Brief Tales From The Bench

by Henry Cecil

  I must now explain how it came about that in a County Court I had to try what was in effect a criminal case. Or rather I had to retry it. There is a principle of the English Law that it is in the interests of the State that there should be an end of litigation. But, curiously enough, there is one branch of law in this country where that principle has not been applied.

  If Henry Brown commits a crime, or rather is convicted of committing a crime, and subsequently someone states that Brown has committed the crime, it is open to Brown to bring an action in the Civil Courts for libel on the ground that in fact he was innocent. And in that case, if the person who is sued seeks to justify the statement that the plaintiff has committed the crime, the whole matter will have to be gone into again. And not only that. It will not be evidence against the defendant that he has been convicted of the crime which is alleged against him. So a person who has been convicted can in fact use the Civil Courts to try and establish his innocence, even though he has failed on appeal, even to the House of Lords. Not so very long ago this was done successfully by Mr Alfred Hinds. Although he had been convicted and failed in his appeals to the Court of Criminal Appeal, none the less he came before a Civil jury and they found that he was innocent.

  It was a similar case to that which came in front of me. Mr Elgar, the plaintiff, was a schoolmaster, and he’d been dismissed by the Crockston Borough Council from his employment by them on the ground that it was a term in his contract that, if he did anything discreditable that brought him into disrepute, he might be dismissed without notice.

  Now Mr Elgar had been convicted of shoplifting, and the magistrate who convicted him, in spite of his protestations of innocence, said that it was a mean little theft, and fined him £2. Mr Elgar appealed, but his appeal was dismissed with costs. He then wrote to the Home Secretary, but with no satisfactory result from his point of view. In due course he received a letter to the effect that the Home Secretary had carefully considered all the material which Mr Elgar had put before him, but regretted that he could see no reason to advise Her Majesty to interfere with the conviction.

  But Mr Elgar still had one card to play, and he played it in front of me. It is true that no one had libelled him, because a contemporaneous report of his conviction before the magistrate is privileged. No one said that he was guilty, they merely reported what had happened in the court, and, of course, it is so important in the public interest that cases should be allowed to be reported that you can do so with impunity, provided you don’t add anything to the facts which occurred in court. And, of course, provided you don’t make any unfair comment about them. But though no one had libelled Mr Elgar, the Borough Council had dismissed him without notice, relying upon the term in the contract to which I have referred. Accordingly it was open to Mr Elgar to bring an action against the Crockston Borough Council for wrongful dismissal. If they had wanted to dismiss him for no particular reason such as the one that was alleged against him, they would have had to have given him at least a term’s notice. I feel sure that, if they had realised the danger of dismissing him without notice, they would have given him the full notice to which he was entitled, so as to avoid the proceedings which in fact were brought against them. Whether he was entitled to such notice or whether he wasn’t, it was obviously in the interests of the ratepayers that litigation of this kind should be avoided, if possible.

  But, as soon as Mr Elgar’s appeal from his conviction had been dismissed, the Council, acting as they thought in accordance with their duties, dismissed him peremptorily. This was a great advantage to Mr Elgar because it gave him the opportunity of having his whole case retried in front of me.

  When the case came on, Mr Elgar appeared in person. He did this, he said, because he considered that it was the only way in which he could get justice.

  ‘The lawyers who’ve so far represented me,’ he said, ‘no doubt did their best, but they didn’t seem to realise how vital the case was for me. Indeed, one of them said to me that, as the magistrate only fined me £2, it showed that it wasn’t such a very serious offence. If he’d only fined me one shilling, your honour,’ went on Mr Elgar, ‘that fine would have been the ruin of my career and my life.’

  I told Mr Elgar that I was not in the least concerned with the magistrate’s decision.

  ‘It would be idle to pretend,’ I said, ‘that I am not aware of it, and of the fact that your appeal was dismissed. But other people gave those decisions, and they’re nothing to do with me. I shall approach the facts completely afresh, and shall decide which way I think proper. If it’s any help to you,’ I added, ‘I should tell you that I’ve before now decided quite differently from a magistrate in a motoring case. For example, I’ve found that a person who was convicted of careless driving was not negligent at all.’

