by Andrew Rose
Before Clarke could call his first witness, a policeman who would produce a plan of the fourth floor at Savoy Court, Marshall Hall was on his feet again. His intention seems to have been purely tactical, with the aim of securing the jury’s attention. Having earlier made a fussy application for two interpreters to be sworn, the great man now declared that he was ‘willing to take the responsibility of not having the evidence interpreted to the accused’. The judge agreed, no doubt hoping to save a little public time.
After the plan had been produced and perused, it was the turn of the first important witness to testify. Said Enani came into court, ‘a short dapper figure in a well-tailored blue suit’, a man whose elegant manner and excellent English could not absolve him from being Egyptian and a non-Christian. To the defence, he was a very dangerous witness indeed: he had known the couple intimately and had been with them up to an hour or so before Ali’s death. Unchallenged, he could damn Marguerite in the jury’s mind as a hard, ambitious, pistol-packing woman with a violent temper, who had given Said’s neurotic young master as good as he gave her and sometimes more into the bargain.
Marshall Hall knew all about Marguerite’s allegations of impropriety between Ali and Said, as well as the other allegations about Ali’s bisexuality. But luck plays its part in advocacy and, just after Said had begun to give evidence, his credibility began to be undermined by the simplest of tactical ploys.
Said Enani was, of course, a Muslim. Nowadays, a copy of the Koran would be available in court, but in 1923 the Old Bailey did not have one available. So Said was sworn on the New Testament. He had just started to describe Ali’s family background, when Marshall Hall stood up and interrupted. Seizing the moment, he asked an innocent-seeming question, knowing full well what the answer was: ‘My Lord, I should like to know on which book the witness has been sworn.’
A court usher confirmed that it was the New Testament, whereupon, ignoring Percival Clarke (who was, after all, just beginning to examine his own witness) and looking straight at the jury, Marshall Hall asked Said pointedly: ‘Does the oath on the Bible bind you?’ Said stated that it did and the judge expressed himself content, but Marshall Hall had sown a seed in the jury’s mind. Perhaps this saturnine Egyptian had something to hide. It was all looking a bit fishy. Later, during cross-examination, a juryman, taking the bait, stood up and expressed concern. Was an oath taken on the New Testament really binding on a Muslim? Said replied, a shade too glibly: ‘We do not swear in our country on books. We swear on the name of Almighty God only.’
Marshall Hall, exploiting the situation to the hilt, boomed out: ‘I suggest your oath does not bind you and you know it does not – and there are Egyptian lawyers here whom you know who will say so.’ Although he was quickly stopped by an irritated Rigby Swift, the tactic had worked and doubt clearly remained in the ranks of the jury about Said’s credibility. The harsh language of Marshall Hall’s intervention is a strong indication that he knew, before entering Court Number One, that he could attack Said Enani’s character with impunity.
Marshall Hall had begun his cross-examination with a carefully worded reference to the relationship between master and secretary:
MARSHALL HALL: How long had you known Ali Fahmy?
SAID ENANI: About seven years.
MARSHALL HALL: Before he came into his money, you lived together?
SAID ENANI: No.
The phrase ‘lived together’ was a telling one, despite Said’s denial. The jury could work out for themselves that, seven years ago, Ali had been only 16, and Said several years older. Marshall Hall pressed on with his covert suggestion:
MARSHALL HALL:… Did you say, he [Ali] was an Oriental and rather passionate?
SAID ENANI: Yes.
MARSHALL HALL: Did you tell Dr Gordon ‘I’ve lost my job. I gave up ten years’ job with the government to take this. Now I am a ruined man’?
SAID ENANI: Yes.
MARSHALL HALL: You were very much attached to Fahmy?
SAID ENANI: Yes …
Ali’s florid appeal, begging Marguerite to join him in Cairo, was read out in full, as was the series of telegrams sent in October 1922, speaking of Ali’s supposed grave illness. Using this episode, Marshall Hall launched another character attack on Said Enani, which, under normal circumstances, should have prompted a warning from the judge, rapping his pencil on the judicial dais, as was Rigby Swift’s habit:
MARSHALL HALL: I am putting it to you that you and Fahmy conspired together to make false statements in order to induce this woman to go to Egypt.
