Such Judges had, it is fair to say, their advantages. They might turn as savagely on the powers of government and bureaucracy as they did on unhappy murderers. At no time could they be mistaken for civil servants. But our system is a strange one and it means that advocates, who have been trained not to decide cases but to urge others to a decision, are led, late in life, into the strange business of judgment. It’s no wonder that such judgments are sometimes reached by Judges who persuade themselves with all their skills of advocacy. Judgment, I was trying to say when I wrote my play, is at best a crude and brutal business because it is always a simplification. We may regard ourselves as too sensitive, or too tolerant to go into the coarse trade of sitting in judgment on our fellow men and women. It’s a job we prefer to leave to others, like sweeping out the mortuary or recycling the sewage, and those who undertake it make their own particular sacrifices. A Judge on circuit is almost confined to his lodgings; he can’t go for a drink in a pub, he used never to go shopping, if he managed to go to the movies he had to have a police escort. The Judge condemns himself, when he chooses his occupation, as surely as the pickpocket or the embezzler, to long periods of imprisonment.
In those days most British playwrights were well known as German playwrights. Whatever other effects their extraordinary recent history had on the German people it silenced their dramatists who seemed, in that period and greatly to our advantage, at a loss for words. No German town had been without its production of The Dock Brief and when The Judge opened in Hamburg I arrived there to great acclaim. Indeed a television camera at the airport seemed about to follow me into the ‘Gents’. I was lavishly entertained and taken to the strip shows in the Reeperbahn where solid middle-class families sat watching the contortions of naked girls with snakes and hock bottles. When I arrived at the Schauspielhaus the director bowed to me and I was called ‘Herr Doktor’. In Europe writers are Herr Doktors or Professori or Chers Maîtres. In England we are treated with an amused contempt which is perhaps healthier and more liberating, although matters go too far in Hollywood where writers are looked on as those anonymous and readily replaceable slaves who built the pyramids. In Hamburg I was assured, as Herr Doktor, that the evening was all set for success and that my play would undoubtedly prove a triumph for Anglo-German relations.
One of the characters in this particular play, referring to the Judge’s off-stage arrival, says, ‘The Sheriff’s at the station. And the Boy Scouts with trumpets.’ When the curtain rose in the huge Schauspielhaus I was startled to see the stage filled with rank upon rank of Boy Scouts, stretching out like the chorus from Lohengrin and blowing an expert and evocative hunting-call on their trumpets. In the interval a young man in evening dress came up to the Herr Doktor, bowed and asked for an autograph, ‘Because I do not like this play one little bit.’ As the curtain was about to tremble to the ground for the last time a man in white gloves came to my seat, clicked his heels and whispered, ‘You will be expected to make an appearance upon the stage, Herr Doktor. I do not think that they will want to “boo” you tonight.’
No prediction was ever more rash. As I wandered on to the opera-sized stage, the actors grasped me by the hands and rushed me down towards an auditorium which was resonant with disapproval. ‘Typical Hamburg audience.’ The leading actor appeared to be enjoying himself hugely. I made a small obeisance and the ‘boos’ were redoubled. I began to feel strangely elated. I had often bowed my way out after losing a case, but the Judge had never stood up and sent me on my way with a loud ‘Yah-Boo!’ I left the theatre in a mood of great cheerfulness, spent the whole night at a party and then flew back to England. At the airport I went to the ‘Gents’ unnoticed by a single television camera.
In England the play was acted by Patrick Wymark and Patience Collier. It was directed by Stuart Burge, who had done The Dock Brief in the theatre, and, although it was performed as well as possible, it failed in a more discreet and less sensational way than it had in Germany. Failures are usually instructive and I learnt, from The Judge, a freer use of the stage which I was able to develop when I came to write a play about my father. I also learnt to avoid archetypes and stick, in writing, to the people I knew.
