by Peter Murphy
‘Now then, Miss Writtle,’ I begin once the jury are safely out of earshot, ‘what’s all this about family life and forms of Mormonism?’
‘It’s all about the European Convention on Human Rights, your Honour. Under article 9, Mr Findlay-Smyth is entitled to express his religious beliefs; and under article 8, he is entitled to the protection of his family life. If he chooses a kind of family life that happens to be different from most people’s, that doesn’t mean he loses the protection of the Convention.’
‘So, if I declare myself to be a form of Mormon, I can marry as many wives as I like? Is that what you’re saying?’ I ask.
I see Aubrey grinning, and I see the look Cathy is giving me. This isn’t an argument she’d have chosen to run with if her client and Miss Vickery hadn’t tied her hands, and I sense that she wants to keep her powder dry for her real issue – duress at the hands of the Martineau family enforcers. The form of Mormonism argument is a diplomatic exercise for Mr Findlay-Smyth’s benefit. Fair enough. Either way, I have to take it seriously – or at least appear to – because if the defendant is convicted, I wouldn’t put it past Cathy to book herself a ticket for Strasbourg, and I don’t want to come across as dismissing the Convention too summarily.
‘Surely,’ I continue, ‘we don’t allow polygamous marriage in this country, do we?’
‘That depends on what your Honour means by “allowing” it,’ Cathy replies. ‘We don’t recognise polygamous marriages contracted by British citizens. Such marriages are void here. But because they are void under our law, a British citizen who enters into polygamous marriage abroad, in accordance with local law, does not commit the offence of bigamy.’
‘But Mr Findlay-Smyth didn’t enter into such a marriage abroad, did he?’ I counter. ‘He entered into it in the Royal Borough of Kensington and Chelsea.’
‘Yes, your Honour. But in this day and age, why should it matter where the marriage is celebrated?’
Aubrey suddenly intervenes. ‘Because it has to be a country where polygamous marriages are legal,’ he points out. ‘England and Scotland don’t fall into that group.’
‘Yes,’ Cathy responds at once, ‘but that law dates from a statute passed in 1861 and a leading case decided in 1901. It’s the “benighted foreigners” approach – based on how much more enlightened and civilised we are in England. Your honour, that kind of chauvinism might have played well in 1901, but in my submission it’s not acceptable today.’
‘Why is that chauvinism?’ I ask. ‘All the law does is to prefer the form of marriage recognised by English law.’
‘The problem, your Honour, is that the law discriminates against people with a religious belief that permits polygamy. Since 1901 a lot has changed: we’ve had the European Convention. The Convention guarantees certain rights to British citizens – rights that didn’t exist in 1901 – and those rights include: the right to believe in and follow the precepts of a religion of their choice, including any form of Mormonism; and the right to have their chosen form of family life protected by the state. The court today should read the Act of 1861 as if it allowed a British citizen whose religious belief permits it to enter into a polygamous marriage here, without committing the offence of bigamy.’
She sits down abruptly. She’s said all she can, and said it very well, in recognition of which I call on Aubrey to reply, pro forma, though I know what he’s about to say, and I know that I’m going to agree with him.
‘Your Honour, assuming that articles 8 and 9 have the effect my learned friend claims for them – which I don’t concede for a moment – the Convention can’t overrule an Act passed by our Parliament, even one passed as long ago as 1861. Your Honour has no power to strike a statute down simply because it appears to conflict with a Convention right. At the most, your Honour can certify that there may be a conflict. If Mr Findlay-Smyth is convicted and thinks his rights have been violated, he can go to the Court at Strasbourg. But even if he does, it won’t affect his conviction.’
I look at Cathy. ‘Unless you have something more to add, Miss Writtle, I’m afraid I’m going to have to agree with Mr Brooks’, I say.
She’s giving me a grin, indicating that she’s done all she intends to do in the interests of diplomacy. ‘As your Honour pleases. May I come to the next matter? I was concerned to hear my learned friend suggest that duress is not a defence to bigamy.’
