by M. R. Hall
She arrived at the court building as the doors opened at eight o’clock on Thursday morning. Save for a handful of cleaners and the odd harried-looking barrister landed with a last-minute brief, she had the building virtually to herself. Although her hearing was scheduled for nine, most of the courts wouldn’t sit until ten or ten thirty. In the hour beforehand, lawyers, clients and witnesses would stream through the doors and the Victorian atrium at the centre of the building would be filled with the hubbub of horse-trading and plea-bargaining which was the way in which much of what passed for justice was conducted.
Savouring the moments of quiet before the storm, Jenny went in search of breakfast in the nearly empty canteen. Ellen had texted to say she was running a little late, but not to worry, she was on top of her brief and feeling confident. Alone and jittery, Jenny sipped her coffee and picked at a croissant while nervously checking the newspaper websites on her phone for any reports of the morning’s hearing. She could find no mention of it. That much was a relief. There was nothing that would annoy the Chief Coroner and his officials more than a media circus before her inquest had even begun.
‘Mrs Cooper?’
Jenny turned to see a lean, slightly stooped, grey-haired man wearing the distinctive QC’s waistcoat which lawyers referred to as a ‘monkey jacket’.
He set down his cup and offered his hand. ‘Robert Heaton. Counsel for the MOD.’ He glanced at the vacant chair opposite hers, ‘May I?’
‘Of course.’
He took a seat. ‘No Mrs Goodson yet?’
‘She’ll be here shortly. Is there anything I can help you with?’
Heaton moved straight to the point, though with impeccable politeness. ‘I was simply going to suggest that you might want to think again. It’s not as if you’ve a lot to gain – you’ll have the testimony of all the relevant witnesses at your inquest. What difference will a few notes made a few days earlier make?’
His mild and reasonable manner had the instant and unnerving effect of making Jenny immediately question her motives. Was she simply being belligerent and indulging in petty point scoring? Was she wasting everybody’s time?
She reminded herself how angry and threatening Hastings had been when she asked to see his notes. ‘I have no idea what difference they’ll make until I see them. I appreciate the MOD is upset at my insistence, but my job involves upsetting people. Today your clients, tomorrow someone else’s.’
Heaton nodded patiently. ‘This is a bit of an odd one for you, though, isn’t it? I mean, for a coroner of your pedigree.’
‘A troublemaker, you mean?’
‘Your word, not mine.’ He gave a meaningful look and took a sip of coffee.
Jenny couldn’t resist taking the bait. ‘You’re driving at something, Mr Heaton – what?’
‘Robert, please. May I call you Jenny?’
‘Feel free.’ She could hardly object.
‘Yes, well, maybe I am,’ Heaton continued. ‘The thing is, Jenny, I’ll admit to being something of an admirer. I remember that first big case of yours – the young boy murdered in custody. I’m not sure anyone else would have got anywhere close to the truth.’
‘The internet’s a wonderful thing,’ she said with a trace of sarcasm. ‘You can dig out a whole life history in seconds.’
‘I can assure you my esteem is genuine. Hence my concern.’ He glanced around the deserted tables. They were still the only customers, but he nevertheless lowered his voice. ‘This war in Afghanistan has not been a success. In fact, there are plenty of insiders who’ll tell you that our presence there has done no discernible good since 2003. Now it’s over, we’re left with a cash-strapped government eager to slash the army to the bone and replace professional soldiers with reservists and joystick-twiddling geeks. And ranged against it is an MOD determined to fight tooth and nail to cling on to its empire. And both sides know they’ve got to carry the public with them.’
‘And your point is?’
Heaton’s manner became even more conspiratorial. ‘This may just be a wild guess, Jenny, but it occurs to me you might just be the human equivalent of a guided missile aimed at the military high command.’
Jenny tried to conceal her surprise. Could this be the real reason she had been asked to handle the case? Had Simon Moreton selected her because he wanted her to make waves and face-off against the MOD?
