Hall cleaned his glasses with a soft cloth as he went on. “However, don’t make the mistake of assuming that there are no differences between your American system and ours. Your legal system tends to be very dynamic, in constant flux and readily adaptable to change. Ours is much more steeped in tradition, but in many ways less structured.”
“Really? I would have thought it was much more rigid.”
“Not at all. You see, the basic tenet of legal rights under the American criminal justice system is based upon interpretation of a set of written rules.”
“The Constitution.”
“We don’t have a written constitution. More than anything, we have a set of traditions that we honor. The powers of the queen are an example of that. She possesses enormous powers, perhaps even the sort wielded by the proverbial Oriental potentate, but she doesn’t utilize them out of a sense of tradition. I was never a student of the political system, but my understanding is that theoretically she could fire the Prime Minister anytime she liked and appoint a new one. The real limitation on her, of course, is common sense and public opinion. If she attempted to use the old-fashioned powers of a monarch, Parliament would strip them from her.
“By the same token, the Crown, meaning the government at large, has the authority to alter the legal system in ways that your structured system would never be able to. The same goes for the entire legal system. It can be altered to protect the nation.”
“Protect the nation?”
“We’re a small island. America has five times the population, but around thirty or forty times more land area.”
“Plus natural resources.”
“Exactly, vast resources. We have almost no mineral resources, a few buckets of coal, some barrels of oil sucked with difficulty out of the bottom of the North Sea. That makes us a fragile nation. It wouldn’t take much of a natural or military disaster to turn Britain into a third world economy. And everyone knows, we will never completely assimilate into the continental culture or economy. It’s not a question of language, there are many languages in Europe. What really separates us is the law. We have a system in which the people look up to the law out of respect. On the continent, the law looks down at them and people fear it. The jury system puts justice in the hands of the people, rather than the way the Europeans conduct their cases with a career judge, literally a paid inquisitor, who socially and economically is far removed from the average person. Judges on the continent are not impartial arbiters. In my view they are an extension of the police.
“The essence of the privilege against self-incrimination and separation of the judiciary from the police are to prevent abuses of police power. The system on the continent, where the judiciary and the police work hand in hand and there is no right to refuse to be interrogated, can lead to usurpation of power by the government.”
He paused and grinned. “Sorry, I didn’t intend to give you a lecture.”
“It’s okay, I appreciate it, I need to understand your system. More than anything else, I need to know the procedures.”
“Then perhaps we should talk about trial procedures. Most of it will be familiar to you, but we don’t permit the sort of jury questioning and challenges, voir dire, used in the States. Basically, other than potential jurors who fall into certain exceptions, such as hardships or personal involvement in the matter that would bar them from serving, the jury will be composed of the first twelve called to the box. And verdicts are different, too. We have the same standard, beyond a reasonable doubt, but unlike your American system, the verdicts don’t have to be unanimous. If all twelve can’t agree upon a verdict, the judge informs them he will accept the will of ten out of twelve.”
“That makes it much harder to get a hung jury.”
“Exactly. And we will also have to deal with a prosecutorial privilege of vetting prospective jurors.”
“What do you mean by vetting?”
“In sensitive cases, prosecutors check the backgrounds of jurors through police, Special Branch, and security services records. They’re looking to see if the person has political or social sympathies that would make them unsuitable in cases that could affect the well-being of the nation. Prosecutors have been secretly vetting since 1974, but the practice was only recently exposed.”
“What happens if they don’t like the person’s beliefs?”
“They ask them to stand by for the prosecution. Meaning they are eliminated as jurors.”
“That amounts to a preemptory challenge by the prosecution, simply eliminating jurors the prosecution doesn’t want, even before they are called to court to be questioned. Do we also have that right?”
“We don’t have the right and the vetting information isn’t always shared with the defense. Basically, the defense only has the right to whatever the prosecution is willing to turn over. It’s a very controversial matter that we barristers are not happy with. In this case, we are making a demand to know if vetting is done, which we know will be done for a certainty. Anthony is planning to make noise if we are not permitted to share information, but there is not a great chance the prosecution will share it with us.”
“I’m sorry, but I find that completely undemocratic and unconstitutional. Britain is a cradle of democracy—I’m astonished your courts permit such a thing. How many preemptory challenges does the defense have?”
“None. The use of preemptory challenges by the defense was recently eliminated.”
“Holy shit. Excuse my French, but that’s a good old-fashioned expression for major frustration,” Marlowe said. “I’m getting the impression that we’re having the deck stacked against us.”
“The princess will be treated the same as other defendants,” Hall said stiffly.
She squeezed his arm. “I’m not criticizing your legal system, I just don’t find the concept of vetting as just. And I understand the concept of Britain being small and fragile, but maybe the rule should be limited to security issues. Certainly this case isn’t shaking the political tree.”
“This case is a national issue. You forget that the victim and the killer were the future king and queen.”
“I stand corrected. How long have you been a lawyer, Philip?”