  Mr Elgar said that he was very glad to hear that.

  ‘On the other hand,’ I went on, ‘it’s only fair to tell you, Mr Elgar, that I’ve also decided that a man who was acquitted by the magistrate was guilty of negligent driving. I should also tell you,’ I said, ‘that I didn’t read your case carefully, and the details, as far as I can remember, are not known to me. I suggest that you go into the witness box and tell me your case in full.’

  So Mr Elgar went into the witness box and took the oath. He took it very solemnly and with some feeling, and at the end of it he said: ‘I hope that this time I’ll be believed. It’s a terrible thing to tell the truth and not to be believed.’

  ‘Tell me what happened,’ I said.

  ‘Well,’ said Mr Elgar, ‘it was in the holidays and I’d gone for a walk, and I passed the shop where they said I stole the things. Then I suddenly remembered that there was something I wanted that I’d seen in the window. I went back and into the shop. It was rather warm there so I took off my overcoat and put it over my arm.’

  ‘How long did you stay in the shop?’ I asked.

  ‘About half an hour, your honour. Is it likely that I would have done that, your honour, if I were going to steal things there, or if I’d already stolen them? I walked round the shop and there were quite a number of things which interested me. One or two I decided to buy. I bought a cheap fountain pen for seven and sixpence, and two memo blocks, and I paid for them and got a receipt. I put the pen and the memo pads in my jacket pocket. I ought to have told your honour that a few days previously I’d bought a couple of pencils elsewhere.’

  ‘Where did you buy them?’ I asked.

  ‘I’m not sure. It might have been one of two shops. They were small pencils with india rubber attached to them, and they were a well-known brand. When I’d finished looking round, I went out of the shop. I’d walked about twenty yards when a man touched me on the shoulder. He told me that he was the store detective. I asked him what he wanted. “I believe you’ve taken certain articles from that shop which you’ve not paid for,” he said, “and I shall be obliged if you’ll come back with me to the shop.” I said I’d never heard anything so absurd in all my life. He repeated his request for me to come back to the shop, and asked me if I objected. “I certainly do,” I said, “it’s a ridiculous suggestion to make.” “I’m afraid I must ask you to accompany me,” he said. “And if I refuse?” “I’m afraid I shall call a policeman.” “This may do me a tremendous amount of harm,” I said, “I’m a schoolmaster.” “I’m very sorry, sir,” he said, “but, if what you say is correct, it won’t do you any harm at all. Only the manager and I and a couple of assistants know anything about it. If we’re satisfied that you’re innocent, we’ll let you go and apologise.”

  ‘I could see there was no point in arguing about the matter, so I went back to the shop and into the manager’s office. Then they started questioning me. First of all they asked me if I’d mind emptying my pockets. I asked why on earth I should. “I should have thought,” said the store detective, “you’d have wanted to, sir. If you’ve nothing incriminating on you, it will help to clear you.” “Do you ask every member of the public to empty his pockets,” I said, �
��to see if he’s got anything incriminating on him?” “Of course not, sir. But I have some evidence that you’ve taken things without paying for them. What did you buy here, sir?” “A pen and a couple of memo pads, and I’ve got receipts for them.” “Nothing else?” “No.” “You’re quite sure you bought nothing else?” “Yes, I’m quite sure.” “Then if you’ve bought nothing else, you’ve paid for nothing else?” “Of course I haven’t,” I said. “I’ve paid for what I’ve bought.”

