Brief Tales From The Bench

by Henry Cecil

  The problem then arose as to how the case was to be tried. None of us could see any alternative to my going into the witness box as an ordinary witness. How else could justice be done and be seen to be done? I had never seen or heard of a contempt case being dealt with in that manner before, but I did not see how it could be properly dealt with otherwise. If Mr Smith’s evidence was to be heard on oath, why shouldn’t mine also? If he was to be cross-examined, why shouldn’t I be cross-examined?

  So the consequence was that Mr Benton took my place on the bench, and I went into the witness box. I stated on oath what had happened. And then I was cross-examined by Mr Tewkesbury. First of all, however, he addressed the deputy-judge.

  ‘Your honour, what shall I call his honour, your honour?’

  ‘What d’you mean?’ asked the deputy-judge.

  ‘Well,’ said Mr Tewkesbury, ‘if I say “your honour” you will think I’m talking to you. If I don’t say anything at all, he’ll think I’m being disrespectful.’

  ‘As far as I’m concerned, your honour,’ I said, ‘Mr Tewkesbury need call me nothing at all.’

  ‘Thank you, your honour,’ said the deputy-judge.

  ‘Not at all, your honour,’ said I.

  But Mr Tewkesbury had the last word.

  ‘I thank both your honours,’ he said.

  Then he actually got on with the job of cross-examining me.

  ‘Your complaint is,’ he asked, ‘that my client wouldn’t move his lorry before he’d finished delivering the coal?’

  ‘Not quite that,’ I said, ‘but that in refusing to move it he behaved in a deliberately insulting manner after I’d told him I was the judge of the court.’

  ‘Let’s see how he behaved,’ said Mr Tewkesbury. ‘You say he took a packet of cigarettes out of his pocket and did it very slowly. Are you able to say that he didn’t find the packet tangled up with string or sticking plaster in his pocket?’

  ‘I didn’t think he had any difficulty,’ I said, ‘but I can’t say for certain.’

  ‘Then,’ said Mr Tewkesbury, ‘you say he took the cigarette out of the packet very slowly?’

  ‘I do,’ I said.

  ‘Are you able to say that the slowness was not due to the fact that one cigarette was stuck to another?’

  ‘I can’t say that for certain.’

  ‘Well then,’ Mr Tewkesbury went on, ‘you say he took some time to clamber into his lorry. Are you able to say for certain that he didn’t suffer from arthritis or rheumatism, or something of that kind?’

  ‘He walked ordinarily enough,’ I said.

  ‘The people who suffer from arthritis or rheumatism or like do sometimes walk ordinarily enough, don’t they?’ asked Mr Tewkesbury.

  ‘That’s true,’ I agreed.

  ‘I suffer from arthritis,’ said Mr Tewkesbury. ‘Did you, for example, see me walk to my place in the court this morning?’

  ‘Yes,’ I said, ‘I noticed you stumbled.’

  ‘That was not due to arthritis, your honour,’ said Mr Tewkesbury.

  ‘No,’ I said, ‘I thought not.’

  ‘In any event, your honour,’ said Mr Tewkesbury, ‘you can’t say that my client didn’t suffer from one of the ailments I’ve mentioned.’

  ‘No,’ I admitted, ‘I can’t.’

  ‘Then,’ said Mr Tewkesbury, ‘you say he took a long time when seated in his cab before starting off?’

  ‘Yes.’

  ‘D’you know whether his engine was overheated or not?’

  ‘No, I don’t.’

  ‘Is it not possible that he was waiting a little for it to cool down before starting?’

  ‘He didn’t seem to wait long enough for that,’ I said.

  ‘But all this lighting of a cigarette and slowly clambering into the lorry might have been deliberately to take up time to allow the engine to cool. You can’t swear that was not the case,’ said Mr Tewkesbury.

  ‘I should be surprised if it was,’ I said, ‘but I can’t swear that it wasn’t.’

  ‘Then,’ went on Mr Tewkesbury, ‘you say that, having started the engine, he took some time before moving off?’

  ‘Yes.’

  ‘Are you able to say that the reason why he waited with the engine running was not because he wanted it to warm up a little before starting?’

  The deputy-judge intervened.

  ‘Mr Tewkesbury,’ he said, ‘I thought you said he wanted it to cool down?’

