by Andrew Rose
There followed another moment of silence, maximising the dramatic effect, before Marshall Hall reminded the jury that Marguerite had said (her words), ‘Mon chéri, ce n’est rien, responds-moi’ (‘Sweetheart, it is nothing, speak to me’), as Ali lay dying. ‘What a place,’ he said, ‘for a deliberate planned murder – the corridor where the lift was going up and down and people were moving about. Would she choose the Savoy Hotel for such an act? Would she have left at the hotel the address of the nursing home to which she was going? Would she have wired to Paris, saying she was going there the next day?…’
Then he did something very naughty indeed. Percival Clarke’s conduct of the prosecution’s case had been a drab and uninspiring affair, in marked contrast to the triumphant abilities of his father, Sir Edward Clarke, in 1923 still alive, though retired. Marshall Hall, with some cruelty, played on this unhappy comparison. ‘To use the words of my learned friend’s great father many years ago at the Old Bailey in the [Adelaide] Bartlett case, “I do not ask you for a verdict. I demand a verdict at your hands.”’
This would have been a good moment on which to have finished, but there was still the last advantage to be wrung from the ‘Eastern feeling’. As with the fictional Mahmoud Baroudi, so it had been with Ali Fahmy. ‘Eastern men, as I have said, are courteous, civilised and elegant, but underneath lies the Eastern temperament and the Eastern idea of how a woman should be treated. In some cases, a Western wife is a triumph for an Eastern man to possess; Eastern men are proud of such a possession, but they are not prepared to sacrifice their right of domination.’
Then came the peroration, delivered as shafts of September sunlight intermittently penetrated through the glass roof of the court:
‘You will remember, all of you, that great work of fiction, written by Robert Hichens, Bella Donna. Some of you may have seen the masterly performance given of it at one of our theatres. If you have, you will remember the final scene, where this woman goes out of the gates of the garden into the dark night of the desert. Members of the jury, I want you to open the gates where the Western woman can go out, not into the dark night of the desert, but back to her friends, who love her in spite of her weaknesses; back to her friends, who will be glad to receive her; back to her child, who will be waiting for her with open arms. You will open the gate and let this Western woman go back into the light of God’s great Western sun.’
At the final words of his speech, delivered almost in a whisper, Marshall Hall looked up and pointed at the glass ceiling of the courtroom, ‘where the bright English September sun was streaming in and suffusing the packed court with its warmth and brightness’,475 after which, manifestly exhausted, he sank back into his place.
23
Verdict
Marshall Hall’s was an almost impossible act to follow, but, for once, prosecuting counsel’s arid delivery made some impact, as Percival Clarke struggled to bring the debate back into the realms of reason. ‘You have had the advantage,’ he told the jury in a quiet monotone, ‘of listening to two dramatic speeches from one of the most powerful advocates at the Bar. I shall try and take you from the theatrical atmosphere which has prevailed in this court for three or four days…’ Clarke’s final speech, for all its dryness, began promisingly. In the theatre, for example, the ‘Blood and Thunder’ school was no longer as fashionable as it had been before the war, and, it might be supposed, some jury members now possessed a relatively sophisticated approach to life’s problems.
The last words of that mighty defence effort had been paraphrased from the pulp fiction of Bella Donna. Introducing themes from that Edwardian sensation was risky, as Clarke was quick to point out, and a less impulsive advocate than Marshall Hall would have reflected at length before making use of such material. Clarke referred to Bella Donna as a play (Mrs Patrick Campbell had felt herself miscast as Ruby Chepstow in a 1911 West End production), ‘a strangely unfortunate play, I think, to recall to your mind. You will remember that the woman who went out into the desert, out into the dark, was the woman who had planned, and very nearly succeeded in murdering her husband. In that respect, it may be that the smile between the play and this case is somewhat alike [sic].’
Additionally, there were unspoken dangers in the indiscriminate use of Bella Donna by the defence. Around midnight on 3 October 1922, Percy Thompson, a 32-year-old shipping clerk, had been stabbed to death in an Ilford street while walking home with his wife from the local railway station. His assailant, twelve years younger, was Frederick Bywaters, who had been the lover of Thompson’s wife, Edith, for over a year before the murder. Edith had destroyed the letters he had written to her; Bywaters, for reasons of his own, had kept her correspondence.
