by Peter Murphy
‘If Gerard Busby gave Edith Hunter an answer to her question in good faith, he wasn’t dishonest and he wasn’t fraudulent; and having heard Gerard Busby and Lydia Howell talk about their work, isn’t it clear that, whatever else they may be, they are people of good faith? You’ve seen Mr Busby and heard him in the witness box. You know that he’s a man of good character, and you’ve heard Lydia Howell, a woman who has known him well for a long time and was partly responsible for his training, say that Mr Busby is not only a highly competent astrologer, but perhaps more importantly, an honest man, a man of integrity. I hope that having seen and heard him yourselves, you have drawn the same conclusion.’
When my turn comes, I keep it as simple as I can. I’ve decided to steer clear of the formula the Court of Appeal prefers judges to use when explaining the standard of proof. The Court of Appeal likes judges to tell juries that they have to be ‘sure’ of guilt before they convict – as opposed, that is, to being ‘absolutely certain’. In the rarefied atmosphere inhabited by the Court of Appeal there’s a difference. But even if there is, it’s a lot to expect a jury to absorb at the best of times, and this jury has heard quite enough about certainty, or the lack thereof, already in this trial. So today I’m winding the clock back and using some well-tried older language, and if the Court of Appeal doesn’t like it, I’m afraid that’s just too bad.
‘As Mr Brooks has rightly told you,’ I direct them, ‘this case isn’t about astrology: it’s about an allegation of fraud, an allegation of dishonesty; and you can only convict Mr Busby if the prosecution has proved fraud and dishonesty beyond any reasonable doubt. If you have any reasonable doubt about whether Mr Busby has been guilty of fraud and dishonesty, your verdict must be one of not guilty.’
It’s nearly lunchtime by the time I conclude the summing-up and send the jury out to start work, but I’m satisfied that they understand the standard of proof.
* * *
Wednesday afternoon
Stella has thoughtfully held back some bail applications and plea and case management hearings for me so that I don’t become bored by having nothing to do during the afternoon. But I’m fully expecting to bring the jury back to court at some point this afternoon, to give them a further direction about the law. It’s common in fraud cases for juries to have problems with the words ‘dishonest’, ‘misrepresentation’ and ‘fraud’. It’s odd – or perhaps it isn’t – that jurors often have the most difficulty, not with the most abstruse legal terms, but with those that are also words in everyday use in the English language. They often send a note asking what exactly those words mean – and it’s a strangely difficult question to answer. But in this case, the note never comes. Instead, at four o’clock when I release them for the day, the jury give every impression that they are making good progress, and are looking forward to resuming deliberations tomorrow morning.
I have Deidre Streeter brought up from the cells. She’s had a conference with Emily Phipson, but has decided to represent herself rather than accept Emily’s kind offer of a pro bono defence. It’s not altogether surprising. Emily would have left her in no doubt that she doesn’t have a leg to stand on, and that she should offer the court an apology. I doubt that such sage advice holds much appeal for Deidre.
‘Mrs Streeter,’ I begin, ‘earlier you disrupted a trial in this court and had to be removed to the cells so that the trial could continue. I held you in contempt of court, and this is your opportunity to tell me why I should not impose some punishment on you, which might include imprisonment. I understand that you were offered a barrister to represent you, but you prefer to represent yourself: is that correct?’
‘Yes: that’s correct.’
‘All right. What do you want to say to me?’
‘I don’t want to say anything to you, except that I have my principles, and I believe that as a Christian I should be entitled to serve on a jury and express my views.’
‘You had the chance to serve on two juries,’ I point out, ‘and in each case you made it clear to the court that you were not prepared to judge the case fairly, on the basis of the evidence; you made it clear that you couldn’t be fair to the defendant.’
‘All I made clear to the court was that, as a Christian, certain things, such as fortune-telling and carousing, are not acceptable to the Lord. I was exercising my right to express my religious beliefs. I don’t expect you to understand.’
‘As it happens,’ I reply, ‘I do have some understanding of religious expression. I understand that you have your principles. But I also have my principles – one of which is that when defendants come before the courts, they are entitled to a fair trial by an impartial jury, and another of which is that the courts must be free to do their work without disruption. Are you prepared to apologise for your behaviour in disrupting the trial?’
‘I have nothing to apologise for. I am doing the will of the Lord my God. Evil-doers will be cast out into eternal darkness.’
From her tone I’m sure she’s expecting the martyrdom of a prison sentence, but I’m not going to give her the satisfaction. Neither am I going to give her any more of the court’s time as a platform to condemn evil-doers.
‘Mrs Streeter, you are a woman of previous good character, and I’m going to assume that what happened today was an isolated case of bad judgment. In those circumstances I’m going to discharge you conditionally for twelve months. That means that if you commit no further offence during the next twelve months, you will hear no more about this: it’s over and you can put it behind you. On the other hand, of course, if you should commit a further offence, you may be brought back and sentenced for this offence of contempt in addition to being prosecuted for the new offence. Do you understand?’
She nods silently.