SAID ENANI: No.
All this suggested a dark conspiracy between the two men to lure Marguerite to Egypt, though, as sometimes happens to the best advocates, Marshall Hall asked one question too many:
MARSHALL HALL: And the result of that is that this unfortunate lady comes out to Cairo?
SAID ENANI: She advanced her date only. She had agreed to go to Egypt [but] he wanted her before the time fixed.
A hint of Marguerite’s venality and her true motive in marrying Ali emerged in one short exchange:
MARSHALL HALL: Do you know that Fahmy had implored her to marry him and that she had refused?
SAID ENANI: She said she would consult her lawyer.
Questions about Fahmy’s palace disclosed a local custom, the revelation of which may have startled the more respectable business people on the jury:
MARSHALL HALL: You gave the order for the things in it?
SAID ENANI: No, everything was chosen by Fahmy.
MARSHALL HALL: Didn’t you get commission on the orders?
SAID ENANI: Of course I got commission. [Laughter]
MARSHALL HALL: Ten per cent on half a million francs?
SAID ENANI: No, five per cent …
But the thrust of Marshall Hall’s cross-examination, once the hint about Said’s relationship with Ali had been driven home, was to present Marguerite as the abused wife, brought to the East on a false pretext, imprisoned and brutalised by her super-rich husband. A generalised sexual decadence, unquestionably Eastern, was canvassed:
MARSHALL HALL: You have known of Fahmy’s intimacies with many women?
SAID ENANI: Yes, sir.
MARSHALL HALL: Do you know he treated them brutally, one and all?
SAID ENANI: No, sir, I cannot say brutally …
MARSHALL HALL: He was entitled by law to have four wives, was he not?…
The next part of the cross-examination was not fully reported in the newspapers.426 Marshall Hall, preparing the ground for Marguerite’s evidence, ‘put to the witness that Fahmy was a man of vicious and eccentric sexual appetite, but this the secretary loyally denied’.427
The following passage, towards the end of the four-hour cross-examination, affords a good example of the way Marshall Hall could get his message across, ending with yet another sideswipe at Said, a venal, corrupt character, too close to his master for the comfort of decent English people.
MARSHALL HALL: Was not the Mme Fahmy of 1923 totally different from the Mme Laurent of 1922?
SAID ENANI: Perhaps.
MARSHALL HALL: Has every bit of life been crushed out of her these six months?
SAID ENANI: I do not know.
MARSHALL HALL: From a quite entertaining and fascinating woman, has she become miserable and wretched?
SAID ENANI: They were always quarrelling.
MARSHALL HALL: Did she say you and Fahmy were always against her and it was a case of two to one?
SAID ENANI: Yes.
MARSHALL HALL: Did you say if she would give you £2,000, you would clear out of her way?
SAID ENANI: I said if she would discharge me I should be pleased to go away …
Other aspects of Ali’s character were also exploited by Marshall Hall, who mercilessly used Said Enani as a sounding-board for many of Marguerite’s accusations of cruelty, compiled since the beginning of the year with a view to an expensive divorce settlement.
Later in his cross-examinati
on, Marshall Hall returned to the theme of intimacy between the two men:
MARSHALL HALL: Did you address Fahmy as ‘Baba’?
SAID ENANI: Mme Fahmy used to call him ‘Baba’ because there is a story of Ali Baba … I used to refer to him, too, as ‘Baba’.
At the very end of his questioning, Marshall Hall waved a copy of the cartoon from Al Kashkoul, in which the relationship between Ali, Said Enani and Said’s own secretary had been lampooned:
MARSHALL HALL: Was not the relationship between you and Fahmy bey notorious in Egypt?