A few years later I was doing some part-time, fill-in Judging. I stayed, not in the Judge’s lodgings, but in a motel on the bypass outside the town. I missed out on claret, kippers and lunch with the High Sheriff. I found the proceedings curiously peaceful and free from the almost unendurable strains of advocacy. The Judge is one of the few people in Court who doesn’t in the least care who wins. A Judge can also control the speed of a case and when he doesn’t know the law he can ask to have it explained to him by all the parties. The judicial duty seemed so unexpectedly relaxing that I couldn’t understand why the old Judges of my youth had always been in such an evil temper. Admittedly I was handing out divorce decrees and not death sentences, but I found the work straightforward enough and discovered, as most Judges say they do, that the truth becomes clear at quite an early stage. I did find the life lonely and the regular hours were unsuited to my temperament, and, as I have already written, my mother laughed uncontrollably when I told her that I had been sitting as a Judge.
Becoming a QC, or ‘taking silk’ as Mr Durst had insisted on calling it, was a proceeding which my father had always thought was attended by a quite unacceptable element of risk. A QC is cut off from the supply of bread and butter work such as drafting pleadings and doing ‘undefendeds’, which is the staple diet of the ‘Junior’ at any age. A QC is only needed for a lengthy or complicated case and such things were not daily events in the Probate, Divorce and Admiralty Division. When a fashionable divorce called for a modish display of silk, QCs were often brought in from the Common Law or Criminal Courts where it was thought they had learnt to cross-examine with a more deadly elegance. These unfortunate Leaders would often discover that my sexagenarian father was their Junior. He would sit behind them frowning at their best efforts and barking out orders when they were on their feet. Criticized by the Judge from in front and barracked by my father from the rear, such QCs would often remember a pressing matter at Gloucester Assizes and slink timidly away, leaving the field in the hands of their learned Junior. So it was my father’s consistently held belief that becoming a QC meant starvation, and he and his contemporaries had before them the example of many divorce practitioners who took silk, became unemployable and ended up as lonely and ill-paid part-time Judges. When, therefore, in search of a more enthralling life in the law, I applied to the Lord Chancellor for permission to wear a silk gown, I was sure my father would have said, ‘All very well if you’re prepared to draw in your horns, old boy, and live on cheese and Cyprus sherry.’
At the end of my life as a not-so-learned Junior, I was involved in a remarkable Probate action, something my father would have approved of, as it was a good ‘money brief’ and lasted for almost a year. The testator was a comparatively young German millionaire and the huge cast of alleged beneficiaries of his various Wills included his wife, his mother, his chauffeur, his doctor and a great number of mistresses. We barristers packed the benches and I remember the day that the one sitting next to me unexpectedly passed me his own Will to witness. By the end of the case most of us had suffered a change of life, taken silk, become Judges or merely cashed in the chips after such a surprising run of good luck and left the bar. It was the time of the satire shows on television and Ned Sherrin was producing Not So Much a Programme More a Way of Life. Success as a producer of satire had given him an unshakeable urbanity so that he became, as the years went by, more and more like a barrister, a career for which he had had some early training. He always asked me politely, at about 6.30 on Monday mornings, if I had any brilliant ideas. So in the intervals of working out the wider repercussions of German testamentary law I would try my best to be satirical for the sake of a quick sketch on television.
Gerald Gardiner, who had been the undoubted star of the Lady Chatterley case, was a Chancellor who must have found
it hard to say no to aspiring QCs. I bought the outfit second-hand from the widow of an old Divorce Court QC and part-time Judge of whom I had once been terrified. In due course I pulled on the used knee-breeches and crammed my feet into the paste-buckled, patent leather shoes. The black silk stockings were a problem, a Judge once told me, best solved by buying a huge elastic suspender belt from a nurses’ outfitters. However this was advice I have never taken. I put on the full-bottomed wig which reduces the world to an itchy silence and eventually knelt at prayer in Westminster Abbey beside a more senior QC who insisted on whispering the macabre details of the murder he was doing in Birmingham when he ought to have been intoning the responses. I swore an obscurely worded oath, apparently designed to assure the Queen that I was ready to advise her, although up to now she has shown no signs of calling on my services.
