The Justice Game

by Geoffrey Robertson

  Coroner Gill was in little doubt that no one had done it. One of the many curiosities of inquests is that although the coroner must in cases of violent death sit with a jury, he is not required to sum up impersonally like a judge at a jury trial. The parties are permitted no final speech: their lawyers cannot even hand up a written theory as to how the death was caused. In this case I felt there was only one verdict to which the jury could, on the evidence, properly come. Although the Smith family believed, on the strength of the forensic science, that Helen had been murdered (verdict: ‘unlawful killing’) and Dr Arnot thought that she had stumbled over the balcony railing while copulating with Otten (verdict: ‘accidental death’), each of these alternatives involved too much speculation. The correct result would be an ‘open verdict’, on a death in circumstances that were suspicious but required more evidence to resolve.

  The coroner announced that he would ‘paint a coherent and understandable picture’ of Helen’s death. This involved, firstly, painting over the findings of the experts – Greene, Dalgaard and Usher, who had ‘led us all on a wild goose chase’. They had been misled by the phenomenon of the ‘post-mortem artefacts’ – bruises appearing after death which presented what he described to the jury as a ‘mirage of lesions’. Having thus disposed of modern forensic science, Gill fastened onto two matters which emerged from the evidence of the German divers, whose departure to drive to the port had been variously placed at between 2.30 a.m. and 3. 30 a.m. They had arranged earlier in the evening to give Otten a lift, but when they decided to leave he was not around (they assumed he was otherwise engaged with Helen). One recalled that when they started their car – parked opposite the apartment – they had trouble with the headlights, which blinked and flashed for a minute before the driver found the switch to steady them. This, the coroner suggested, was at 3.10 a.m. precisely.

  Members of the jury, might not those lights have been seen by someone up on the balcony who realised it was the car in which he was supposed to be departing? And members of the jury, if at that time he was engaged in sexual activity with Helen, possibly with his trousers down round his ankles and pants down, and Helen with her clothing disarranged, would it be a natural reaction for him to try to see what was going on and to see what those flashing lights were and perhaps even attract the attention of his friends across the road? Members of the jury, if that happened, might he not hurry towards the balcony edge? We know there’s a sunlounger bed at the side of the balcony . . . Members of the jury, the balcony was dark. Might it be that in his hurry he, with Helen clutching him, came into contact with that sunlounger, pitched forwards over the edge of the balcony, and she, clutching him, went with him? . . . Could it be that his trousers fell off as he landed in the street outside? And someone going to early-morning prayers found those trousers lying in the roadway, helped himself to both trousers and wallet and took care to rid himself of the passport and identity papers?

  This was an astonishing theory. Quite apart from the fact that it told the jury to ignore uncontested scientific evidence, it posited:

  1) incredible behaviour by Otten on the balcony – rushing to wave at a car in the street while in the middle of intercourse; 2) incredible behaviour on the part of Helen, in clinging to a man going over a balcony to his death; and 3) a fall which she had not, on the bruise patterns, sustained. The coroner’s theory offered no explanation at all of the blow on the head which was the direct cause of her death, and it painted a cartoon picture of the German divers, fiddling with the lights of their car without hearing a mighty crash as the plummeting Otten slammed into the spikes, or looking up (every witness said the street was very well lit) to see his legs reverberating. The early-morning prayer-goer, passing this grisly and malodorous sight, who souvenired the trousers and did not report the body, seemed an extra out of Aladdin.

  As the summing-up finished, Stephen Sedley rose, silently and sinuously, before Gill could stop him. ‘I have a duty to point out one or two matters . . .’ This was treason to the coroner’s faith, that any advocate might contradict him in the presence of his jury. The coroner’s rules, Gill interjected, forbade lawyers from raising any questions of fact in the hearing of the jury. Stephen was tough when he had to be, and very fast on the draw: those rules concerned matters of fact, and he had a point of law. ‘I ask you to give a proper direction, to tell the jury not to disregard the uncontested expert evidence merely because you do not like what that expert evidence says.’ The coroner began to defend his direction, giving Stephen the cue to point out in front of the jury that the evidence did not indicate that Helen Smith had been carried into mid-air by a man more concerned about his lift home than with finishing either his sexual activity or his life.