Edith Thompson and Frederick Bywaters were tried for murder at the Old Bailey in December 1922. Much of the prosecution’s case against Edith derived from those love-letters. There was no direct evidence that she had known beforehand of Bywater’s plan to murder her husband, but there were references to powdered glass, to poisons, and to Bella Donna, a particularly unfortunate choice of reading material. Prosecuting counsel (the Solicitor-General, Sir Thomas Inskip KC) made much of the Bella Donna theme. Edith Thompson was convicted of murder and hanged. Hichens’s potboiler helped seal her fate, even though she had herself described the character of Ruby Chepstow as ‘abnormal – a monster utterly selfish and self-living’.
Marguerite Fahmy, an experienced woman and a decade older than her husband, was a far more suitable candidate for the role of Bella Donna than Edith Thompson, who had been no more than a bored, day-dreaming Ilford housewife. Mrs Thompson had gone to the gallows accompanied by remarkably little public sympathy. Would Marguerite’s jury, more astute perhaps than their Victorian counterparts, take a cooler, more sceptical view of the evidence than that suggested by the emotional flummery of Marshall Hall?
It was easy, said Percival Clarke, ‘to speak ill of those who are dead’. Marshall Hall had tried to introduce prejudice against Fahmy, so that the jury would think that he, a brute, had deserved to die. ‘I have no brief for the dead man,’ Clarke told his listeners, reminding them of Marguerite’s early lapse from the path of virtue, her illegitimate child, but carefully avoiding any detail about later relationships: ‘From the age of sixteen upwards, this woman had had experience of men and the world.’ Just like Bella Donna.
So far, so good. But Clarke ought not to have reminded the jury of his hideously inept question about the occupation of Marguerite’s father, lamely attempting to justify the unjustifiable by explaining that it was asked ‘merely to show the ambition of the woman’.
No doubt he pointed out the discrepancies in Marguerite’s story: the pistol, first said to have been fired shortly before Fahmy had attacked her, later said to have gone off before the visit to the theatre; the scene of the struggle – was it in her bedroom, as she had originally said, or his, where the small pearls torn from her dress had been found? And those improbabilities: would such a woman, a pistol owner for some nine years, not know how to use it? And there was her shaky account, of how the action had been transferred from the suite into the hotel corridor.
Clarke had begun his speech just after midday and it was now after 3 p.m. Marguerite had listened to both speeches without the services of an interpreter and was having to use her imagination to divine what these strangely dressed English lawyers had been talking about for so long. As Clarke’s wearisome arguments ploddingly unfolded, dreariness unbroken by the sort of dramatic gestures that were Marshall Hall’s stock-in-trade, Marguerite appeared to think that all was lost. ‘She sat with her head hanging limply forward and her black gloved right hand supporting her forehead. Now and again … her eyes were closed and … tears were trickling down her cheeks.’476 In the closing moments of Clarke’s address, she also seemed unable to keep still. ‘Her head moved from side to side and she twisted and untwisted her handkerchief round her fingers.’477
The jury could be forgiven, with the day’s speechmaking now well i
nto its fourth hour, for not absorbing the Crown’s better points. There was, for example, the fact of Marguerite and Said Enani dancing together to the music of the Savoy Havana Band in the hotel ballroom that fateful night. Marguerite had said that she had danced just a couple of steps in an atmosphere of crisis. ‘I care not how many steps it was,’ said Clarke, ‘whether one step or two steps, or whether it was to the door or round the room. Was this desperate woman in a painful condition dragged off to dance … Whatever evidence is there at all except that she went of her own free will?’
At last, he encapsulated the Crown’s case. Fahmy, as the evidence of John Beattie and the post-mortem had proved, was shot from behind while bending down, playing with a dog. ‘What really happened,’ he suggested, ‘was that the accused, angry, cross, quarrelling, went back, lost her temper and her head, seized the pistol which she knew was in working order and fired it at her husband.’ All very well, but the prosecution had never fully explored the true reasons for so violent an outburst of temper on Marguerite’s part. The jury would have to do what they could with the material before them.