‘Very well. I should also make it clear that your term of jury service at this court is now over, with immediate effect.’
As I’m leaving court and the officer is releasing her from the dock, I add, ‘Oh, by the way, Mrs Streeter, do you by any chance happen to know what the prophet Daniel did for a living?’
I decide not to wait for a reply.
* * *
Thursday morning
This morning I’m told that we have six or seven protesters outside the main entrance to the court, carrying placards protesting against the court’s suppression of religious freedom and its generally godless approach to our public life. Opposite them are three or four secularists demanding an end to religious privilege in the courts. Neither group has made any attempt to enter the building and there’s no sign of Deidre Streeter, so security aren’t worried about them. After yesterday they’re on the lookout for anyone trying to smuggle a placard into court, but no one has attempted it yet. Arriving in chambers and taking a first sip of my latte, I find a message from Sir Jeremy Bagnall. There’s been a further complaint, it seems, this time about a woman being dragged down to the cells and held in captivity for several hours for expressing her religious beliefs, and would I kindly address this episode also in my formal written report?
Initially all goes according to my expectations. I send the jury back out at ten o’clock, and start on the day’s applications. At ten forty-five, Dawn approaches and indicates that the jury are ready to return a verdict. I rise and return to chambers for a few minutes to give Carol and Dawn time to prepare the courtroom. Carol knocks and comes in, but instead of the cheerful invitation to return to court to take the verdict, she looks rather worried.
‘Judge, I’m sorry, but counsel say they have to see you in chambers before we bring the jury back down. It’s something very sensitive.’
She’s right to look worried. Whenever counsel say that they want to mention something ‘very sensitive’, what they mean is that something has gone seriously wrong. I suddenly have a very bad feeling about it. I ask Carol to invite them to join us. She does, bringing her hand-held recording device with her. We all si
t down, and Carol puts the date and time on tape before handing over to Susan.
‘The officer in the case, DC Trent, brought this to me a short time ago,’ Susan says. ‘I’ve shown it to Aubrey, of course, and we agreed that we had to bring it to you immediately, before any further steps are taken in the trial.’
She hands me what appears to be a hand-written note, several lines in length, written in blue ink on a piece of white paper torn from a note pad of some kind. It is accompanied by a small white envelope, on the front of which the name ‘DC Trent’ appears in the same handwriting as the note itself. My assumption is that this is a further assault on the trial by Mrs Streeter and her cohorts. If they’ve tried to interfere with the jury, of course, it’s going to be considerably more serious than causing a scene in court. I’m bracing myself accordingly. But in fact, the note reads as follows:
Dear DC Trent,
I’ve never done anything like this before, but I feel I have to now. I’m Julie, juror number four, the brunette on the front row. I don’t know whether you’ve noticed, but we’ve been on the same tube train coming to court two or three times, and I’ve nodded and said good morning to you. The thing is, I really fancy you, and I want to see you away from court. Would you like to call or text me once the case is over, and we could go out for a coffee or a drink?
It concludes with Julie’s signature followed by an xx, and her home and mobile numbers, accompanied by a couple of heart symbols and what I believe is termed a smiley-face.
I close my eyes. ‘Live and let live,’ I mutter.
‘I’m sorry, Judge?’ Susan says.
‘Nothing.’ I pause for some time. ‘Am I going to have to discharge the jury?’
‘I would say yes, Judge,’ Aubrey replies immediately. ‘There’s obviously a strong attraction on this young woman’s part to DC Trent, and that may well have translated into some sympathy for the prosecution.’
‘Not necessarily, Aubrey,’ Susan insists. ‘There’s no reason to think she’s incapable of trying the case fairly – she’s asking to see him after the case is over, and there’s no suggestion that any other members of the jury know about it. Worst case scenario, we discharge her and continue with the remaining eleven.’
‘Even so…’ Aubrey replies.
‘Even so,’ I say, ‘I need to find out what’s been going on. Carol, I’m going to sit in chambers and hear evidence in the absence of the jury and the public.’
‘Right you are, Judge.’
‘I’ll start with DC Trent; but before Dawn goes to get him, she is to go upstairs to the jury room and separate Julie from the other jurors and hold her somewhere else until we’re ready for her. Make sure Dawn understands that she’s not to tell Julie or the other jurors why. We need to cut off any further possibility of discussion about this if we can – although I have a terrible feeling that we’re closing the stable door after the horse has bolted.’
‘It’s probably already galloping down through Kent,’ Aubrey observes pessimistically. I can’t help feeling a bit sorry for him. He must feel that the trial has been going his way and I’m sure he’d like to continue, but he can’t take a risk like this.
‘Judge,’ Susan says as Carol leaves to make the arrangements, ‘they’ve already reached a verdict. I see no reason not to take it. If you want to deal with Julie for contempt, you can still do that later.’
I shake my head. ‘I need to find out what’s going on,’ I insist.
‘Detective Constable Trent,’ I begin after he’s taken the oath, ‘how did you come into possession of this note?’
