘Yes. Barristers are all independent practitioners, and only act on instructions from solicitors, and many firms of solicitors may retain barristers from the same set of chambers. It’s quite common to have both sides of a case in chambers.’

  She looked at the jury and smiled.

  ‘We’re honour bound not to sneak a look at each other’s files.’

  The jury chuckled.

  ‘And I might add that your learned junior, Miss Farrar, represented Henry Lang in the family proceedings, although we’re not in the same chambers.’

  ‘Thank you. Was your instructing solicitor in the family proceedings a lady by the name of Val Turner?’

  ‘Yes. That’s correct.’

  ‘Miss Fisk, has my instructing solicitor, Mr Davis, explained to you that his Lordship has ruled that you are no longer bound to Susan Lang by any legal privilege?’

  ‘Yes, he has.’

  ‘And with that assurance, are you willing to give evidence about something Susan Lang told you while you were still acting for her?’

  ‘With that assurance, yes, I am.’

  ‘I want to take you back to 21 April, a week before Susan Lang met her death. Do you remember that day?’

  ‘Yes.’

  ‘Did you do something in relation to the family proceedings on that day?’

  ‘Yes. Miss Turner and I had a conference with Susan Lang in chambers.’

  ‘At what time was that?’

  ‘I recall it was just after lunch, about 2 o’clock. I wasn’t in court that day.’

  ‘Was there a particular purpose for that conference?’

  ‘Yes. We were getting to the stage where Mrs Cameron, the court welfare officer, was making progress with her inquiries. Mr Justice Wesley had already indicated that Susan would not necessarily get permanent custody of the children, and Miss Turner and I were worried about some aspects of the case.’

  ‘Tell the jury, please, what you were worried about.’

  ‘Mr Lang was alleging that she was associating with criminals and taking drugs, and from our observation of Mrs Lang, we suspected that there might be some substance in those allegations. Miss Turner and I decided that we owed it to Mrs Lang to counsel her to change her behaviour if she was serious about having custody.’

  ‘You were worried about the impression she was likely to make on Mrs Cameron?’

  ‘Yes. And we had to tell her that if she lied to the court, as responsible legal representatives, Miss Turner and I might reach the position where we could no longer ethically ask the judge to award her custody.’

  ‘How did Mrs Lang respond to your advice?’

  ‘She became very defensive. She seemed to take on board what we said, but then she said that what she did in her spare time was her business, and not the court’s, or ours. I concluded from this that she didn’t intend to make any real changes.’

  ‘Did Mrs Lang also say something else to you?’

  ‘Yes. She said there was no need for us to worry, because Henry would give up his claim for custody and it would never come back before the court.’

  ‘How did you react to that?’

  Harriet shook her head.

  ‘I remember that Val – Miss Turner – and I looked at each other. We both felt very anxious about what she had said. Giving up his claim for custody was the last thing we would have expected Mr Lang to do. It was clear from his affidavit that he was very serious about it. It didn’t make sense, and it didn’t sound good.’

  ‘Did you ask Mrs Lang why she thought her husband would abandon his claim for custody?’

  ‘Yes.’

  ‘Please tell my Lord and the jury what she said.’

  ‘She said that her friend, whom she called “Danny Ice”, was going to warn Henry to abandon his claim for custody – or else.’

  ‘Or else what?’

  ‘She wasn’t specific, but it was obvious what she meant. She was telling us that this man “Danny Ice” was going to threaten Mr Lang with violence.’

  ‘No doubt you know now who “Danny Ice” is, but did you know at the time?’

  ‘No, but the name said it all, really.’

  ‘Miss Fisk, as responsible legal representatives, did you respond to what Mrs Lang had said?’

  ‘Yes, we most certainly did. We told her in no uncertain terms that she was probably committing a criminal offence and could be prosecuted; not to mention that if anything like that got back to Mr Justice Wesley she could kiss any hope of custody goodbye. We also told her that we couldn’t condone what she was doing, that we couldn’t continue to act for her, and that we might even have a duty to inform the court.’

  ‘What did she say to that?’

  Harriet smiled grimly.

  ‘She immediately tried to distance herself from it, saying that it was all Danny Ice’s idea, and she had nothing to do with it.’

  ‘How was the matter left?’

  ‘Miss Turner and I didn’t feel we could do any more at that stage, but obviously if Mr Lang had in fact withdrawn his application, we would have had to consider our position.’