  ‘Your honour,’ said Mr Tewkesbury, ‘these are hypothetical questions.’

  ‘Very hypothetical, I should say,’ said the deputy-judge.

  ‘Finally,’ said Mr Tewkesbury, ‘you complain that, as he passed you, he asked you if you were in a hurry. Were you in a hurry?’

  ‘Yes.’

  ‘Why do you object to my client asking the question, then?’

  ‘Like everything else,’ I said, ‘it was the way he did it. He asked it in a sneering way.’

  Mr Tewkesbury then concluded his cross-examination. I had a feeling that it might well be true that he did things better when rather pickled than when completely sober.

  Then Mr Smith was called into the witness box and took the oath, and Mr Tewkesbury began to examine him.

  ‘Now, Mr Smith,’ he said, ‘have you a very great respect for every one of Her Majesty’s judges?’

  ‘Yus,’ said Mr Smith.

  ‘And, if there is one judge above all for whom you have the deepest respect, who is it?’

  ‘Yus,’ said Mr Smith.

  ‘I’ll rephrase the question,’ said Mr Tewkesbury. ‘Have you got the greatest possible respect for his honour the judge of the Willesden County Court?’

  ‘Yus,’ said Mr Smith.

  ‘A little leading, wasn’t it, Mr Tewkesbury?’ queried the deputy-judge.

  ‘Oh, your honour, I was only seeking to save your honour’s time,’ said Mr Tewkesbury. ‘I remember that great judge, Mr Justice Hornet, once said to me when he was at the bar, and I was instructing him in an extremely difficult commercial case where the issues were highly complicated and–’

  ‘Mr Tewkesbury,’ said the deputy-judge, ‘I thought you said you wanted to save time.’

  ‘The rebuke is well merited, your honour,’ said Mr Tewkesbury. ‘I will get on with the business in hand. Now, Mr Smith, did you in any way intend to insult his honour the judge of this court, who, as you’ve said, you hold in the greatest possible respect?’

  ‘Yus,’ said Mr Smith.

  ‘That is one of the dangers of leading questions, Mr Tewkesbury,’ said the deputy-judge.

  ‘Too true, your honour,’ said Mr Tewkesbury. ‘I’ll rephrase that question. When you met the judge in the street, Mr Smith, you didn’t want to insult him, did you?’

  ‘I didn’t want to insult no one,’ said Mr Smith.

  ‘Mr Smith,’ asked the deputy-judge, ‘did you intend to insult the judge?’

  ‘What should I want to do that for?’ said Mr Smith.

  ‘Well, as you ask me, Mr Smith,’ said the deputy-judge, ‘you might have got some pleasure out of it. Some people do get pleasure from insulting other people. Any further questions, Mr Tewkesbury?’

  ‘No thank you, your honour.’

  ‘Now, Mr Smith,’ said the deputy-judge, ‘kindly pay attention to me and think before you answer my questions. The answers may be very important to you. D’you understand me?’

  ‘Yus.’

  ‘D’you remember his honour telling you that he was judge of this court?’

  ‘Yus.’

  ‘Did you believe him when he said that?’

  ‘Yus.’

  ‘Did you believe him when he told you that there were a lot of people waiting for him, and he didn’t want to be late?’

  ‘Yus.’

  ‘Then why didn’t you move your lorry to let him through? – Well, why didn’t you?’

  ‘I’d still some bags to deliver.’

  ‘I dare say you had, but it wouldn’t have hu
rt you to have moved the lorry a foot before you’d finished delivering them, would it? – Well, would it?’

  ‘Would it what?’

  ‘Would it have hurt you to have stopped delivering the coal, and to have moved your lorry a foot?’

  ‘It needed more than that.’

  ‘How many feet would you have had to move it?’

  ‘Three feet at least.’

  ‘Would it have been any more trouble to move it three feet than one foot?’

  ‘I hadn’t finished the delivery.’

  ‘I know you hadn’t. But, if you were going to stop delivering to move the lorry, it made no difference whether you moved it one foot or twenty feet.’

  ‘I didn’t have to move it twenty feet,’ said Mr Smith.

  ‘I know you didn’t,’ said the deputy-judge. ‘But there is no difference between one foot and twenty feet, is there?’

