by Andrew Rose
Another dangerous aspect for the defence lay in the degree of effort required to fire the gun. ‘The pull of the trigger,’ said Churchill, ‘is eight and a quarter pounds. It is not a light pull.’ Furthermore, the pistol had a threefold safety provision: the magazine had to be in place; the normal safety catch needed to be pressed (usually by the thumb); and the butt safety grip – on the rear of the butt – had to be squeezed by the palm of the firer’s hand as the trigger was pulled. Churchill again affirmed, at the end of Clarke’s examination-in-chief, that this was not the sort of weapon to go off accidentally.
Marshall Hall had worried long and hard about this firearms evidence. Churchill was the most important prosecution witness after Said Enani and the tactics that had been successfully employed the previous afternoon to smear Ali’s former confidential private secretary were not available to challenge the evidence of a world-renowned gunsmith. Marshall Hall was only too aware that the mere process of getting the pistol into operation suggested that Marguerite knew full well how to use it.
Before the trial started, Marshall Hall had called in to Whistler’s, another Strand gun shop, where he enlisted the help of a Mr Stopp, whom he had known for half a century. Together, they minutely examined a similar .32 Browning, which was brought along to court. Years earlier, in a murder trial at Stafford Assizes, Marshall Hall’s courtroom demonstration of a revolver had helped secure his client’s acquittal. He would keep the idea up his sleeve for possible use on Madame Fahmy’s behalf later in the trial.
For the moment, though, the need was to perform a damage-limitation exercise on Robert Churchill. A slice of ham was served up. ‘I want you to give me your careful attention,’ said Marshall Hall to Churchill, using his most magisterial manner as he rose to cross-examine. He turned solemnly, looking straight at the judge. ‘A great deal depends on this witness’s evidence and I shall be some time with him.’ Rigby Swift, quite used to this sort of technique, blandly assured counsel that there was no time limit, as long as the questions were relevant.
To assist the dramatic effect, the pistol loaned by Messrs Whistler was produced from a box and a second, dismantled one was set out on the exhibit table. Holding the first gun in his hand, Marshall Hall put numerous technical questions to the gun expert. These seem to have been largely irrelevant, designed simply to impress the jury with Marshall Hall’s expertise, so that his ultimate submissions, arguments that might not strictly accord with the facts of the .32 pistol’s mode of operation, would thereby gain credence.
When the judge asked Marshall Hall if he wanted his pistol made an exhibit, there was a short diversion. Counsel had replied, lightly, that he was afraid it might get lost. Rigby Swift made another little joke, accompanied by a plaint not entirely favourable to the defence:
RIGBY SWIFT: You are much safer without it. [Laughter] If there were fewer of these things in the hands of the public, we should not be here so often and I look forward to the day when it will be a criminal offence to have a revolver [sic] … A revolver can be of no legitimate use in this country.
The crux of Marshall Hall’s questioning was the fact that, once the pistol had been primed by pulling back the breach cover and releasing it, and the weapon fired, another bullet would automatically enter the chamber. Churchill agreed that if someone, thinking to clear the barrel of a loaded pistol, discharged a single shot, it would immediately be replaced by another bullet.
The suggestion was then made by Marshall Hall that, when the pistol was tightly gripped, ‘a very small pressure’ on the trigger would discharge several shots. This proposition does not accord with the working of this type of pistol and was in manifest contradiction to Churchill’s earlier evidence about the substantial eight and a quarter pound pull on the trigger required for each shot. For some reason, Churchill did not robustly disagree with what was being put to him, as surely he should have done. Contemporary reports state simply that ‘Mr Churchill hesitated and the pistol was passed round the jury’, who tested the mechanism, using a dummy cartridge. Perhaps Marshall Hall’s battery of footstool, air cushion and throat spray was being put to use yet again.
Sensing his advantage, Marshall Hall quickly brought the expert back to the loading mechanism, which he had been exploring just a moment before:
MARSHALL HALL: An inexperienced person might easily reload the weapon thinking that, in fact, he was emptying it?
CHURCHILL: Yes.