I turn to Aubrey. ‘Mr Brooks, I must say that I was rather surprised to hear that myself. Are you saying that the defendant has no defence, even if Miss Martineau’s father and brother threatened him in order to force him to go through with it?’
‘Bigamy consists of the act of going through a ceremony of marriage, your Honour,’ he replies. ‘It doesn’t require proof of any kind of intent. Even if the defendant went through the ceremony reluctantly, he’s still guilty of bigamy. It might affect the question of sentence, of course, but he remains guilty of bigamy.’
Cathy shoots to her feet. Her mood is much more buoyant now.
‘That’s simply not correct, your Honour. It’s a defence to bigamy if you honestly and reasonably believe that you’re free to marry – for example, if you believe that your spouse is dead, or that you’ve been divorced. If that’s true, clearly the defendant’s state of mind is relevant. If it may be the case that the defendant only went through with the ceremony because he was afraid he might be killed, or suffer serious harm, it would be outrageous to deprive him of the defence.’
I consider for some moments. Appropriately, given current circumstances, I find myself reminded of Hubert’s most valuable contribution to jurisprudential wisdom: the wanker test. As expounded by its creator, the wanker test involves an exercise in imagination. When considering a doubtful question that may end up in the Court of Appeal, you imagine a group of your friends at your club sitting around before dinner, reading The Times over a drink; and that The Times has accurately reported both your decision and that of the Court of Appeal. Do your friends say, ‘How could Hubert have made a decision like that? What a wanker.’ Or do they say, ‘How could the Court of Appeal have overruled Hubert like that? What a bunch of wankers.’ The object of the exercise, Hubert explains, is to ascertain what’s reasonable and what’s unreasonable: if you go with what’s reasonable, as opposed to what the law seems to require, then, even if you’re overruled, the mantle of wanker will rest on the shoulders of the Court of Appeal, rather than on yours. This case seems to me to cry out for the wanker test. I could go either way: but if I go with Aubrey, I’m saying that the victim of a shotgun marriage is committing a crime, in addition to being forced into a life he doesn’t want. What’s reasonable in that situation seems pretty clear.
‘I don’t agree with you, Mr Brooks,’ I say. ‘I think Miss Writtle is right. Even if the statute doesn’t say so in so many words, under general principles of law, his state of mind must be relevant. In my view, if the defendant wishes to raise the issue of duress before the jury, he is entitled to do so. But I’m not persuaded that the defendant has any right to commit bigamy as an exercise of religion, and for that reason I will leave the case to the jury.’
‘I will call Mr Findlay-Smyth after lunch,’ Cathy says.
And so to lunch, an oasis of calm in a desert of chaos.
‘What are you going to give your chap if he goes down?’ Hubert asks, looking up from his bangers and mash with gravy, today’s rather greasy-looking dish of the day.
‘I haven’t thought about it,’ I admit. ‘I’ve been too busy thinking about whether we all have the right to indulge in polygamy – or polyandry in your case, I suppose, Marjorie – if we claim it’s in accordance with our religious beliefs.’
‘What conclusion have you reached about that?’ Legless asks, smiling.
‘I’ve concluded that while religious tolerance is to be encouraged, it doesn’t go quite that far,’ I reply. ‘I don’t know what view they take in Str
asbourg, but it seems to me that restricting people to one spouse isn’t a terribly serious violation of their human rights.’
‘What’s the maximum for bigamy?’ Marjorie asks. Up to now she has been quiet, focusing on her egg mayonnaise sandwich.
‘Seven years. But unless it’s a case of a sham marriage, to facilitate immigration, or something like that…’
‘Sounds about right,’ she replies before I can point out the Court of Appeal’s general preference for short or even non-custodial sentences. ‘But he did support both women financially, so I might come down to five or six.’
There is an audible reaction around the table. It’s usually Hubert whose starting point in sentencing matters is the Raj-era tariff. Marjorie is a judge who bends over backwards to avoid immediate prison sentences if she can. But we all have our blind spots, as I call them; crimes that offend us more than most and lead us into the higher echelons of the sentencing guidelines, if not actually outside them. Blind spots are one reason why talking over sentences with other judges over lunch is so important – because as the name implies, you don’t always realise you have one until someone else points it out to you. Apparently, today, we’ve discovered Marjorie’s.