  The jury was out for seven hours: time enough to wonder about all the evidence that had not been heard or seen. There had in fact been two cameras at the party: Helen’s (which was curiously empty of film) and one belonging to a German diver, who had taken pictures which had not come out. The shutter of my own mind’s eye clicked again on some grainy images: a brawl on the balcony; slaps and scratches to the face of the nurse; a push, perhaps a shove, intended only to sober a man up or make him go home, but causing him to lose his balance and stumble backwards and over the balcony rail. People running down the stairs to see what can be done. The lift is broken and the lights in the stairwell do not work, the nurse slips and falls head-first, receiving the blow which causes unconsciousness and a haemorrhaging of blood into her brain. In a few minutes she is dead, only a hundred yards from the hospital casualty department where in those minutes her life might have been saved. Someone punches her chest to try to resuscitate her; the heavy blows break her sternum and fracture her seventh and ninth ribs. There is general panic: the dead man’s trousers are taken out and hidden in a culvert down the road (the passport drops where it was found, halfway across the street). Then Helen’s body is placed near his, as if they had fallen together.

  That’s when my mental film of this murder mystery runs out. Ironically, what it has not shown is that Helen Smith and Johannes Otten were murdered or the identity of those who encountered them before or after their deaths. And their ‘unlawful killing’ would be manslaughter at most, or a ‘lawful killing’ by self-defence, or misadventure or even in Helen’s case a straightforward accident, if she slipped and fell down stairs in the dark. But the problem with imaginary reconstructions is that they neatly explain all the evidence. Life is never like how you imagine life was like, for in life there are no neat explanations. I did not believe the truth ever would be known, although it was most unlikely that Helen’s death had happened in the way Coroner Gill had just suggested.

  Eventually, the jury came up trumps. The gang of eleven (for some arcane reason, coroners sit with an odd-numbered jury) returned an open verdict. ‘It was impossible to decide on the evidence we heard,’ said the forewoman. That was under-standable, because what had been crucially lacking was any word, report or photograph from the Saudi police who had attended the scene and taken everyone into custody at 7 a.m. It was curious, given the good relations between Britain and Saudi Arabia once Death of a Princess had blown over, that the Foreign Office had been unable to obtain the Saudi police records and photographs for use at the inquest.

  It was doubly strange that sixteen days after the inquest concluded with its ‘open verdict’, the Saudis with no apparent reluctance sent to the FO all the police photographs and reports and the original post-mortem on Otten. Three months later, Coroner Gill sent copies to the parties with a press release giving it as his opinion that the documents and photographs ‘do not add materially to the evidence given at the inquest’. What they materially added, in my opinion, was further reason to believe that Helen Smith did not die in the way he had suggested to the jury.

  There her body was, captured on the police photographs, lying on her stomach – not, as the witness had recalled, on her side. Her head was against the main building – several feet into the alignment of t
he overhang of the first-floor balcony. She could not, conceivably, have fallen in this place. Without any real doubt, the body had been moved to that position from somewhere else. She could not, conceivably, have fallen flat on her stomach: her face was uninjured, apart from a few scratches and that mysterious indentation in her forehead. It had amazed her father when he saw it in the mortuary, and it amazes in this picture: it is so deep and decisive, and can have no relationship to any wound sustained in a fall. It looks as if the tip of a pen or the stone of a ring has been twisted into her forehead: taken with the pathologist’s finding of scratch marks and bruises on her face, she must have been involved in some sort of scrimmage before her death.

  Even more telling are the pictures of Johannes Otten. He is not ‘jack-knifed over the railing’ (as several witnesses had claimed) wearing underpants and with his shirt down over his head, as the witnesses had recalled. The photos show that the top of the railings collapsed under the force of his fall, and that he is naked: his head hanging down, his legs pointed upwards in the air. His shirt is not on: it has been placed, curiously unbloodied, underneath his head. Unless he did somersaults, he did not go forwards over the balcony while waving to his German friends in their car – he was knocked or pushed over it backwards, and plummeted down until the spikes intercepted his groin. He was, as the police and the local pathologist confirm, stark naked: there were no trousers to be pulled off (impossible) or picked up by the passing Muslim on the way to the Mosque, because there were no underpants either. The post-mortem report reveals bruises on his lips and chin: the pathologist assumed they were caused by the impact with the wall, and had not considered whether they might have been caused by punches prior to death.