Marguerite, of course, was that ‘inexperienced person’. During Churchill’s evidence, she lost her earlier impassivity and showed rather more interest in the proceedings than might have been expected from an ingénue. ‘Mme Fahmy made notes with a blue pencil on a sheet of paper … while her glance travelled continuously from counsel to witness and back again. While her leading counsel was handling the pistol, Mme Fahmy showed great interest…’434
Towards the end of the gunsmith’s evidence, the judge showed that he was still concerned about the evidential conflict with Sergeant Hall. Churchill was able to settle that point, at least, by an analogy that veterans of the Great War, possibly some of the jurymen themselves, would have appreciated. ‘A lot of people think these pistols are like Lewis guns. They are not. Each bullet requires separate pressure…’ His last words also struck a jarring note for the defence: ‘It’s impossible to load this pistol with the safety catch on.’435
If Marshall Hall had won his game with Said Enani hands down, his spar with Churchill was less successful, although some students of the Fahmy case have maintained that this was a great triumph of cross-examination. Marguerite was still vulnerable. She had killed her husband with a large, deadline handgun, indubitably her own property, a lethal pistol far removed from the small revolvers, .22 or less, which were at that time thought of as suitable for ladies to carry in their handbags for self-protection. What was more, to fire the Browning required a considerable degree of skill and application. It was not a weapon designed for pinpoint accuracy, but three of its bullets had struck her husband and one had ploughed its way neatly through his left temple.
The advent of Dr Gordon, whose fleshy face had been snapped outside the Old Bailey that day, beneath a light grey trilby, gave a much-needed tonic to flagging defence morale. In some ways, the doctor was a curious witness for the Crown. He had been the accused’s medical adviser, was on friendly terms with her, and had visited his patient in Holloway several times while she was on remand. Nevertheless, the prosecution is under a duty to call witnesses ‘capable of belief ’ and, given the hidden background to the case, Percival Clarke showed no reluctance in calling him to give evidence.
Dr Gordon described how Marguerite had consulted him during the first week of July and made the first clear reference in the trial to those tiresome, painful haemorrhoids, doubtless aggravated by the hot and sticky weather of the brief heatwave. On the fatal morning, he had found Marguerite ‘very dazed and frightened’ after the shooting, but she had remembered to hand him the letter in which she had set out her reasons for cancelling the booking at the London nursing home and returning to Paris.
Of the greatest importance was what Marguerite had told her doctor in the dawn light of 10 July, while they had sat huddled in the inspector’s room at Bow Street with the great storm still rumbling overhead. At the trial, Dr Gordon expanded somewhat on his written statement, composed that same day. In particular, his account of Marguerite’s words now included an allegation that ‘Fahmy had brutally handled and pestered her’ in the suite, before advancing threateningly in her bedroom.
The judge wanted to know whether Madame Fahmy had explained what she meant by her husband having ‘brutally handled her’. ‘She told me that Fahmy had taken her by the arms in the bedroom,’ said the doctor, adding, ‘She showed me a scratch on the back of her neck about one and a half inches long, probably caused by a fingernail. She said it was caused by her husband.’
The doctor was not asked, it appears, whether this injury might just as likely have been self-inflicted
, and Marshall Hall, seizing the opportunity, persuaded Gordon to agree that the mark was consistent with ‘a hand clutching her throat’.
So far, Dr Gordon seems to have been pussyfooting around the allegations of sodomy. Cross-examination on the point was brief but effective. Bowdlerised reports appeared in the press, the Daily Telegraph reporting that ‘Madame Fahmy had complained that her husband was very passionate and that his conduct had made her ill. Accused’s condition was consistent with the conduct on the part of her husband which she alleged…’,436 behaviour described by the Daily Sketch as ‘violent ill-treatment’.
Another fragment of evidence useful to the defence was Gordon’s ‘clear understanding’, from Marguerite’s words, of her belief that the pistol had become unloaded by the single shot she had earlier fired through a window of the hotel suite.