‘That’s not like you, Marjorie,’ Legless observes. ‘I never knew you harboured such dark thoughts about bigamists.’
‘It’s beyond the pale,’ Marjorie replies. ‘Keeping two women who know nothing about each other; having children with one or both of them. It’s a complete betrayal. Imagine what a woman in that position must feel when she finally finds out about him.’
‘Is it so different from having an affair?’ I ask, recalling the Reverend Mrs Walden’s thoughts on the matter.
‘Of course it is,’ she insists. ‘He’s promised each of them that they will be the only one. And think about the children. How are they going to deal with it?’
Hubert looks up again from the dish of the day.
‘I’d give him a suspended,’ he volunteers. ‘Eighteen months suspended for two years.’
Legless and I laugh out loud. The role reversal with Marjorie is complete. Marjorie, however, is not amused.
‘Why on earth would you suspend it?’ she asks indignantly. ‘What kind of message does that send?’
‘It sends the message that he’s got to keep on supporting both of them, even after he’s found out,’ Hubert replies. ‘As for where he lives, where the children live, whether they get to know each other, and so on – he’s going to have to work all that out eventually, regardless of the sentence, isn’t he? The important thing is not to leave them all destitute. If you send him inside he can’t work, and they’re all worse off. He’s no threat to anyone once he’s been convicted. Make him work and keep on paying: that would be my approach to it.’
I must admit to having, for once, some sympathy with Hubert’s sentencing strategy. Marjorie is obviously unimpressed, and is attacking her sandwich with a silent fury, but it seems to me that Hubert makes a decent point.
‘That was always the approach in the Regiment,’ he adds, seemingly as an afterthought.
‘The Regiment?’ I ask.
‘My great-grandfather’s Regiment. He was an officer, my great-grandfather – full colonel by the time he retired – served in South Africa and India. He always said, the approach the Regiment took was, “Don’t have more than you can afford”. As long as a chap stuck to that rule, he wouldn’t get in trouble. Of course, it gave the officers a certain advantage over the rank and file because they earned more, but that’s what you’d expect in any Regiment.’
‘Are you saying that the Regiment accepted that its soldiers might have more than one wife?’ Legless asks.
‘Oh, yes, of course,’ Hubert replies. ‘Many of the chaps already had one at home before they left, you see; and if you were sent out to Natal or Punjab for a few years, you were very likely to acquire at least one more. You couldn’t just fly home on leave in those days, could you? And if the Regiment had court-martialled every officer or other rank who had an extra wife or two, they wouldn’t have had time to deal with the important cases, much less run an empire. So the word went out that the Colonel didn’t want to hear about women and children being left to fend for themselves, but subject to that, it was up to each chap to do the right thing. The rule was, “Don’t have more than you can afford”.’
‘Very enlightened,’ Marjorie comments, a touch venomously. ‘I’m sure that’s why people in the pink parts of the world get such a warm glow about the British when they think back to the days of empire. And what happened when a “chap’s” tour of duty ended, and they shipped him off back to Blighty and his wife? What was the Colonel going to hear from the local wife, or wives, and their children then?’
‘Quite a few chaps stayed on after they were discharged,’ Hubert replies, apparently under the impression that he is answering Marjorie’s point. ‘Took up farming, or something like that.’
Sensing that Marjorie might well have a few further comments to add about the Colonel and the Regiment, I decide to change the subject before it gets out of hand. Quite apart from any question of keeping the peace, I’ve found myself scrutinising Hubert during lunch, to see whether I detect anything of concern. I’m going to have to broach it all with him before too long. I decide to begin the process gently.
‘Hubert, do you remember, a couple of weeks ago, you had two benefit fraud cases called Bourne and Karsten?’ I ask, as innocently as I can.