  ‘They then asked me to turn out my pockets, and with some reluctance I agreed. It was a great indignity, but I didn’t see any alternative. The manager and the store detective were both present. There was nothing in my pockets which interested them. Then the store detective asked me about my overcoat, and whether there was anything in that. I said I’d see. I put my hand in the pockets and brought out two pencils and two more memo pads. The store detective then pointed out that the two pencils were exactly similar to pencils in a tray in the shop, and he also pointed out that I’d only paid for two memo pads, and not for four. “Where did these two memo pads, and these pencils come from?” he asked. “I don’t know where the memo pads came from,” I said. “The pencils I bought at another shop, and I paid for them.” I was asked if I had a receipt, and I said I hadn’t, and that I’d bought them some days ago. The store detective then said that both the memo pads and the pencils were exactly the same as the memo pads and pencils on sale in the shop in which we were. I in turn pointed out that they were exactly the same as pencils and memo pads in hundreds of other shops. I was then asked for the name of the shop where I’d bought the pencils, and I repeated that I couldn’t say exactly which it was, and that it was one of two shops. The detective then again asked me how I accounted for the memo pads, and I said that I couldn’t. “I ought to tell you,” said the store detective, “that there are memo pads and pencils missing from the trays in this shop and they have not been paid for. You have two of the memo pads, and two of the pencils, and you haven’t paid for them, and you agree that you weren’t going to pay for them. I’m afraid I shall have to send for the police.”

  ‘So the police were sent for, and I was charged with stealing, and released on bail. And that’s all there is to it, your honour. It’s a gross miscarriage of justice. The defendants dismissed me, and I went to see the chairman of the governors. He told me that there was nothing more he could do about it.’

  ‘Tell me what took place between you,’ I said.

  ‘I pointed out that mistakes are made from time to time, and the chairman said he was aware of that. “But the Home Secretary’s considered your case too, and refused to interfere,” he said. “How can we?” “Because I ask you to,” I said. “Look at me, don’t I look as though I were telling the truth?” “I’m afraid,” said the chairman, “that I’m not a judge of that, we have to rely on the courts.” I said to him: “What about Adolph Beck who spent years in prison as a result of an unjust conviction? Why have you got to follow the courts’ decision? If you believe me, you can say that they’re wrong. After all, the courts are only men.” But the chairman repeated that there was nothing more that he could do about it. In consequence every decent school is now barred to me. I’m bringing this claim not for the money, but to re-establish my character. All I want is for you to say that I didn’t steal anything. I’m told you have the power to do that, and I ask you to do it.’

  I then asked counsel for the Borough Council, Mr Benton, if he would like to cross-examine, and he rose to do so.

  ‘Mr Elgar,’ he asked, ‘this episode took place in June. D’you usually wear an overcoat in the summer?’

  ‘Like everyone else,’ said Mr Elgar, ‘sometimes I do and sometimes I don’t.’

  ‘You give the impression of being a neat and tidy person, if I may say so,’ went on Mr Benton. ‘Was your overcoat also neat and tidy?’

  ‘It looked respectable, I suppose.’

  ‘What about the pockets. Were they neat and tidy?’

  ‘They were just pockets.’

  ‘Yes, I know,’ said Mr Benton, ‘but there are pockets and pockets. For example, some people stuff newspapers and all sorts of things into their pockets, and they bulge. Other people keep them much more like they were when they were new. Which do you do, Mr Elgar?’

  ‘I didn’t stuff newspapers into them.’

  ‘Or apples or oranges?’ asked Mr Benton.

  ‘No,’ said Mr Elgar, ‘nor bananas.’

  ‘How do you account for the two memo pads being in one of your overcoat pockets?’

  ‘Someone must have put them there,’ said Mr Elgar.

  ‘Before you were detained by the store detective, or after?’

  ‘Oh, I don’t suggest they were planted on me.’

  ‘Then you say they must have been put into your pocket by someone else before you left the shop?’

  ‘I suppose so.’

  ‘What alternative is there?’

  ‘I can’t think of any.’

  ‘If your pockets were well pressed, not bulgy I mean, and you were holding the overcoat over your arm all the time, how could anyone else have put the memo pads in?’

  ‘Well, if I could put them in, someone else could put them in.’

  ‘Mr Elgar,’ said Mr Benton, ‘it’s quite a different thing for the owner of a coat who was carrying it to slip two memo pads into his pocket.’

  ‘I don’t like the way you said “slip”,’ said Mr Elgar.

