‘He sold drugs,’ she said, ‘steroids and cocaine, M-Cat, speed, anything. And he had this licence to be a doorman,’ she continued, her mouth sneering as she spoke, ‘he was dead proud of this licence and how it meant that he hadn’t been caught beating anyone up or selling drugs for three years, and he used to tell me it was because he knew where every CCTV camera was in all the clubs he worked.’
‘Did he ever beat you?’
She nodded, then looked away. For a few seconds she said nothing, I knew she was composing herself. She continued, ‘But he was clever,’ she told me, ‘he would never hurt my face. He had this thing that he did, he would clench both of his fists and bring them down on either side of my head, here.’ She used both of her hands to point to her temples. ‘His knuckles would be sticking out.’ She demonstrated, bashing her fists together.
‘It killed. Sometimes, if he did it, it hurt so much I passed out – but it never left a mark. I thought it might kill me. You hear don’t you, of being hit in certain parts of your head and dying.’
‘How often would he do that?’
‘All the time.’
‘How many times? Ten? Twenty?’
‘More like fifty,’ she said.
‘What else did he do to you?’ I asked.
‘He used to take my benefit money. He said that I owed him it for drugs. But I didn’t.’
‘Do you still use drugs?’ I asked her, adding quickly, ‘Don’t worry if you do, I’m not here to judge you about any of that, okay, it’s just better if I know.’
She nodded. ‘A bit of charlie,’ she said, ‘that’s all really.’
I knew that she was probably understating her drug use, most drug users did.
‘Did he ever do anything else?’ I asked. ‘What about using you for sex?’
She went quiet again. ‘He kept badgering me to go out with these fellas he knew. I only did it a couple of times.’
‘What fellas?’
‘There was a guy called Tony, and another guy, a Pakistani guy called Salam, he kept telling me that it was okay if I fancied them, if I wanted to have sex with them, but I didn’t fancy them. I knew what he meant though, I knew what he was trying to do. They were all involved in drugs, Gary was trying to get favours off blokes. The Pakistani guy asked me if I was like Gary’s other girlfriends and kept trying to kiss me and feel me up.’
I nodded.
‘I knew what was happening though,’ she continued, ‘I wasn’t fifteen no more.’
She told me all of this. She told me about how he would control every part of her life and how her only moments of freedom and happiness were when she could meet up with Shandra. ‘Shandra was like my mum,’ she told me, ‘that’s why I trust her when she says that you’re a really good barrister.’
I frowned. ‘I’m not sure about that,’ I said, ‘there are loads better than me.’
Kelly scowled at me when I said this, but I wasn’t going to start boasting about skills I wasn’t sure I had, not sat here, listening to this story, not yet.
‘So,’ I said, ‘what about the night when this happened, tell me about that.’
She took a deep breath.
‘I’d been out, I went to Rendezvouz club in Lewisham. I was supposed to have met one of Gary’s friends, a bloke called Rio, but, for some reason, I never met him. It wasn’t my fault.’ She paused. ‘You see, I wanted to have a baby, Gary’s baby, I didn’t want to get involved in all of that. It sounds stupid now. But I thought that that would sort everything out, make everything normal. Like a family.’
I was desperately trying to empathise with and understand everything that she was telling me. It wasn’t easy. You can’t just place yourself into someone else’s tragedy.
‘Did you meet him at all?’
‘No. I went home. Then Gary arrives back at mine and he’s shouting at me for not meeting this Rio geezer and I’m shouting back and then he leaves saying that he’s going to get this Rio now, and a load of other lads and they were going to come back to the flat to do me. That’s what he kept saying, that I was worthless and that I needed to be shagged by loads of different blokes. And he leaves the flat, so I lock the door. And then he’s banging on the door saying that I had to open it, and that it wouldn’t matter because he had a key in his car anyway. And he did. He did have a key. And I knew that he was going to get it, so I opened the door and I saw him standing there.’
She paused before repeating, ‘I saw him standing there by the banister.’
I knew now that the next few words were going to be crucial, what she told me now would mean the difference between her having a defence or not.