Despite her best efforts, Heaton read her perfectly. ‘I sense you agree. Someone, somewhere is exploiting your noble instincts. Press ahead, by all means, but I just thought I should warn you.’ He offered a sympathetic smile. ‘I can’t help feeling that your position isn’t dissimilar to the proverbial goat tethered in the desert. In which case, my advice is to slip your collar and run.’
Jenny made no reply.
Heaton sipped the last of his coffee, told her that he was happy to talk again, and went on his way.
The encounter left Jenny feeling rattled and betrayed. She tried dialling Simon Moreton’s office landline and mobile numbers but both went straight to voicemail. He was avoiding her. What a coward and a disappointment he was. Any charitable feelings she had held for him vanished.
There were thirty minutes to go before the hearing. Jenny went in search of Ellen, hoping to find her in the women’s robing room. Emerging from the canteen and entering the cavernous lobby, she was greeted by the sight of an excited scrum of reporters surrounding a tall, confident man who was accompanied by a head-turningly attractive younger woman. As she drew closer, she recognized him as the lawyer who had made a brief, non-speaking appearance in her court the previous week. This was the famous Claydon White.
‘It is my privilege to be conducting this case for no fee. Private Green left a fiancée and an unborn child who deserve answers. It may come as a surprise to many people, but while the taxpayer foots the bill for almost every criminal who comes before the courts, there is no legal aid for a family needing representation at a coroner’s inquest. So, it’s left to people like me to give up their time and expertise in the belief that justice is worth more than money. That’s why I’m here. I want to see justice for Kenny Green – and for all the other young soldiers who have lost their lives in this needless war.’
He was strangely mesmerizing, and Jenny found herself still staring when Ellen appeared, clutching an armful of papers. ‘Sorry I’m late.’ She followed Jenny’s gaze to White. ‘He’s quite the showman, isn’t he?’
‘I’ll say. But what’s he doing here? He’s not even a party to this hearing.’
‘I guess it’s all about the photo opportunity. You’ve heard he’s scooped up the families of the two injured soldiers, as well?’
‘No. Where did you get that?’
‘He put out a press release. I got a copy by email. You probably had it, too,’ Ellen said. ‘Has Heaton leant on you to fold your hand, yet? I’ll admit, part of the reason I cut it fine was to avoid him. He’s got a way of making you feel guilty.’
‘He tried,’ Jenny said. ‘And part of me wishes he’d succeeded.’
There was a sudden rush of reporters as they turned and hurried back across the lobby away from the two lawyers. Sarah Tanner had just come through the main door in what felt like a choreographed entrance.
‘Her as well,’ Jenny said, experiencing a sinking feeling in the pit of her stomach. ‘And I was hoping this morning would be low key. Some chance of that.’
Court hearings consisting of dry legal arguments over the disclosure of documents weren’t usually a public spectacle, but Claydon White had managed to conjure one. Mrs Justice Talbot’s face registered surprise and disapproval in equal measure as she entered her courtroom. She would have been expecting no more than a handful of participants, but instead found herself confronted by at least twenty reporters on the public benches and by Claydon White, his colleague Carrie Rhodes and their client Sarah Tanner in the well of the court.
Ellen Goodson and Robert Heaton QC sat several seats apart on the advocates’ bench at the front of
the court. Seated directly behind Heaton was his junior counsel along with two senior and humourless-looking solicitors from the Ministry of Defence – both balding and equally anonymous middle-aged men in grey suits. Colonel Hastings had wisely stayed away.
Mrs Justice Talbot was a recent appointment to the High Court and had already earned a fearsome reputation. ‘Yes?’ she said, crisply.
Ellen Goodson bobbed up. This was her application, which made her master of ceremonies. ‘May it please Your Ladyship, I appear for the Severn Vale District Coroner and my learned friends, Mr Heaton and Mr Jarvis appear for the Ministry of Defence. As Your Ladyship will have gathered—’
‘If I may, Your Ladyship . . .’ Claydon White rose majestically from his seat. My name is Claydon White, I am the solicitor advocate representing Private Green’s fiancée, Sarah Tanner, and I would like to become a party to these proceedings.’