Then I entered a long gallery of the House of Lords for a strange midday meal known as the ‘Lord Chancellor’s breakfast’. I was swathed in lace and black silk and wore a tailed coat and knee-breeches. I was carrying white kid gloves. I showed absolutely no sign of blowing the place up as Mr Durst had suggested. Instead I feasted placidly on flabby sausage rolls and bottled Worthington.
Chapter Twenty-Two
My uneasy affair with the law entered a new phase after breakfast with the Lord Chancellor. My legal life changed and I took, among other things, to crime. After only ever having had one brush with the criminal law in the long-ago matter of the stolen fish, I found myself in the front row at a murder trial and with a client who didn’t just have his marriage at stake, but a sizeable chunk of his life depending on my advocacy.
Crime is regarded as somewhat downmarket by civil lawyers, who tend to talk about ‘Old Bailey hacks’ and to see the Commercial Court as the ‘Harrods’ and the Central Criminal Court as the ‘Tesco’ of the legal profession. For some reason which escapes me, bankers and property developers are thought to be more desirable customers than indecent assaulters or petty thieves, or at least create a better impression when they are sitting round in the waiting room. The Judges of the House of Lords, our Supreme Court, who can pick and choose the cases they hear, appear to relish a cut-throat contest between international cartels, and only deal with the criminal law rarely and with obvious distaste. And yet, while civil law is nearly always about money, criminal law is concerned with more vital matters, such as life, love and the liberty of the subject.
On the whole lawyers, and in particular defending lawyers in criminal trials, do not belong, like doctors, nurses and those who read out the news on the television, to one of the highly-regarded professions. They are accused of earning huge sums of money out of human misery and of grave dishonesty in making believe that their patently guilty clients are innocent. The first suggestion is easily rebutted as the average barrister’s wage is not far above that earned by a really competent secretary, and even busy Old Bailey hacks may do no better than printers and a great deal worse than cameramen. They can write off very few expenses and have no pension to look forward to, so the hard-working defender with no taste for joining the Civil Service as a Judge must face the possibility of staggering to his feet in the Old Bailey in his seventies, or coughing his way out of life during his mitigation in yet another long firm fraud.
The charge of intellectual dishonesty is more serious, and the defence to it involves describing a state of mind which comes naturally to defending lawyers and strikes the rest of the world as very peculiar indeed. The defender accepts that he is not a Judge or a Jury. His role is not to make up his mind as to his client’s guilt or innocence, it is for him to put forward the case of those who employ him, as strongly as possible. Strangely enough this becomes quite simple when you are actually at work on a case. The final decision, the act of judgment, is often the least interesting moment in life as well as in the law, and the best way to approach many subjects both in and out of Court is with belief and disbelief suspended.
A British criminal trial is not primarily an investigation to discover the truth, although truth may sometimes be disinterred by chance. A criminal trial is a test of the prosecution evidence, a procedure to discover if a case against an accused person can be proved beyond reasonable doubt. There is no point at which a defender has to prove his client’s innocence, and so the strength of evidence in support of the accusation can be fairly tested without the advocate being involved in an allegation of innocence. Furthermore it is not always understood, except by barristers who accept it as one of their few articles of faith, that you must not help a client to put forward a story which he has told you is untrue. For this reason Sir Patrick Hastings, a successful and aggressive advocate, would never see a client accused of murder. The risk of a whispered, ‘Well, I did do it, squire,’ in the cells was far too great.
I suppose some people reading this might feel critical of such a system and suggest an investigative form of trial which would call on the defence to prove its case. Such feelings might persist until we found ourselves being tried, and then I think we should all be grateful that we couldn’t be convicted on a theory which might fit all the facts, or even on one that probably did. We would feel it far more satisfactory to be locked up for a period of years with a couple of violent men and our overflowing chamber pots, only on the basis of a prosecution which had to make the Jury sure beyond reasonable doubt.