  The mistake made by the local police was apparent from their reports: they assumed immediately that both these Westerners had fallen from the balcony of the apartment where the party with all the alcohol had been held. The level of alcohol in both bodies was tested and reckoned as intoxicating, and that is the reason why foul play was not suspected and why Helen’s injuries were not properly assessed. There are cultural assumptions rife in these official Saudi documents, a certain unsawiness about decadent Westerners depraved by drink and promiscuity. Whatever level of alcohol Saudi science describes as ‘intoxicating’, it does not cause a couple who have just met for the first time to have sex on or outside a railing seventy feet from the ground.

  The death of Nurse Helen Smith has remained unsolved, and her bruised cadaver remains unburied in Leeds mortuary, a grisly reminder of a father’s unending quest for justice and of the limits of human systems to attain it. At least we tried, and the jury at the end of the day did not pretend that there was an answer. Paul Foot, who spent years investigating the case, can only suggest that Helen and Johannes went for sex not to the balcony but to the roof of the apartment block (where Helen sometimes sunbathed) and ‘It is possible that she and Otten were interrupted there, perhaps by people whose names we have not yet heard; that a fight broke out, that Otten went over the wall either in or after the fight, that Helen was knocked unconscious, carried down for treatment and dumped after she died.’ Anything is possible, and we don’t even know for sure the time of this death: Otten’s watch stopped at 3.10 a.m. but might have been smashed earlier, or been slow, or since he was a sea captain, might have been set on Greenwich mean time (two hours behind local Jeddah time). The macabre erection Dr Arnot saw at 5.35 a.m. was caused (as in executions) by the breaking of the spinal cord, disrupting communication between brain and genitals. The phenomenon lasts only a short time, rarely more than an hour.

  And so the questions multiply, and seeming certainties dissolve with the rise of the Saudi Arabian sun (dawn in Jeddah was 4.19 a.m. on 20 March, with sunrise a half-hour later). Helen had been to the toilet just before she died (bladders replenish quickly, and hers was empty) and the toilet is through the main room where Hayter says (and Penny says twice and retracts twice) that he and Mrs Arnot were having sex. Helen’s end came without sudden terror: her faeces were normal and firm, unmoved by the awareness of impending death. So the soothsayers who read the entrails of broken birds would deduce from this strangely unbroken corpse that Helen Smith did not fall and was not pushed. She lost consciousness and died from a blow to the left side of her head, and suffered one injury – from a pen or a pebble – shortly before. There was semen in her body – the Saudis did not think to match it because nobody was very alert to DNA samples in those days, and the police simply assumed the semen was Otten’s, in which case the love-making had finished. If the semen came from someone else, then it came from the man who killed her. It may still be stored in a lab in Jeddah – nobody has bothered to enquire. In that case, it may one day accuse her murderer even more loudly, and more accurately, than Ron Smith.

  The most important lesson from Leeds Town Hall was that the coroner’s inquest is an inadequate procedure for investigating controversial deaths. The arcane procedures and unfair rules surprised all the observers: Why was the coroner not obliged to make the police evidence available to the parties? Why were lawyers not permitted to cross-examine, or make closing speeches, and were sometimes not even informed which witnesses would next be called to testify? Why was the jury not summoned at random, but selected by a policeman who was the ‘coroner’s officer’? The inquest took place in what was called a ‘court’, and had all the trappings of one. But the coroner was not a judge: he had the power to summons people who were within the jurisdiction, but no power to require them to answer questions, even if they were witnesses to the death. (This bewildering feature was highlighted many years later by the inquest into the death of black teenager Stephen Lawrence, when those suspected of killing him claimed the right to refuse to answer questions and walked with tight smiles from the ‘court’.) Indeed, should evidence pointing towards the guilt of any identifiable person emerge, the coroner has to stop the inquest and send the details to the DPP, who may well decide that it is insufficient for a prosecution – in which case the ‘inquest’ will have gone nowhere.