  ‘If I might assist your honour,’ said Mr Tewkesbury, ‘my secretary here, who is very good at figures, says the difference is nineteen feet, your honour.’

  ‘Be quiet, Mr Tewkesbury,’ said the deputy-judge, ‘and behave yourself.’

  Mr Tewkesbury rose in his most dignified, drunken manner.

  ‘Your honour,’ he said, ‘I must protest. I have done nothing to merit your honour’s castigation. I have been sitting here like the respectable solicitor I am, and, like the helpful solicitor I hope I am, I merely intervened to assist your honour with the matter of figures. If I’ve insulted your honour by assuming that your honour could not work them out for yourself, I can only say that if your honour couldn’t work them out, your honour would be in what I may say with all due humility, very good company – my own.’

  ‘Sit down, Mr Tewkesbury,’ said the deputy-judge.

  ‘Under protest,’ said Mr Tewkesbury, ‘your honour, I subside.’

  ‘Now, Mr Smith,’ went on the deputy-judge. ‘Once you were in the cab, it made no difference to you how many feet you moved the lorry?’

  ‘Once I was in the cab,’ said Mr Smith, ‘I drove away.’

  ‘But not before you’d finished delivering the coal?’

  ‘Of course not, that’s what I’m paid for.’

  ‘Why did you ask the judge if he was in a hurry?’

  ‘It looked as if he was.’

  ‘Then why ask him?’

  ‘To pass the time of day, like.’

  ‘Mr Smith,’ asked the deputy-judge, ‘have you ever heard the expression, “take the mickey out of someone”?’

  ‘Yus,’ said Mr Smith.

  ‘What does it mean?’

  ‘What you’re doing now,’ said Mr Smith.

  ‘You think I’m trying to take the mickey out of you?’ asked the deputy-judge.

  ‘It stands to reason, don’t it?’ said Mr Smith.

  ‘Did you try to take the mickey out of the judge?’

  ‘What should I want to do that for? He hadn’t done me no harm.’

  ‘He’d been perfectly polite and courteous to you?’ asked the deputy-judge.

  ‘Yus.’

  ‘Then why didn’t you respond by giving way to him?’

  ‘I did when I’d finished delivering the coal.’

  That concluded Mr Smith’s evidence. Mr Tewkesbury then addressed the deputy-judge.

  ‘With all the confidence at my command, and I have a great deal of confidence, particularly in this case,’ he said, ‘I submit that at the lowest the charge has not been proved. You’ve got to be satisfied beyond all reasonable doubt that my client, a married man of good character with three small children, that such a man intended to insult the judge. How can you be satisfied on this evidence? I submit you can’t be.’

  ‘Thank you, Mr Tewkesbury,’ said the deputy-judge. ‘In this case I’ve no doubt whatever that Mr Smith insulted the judge, and intended to do so. The more difficult question I have to decide is what penalty to impose. When I’ve finally considered the matter, I may find it necessary to impose a sentence of imprisonment. But for two reasons I shall not do so today. In the first place I want to think about the matter more, and secondly, if Mr Smith is to go to prison, I’d like him to have the opportunity of making the necessary arrangements at home. Accordingly I shall adjourn this matter until 10.30 in the morning.’

  So the case was adjourned, and I went home. I was a little worried at the outcome. Mr Benton was a very able practitioner, and had sat as a deputy-judge before. But I feared the possibility that unconsciously he might be swayed by the fact that I was the judge of a court where he frequently practised. Mr Smith had undoubtedly behaved very badly, but, if every driver who behaved badly were sent to prison just for that, prison building would be a matter of top priority. Motorists are sometimes not very courteous to each other, but it struck me as rather an odd thing that, if the discourteous motorist were discourteous to a prime minister, a leading industrialist or trade unionist, or the Archbishop of Canterbury, prison could not possibly be made the price of the discourtesy. Why should it be different in my case?

  I knew that I should be very upset if Mr Smith were sent to prison – not perhaps as upset as he would be – but considerably disturbed. Why should a judge be in a different position from anybody else? Many other people are just as important to the community as judges, and many indeed are far more important.

  My car was laid up, and I’d gone home by train. And so I had a good deal of time to think about the matter. As I walked down the road where we lived, my wife came out to meet me. She seemed in a hurry.