“I was called to the law five years ago.”
Marlowe smiled. “‘Called to the law’ sounds like a religious calling, something like the spiritual beckoning priests and ministers get.”
“One of our Briticisms, I’m afraid.” He chuckled. “I also had to sit for dinners before I answered the call.”
“Okay, what’s that?”
“Part of the arcane process of becoming an advocate. Those studying to be barristers belong to an Inn of Court, a gathering of attorneys, and as part of the legal education, the students have to attend dinners at the Inn. As you might expect, legal matters are discussed at these dinners. I had to sit through twenty dinners—not to mention a basic legal education—before I was permitted to answer the call to the bar. Once we become practicing barristers, our procedures are still a bit different than those you’re used to. You experienced some of the differences just in the introductions that were made, with Sir Fredic as instructing solicitor.”
She nodded and he went on. “You recall that a solicitor is a transactional lawyer, handling paperwork ranging from real estate transactions, to business matters, to domestic situations. But even for us barristers, the solicitor is the first contact with a client. The client goes to a solicitor and explains the problem. With some minor exceptions, if court action such as a trial is necessary, the solicitor will hire a barrister to represent the client in the courtroom and send along a brief.”
Marlowe said, “In the States, a brief is a written argument presented to a court.”
“We use the word to refer to the instructions and documents the solicitor sends along to the barrister he hires. Traditionally, they arrive bound up with a colored ribbon. In the brief the solicitor will report on the evidence and include statements of witnesses and other pertinent matt
ers of proof. This is the guide the barrister will follow in presenting the client’s case before the court.”
“So only solicitors can have clients and only barristers can argue in court.”
“In a simplistic way, I suppose that’s a fair statement. In a significant case, the solicitor will also be in the courtroom, but he or she must remain behind the bar.”
“The bar. I’m a member of a bar association but I never gave the expression much thought. It’s a railing in the courtroom, isn’t it?”
“I’ve heard the term used a number of ways, as the railing in our Inns of Court that separated students from practitioners, as the railing that the advocate, client, and witnesses stood at when a case was called in old days, and as the railing separating the business conducted in the courtroom from the spectators.”
“I recall from the meeting that you, Anthony Trent, and Helen Catters are barristers and Sir Fredic is the instructing solicitor.”
“Yes, but Anthony is a silk, Catters and I are juniors.”
“A silk?”
“Anthony is a Queen’s Counsel, a designation of barristers who are considered distinguished in their profession. Since barristers constitute only about ten percent of the lawyers in the country, the rest being solicitors, and only about ten percent of barristers are made Q.C.s, being given the designation of Queen’s Counsel is indeed a rarefied honor. They’re called silks because they wear silk robes. We ordinary barristers are called juniors regardless of our age. And we wear a wool material called stuff. As you might expect, a Q.C. can afford silk—they often make in excess of a million pounds a year. Naturally, there are only a small number of silks. And they generally don’t appear in court unless accompanied by a junior. While this is no longer an absolute requirement, it is still commonly practiced. In court, I will sit in the bench behind Anthony.”
“You’re Anthony’s partner?”
“No, barristers are forbidden to form partnerships, although they can come together to share a clerk and the expense of a chamber. Anthony has his own chambers.”
“It’s common for American lawyers to share offices and secretaries, too.”
“A clerk is more of a business and office manager than a secretary. The clerk receives a commission from the fees earned by his barristers. It’s not considered good manners for a barrister to negotiate for fees, so it’s left up to the clerk to work out a fee from the instructing solicitor. And it’s not uncommon for a clerk who works for a number of barristers to make more money than the individual barristers he administers to.”
“Wow. American lawyers are forbidden to share fees with nonlawyers.”
“Traditionally, the solicitor sends over the brief, with the fee to be paid noted on it. The solicitor is responsible for paying the fee and a barrister cannot sue to obtain it. The solicitor must protect himself by getting advance payment from the client. Obviously, not all the old traditions are still in general use.”
“What about female barristers? Any taboos?”
“I’d say female barristers are expected to dress as much as possible like a man, at least from the outside, wearing the wig and robe designed for men and dark, conservative feminine clothing underneath. Barristers do not shake hands with each other because we are all presumed to know one another. Nor do we use first names or make use of a ‘Mr.’ or ‘Mrs.’ designation. I am simply ‘Hall’ and Anthony is ‘Trent’ in the courthouse hallways. A curious tradition that I believe devolves from the days when the barristers were lads together at public school.”
“Public schools being the snooty private boarding schools attended by your country’s elite.”
He smiled tolerantly at her. “A fair enough characterization—when given by an outspoken woman from the rather uncultured western United States. In the courtroom, a fellow barrister is referred to as ‘my learned friend,’ while a solicitor is simply ‘my friend.’”
“How about the judge?”
“He is generally ‘Your Lordship’ in groveling, whining terms such as, ‘May it please, Your Lordship.’”
They both burst into laughter at his whining intonation.