‘Have you lodged the appropriate documents, Mr White?’
‘I have them here, My Lady. Unfortunately, the quite incredible speed with which this hearing was called left me with no time to lodge them in the usual way.’
The judge let out an impatient sigh. The High Court was not a place where rules of procedure were easily bent. ‘Ms Goodson – was Mr White informed of these proceedings in a timely fashion?’
‘Tuesday afternoon,’ Jenny whispered.
‘Yes, my Lady. Tuesday afternoon.’
‘Is that right, Mr White?’
‘I knew nothing of this matter until three o’clock yesterday,’ Claydon White said with a straight face.
It was a bare-faced lie. Jenny had sent the email to his office herself. It was a straightforward ploy to paint him and his client as victims of a conspiracy to deny them due process. But it wasn’t a lie she could prove: White could easily claim that her email had got lost in the ether before arriving nearly twenty-four hours after it was sent. Jenny was also aware that it would be of no concern to White whether he won or lost this particular skirmish. All that mattered to him was having his brave stand reported in the hope that it might find its way into the minds of some of those who would become jurors in her inquest. It was known in the business as ‘building a narrative’ – a technique created by the PR industry, eagerly adopted by politicians and now, late to the party but every bit as enthusiastically, lawyers.
The court usher carried Claydon White’s documents forward to the judge and distributed copies to both lead counsel. Mrs Justice Talbot flicked through them with a laser-like eye and looked up, unimpressed.
‘I’m familiar with these authorities, Mr White, and you know as well as I do that they don’t entitle you to a voice in this application. Now I’ve no objection to you listening in, and I can’t possibly have any objection to your conferring with any of the counsel involved here, but I am not at this late stage prepared to admit you as a party.’
‘You’re not even prepared to hear argument on the point?’
‘Mr White, this is an urgent application for which I have set aside a brief appointment before I resume my trial. If you wish to appeal my decision elsewhere, you may try, but there will be no stay of these proceedings in the meantime. Do I make myself clear?’
Claydon White was undeterred. ‘With Your Ladyship’s permission, might I ask counsel for both parties whether they have any objection to my being heard?’
‘I’ve no objection,’ Ellen Goodson said, ‘as long as we can conclude this matter quickly.’
‘My sentiments also,’ Heaton added, impatient with Claydon White’s impertinent interruption.
Mrs Justice Talbot sighed and sucked in her cheeks. ‘I am not admitting you formally as a party, Mr White. If you have something material and constructive to add I may, at my discretion, be prepared to hear it.’ She moved on quickly before he could object, ‘Carry on, Ms Goodson. And let’s hope you have no more interruptions.’
Claydon White returned to his seat and exchanged satisfied smiles with his colleague, Carrie Rhodes. They had scored their first, albeit minor, victory.
Ellen Goodson took the judge quickly and adroitly through her best arguments. Despite having little time to prepare, she had all the facts and every detail of the law at her fingertips. Her principal point was that Hastings’s notes were potentially the best and most untainted evidence available to the inquest. It was a well-known fact that witnesses’ recollections altered in subtle ways over time. If there were differences between what the soldiers present at the time of Kenny Green’s death had reported only twenty-four hours after the incident and what they told the inquest jury, these were matters that required examination. On the big issue of whether a commanding officer had a right to keep his notes confidential, she argued skilfully that recent decisions of the Supreme Court had established the principle that human rights laws could potentially apply to the battlefield. That being so, the established right to have an unnatural death thoroughly investigated required the best evidence to be examined.
Robert Heaton QC remained respectfully quiet throughout his opponent’s submissions. His composed expression and occasional nod told Jenny that nothing that he was hearing was coming as a surprise. When his turn came to address the judge, he began by saying, ‘I agree with almost every word my learned friend has said. Who among us would not want every last scrap of evidence examined if it were our loved one who had died in a foreign field? But, My Lady, this is a case in which the interests of the individual and his family must be weighed against the interests of a nation and its security. To function at all, the army and its officers must have freedom to manoeuvre, and, most importantly, freedom to make mistakes. War is an imprecise science. Risks are unknown and unweighable. Any attempt to make army officers accountable for each and every decision made under pressure will lead to the avoidance of risk, paralysis and the neutering of our armed forces.