Such golden principles of our law are by no means secure. They are forever under attack, particularly by Chief Constables who seem to feel that all trials should take place in front of the understanding Sarge in the friendly neighbourhood Nick – a Judge that can be relied on to pass a sentence which will encourage police recruitment. Such a tribunal would see that the proceedings weren’t unnecessarily held up by money-grubbing old barristers overpaid by the Legal Aid. Our grasp on the principle that no man shall be required to incriminate himself, which is linked to the presumption of innocence, is under constant strain. The Home Office detention of immigrants has undermined the right of Habeas Corpus, once considered an essential ingredient of liberty. It is hard to see who is going to defend these ancient and hard-won rights except for the battered and despised defence barrister who slogs round some pretty mean Courts and makes himself awkward and unpopular, insisting that all guilt must be proved beyond doubt and that the administration of justice is never in the hands of the police.
In the end I achieved a far greater admiration for our criminal law than for the peculiar simplifications and superstitions which governed matters of love and marriage. I also found, to my surprise, that alleged criminals were the most pleasant type of client, often being less malevolent than divorced wives in pursuit of their husbands’ property, and a great deal less grasping than beneficiaries in Will cases. It is true that alleged criminals give less trouble than divorce petitioners because they are usually under lock and key and can’t ring up in the middle of the night to announce a new enormity about the arrangements for the children’s half-term, or the unauthorized sale of the fish-knives. Defendants in criminal cases are strangely uncomplaining; fearing the worst, they are grateful if matters don’t turn out quite as badly as they had expected. Even when they’re convicted I have never known a customer turn against his defender. It is true, however, that you see a convicted client when he is in a state of shock, unable to look into the future. A week later he may stand in his cell and contemplate a prospect of wasted years, of the perpetual smell of urine and sweet tea and life as a number. Then tears may prick his eyelids; but by then the barrister is out at another Court and hoping, however vainly, for a break in his long line of convictions.
Of all the clients in criminal cases I came to find those accused of murder the easiest to deal with. Murder is not only the most serious crime, but it is often the most understandable. Murder happens, in many cases, in the family. It is the sort of crime that might be committed by ordinary and even decent people who would be quite incapable of taking part in a bank raid or robbing the Co-op.
Contrary to the beli
efs of all the great crime writers, murder is hardly ever planned, it almost never involves the search for ingenious methods of killing or the elaborate constructing of false clues. Murder is what happens at the single moment when the long-stifled domestic row, the feeling of rivalry and hatred in the pub or the pang of jealousy and rage in the disco, slither out of control and skid towards an irreversible tragedy. So many scenes between husbands and wives, parents and children, between all people who are passionately involved with each other, contain the seeds of potential murder. Murder trials are not usually about who dunnit, almost always about whether they meant it. What did the accused intend? Was he or she making some kind of a demonstration which ended in the most unlooked-for consequences, with someone once loved, naked on a slab being photographed after the post-mortem, with the testing of bloodstains and stomach contents and pubic hair, and endless questions designed to illuminate that moment which some merciful mental process may have forever obliterated.
I never shared the full Marshall Hall experience of defending in a murder trial in the days of the death penalty. I don’t know if I could have done so, or if I could have tolerated a contest where one question too many, one wrong decision about the admissibility of evidence, might bring about your client’s death. Certain parts of what was once our Empire still inflict the death penalty, and for offences less than murder. Some of these cases finally find their way to the Judicial Committee of the Privy Council in Downing Street and in that elegant courtroom Judges and barristers still consider a capital case in a detached and disinterested way. At the end of the argument a long-distance telephone call may be made and a scaffold erected in some tropical prison. These clients, of course, have unidentifiable foreign names which are hard to pronounce. The death penalty can easily be discussed when you are half a world away from the hangman.
CLINGING TO THE WRECKAGE Page 21