‘Yes,’ I said, ‘take your time. What happened next?’
‘I went towards him, he seemed to have relaxed his shoulders, as though he was no longer angry, you know. I thought, he’s not going to get these lads, he’s not going to do it, so I went towards him, I wanted to hug him, it sounds fucking pathetic, I wanted to thank him for not getting his friends to come round and rape me. In that instant, at that moment, I was so happy. I went towards him.’
She paused again, her eyes looking upwards, tears streaming down her face.
‘I went towards him,’ she continued, ‘I went to hug him, I know I’m stupid, but I want to have a baby, I wanted to have a baby, with him.’
She stopped, trying to control her sobbing voice and rubbing away the tears in her eyes.
‘You’re not stupid,’ I told her.
‘But as I did,’ she continued, making her voice as strong as she could, ‘as I went towards him, he formed two fists, and I knew that he was going to hammer them down on my temples, I knew he was going to do it, outside by these banisters, in front of the neighbours, he had his fists like this.’ She showed me two shaking fists formed with the knuckle of the index finger protruding outwards.
‘I knew it was going to hurt. Mr Winnock, I can’t tell you how much it hurts.’
She was sobbing now as everything came back to her, images and feelings and emotions.
‘So what did you do, Tasha?’ I asked quietly.
‘I pushed him,’ she said, even quieter.
‘What part of him did you push?’
She shrugged. ‘I had my eyes closed and my head sort of cocked, because I was just expecting to feel the pain of his fists against my temple, so I’m not sure, I just pushed as hard as I could.’
I nodded. ‘What happened to him?’
‘He fell backwards and I screamed. I just screamed. I didn’t know what to do. I just screamed.’
I looked at Kelly who had stopped making her notes for a second. I sort of hoped that Kelly would do something sympathetic, give her a handkerchief or a cuddle or something, but she was just listening, a look of absolute concentration on her face. I knew that she’d never heard anything like this either.
‘Okay,’ I said, as gently as I could, ‘it’ll all be okay. There’s just one more question I need to ask you, Tasha.’
And she nodded without saying anything.
‘Why did you push him?’
Now it was her turn to look me in the eye, to beseech me, to implore me to believe her, to trust her. ‘Because I thought he was going to hurt me,’ she said.
And I nodded. A gentle smile crossed my lips. That was the answer I wanted. ‘Tasha,’ I said, ‘look, from what you’ve told me, you’re not guilty of murder – you acted in self-defence because you thought that Gary Dickinson was going to hurt you. You weren’t to know that by pushing him he was going to fall over the banister. Do you understand all that?’
‘Yes,’ she said.
I smiled more broadly at her now, then told her that I would draft her defence statement, which is the short statement that is given to the Judge and the prosecution saying why someone is not guilty of the charge.
‘I can’t guarantee anything,’ I said, ‘but I’ll do my best for you.’
Self-defence and politicians
Amir was in full flow. ‘Right,’ he said, �
��my claimant wants to sue a company who organise paintball competitions because he got shot in the bollocks from short range and subsequently had one of his gonads go septic on him. Sadly the gonad never made it; they had to chop it off.’
A chambers pupil, a rather austere young woman by the name of Emily, who, rumour has it, is a born-again Christian, was grinning uncomfortably as Jenny Catrell-Jones responded by telling Amir and Angus that if someone was responsible for destroying one of her balls, she’d want revenge in the traditional, Old Testament way. ‘A bollock for a bollock,’ she was shouting.
I though, wasn’t thinking about Amir’s case, I was thinking about self-defence. Now there are a lot of words spoken about self-defence, it’s one of those subjects on which journalists, politicians and blokes down the pub all have an opinion, and, for two out of three of those groups, it is nearly always wrong.
For journalists – and when I say journalists, I’m talking about certain types of journalists from certain types of newspapers – self-defence is an excuse for a cheap story, usually involving an old-age pensioner (preferably with wartime experience), who will have taken the law into his own hands after being terrorised by ‘local youths’, and is then, surprise, surprise, shock horror, prosecuted for his efforts.