Said, of course, disagreed, and this further, blatant innuendo of homosexuality should have been the moment when the judge intervened to tell Marshall Hall that he had gone too far, risking exposure of Marguerite’s own character if she were to give evidence. Percival Clarke, rising to re-examine his witness, complained, rather lamely, that the cartoon seemed to reflect on Said Enani’s moral character, but Rigby Swift chose to make light of the situation, employing a poor example of judicial witticism in this capital case, an unpleasant echo of Mr Justice Darling’s laboured jokes in murder trials:
JUDGE: It does not reflect on anybody’s moral character, except perhaps the artist’s. [Laughter]
Although the judge added, obtusely, that the only suggestion of the cartoon had been that the three men were inseparable, the jury would have taken on board the defence allegation that Said and Ali had been homosexual lovers.
The last witness of the day was potentially the most deadly. John Beattie, the night porter, a man with no axe to grind, gave his recollection of the fatal night, perfectly in accord with Percival Clarke’s opening statement. Hardened observers wondered how the old pro would deal with the seemingly insurmountable fact that Ali had been whistling for an errant lapdog literally seconds before his wife had shot him dead.
The skilled advocate known when not to ask questions. Marshall Hall, barely cross-examined this most dangerous of witnesses, confining himself with the gentle suggestion, itself no more than a polite ridicule, that the man could not possibly have heard someone whistling above the roar of the storm.
Taking a great risk, Marshall Hall did what only the most seasoned criminal advocates dare to do in the face of such damning material. He ignored it.
The second day of Madame Fahmy’s trial dawned wet, cold and windy. Only a few of the crowd, several hundred strong, were destined to find seats in the public gallery, spearheaded by an ‘elderly, grey-haired woman [who] was the first to dash in…’428
On Monday, the jury had been rewarded with a drive, ordered on their behalf by the judge after the court had risen at 4.15 p.m. Unfortunately, while they were being ferried along Archway Road, the charabanc broke down and they were obliged to spend an hour or two locked up in a hotel billiard-room until a replacement arrived. By court order, the jury was under the care of ‘the Sheriffs, Bailiffs Monk & Lake & Mrs Bellini’ and that evening spent their first night confined to the Manchester Hotel, Aldgate, their enforced home for the duration of the trial.
Once they had assembled in their jury-box, a few minutes before the court was due to sit, they were treated to the well-rehearsed ritual which now invariably heralded the arrival of the Great Defender. An impression of majesty, with a touch of the valetudinarian (among other ailments, Marshall Hall’s haemorrhoids frequently played up), seems to have created a striking and unforgettable effect.
‘He would be preceded by a panoply of medical apparatus. First, his clerk [Bowker] would arrange his air-cushion; then there would be a row of bottles to set up on the desk containing smelling-salts and other medicines; there would also be some exquisite little eighteenth-century box, containing some invaluable pill; his noting pencils, green, red and blue, would be arranged in a row and, last, but not least, his [throat] spray would be ready to hand, which, according to his opponents, he would be certain to use in order to divert the attention of the jury when the case was going against him. Finally, when all was prepared, and the judge was waiting, the great man himself would come in…’429
In addition, a footstool would be placed in position, for him to rest his legs, which were severely affected by varicose veins and the phlebitis which made standing for long periods extremely painful. He would manoeuvre the footstool or inflate a pneumatic cushion (very necessary for the great man’s comfort) at tactically appropriate moments, just as he would do with the spray, ‘hissing and gargling … to the distraction of both counsel who was speaking and the jury who were listening…’430
Marguerite made an affecting entrance. She was seen to walk ‘with short steps across the dock, which she entered supported by a wardress and fell listlessly into the chair…’, frequently making use of smelling salts during the day’s proceedings.
The first witness to be called was Arthur Marini, night manager at the Savoy, for whom the shooting of Ali Fahmy had become something of a personal nightmare. His account of the scene in and around the corridor outside the Fahmys’ suite went smoothly enough, until he testified that he had understood Marguerite to remark that the couple had been quarrelling about a divorce.
Percival Clarke had not mentioned such an argument in his opening speech and Marshall Hall pounced, scenting danger. If the shooting had been the result of the couple quarrelling about a divorce, it would undermine Marguerite’s defence that she shot Ali in self-defence to avoid serious sexual assault and also fearing for her life.