That material now came to be reviewed by Mr Justice Rigby Swift in his summing-up, which, as a punctilious reporter noted, began at 3.27 that Friday afternoon. The judge at first appeared to be hostile to the accused, an impression reinforced by his particularly grave tone of voice. ‘Unless you find something to your satisfaction, something which has been brought home to your minds, that the killing of Ali Fahmy by this woman was not murder, you are bound to return a verdict of wilful murder. This is not a case of giving the accused the benefit of the doubt…’ In other words, the old presumption that all homicide was murder, unless the contrary could be proven, might yet serve to hang Marguerite Fahmy.
The judge’s compliment to Marshall Hall (‘a brilliantly eloquent speech made by one of the foremost advocates at the Bar’) was followed by a disparagement, as is often the case with plaudits from the Bench: ‘You have heard a great deal about the bad character of the dead man, but … the prisoner is not to be acquitted because you believe that [he] was a bad, and, indeed, a detestable character. It is no … excuse for homicide that the person killed was … a weak, depraved or despicable person…’
Swift’s initial apparent antipathy to Marguerite can be seen as a tactical exercise. Judges minded to ‘row out’ a defendant (that is, to persuade a jury to acquit) often begin summing up in this way, which can strengthen the effect of later observations favourable to the accused.
And yet that character assassination of Ali Fahmy had left its mark, a seed planted by the defence in the fertile soil of English prejudice. ‘I have had many years’ experience, but I am shocked and sickened at some of the things which it has been our duty to listen to in the course of this case.’ In a clear reference to the eager curiosity of the trial shown by a large number of women, the judge continued: ‘These things are horrible; they are disgusting. How anyone could listen to these things who is not bound to listen to them passes comprehension.’
Turning to the evidence, the judge resumed a stance seemingly antipathetic to the defence. If Beattie’s testimony was right, then the killing was unjustified, unexplained and amounted to murder. The jury had to examine Marguerite’s story: if they decided that it was untrue, there was no answer to the charge. Was there, asked the judge, corroboration of her version of events? According to Rigby Swift, there was, and the tide of the summing-up began to flow strongly in Marguerite’s favour. What she had told Dr Gordon early on the morning of 10 July at Bow Street police station was ‘substantially the same story’ as her evidence in court and was ‘not a tale that has been concocted by the legal advisers’.
Furthermore, said the judge, ‘the letter written to Dr Gordon about her leaving for Paris was strong corroboration of her story’ and the finding of the bullet in the accused’s room, and of the beads in Fahmy’s room, was a ‘really remarkable corroboration’ of her story. With respect to the judge, it is difficult to see how any of these elements could corroborate Marguerite’s account of the central issue in the case: how she had come to fire three shots at her unarmed husband in a hotel corridor.
Late in the afternoon, Rigby Swift asked the jury if they would like a short break for tea or to adjourn till the next day. A majority was in favour of going on, but, noticing the lack of unanimity, the judge decided to resume the case on Saturday morning. Mlle Simon whispered to Marguerite that the case would not, after all, finish that day. Marguerite, who had sobbed spasmodically throughout the judge’s address, prompted by his frequent references to ‘murder’, covered her face in her hands at the news of the postponement, stood up, swayed, then collapsed into the arms of her two wardresses, who needed the assistance of a male colleague to carry the defendant bodily downstairs from the dock.
Almost as soon as the court had risen that Friday afternoon, women and men started to loiter around the public entrance to the Old Bailey. As Marguerite’s prison taxi pulled away from the rear of the building, someone in the crowd shouted out to her, ‘Good Luck, Fahmy!’ That cloudy, cold and windy night, the City of London police were in energetic mood and kept the crowd on the move, but as fast as they cleared people away from the door, another group took their place.
Marguerite spent a restless night in the hospital wing at Holloway, despite the usual sedative. Just before she left for court, a well-wisher gave her a sprig of white heather. By 8 a.m., an enormous crowd had gathered outside the grim courthouse and, half an hour before the trial resumed, Court Number One was jammed to the walls. In a helter-skelter rush to get the best places in the public gallery, several women tried to climb over the rows of seats, tearing their stockings as they attempted to get the best vantage point.