We all know the type of story, it usually comes with a picture of the sad-looking or occasionally angry-looking pensioner with his medals, and another photograph of an anonymous ferocious-looking hoodie-wearing youth.
And then of course the politicians will line up to get a few cheap votes on the back of this by calling for a change in the law.
Well, the law on self-defence doesn’t need changing: it works perfectly well.
So what is the law on self-defence?
It’s this: if any one of us honestly and reasonably believes that we are about to be attacked, then we can use reasonable and proportionate force to defend ourselves. Similarly, we can use reasonable force to defend our property and others in the event of them being attacked.
And that’s got to be right, hasn’t it? Every one of us has the right to defend ourselves or our stuff, or another person, if we honestly believe that there is an imminent threat of danger, just as long as we do so with reasonable force. I mean, if someone comes at us with clenched fists and gritted teeth then there is, of course, nothing wrong with giving them a dig. It might be different if the person comes at us with clenched fists and gritted teeth and we repeatedly brutally stab them about the body, leaving them lying on the ground in a motionless bloody mess.
There is therefore a fine line between using reasonable and proportionate force and revenge or retaliation.
Take the case of Archie Whelan. Archie was my very own have-a go hero. A Falklands veteran, he lived on an estate where kids sniffed glue in bus shelters and jumped on the top of cars after the sun went down.
He slept with an army surplus bayonet knife under his pillow.
One day, someone tried to burgle Archie’s house. Archie immediately retrieved his bayonet and ran downstairs to confront two young tracksuit-wearing lads who were trying to nick his telly.
Now, at this point, Archie was probably within the law when he held up the massive knife and told them to ‘get the fuck out of my house’.
The reality is that most burglars are drug addicts who have no interest whatsoever in any kind of confrontation, as was the case with the two muppets in Archie’s front room. Because, not surprisingly, when they were confronted by Archie and his massive knife, they ran away.
Alas, Archie ran after them; even more troubling for Archie was that he managed to catch one of them and, upon catching him, he decided to stick the bayonet up the arse of one of the would-be burglars, who had to have seventeen stitches to a wound to his anus and lost five litres of blood.
Now Archie’s problem was that when he used force he was not under attack, the lads were running away, they were no longer a threat to him. It was retaliation. It wasn’t reasonable self-defence.
To be fair to him, he accepted this, pleaded guilty and was given a suspended sentence by a very lenient Judge.
The local newspaper, however, thought otherwise, they published a photograph in the local paper of Archie holding his Falklands medals and his bayonet. But neither the local newspaper who championed his cause nor Archie – to be fair to him – could complain, because if it was lawful to act in this way, then our nation would cease to be an organised and lawful place, but a crazed vigilante-riddled free-for-all, where chasing people with knives and guns was commonplace and tolerated. And I can’t see the press or your average politician being too happy with that either.
Contrast Archie’s story with the story of Elsa Sharp, who I prosecuted. Elsa was being stalked by an ex-boyfriend who couldn’t understand why, after she had caught him rummaging through her handbag looking for the passwords to her Facebook account, she had decided to dump him. After a couple of years of increasingly menacing messages and phone calls, he started to threaten her with the most grotesque violence. One day, he followed her into a pub and confronted her. She responded by grabbing the nearest thing, which happened to be a bottle of alco-pop, and bashing him over the head. He lost part of his ear.
I was sceptical when I received the instructions to prosecute Miss Sharp. I didn’t think for one second that a jury would convict her, but the CPS told me to bat on, so I did. And, I suppose they were right, the victim may have been an arsehole, but he was unarmed when he confronted her.
Her barrister told the jury that she had honestly believed, given all the letters he had sent to her, and all the things that he had said, that he was going to attack her, and I couldn’t really disagree with that either. The issue for the jury was whether her use of a bottle was proportionate given that he was unarmed. I argued, as I was instructed to, that it wasn’t. My opponent argued that it was, as the victim was much bigger than her, and that she didn’t know what he might have in his pockets. He also made the point that she only hit him once with the bottle, which suggested that she didn’t intend him serious injury but just wanted to defend herself.