  Coroner’s courts are the weakest part of our justice system, because they are not really part of it at all. Coroners are not appointed like judges and magistrates but are employed by local councils, and tend to be doctors or lawyers (or both) of local worthiness. The coroner’s is an ancient office (it was the ‘crowner’ in Hamlet who had to be squared to overlook Ophelia’s suicide) and their pronouncements can give comfort to grieving relatives and make useful recommendations about accident blackspots and dangers in toys or swimming pools. But by virtue of the limitations in their procedures, they are not best equipped to discover the truth behind a violent death of great controversy or complexity.

  A new mechanism for extracting the truth and drawing lessons from it is clearly required for cases – a few each year – which involve serious factual disputes and raise questions of wide public interest which cannot be answered by a single-sentence verdict. Those whose deaths have been denied full investigation include Blair Peach, Liddle Towers, Jimmy Kelly, Colin Roach, Roberto Calvi, the Marchioness victims and most recently, Stephen Lawrence, who has belatedly been accorded a proper inquiry into the insufficiency of previous inquiries. Cases like this should be handed over from the outset to a High Court judge, presiding over a public inquiry at which interested parties can be represented on legal aid and where proper rules are followed. The judge would sit as arbiter, hearing evidence collected and presented by counsel, cross-examined by the parties whose representatives would be entitled to ‘sum up’ their case, both as to how the death occurred and as to what should be done to prevent such fatalities in the future. The judge would have additional powers – to call for assistance from courts in other countries, to sit overseas or to take evidence by video-link. There would be no right for a witness to decline to answer on the grounds of self-incrimination, although once the judge was satisfied that a prima facie case of unlawful killing was made out against any individual, he would be empowered to commit t
hat person for criminal trial.

  Unsolved murders are unendurable, a continuing anguish for the victim’s family and a reproach to law enforcement. To those who fear such new powers might infringe liberty, I simply say that death is different.

  Chapter 9

  The Prisoner of Venda

  The most courageous man I ever met was guilty of the offence with which he was charged. He was not a political activist but a poet; his fate remains obscure and his name sounds faintly ridiculous. He came from a country of which I had never heard until Amnesty International asked me to go there, and which no longer exists – if indeed it ever really did. His crime was minor, his case was unimportant and his fate was insignificant in the struggle against apartheid, but in a police cell in a city called Thohoyandou I was privileged to observe this man’s thought processes as he became a prisoner of conscience, probably at the cost of his life. That was where I met Robert Ratshitanga, the Prisoner of Venda.

  Unlike an elephant, you would not know Venda when you saw it. It had no border-posts, and the sign by the roadside on which two elephants say ‘Welcome to the Republic of Venda’ was battered and dust-covered and overlooked at the speed I drove along the straight and empty bitumen road some hours north of Johannesburg. It was on South Africa’s border with Zimbabwe, not far from the Afrikaner outpost of Louis Trichardt, with the Kruger National Park forming its eastern boundary. Its population was put at half a million, mainly subsistence-level mango farmers who lived in kraals run by tribal chiefs, although most of its young men had migrated to satellite townships outside South African cities. In 1979 Venda had declared independence – or rather, had ‘independence’ declared for it by South Africa – as a ‘native homeland’. This was nonsense, since South Africa supplied its public funds and did not permit any political initiative without its approval. Venda’s laws were South African laws, its sole judge an Afrikaner and its Attorney General and his staff all prosecutors from Pretoria. No country in the world other than South Africa recognised its ‘independence’, a fiction which allowed Pretoria to pretend that the murders committed in Vendan police custody and the electric shocks administered to those suspected of supporting the ANC were none of South Africa’s business. ‘Blame the blacks, who are learning to govern themselves,’ was its response to an outcry over the police killing of a Lutheran lay preacher and torture of several of the Church’s pastors. It was to observe the pastors’ attempt to sue the police, and to monitor some of the treason trials which carried the death sentence, that I first came to the Northern Transvaal in 1984.