Rigby Swift posed three possible verdicts. Guilty of murder; Guilty of manslaughter; and Not Guilty altogether. Accepting Marshall Hall’s argument, the judge effectively dismissed the issue of manslaughter. The element that would reduce murder to manslaughter was provocation, ‘some physical act … so annoying or aggravating as was likely to destroy the self-control of an ordinary reasonable person’. The judge observed that there did not seem to have been anything in the nature of provocation at the moment of the shooting. Marguerite had alleged that Fahmy had spat at her, but that was barely sufficient by itself and had occurred too long before the shooting.
If, however, the jury accepted that Fahmy had seized Marguerite by the throat, this could lay the foundation for a defence of justifiable homicide and a verdict of Not Guilty. The jury should pay close attention to evidence of the Fahmys’ marital life. ‘You are not to say,’ warned Rigby Swift, ‘here is an Oriental man, married to a Frenchwoman and therefore things were likely to be so and so…’ The judge’s seemingly moderate approach to the consideration of that stormiest of marriages soon vanished. Swift had been deeply swayed by Marshall Hall’s speech and now began to dwell on the theme of ‘abnormality’, adopting, in less inflammatory language, the agenda of race and sexuality set down by the Great Defender.
‘If the evidence shows you that these two people were not ordinary normal people, as you and I understand people, and … that their relationship was not the ordinary, normal relationship of husband and wife, you might more readily believe [the defendant’s] story of what happened…’ Said Enani’s important evidence was dismissively treated, with a veiled reminder of Marshall Hall’s accusation of homosexuality. ‘He was, and is, in a difficult position and it is for you to decide whether all that has been said about him is justified … You must remember he was the dead man’s friend. They were inseparable.’ On the other hand, the so-called ‘secret document’ of 22 January 1923, once referred to by Swift as so much ‘waste paper’, was now to be regarded as throwing ‘a good deal of light upon the relationship of these parties…’ and as confirming Marguerite’s contention that Ali had often threatened to kill her.
The judge had been particularly shocked by another peculiar document in Marguerite’s hand, the one in which Al
i was meant to have condoned her adultery. ‘It is a disgraceful and disgusting document,’ sermonised the judge, taking the paper at its face value, ‘which shows to us that the relationship between these two people was not the ordinary relationship of man and wife to which we are accustomed in this country.’ That relationship was ‘something abnormal, something extraordinary’, as were the events which took place at the Savoy Hotel on the night of the tragedy. Marguerite’s evidence about Ali’s alleged sexual tastes was ‘shocking, sickening and disgusting … If her husband tried to do what she says, in spite of her protests, it was a cruel, it was an abominable act…’
The contrast between West and East, so much a feature of Marshall Hall’s two speeches, was endorsed by the judge. ‘We in this country put our women on a pedestal: in Egypt they have not the same views … When you hear of this woman being followed by a black servant, you … must not allow your indignation to run away with your judgement.’
When the judge came to review the evidence of the witnesses in the trial, one eye-witness, who would have seen almost everything of relevance to the killing of Fahmy bey, was not mentioned. This witness had never been called to give evidence in any of the legal proceedings, though he had been in and around the Fahmys’ suite throughout the material time. He was the Nubian valet, the diminutive, 18-year-old youth who, according to his late master, did not matter and was nothing. The police did not bother to take a statement from him. Even his name is unknown.
Rigby Swift’s summing-up, now heavily slanted in favour of the accused, ended with a simple question: ‘Has Madame Fahmy made out to your satisfaction that she used that weapon to protect her own life?’ After three bailiffs had been sworn to keep them in ‘some private and convenient place’, the jury filed out of court at 12.24 p.m. Marshall Hall spoke a few sentences of comfort in French to Marguerite, and Maître Assouad shook her by the hand in encouragement, before, smiling wanly and looking very pale, she returned to the cells to await the verdict. Court Number One emptied and people tried to snatch a brief lunch.