‘When a man or woman joins the army, they know that they are placing their lives on the line. But they also know that they will be commanded by officers who will do all in their power to safeguard their lives while achieving their military objectives. This is the person-to-person, man-to-man, woman-to-woman trust on which our soldiers operate. No written laws, no matter how comprehensive, can ever serve as a substitute.
‘The question for you, My Lady, is what will be lost if Colonel Hastings is required to release his private notes. The answer is simple: the bond of trust will be lost. If he is not free to record his thoughts privately, there are two alternatives. He will either record nothing at all, or, far more likely, a strict and bureaucratic procedure will be applied to every incident, the inevitable objective of which will be to absolve those in authority from blame. The first casualty of bureaucracy, My Lady, is always the truth.’
Heaton continued in a similar vein for a further fifteen minutes, at the end of which Jenny found herself feeling almost persuaded that the army was an institution built on precious and intangible commodities which the intrusion of the law would only serve to destroy. But in her response, Mrs Justice Talbot neatly nailed the problem: noble principles are fine until someone breaks them. Then what? Who holds the officers to account?
Claydon White couldn’t resist an intervention. ‘My Lady, it may interest you to know that over the course of the last ten years, men under Colonel Hastings’s command have suffered casualty rates that run at almost twice the average. He is known as an officer unafraid to take risks with soldiers’ lives. In Iraq, twenty-eight men under his command were killed. In Afghanistan the figure is close to forty.’
‘Casualties have to be weighed against the effectiveness of the operations in which they are incurred,’ Heaton countered, ‘quoting mere numbers is meaningless.’
Claydon White glanced at the journalists seated to his right. ‘Tell that to the families of the dead.’
‘Mr White – would you kindly desist,’ Mrs Justice Talbot said sharply.
‘My Lady, Mr Heaton asked what would be lost by forcing Colonel Hastings to disclose. I have a simple answer
: what he stands to lose is the licence that the army has given him to waste young lives while he sits safely behind a desk.’
Mrs Justice Talbot tapped her pen ominously on her desk as reporters eagerly recorded the sound bite.
Claydon White had got his headline and that should have been enough, but now he was pushing his luck. He remained on his feet, waiting for the judge to shoot back.
She obliged him. ‘You will either withdraw that remark and express your regret at having used such an intemperate phrase having advanced no evidence whatever to substantiate it, or I will hold you in contempt, Mr White. And what is more, I will impose reporting restrictions on this hearing.’
She waited for his answer.
Claydon White allowed several seconds to pass as he weighed his options. Eventually, he said, ‘I apologize for allowing my profound concern for my client to cause me to make remarks which should not have been made until formal evidence of Colonel Hastings’s military record is produced before a court.’
‘I asked you to withdraw them, Mr White.’
Claydon White folded his hands behind his back. ‘Very well, My Lady. I withdraw them.’
‘Thank you.’
Jenny glanced at the reporters and noticed that many of them were openly smirking.
‘He had his fingers crossed behind his back, didn’t he?’ Ellen Goodson whispered over her shoulder. ‘What a pathetic little rat.’
Jenny reserved judgement. Claydon White wasn’t a man you would trust to mind your handbag, but he certainly had guts. Perhaps a little too much for his own good.
He at least had the good sense to sit tight while Goodson and Heaton concluded their arguments. A little more than an hour after they began, Mrs Justice Talbot announced that she had arrived at her decision. In a brief ex tempore judgment she performed a neat judicial side-step and declared that she didn’t consider that the case involved substantial issues of national security, nor did it raise the question of whether Private Kenny Green had been protected by the Human Rights Act during the fatal operation. It was a case that could be decided on its facts alone. A coroner was entitled to access to all relevant evidence except in the most exceptional circumstances. The results of Colonel Hastings’s lessons-learned inquiry were, she concluded, relevant to the coroner’s inquest.