MARSHALL HALL: I should like the French of that, because it is quite new.
JUDGE: It is new to me and probably the prisoner and perhaps you would like it interpreted.
MARSHALL HALL: I would.
Although Marguerite could not understand English and her counsel had waived the need to translate everything to her, she knew that a problem had arisen. ‘Madame Fahmy raised her head and listened with an alert air.’431 Marshall Hall left his place, as if to emphasise the significance of the occasion, went to the dock, and spoke to his client in French. The Daily Telegraph reported that, ‘She replied in a few words and then relapsed into her former nonchalant demeanour.’432
The little episode indicates how easily a court and jury can be misled. Marshall Hall went on to ask Marini why he had not said anything about the divorce at the committal proceedings in July, in an attempt to weaken the force of what could be seen as a dishonest embellishment to her orginal story. Marini replied that he had simply responded to questions put to him in court at the time. ‘I had to answer “Yes” or “No”,’ he said plaintively.
In fact, his original statement to the police (not ordinarily available to the defence, a declaration made less than four hours after the tragedy), quoted Marguerite as saying, ‘We were quarrelling over my divorce that was to take place shortly in Paris.’ Percival Clarke does not seem to have made any application to the judge, as he could have done in the circumstances, to get her original statement before the jury. Either the son had not inherited the forensic talents of his father or, more likely in the circumstances, he was sleepwalking through the prosecution.
Marshall Hall’s fluent French was already standing his client in good stead. After Clement Bich, the hotel’s assistant manager, had rendered one of Marguerite’s despairing statements, ‘J’avais perdu ma tête’, as ‘I have lost my head’, Hall suggested that she could have said ‘J’avais perdu la tête’, meaning, ‘I was frightened out of my wits’. The witness agreed that this was a possible alternative interpretation.
With the arrival of Police Sergeant George Hall in the witness-box, attention shifted to the fatal weapon, a menacingly black, .32 semi-automatic Browning pistol, about 6 inches by 4 inches and weighing some 20½ ounces.
George Hall does not seem to have had the sharpest mind. Producing the pistol as an exhibit, Sergeant Hall referred to it quite wrongly as a ‘revolver’. He was sternly corrected by Marshall Hall, who knew his weaponry backwards, but the clumsy officer soon afterwards compounded his error in his answer to a pertinent question from the foreman of the jury. The jury
man had pointed out that ‘certain automatic weapons continued to fire as long as the trigger was depressed’ and, therefore, unless the user was remarkably nimble in handling the gun, it would be practically impossible to fire a single shot. According to Sergeant Hall, the pistol would fire as long as the trigger was pulled: the gun definitely did not need pressure on its trigger for each shot. His assertion was completely wrong.
The next witness, Robert Churchill, would try to put matters right. A burly man, Churchill was the country’s leading firearms expert and had given evidence in a host of criminal trials. He had examined the pistol, manufactured in Herstal, near Liège, by the famous Fabrique Nationale d’Armes de Guerre, and numbered 127303. Its .32 calibre was shared by all the cartridges, cartridge cases and bullets recovered from the scene of the shooting. These latter items were suitable for use in the pistol and were each marked ‘SFM’, standing for the Société Française des Munitions, in Paris. Churchill told the court that the full capacity of the pistol was eight rounds (seven in the magazine and one in the barrel). He had test-fired the pistol himself and found that it was in perfect working order and not liable to accidental discharge.
Percival Clarke, picking up the foreman’s point, asked, ‘Is it a weapon that continues to fire when the trigger is pressed or does the trigger require pressure for each shot?’ Churchill contradicted Sergeant Hall, giving a reply that seemed ominous for the defence: ‘The trigger has to be pulled for each shot. It is automatic loading, but not automatic firing.’
The pistol was loaded by inserting a clip of cartridges in the hand-held butt, a process that did not require much force. With the clip in place, the gun could be primed by pulling back the sliding breach cover (which lay over the barrel) about three-quarters of an inch and then releasing it. This was a much more forceful exercise than loading, and required some strength and experience of the weapon.433