“Now you have me making fun of our proud traditions,” Hall said.
He told her about other requirements for barristers: They must accept all cases in which a proper professional fee is tendered. “One can’t refuse a case for social, political, racial, or other prejudices. We call this the cab-rank principle, as if barristers are lined up at the curb like taxicabs, taking the next fare that steps up.” By the same token, a barrister ordinarily can’t be sued for negligence in his courtroom performance, due to the fact that a barrister is not privileged to refuse to take a case and in some cases he has a duty to the court that transcends the duty to the client.
“There’s an interesting aspect to your legal system that we don’t have in the States.”
“Yes?”
“Class distinctions in a democratic society. I think it was your George Orwell who wrote in Animal Farm that all animals are equal, but some are more equal. It isn’t just a matter of awarding different levels of professional competency, like your Q.C.s and juniors, but by the way people dress and are positioned in the courtroom—the awarding of knighthoods and peerages are the most obvious distinctions. All pigs are not equal in America, but we do a better job of pretending that we’re completely democratic.”
“Titles are awarded for distinguished careers that benefit the nation,” Hall said, “just as your nation awards civilian medals. There’s one other tradition you should know, the most important one,” he said. “It’s a man’s world, this arena of courtroom advocates, and it’s not for the faint of heart. Despite all the courteous, old-school-ties veneer, there is nothing a barrister enjoys more than bloodying opposing counsel, just as he once did when they were boys on the soccer field at Eton or Harrow. Women are pushing their way into it, but it’s a competitive arena dominated by men and it feeds off of bursts of testosterone.”
Marlowe smiled. “Have you ever heard of a monkey trap used to capture monkeys for the cook pot?”
“No, I can’t say that I have.”
“In the tropics, the natives cut the top off a coconut shell so that the opening is just barely big enough for a monkey to stick its hand into the shell. They fasten the shell on a branch so it can’t be removed and put some peanuts inside. A monkey comes along and sticks its hand into the small opening and grabs a fistful of peanuts. When the monkey tries to remove its hand, it can’t pull it out because the opening’s too small.”
“Can’t it just let go of the peanuts and remove its hand?”
“It can, but it won’t because it’s stuck in its ways and won’t let go. Instead it struggles frantically to remove its hand, while still clutching the peanuts. It’s still holding on to the nuts when the native who set the trap comes back and carts it off to the stew pot.” She paused and met Philip Hall’s eye. “And that’s what happens to men who can’t let go of their nuts long enough to realize the world has changed—they get their asses burned.”
34
Legal London spreads out from Holborn to near the Thames. The area contains most of the city’s barristers and solicitors, the Royal Courts of Justice on the Strand where civil cases and appeals were dealt with, and the Old Bailey, the central criminal court building on Newgate Street.
Marlowe asked, “Why do they call it the Old Bailey?”
“The answer depends upon whom you ask. I’ve been told it’s named after a street that runs nearby. And that the walls of a castle and the inner court were called baileys. I suspect both versions have some merit.”
“It’s certainly the most famous courthouse in the world.”
“It was originally on the site of a prison, Newgate Gaol, one of the most notorious prisons in English history. Commoners were held at Newgate before they were executed. The area of the jail and courthouse was often the scene of hangings and other ‘public entertainment.’”
“As opposed to the
Tower, where nobility were held?”
“Yes, exactly so. Like so much of our United Kingdom, it is steeped in history, some of it quite bloody, of course. The walls must have some interesting tales to tell, I should say. They tried Lady Chatterly’s Lover there, you know.”
“Really? I thought that was a book, fiction.”
“Sorry, an old barrister’s joke. Yes, the characters are fictional, but the book went on trial as an offense against public morality back around 1960 or thereabouts. One of my law school instructors had been a clerk who assisted the prosecution of the case. He said they lost the case because defense counsel argued to the jury that it wasn’t an immoral book, but badly written, the sort of rubbish that one wouldn’t permit one’s servants to read.”
“That’s a wonderful argument. It’s something like the one used in another Old Bailey case, the trial of Leonard Voe for the murder of Emily French.”
“I’m not familiar with the case. Who was lead counsel?”
“Charles Laughton.”
“Laughton? I don’t think—” He chuckled. “Touché. Witness for the Prosecution, Charles Laughton, the actor, I’ve heard it’s a fine movie.”
“You haven’t seen it?”
“No, I’m not much for the cinema. My wife saw the play and recommended it.”
“Shame on you. The greatest legal thriller ever made, from a play written by Agatha Christie, your country’s most famous mystery writer. Laughton did an incredible job as a defense attorney in a case with more twists than a roller coaster. It should be mandatory viewing for every prospective trial lawyer. You should show it the next time law students do dinners at your Inn of Court.”
“Ah, Barrister Marlowe James, we come again to the discord between how I view the law and how you view it. I see the courtroom as a place where well-established legal principles are applied to facts in dispute and debated by learned counsel before judges seeped in precedent. You see it as a drama.”
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