‘I’m based at Bermondsey Police Station, your Honour, and I called into the nick on my way to court this morning. The desk sergeant told me it had been delivered for me a few minutes earlier by a young woman. The sergeant said she didn’t leave her name, but his description of her is consistent with juror number four.’
‘You do understand the implications of this?’
‘Yes, sir.’
‘Good. With that in mind, Officer, has there been any contact between juror number four and yourself out of court?’
‘I do remember seeing her on the tube yesterday morning, sir. She wished me a good morning. I nodded in return, but then I moved away down the carriage to avoid any further contact. Apparently, she thinks she’s seen me on the tube more than once. That’s certainly possible, but I honestly don’t remember anything except that one occasion.’
‘Officer, has there been any romantic contact, or any planning of any romantic contact between you?’
‘No, your Honour, none of any kind.’
DC Trent’s manner is sincerity itself, and I believe him completely. But there’s also a gleam in his eye which suggests that the answer to that question may well be different a week from now.
Julie Burke is brought down to court alone, without her colleagues on the jury. She is distressed and tearful, and by now, fully aware of the trouble she’s got herself in. She goes into the witness box and takes the oath, handkerchief in hand.
‘There is to be no mention of what verdict the jury may have arrived at,’ I begin. ‘Is that clearly understood?’
‘Yes, sir.’
‘Miss Burke, do you remember the directions I gave the jury at the start of the trial?’
‘Yes, sir.’
‘Do you remember my saying that you were not to approach anyone in the case, and not to allow anyone to approach you?’
‘Yes, sir.’
‘You will find a note and envelope in front of you. Are they in your handwriting?’
‘Yes, sir.’
‘Did you deliver them to Bermondsey Police Station for Detective Constable Trent this morning?’
‘Yes, sir.’
I shake my head. ‘Would you mind explaining why you disobeyed the court’s instructions in this way?’
She breaks down and cries for some time. I would like to summon up some sympathy for her in her embarrassment, but at the moment I can’t. The consequences of her approach to DC Trent are just too serious.
‘I didn’t think it could do any harm,’ she replies eventually, making liberal use of the handkerchief. ‘We’d actually agreed on our verdict yesterday afternoon. If you’d given us another half-hour, we might have returned the verdict then. But it was time to go home. So we waited, and told Dawn we were ready this morning after we’d had a cup of coffee. But I thought the trial was over, so it couldn’t do any harm.’
Susan is looking at me. I think for some time.
‘Miss Burke, has your attraction for DC Trent affected your view of the case, influenced how you thought about the verdict, in any way?’
She looks genuinely surprised by the question.
‘What, you mean, made me take the side of the police or the prosecution? No. Of course not. When we discussed the case, I said what I thought. It had nothing to do with it.’
For just a moment I think I see a chink of light. But one more question is required before I can be sure.
‘All right. Please think about this very carefully indeed, Miss Burke. Have you discussed your feelings for DC Trent with any of the other members of the jury?’
‘Only the women,’ she replies. ‘We all thought DC Trent was rather dishy.’
The chink of light is extinguished as quickly as it was born. I ask Dawn to take her back upstairs and reunite her with the four other women and the seven men serving on the jury. I look questioningly at counsel.
‘I say this with some regret, your Honour,’ Aubrey begins, ‘but I’m afraid I see no alternative to discharging the jury.’
‘She said her interest in DC Trent didn’t affect her view of the evidence,’ Susan replies, though there is little conviction left in her voice now.
‘She also said that all the women on the jury had something of a collective attraction to DC Trent,’ Aubrey poi
nts out. ‘If your Honour were to leave it up to me, I would have to ask your Honour to discharge them.’
‘I’m not going to leave it up to you, Mr Brooks,’ I reply. ‘I don’t think that would be fair. It’s my responsibility to ensure that Mr Busby has a fair trial.’
‘Your Honour,’ Susan asks tentatively, ‘if we could at least ask the jury, not to return a verdict, but what the verdict would have been, it might be of assistance to me in advising the CPS whether the prosecution should proceed with a re-trial.’
‘Tempting, Miss Worthington,’ I reply, ‘but I’m afraid not. Sadly, the jury must take the verdict with them to wherever they may go when they leave court.’
I ask Dawn to bring the jury down to court, announce that we are now back in open court, and advise them that for reasons I’m not allowed to go into – although by now, I have no illusion that there’s any secret about it – I have decided to discharge them from returning a verdict. I thank them for their service and try to assure them that their work has not been entirely wasted, a form of words we tend to use on these occasions to make juries feel better about their experience – and indeed, it is often true, though I have some difficulty in believing so in this case. I ask Julie Burke to remain behind, and explain to her that she will receive a summons to appear back at court in a week or two to show cause why she should not be dealt with for contempt of court. I add that she would be well advised to bring her solicitor with her. I allow Susan the usual seven days to consult with the CPS and decide whether or not the prosecution wishes to retry the case, and extend Mr Busby’s bail until then. I ask Carol to invite Susan and Aubrey into chambers for coffee.
‘I must apologise for my meltdown in court yesterday, Judge,’ Susan says once we’re alone with the coffee.