  ‘What’s up?’ I said, when we met.

  ‘Didn’t you remember,’ she said, ‘that you had to meet Uncle George at the Charing Cross Hotel on his way through London? He’s just rung up. He’s been waiting there half an hour.’

  ‘Oh gracious,’ I said, ‘I’m terribly sorry, I forgot all about it.’

  ‘You are an oaf, really,’ said my wife.

  ‘I think that’s mild,’ I said. ‘What shall I do? Get a taxi?’

  ‘Yes, you’d better,’ she said. ‘That’s why I came to meet you. He’s still got another hour to wait, and you can just do it. To use your favourite expression, you are a blithering idiot. Where have you come from anyway? Aren’t you rather late?’

  ‘Perhaps a little,’ I said, ‘but I’ve come straight from court.’

  I caught a taxi, and while I was on my way to Charing Cross, it suddenly occurred to me that, when my wife met me, she knew I was on my way from court. She had called me an oaf and a blithering idiot, and, though her reproaches were well deserved, the words were surely insulting. And here was my wife calling the judge of the Willesden County Court by an insulting name on his way from court. Could I send her to prison for a month, or fine her ten pounds? It would seem very odd if I could. I decided to look up the section of the County Courts Act again, and as a result when I’d looked it up, I asked leave to address deputy-judge Benton the next morning.

  ‘Your honour,’ I said, ‘I think perhaps I misinterpreted the words of the Act. They say that any person who insults the judge or – and note these words, your honour – any witness or juror going to or coming from the court etc. etc. Surely, your honour, on consideration, this must mean the precincts of the court, and not several hundred yards from it. There’s no difference between several hundred yards and several miles. And if, for example, a juror’s wife met him on the way home, knowing that he’d been doing jury service, and proceeded to abuse him for some neglect of her, nothing whatever to do with the case, she couldn’t possibly be liable to be fined or sent to prison, could she? And if she couldn’t, how can Mr Smith be liable now?’

  Mr Tewkesbury rose.

  ‘My point exactly, your honour,’ he said, ‘as I was trying to make clear to your honour yesterday evening.’

  And so I’m glad to say the case against Mr Smith was dismissed, and Mr Tewkesbury left the court with his young secretary no doubt very pleased with himself. I can only guess at their conversation. Perhaps it went like this:

>   ‘Well, girl,’ said Mr Tewkesbury, ‘what did you think of that?’

  ‘You were wonderful, Mr Tewkesbury,’ said Bella.

  ‘Thank you, girl,’ said Mr Tewkesbury. ‘I think this calls for a celebration. What would you say to having dinner with me?’

  ‘Oh, Mr Tewkesbury,’ said Bella, ‘you’re a married man, and I’m a good girl.’

  ‘A good girl, eh?’ said Mr Tewkesbury. ‘Well, never mind, at least you can spell.’

  CHAPTER TWO

  Free for All

  Actions between the proprietors of schools and the parents of children who have been sent there are comparatively rare. When they do take place, it is usually because the parents have withdrawn a child without giving the necessary notice. There is seldom any good defence to such claims. Sometimes a child has not been happy at the school, but it is impossible to say that the school has broken its contract. Sometimes the parents have moved their home and want to have the child nearer to their new home. Sometimes the parents are just short of money. But in the case of Chilton against Brooke none of these circumstances applied.

  Major-General Brooke sent his son, David, to Mr Chilton’s school. But after two years there he withdrew him without notice. When Mr Chilton demanded a term’s fees in lieu of notice, the Major-General refused to pay, and an action was the result. The Major-General’s defence to Mr Chilton’s claim was simple, but very unusual. He complained that the school had turned David into a professional blackmailer, that this was a plain breach of contract, and that in consequence he was entitled to remove David from the school as soon as he learned what had happened to him.

  The school of which Mr Chilton was proprietor was called ‘Freedom House’, and, as its name suggested, it was run upon comparatively unusual lines. It was perhaps a little surprising that a soldier should have sent his son there. But the Major-General was not a typical soldier. There came a time when he realised that there were other desirable things in life besides discipline. It was essential in the army, and to some extent at home. But, the Major-General thought, there was something to be said for a mixture of discipline and freedom. So, when he read about ‘Freedom House’, he decided to give it a trial, and David was sent there.