  Ben paused.

  ‘Miss Fisk, on the first day of this trial, did you take advice from a senior member of the Bar, and did you subsequently tell myself, Miss Farrar, and Mr Davis what had happened?’

  ‘Yes.’

  ‘Before his Lordship had any opportunity to rule on the privilege question?’

  ‘Yes. Obviously, I understood that the evidence I could give was relevant. I knew I was taking a risk, professionally speaking, to speak out before his Lordship ruled, but my conscience wouldn’t allow me to keep quiet when I knew that Mr Lang was at risk of being convicted of murder.’

  ‘You did the right thing, Miss Fisk,’ Mr Justice Rainer said.

  Harriet turned towards him.

  ‘Thank you, my Lord.’

  ‘Please wait there, Miss Fisk,’ Ben said. ‘There may be some further questions.’

  ‘Miss Fisk,’ Andrew said, ‘you have no way of knowing whether Danny Ice ever did make a threat to Henry Lang, do you?’

  ‘No. I can only say what Susan told me.’

  ‘And she told you that he was going to make a threat, not that he had made one?’

  ‘That’s correct.’

  ‘Thank you. I have nothing further.’

  After Harriet had left the witness box, Andrew turned to the judge.

  ‘My Lord, the jury will hear me say this. I have no reason to doubt the evidence given by Miss Fisk. If my learned friend wishes to call Miss Turner, of course he is free to do so, but I will have no questions for her; and I will not suggest that the jury should not accept Miss Fisk’s evidence.’

  Ben stood.

  ‘My Lord, I am most obliged to my learned friend. In that case, I will not take up the court’s time unnecessarily. May Miss Fisk and Miss Turner be released?’

  ‘Yes,’ Mr Justice Rainer said. ‘Mr Pilkington, are you ready to make your closing speech?’

  77

  ‘May it please your Lordship, members of the jury, you’ve already heard from me once at the start of the trial, and I’m not going to keep you for very long now. You already know, and his Lordship will remind you when he sums up, that your choices in this case do not include a simple verdict of not guilty. Either Henry Lang is guilty of murder, or he is guilty of manslaughter by reason of provocation. P
rovocation means, not only that he was in fact provoked to lose his self-control by what his wife said, but also that a reasonable man in his position would have been provoked to lose his self-control. On behalf of the Crown I say that there are four very good reasons why you can be sure that the right verdict is one of guilty of murder.

  ‘Firstly, Henry Lang had a clear motive for killing his wife. Secondly, his explanation for taking a knife with him to Mrs Cameron’s house on 28 April is not credible. Thirdly, Mr Lang’s suggestion that he lost his self-control because of the stupid remark he says Susan Lang made is not credible. Lastly, Mr Lang’s story about losing his memory and recovering it so conveniently four days before this trial started is also not credible.

  ‘First, the motive. Members of the jury, Henry Lang is a man who obsessed about his children, and who was obsessed with his children. You remember Mrs Cameron’s evidence. It was always “his” children, wasn’t it, never “our” children, or even “the” children? Mrs Cameron was worried about his obsession, so much so that she made a note of it after her very first meeting with him. She was right to be worried. Henry Lang was a man who was determined to have his children back at any cost. Mr Justice Wesley had already awarded interim custody of the children to Susan. He simply couldn’t take the risk that he might lose custody permanently, and he was ready to go to any lengths to prevent that. He wasn’t going to leave the fate of his children up to the High Court, was he? He was going to take matters into his own hands. He was going to make sure that Susan Lang couldn’t keep him from his children any longer.

  ‘Members of the jury, I’m not going to pretend that Susan Lang was a perfect mother. I can’t. You’ve heard the evidence, and you know better. Indeed, you may well have some sympathy for Mr Lang because of the way she treated him during the marriage. You may also think that it was very likely that Mr Justice Wesley would have given custody to Mr Lang if he had pursued his case. That’s one of the things that make this case so tragic. Susan Lang was drinking and taking drugs, and she was associating with some very undesirable people. The prosecution don’t seek to avoid that, and if the High Court had known about it, you may think that there could only have been one result. That’s why we have courts, members of the jury, so that judges can make difficult decisions when people can’t agree about sensitive matters such as child custody. Unfortunately, Mr Lang wasn’t prepared to be patient and allow the High Court to do its work. But the law doesn’t allow people to take matters into their own hands in the way he did.