Prosecution evidence also included the post-mortem and the testimony of three witnesses from the Savoy staff. Some hours after the shooting, a chambermaid, Ellen Dryland, had spotted the cartridge case in Marguerite’s bedroom. A few days earlier, she had found the Browning pistol under the bolster while she was making the bed. With considerable aplomb, she had put the gun in a drawer of the bedside table. Next morning, she was surprised to find it tucked into the fabric and the back of an armchair. Sharp-eyed valet Albert Dowding had found one of the bullets in the corridor a week after Ali’s death. Jane Seaman, housekeeper at the Savoy, told how she had handed the bullet found by the valet to Clement Bich, the assistant manager.
The Crown’s case ended with the police evidence, mostly of a formal character, with no significant disputes. DDI Grosse told of seeing Fahmy’s body in the mortuary at Charing Cross Hospital (an account which reduced to tears Mme Said, unhappy recipient of Marguerite’s callously endorsed portrait photograph of herself). He also described examining the scene of the fatality, none too carefully as it seems, before his first encounter with Madame Fahmy at Bow Street.
French-speaking Detective Sergeant Allen gave Marguerite’s answer to the charge, though the newspaper copy garbled ‘He has told me many times “kill me”…’ into ‘He has told me many times that he would kill me…’, just as some reports of Fahmy’s impassioned letter to Marguerite in September 1922 turned ‘Torche de ma vie’ (‘Torch of my life’) into the more apt ‘Torture of my life’.
21
Centre Stage
Marguerite was going to have to go into the witness-box and tell her side of the story. That much was clear. There was no doubt that she had fired the shots that killed her husband and only she could give real force to the gamut of allegations that had been made about Ali in cross-examination, and which would be amplified in her counsel’s opening speech to the jury. Marshall Hall’s invariable practice was to explain carefully to a defendant the pros and cons of giving evidence and secure written authority for the decision.
He began his opening speech for the defence on a low key, pointing out the three possible verdicts of murder, manslaughter or outright acquittal. The kernel of Marguerite’s defence would be ‘justifiable killing because she was in fear of her life’.
Marshall Hall neatly tackled Percival Clarke’s description of Ali as a ‘quiet, retiring nervous sort of young man’, quoting the physical description set out in the post-mortem report: ‘a man of five feet nine or five feet ten, muscular and strong’. This he contrasted with Marguerite’s vulnerability. ‘Her position is an extraordinarily difficult one,’ he argued, ‘as she is a stranger in a strange land. She speaks no English and understands practically none and every word that she will give in evidence will have to be … translated. The effect … will no doubt be seriously lessened before it comes to your ears.’ In fact, Marguerite would be greatly assisted by the need for an interpreter. This slows down the pace of questioning (always fairly slow because of the need to make notes of evidence), allowing extra time to deal with awkward questions.
Sensibly, he did not try to whitewash Marguerite’s character completely. ‘The accused is perhaps a woman of not very strict morality,’ he conceded. ‘… She is an extraordinarily attractive woman and when they first met, she was as infatuated with [Fahmy] as he was with her.’ He moved quickly to the association between Ali and Said Enani. Said, he alleged, ‘had been very ungracious to her … she was very jealous of his influence over her husband’. Said was a bad lot. ‘I am not going to say much about the so-called secretary and great personal friend, Said Enani. You will form your own opinion as to the sort of influence he had over Fahmy.’ Together, this odd couple had enticed Marguerite to Egypt by trickery.
Marshall Hall’s foray into homophobia was accompanied by a measure of racism. Marguerite, the older woman, had been attracted to the younger Ali, who had used his ‘Eastern cunning’ to make himself agreeable to her. ‘You have to consider,’ he added, ‘the relationship between East and West and the extraordinary pride an Eastern man takes in the possession of a Western woman…’ Marguerite had been left in Egypt ‘absolutely at the mercy of his entourage of black servants’.