Marjorie glares at me. I was right. She did have more to say.
‘Of course I remember, Charlie. A couple of real villains. They were fraudulent from the outset – they were claiming benefits they were never entitled to – and they got away with it for years. They had a scheme worked out to pull the wool over everyone’s eyes, but of course they eventually over-played their hand and got caught. They always do, don’t they, in the end, people like that? Nothing very remarkable about it, really. They were both convicted, and I’m waiting for pre-sentence reports. Why do you ask?’
‘Oh, no reason. Somebody mentioned Karsten to me, that’s all. Was there anything odd or unusual that happened during the trials?’
Hubert is looking at me strangely.
‘Not that I remember,’ he replies, and I have the distinct impression that he is defying me to inquire further. I blink first.
* * *
Tuesday afternoon
‘Mr Findlay-Smyth, when did you first meet Deborah? How long before your marriage?’
‘Slightly less than a year. Her father, Oscar, invited me to dinner at the house. We’d met at a tax seminar for small businesses I spoke at in the City.’
Findlay-Smyth seems confident enough in the witness box. Again today, he’s immaculately turned out in a smart City suit and bright red tie. I can’t quite see, of course, but I would lay a bet that his initials are somewhere on the sleeves of the hand-made shirt he’s wearing – he strikes me as an initial kind of man.
‘Was there some attraction between Deborah and yourself?’
‘Yes: the first time we met there was a kind of chemistry. So I asked Oscar if I could take her out to the theatre, or to dinner, and he seemed to have no objection, so I asked her out, and it went from there.’
Cathy smiles. ‘Mr Findlay-Smyth, Deborah was twenty-one. It may strike the jury as strange in this day and age that you would ask her father’s permission to take her out. What do you say about that?’
He laughs. ‘Yes, I suppose it was a bit old-fashioned of me. But I do like the old ways – it’s how I was brought up – and Deborah seemed to find it all rather fun. Besides…’
‘Besides…?’
‘Well, I’m not sure quite how to put it: but even at that stage I had the impression that Oscar took his daughter’s welfare very seriously, shall we say. I was a fair bit older than her, and I felt it was best to stay on his good side.’
>
‘Did you in fact stay on his good side?’
‘Not for very long, as it turned out.’
‘Why was that?’
‘The relationship soon became a sexual one – we would go to my flat in the City of course; we would never have risked it at her parents’ place – and she became pregnant with Charlotte.’
Cathy pauses briefly. ‘Mr Findlay-Smyth, throughout this time when you were going out with Deborah and having a sexual relationship with her, you were married to Monica, is that right?’
‘Yes.’
‘You had married Monica in 1998?’
‘Yes.’
‘Monica lived in Edinburgh, and you visited and stayed with her from time to time?’
‘Yes, that’s correct.’
‘Did Deborah know anything about Monica?’
‘No.’
‘You never said anything to her about Monica?’
‘No.’
‘When you went away to visit Monica, what did you tell Deborah?’
‘I told her I had to spend time in our Edinburgh office – which in fact, I was doing. But I was also staying with Monica for long periods.’
‘Did you ever tell Monica about Deborah?’
‘No.’
‘When the two of you realised that Deborah was pregnant, did you discuss the matter?’
‘Yes.’
I look at Cathy. She’s giving nothing away, but I’m surprised at first that, having asked him about his commute between London and Edinburgh, she hasn’t also asked Findlay-Smyth to justify his treatment of these two women. Perhaps she’s saving it for later; but I’m not getting that impression. She must know that Aubrey is likely to ask him if she doesn’t, and for a moment or two it doesn’t make sense that she would allow Aubrey to put his own spin on it. But then it dawns on me that if she asks, Findlay-Smyth is not going to give her an answer she – or the jury – will like very much. Her client is clearly a man whose moral compass points in rather a different direction to most people’s, and she’s probably made the calculation that staying with the facts is a better shot than exposing the jury to a debate about the personal ethics of rich bankers. Cathy is a shrewd reader of cases, and the more I think about it, the more I think she may be right.