The jury deliberated for six hours before coming back and finding Miss Sharp not guilty. This was the proper verdict. The jury had understood the law, applied it to the facts and come up with the right conclusion.
As I considered self-defence, the banter in my room continued.
‘So,’ said Jenny Catrell-Jones to the pupil, ‘come on, Emily, if someone cut one of your bollocks off, how much money would you want in compensation?’
This was a big moment for Emily. An inability to join in chambers banter could cost her dearly when the decision was being taken whether or not to offer her tenancy. ‘Well,’ she said, ‘depends: if, Jenny, I had bollocks as big as yours, then I could probably function perfectly well after losing one.’
Jenny grinned. Everyone laughed.
Emily was going to go far.
Consent
Jenny Catrell-Jones was sitting at her desk in front of a massive chocolate cake, in her hand was a bottle of something, the contents of which she was pouring into a mug which had the words, ‘Office Tart’ written on it.
‘Ah, Russ,’ she said, ‘thank god you’re here, I need someone to help me with this cake and this bottle of Prosecco.’ She motioned towards the bottle. ‘Courtesy of Mr Matthew Courtney. The chocolate cake’s not bad, but after saving his sorry arse from fifteen years in Pentonville, you’d have thought he might have stretched to a proper bottle of Champagne rather than this fizzy wine.’
‘Oh go on then,’ I said, and picked up a rather dirty pint glass from a shelf, gave its rim a quick rub then passed it to Jenny.
She looked a bit forlorn.
I asked her what was wrong and she smiled awkwardly.
‘I suppose, I’m feeling that awkward guilt that we sometimes get when we win a case.’
‘Rape?’ I asked her and she nodded.
Jenny was one of the best defenders of those charged with rape in the country. Most o
f her practice consisted of sexual offences, which was a result of some defendants and solicitors believing, rightly or wrongly, that having a woman cross-examine another woman on the issue of whether they were consenting to sex, is somehow an advantage. Perhaps it is – because she has an impressive strike rate.
‘Don’t tell me,’ I said, ‘Mr Cake and Wine met up with an ex in a club, they both got drunk and went back to his place, where she had sex that she couldn’t really remember, but regretted the next morning.’
‘Something like that.’
‘She then spoke to her mates, and told one of them that her no-good ex had been round and tried it on, and her friend had said that she should go to the police because it sounded like rape.’
‘You’re unbelievably close. Were you listening in the back of court to my closing speech?’
I smiled. ‘Only to get some tips from the master.’
It was a plausible scenario, because it happens a lot, when couples have drunken, regrettable sex. It is an extremely tricky area and it infuriates me when I hear politicians talk about rape as though it is a single entity with the same homogenous set of facts in every single case. True, there are some cases when some horrible dangerous masked man drags a poor defenceless woman into the bushes and commits rape, and of course, there are other awful cases where an ex or current partner decides to ignore the fact that it is every woman’s right to say no. Of course, when those facts are presented to a jury they usually convict and the defendant gets a massive sentence and quite bloody right too.
But there are other situations, where people do have drunken sex and the issue of consent is not easy to determine. Don’t get me wrong, every woman (and man), regardless of whether they are sober or not, has the right to say no, of course they do. But, if the person can’t really remember saying no, or believes that they may have said no after willingly going back to someone’s flat and having a right good snog, then the jury, faced with this confusion, quite often acquit. And we shouldn’t be surprised about this. After all, in a scenario like this, there is hardly ever any evidence to support the allegation: there won’t be any witnesses or CCTV because it happens in the bedroom; whilst the presence of DNA or sperm doesn’t help because the issue is not ‘Did it happen?’ but ‘Did they agree to it?’ The fact that juries are not sure in cases like this shouldn’t be something that makes us doubt our system nor should it be something that makes us fear that the system is inherently biased against the victims of rape. For all crimes, the prosecution bring the charge and they must prove it so that a jury are sure, beyond reasonable doubt. If the jury can’t be sure, because a witness herself isn’t sure, then the jury can’t be criticised, and the system cannot be accused of being broken.
Confessions of a Lawyer Page 18