Briefly digressing from his theme and plainly to introduce an element of mystery, Marshall Hall made reference to the sealed document Marguerite had written in January 1922, alleging that Ali had sworn on the Koran to kill her. The paper had been opened by her lawyer, Maître Assouad, in the presence of two barristers. ‘Whether or not the contents … are evidence depends very much on the line Madame Fahmy takes in the witness-box. I cannot say what the contents are because I am not entitled to at this stage…’
Reference to the Muslim marriage brought ‘dramatic gestures and heightened inflection [as] counsel continued to outline the story’,437 using his trump card, the allegations of sodomy:
After the marriage ceremony was over, all sort of restraint on Fahmy’s part ceased. He took her away up country. He developed from an attentive, plausible and kind lover into a ferocious brute. That is her own language and I adopt it. She discovered for the first time that he not only had the vilest of vile tempers, but was vile himself, with a filthy perverted taste. From that day onwards down to the very night, within a few moments of the time when a bullet sent that man to eternity, he was pestering her [for unnatural sexual intercourse] … She will tell you that … he kept a black valet to watch over this white woman’s suite of rooms, conditions that really make me shudder … that state of obedience which a black man wants from a woman who is his chattel.
A long catalogue of Marguerite’s grievances followed, including an allegation that Fahmy had once refused to let his wife travel in his car, sending her in a tram instead, accompanied by a black servant: ‘She could not go anywhere without these black things watching her.’ Then, ‘to a hushed court’, Marshall Hall read out the anonymous letter that Marguerite had received at the Savoy on 3 July, two days after their arrival, with its references to the ‘craftiness’ of Easterners, poison and possible accidents. Neither the judge nor prosecuting counsel made any attempt to stop Marshall Hall reading out this very dubious document, which, apart from any other defect, was of unknown origin and of little relevance to the direct issue that the jury was trying. But an air of unreality, a touch of hysteria, was beginning to pervade Court Number One.
‘Fahmy’s threats were not empty threats,’ continued Marshall Hall, warming to his subject. ‘Orientals have the power of carrying out their threats. Madame Fahmy was guarded by an irresponsible black Sudanese’ – in reality, Ali’s diminutive valet – ‘who was absolutely the creature of his master. Fahmy had said, “You shall not escape me. In twenty-four hours you will be dead.” That threat was made on the night before the tragedy…’ Marguerite, ‘a poor, wretched woman suffering the tortures of the damned’, had fired the pistol in desperation as Ali ‘crouched for the last time, crouched like an animal, crouched like an Oriental…’
He came to his peroration, the usual strong meat of the Marshall Hall style. ‘I submit that this woman, driven to exasperation by the brutality and beastliness of this man, whose will she had dare
d to oppose, thought that he was carrying out the threat he had always made and that, when he seized her by the neck, he was about to kill her.’
That reference to seizure by the neck dovetailed neatly into the evidence of the day’s last witness. Although, by the rules, Marguerite should have been the first to be called, Marshall Hall, not for the only time, broke precedent and produced the Medical Officer from Holloway, Dr J. H. Morton. During his speech, Marshall Hall had referred dramatically to ‘a new and wonderful piece of evidence’ that had emerged ‘thanks to His Lordship’s intervention’. It was a clever way of exploiting Rigby Swift’s concern about Dr Gordon’s testimony, which had mentioned a scratch mark at the back of Marguerite’s neck.
The judge had asked for a report from the prison and Dr Morton confirmed that Marguerite had been admitted with three abrasions in the same place. It added little to what Dr Gordon had already described. Marshall Hall then asked an outrageously leading question of his own witness:
Were those marks consistent with having been caused by a man’s hand?
The answer was affirmative, but as in the case of Dr Gordon’s evidence, no one seems to have canvassed the possibility of self-infliction. By now it was late in the afternoon and the judge was growing a little worried about the direction the case was taking. It was important to ensure that Marshall Hall should not be seen to be making the running. When the court adjourned for the day, he warned the jury not to come to a definite conclusion before they had heard all the evidence.
Marshall Hall’s opening address resembled the heavy shelling that precedes a battle assault. He was softening up his target, using his dramatic style to the full, appealing to a jury that was likely to have been inimical to homosexuality and suspicious of foreigners, especially ‘black’ ones. Frequent references to the perceived decadence of the East, to the guile of the ‘Oriental’, would have struck a chord in an English jury.