  ‘Very well, Mr Elgar, I’m sorry. I’ll say “to put” two memo pads into his pocket. It’s quite another thing for a stranger to do that without the owner of the coat being aware of it.’

  ‘What is your question?’ asked Mr Elgar.

  ‘Don’t you think it would be a difficult thing to do?’

  ‘I don’t know if it’s easy or difficult,’ said Mr Elgar, ‘but it must have happened.’

  ‘Unless,’ said Mr Benton, ‘you put them in yourself.’

  ‘Well, I didn’t.’

  ‘Why do you think someone else should want to put two memo pads into your pocket?’

  ‘I’ve no idea.’

  ‘Well, try to think, Mr Elgar. You don’t suggest that some stranger, looking at you, said to himself: “Well there’s a poor fellow who could do with two memo pads, I’ll slip a couple into his pocket”.’

  ‘This may be funny to you, Mr Benton,’ said Mr Elgar, ‘but it means everything to me.’

  ‘I’m not trying to be funny,’ said Mr Benton, ‘I’m simply trying to examine the possibilities. I want to give you the opportunity of saying how and why someone else put these things into your pocket.’

  ‘It’s a strange world,’ said Mr Elgar, ‘and people do strange things. There are lunatics about. All I say is I didn’t take them.’

  ‘And now for the pencils,’ said Mr Benton. ‘You agree there was a tray in the shop of pencils just like this?’

  ‘Of course there was, as in many other shops.’

  ‘Doesn’t it strike you as a little odd, Mr Elgar, that on the same occasion when some stranger for no known reason puts two of the shop’s memo pads into your pocket, by coincidence you should also have in your overcoat pocket two pencils exactly like pencils which had been on sale in the shop, and which were missing?’

  ‘It’s a little odd, but so are a lot of things. I’d bought these pencils elsewhere.’

  ‘Was there anybody with you when you bought them?’

  ‘Yes, as a matter of fact there was.’

  ‘Is the witness here today?’

  ‘Yes, she is.’

  ‘Is she a relative or friend of yours?’

  ‘She’s just an acquaintance.’

  That was all Mr Benton wished to ask Mr Elgar, and a few moments later he called his witness, Mrs Lydia Long. Now Mr Elgar struck me as a perfectly ordinary normal person, but his witness, Mrs Lydia Long, was something very different. When I asked for her full name, she seemed reluctant to give it. As an explanation she said that her fath
er was rather odd.

  ‘Never mind your father, Mrs Long,’ I said, ‘I just want to know your full name.’

  ‘D’you mean that?’ she asked.

  ‘Of course I mean it,’ I said.

  ‘Well,’ said Mrs Long, ‘you’re in for a shock. I have twenty-five names. They had to issue a special birth certificate. I’m afraid I haven’t brought it with me, but I could get it, and they’re such odd ones. Some of them are places, some are things, some are ordinary names.’

  ‘I see, madam,’ I said. ‘What are you generally known as?’

  ‘Oh, I’m generally known as–’ she began. ‘D’you mean by the people in the street?’

  ‘I mean,’ I said, ‘by your friends and relatives and tradesmen and so on.’

  ‘Well, it varies a great deal,’ said Mrs Long. ‘I have a lot of nieces and nephews, and of course they call me Auntie.’

  ‘Tradesmen, then,’ I asked.

  ‘Oh, tradesmen. Most of them down my way call me “dear”.’

  ‘Very well,’ I said, ‘we shall call you Mrs Lydia Long.’

  ‘I could give you the other names if you really wanted them, but it does take rather a time.’

  ‘No, it doesn’t matter,’ I said.

  ‘You see words like “Tabernacle” come into it.’

  ‘Let’s forget about the name, Mrs Long,’ I said. ‘Now tell me, please, what street d’you live in?’

  ‘Well, it isn’t actually a street, I’m afraid.’

  ‘What is your address, please?’

  ‘I’ll give you a card,’ said Mrs Long.

  ‘Would you please say it out loud.’

  Mrs Long then shouted: ‘Hassocks, Denby Place, SW4.’

  ‘There’s no need to shout,’ I said.