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Confessions of a Lawyer

Page 22

by Russell Winnock


  Bad character is a tricky issue, though on balance it’s probably slightly more interesting than disclosure.

  I’ll tell you about it.

  Bad character is, as you’d expect, the generic term to describe whether someone has ever been in trouble before. To put it simply, if you have no previous convictions, cautions or reprimands, then you are entitled to call yourself a person of good character. If you have a list of form as long as your arm, or even a single conviction, then you are not – you have bad character.

  How much a jury should know about your character has been debated by lawyers, Judges and clever people for as long as there has been trial by jury.

  And it can be massively significant. If you are charged with, say, the offence of indecent assault, and in the past you have been convicted of possessing indecent images of children, then as soon as the jury hear about that previous conviction, the chances of you being acquitted pretty much disappear, regardless of the evidence. Because, understandably you might think, if there is one thing that juries hate, it’s child pornography. And of course, it doesn’t just apply to sex offences. In any case, as soon as the jury hear that someone has broken the law in the past, the task of making them like that person becomes that little bit harder.

  Most defence lawyers want to keep their client’s bad character as far away from a jury as possible, but will be quite happy to bandy around the bad character of the complainant or a witness who is adverse to them.

  Now, in the old days bad character really only went before a jury if, either someone had previously committed a crime which was ‘strikingly similar’ to the one with which he was now charged, or if he had cast aspersions on the character of someone else – which is called losing your shield.

  That situation worked well for years, so, of course, they decided to change it. So now the issue of character and whether a jury should find out about someone’s antecedent history is extremely complicated, both in terms of law and in terms of judgement. The defence or the prosecution can make an application to bring someone’s form before a jury if they think that it will help a jury to decide an important issue in the case or that it will establish that the defendant has a propensity to commit the crime he is charged with.

  It can be a massively devastating piece of information for a juror, and a Judge has to think long and hard before allowing it in.

  Take the following two cases.

  I once prosecuted a case in which an Albanian man had been charged with raping a sixteen-year-old girl. The prosecution case was weakened because the girl had waited for a week before complaining and then had admitted that she had gone back to the Albanian fella’s flat voluntarily because he had promised her lager.

  I knew that he had a conviction in his homeland for what was termed in Albania as ‘serious sexual violence’, which I took to mean rape. Sadly, I didn’t have any of the details of his offence. I applied to the Judge for the conviction to go before a jury, saying that it showed that the man had a propensity to commit offences of a sexual nature, which, as he was denying it, was an important matter in the case. The Judge asked me what ‘serious sexual violence’ meant. I had to confess that, not being entirely au fait with the Albanian criminal justice system, I wasn’t sure.

  ‘Well, Mr Winnock,’ said the Judge, with a great deal of reluctance, ‘how can I allow a conviction before a jury, when neither of us are quite sure what it means?’

  And, reluctantly, I had to agree, the Judge was right. It would be unfair.

  The Albanian man was acquitted of everything apart from stealing beer. An acquittal that made me feel sick to the stomach.

  After they had returned their verdicts I read out to the jury the defendant’s previous convictions. When I said that he had a conviction for ‘serious sexual violence’, collectively, their hands went up to their mouths. It was obvious that they felt that they should have known about it – but, would that have been fair? Would it have been fair to prejudice a jury with the knowledge of an offence that I wasn’t even sure I understood?

  I don’t know the answer to that.

  Then take another occasion – the exact opposite. My client was a young lad, Ashley Hunt, who’d got into a fight in a nightclub with a squaddie (alas, squaddies get into fights with a depressing regularity). Ashley told me that the squaddie was a known thug with previous convictions. Unfortunately for Ashley, he too had a load of previous convictions, including a rather nasty one involving a spade.

  ‘If I ask the Judge to allow me to cross-examine the squaddie’s previous convictions, then he’ll let the prosecutor put yours in,’ I told him. But Ashley was adamant, he wanted them in.

  The Judge looked at me. ‘Are you sure, Mr Winnock?’

  ‘Those are my instructions, Your Honour,’ I said, which is code for: I think my client is completely daft for making me do this, but, hey-ho, it’s his funeral.

  ‘So be it,’ said the Judge, and I was duly given leave to cross-examine Private Matt Davis about an assault in a pub a few years ago.

  It was a disaster.

  ‘So, Mr Davis,’ I began, ‘this isn’t the first time you’ve been involved in a fight in a pub, is it?’

  ‘No, sir,’ said Private Davis, then he turned to the jury with doleful eyes. ‘After I came home from Iraq, I was in a bad place, having witnessed two of my colleagues killed in an ambush by insurgents. I admit, sir, that I went off the rails a bit after that. Since then I’ve received counselling and help with my anger from the army.’

  Ouch.

  Ashley Hunt on the other hand, wasn’t quite so attractive a witness, in fact he was awful. He stood there in the witness box looking every inch the thug he was. The prosecutor was an experienced old brief called Roger Cairns. As Cairns got up to cross-examine my client, I wondered how he would deal with his previous convictions.

  ‘Are you a violent man, Mr Hunt?’ he asked.

  I cringed, I knew what was coming. Ashley Hunt shrugged and muttered something that sounded a bit like, ‘No.’

  ‘I see,’ said Cairns. ‘What about the time you hit someone over the head with a garden shovel?’

  Ouch again.

  It took the jury twenty minutes to convict Ashley Hunt.

  In the case of Tasha Roux, the issue of character was going to be absolutely vital, we wanted the jury to know that Gary Dickinson was a bastard. We wanted them to know that he was a man who had a temper and would resort to his fists. But, at the same time, we knew that this would probably mean that Tasha’s, albeit limited, convictions would also go in. But that wasn’t what bothered us. What bothered us was the possibility that the jury might think we were unnecessarily tarnishing a man who couldn’t defend himself because our client had chucked him over a banister.

  It was a difficult call. If the jury didn’t like Tasha, then they wouldn’t like us resorting to tactics like this, and that was why it was so crucial that we tracked down a witness who might be able to give proper evidence about what Dickinson was really like. I was convinced that Lilly Spencer could provide that evidence, which is why I had been so desperate to speak to her.

  I finished the bad character application and emailed it to Charlie Parkman with a little note telling him that we were doing everything we could to find a corroborating witness but that it was proving to be tricky.

  Then I put my head on my desk and waited for my hangover to subside.

  The trial of Tasha Roux day one – the robing room bullies

  I strode into the robing room on the first day of the trial of Tasha Roux like a colossus. It felt great. I was in a murder trial and I wanted everyone to know about it.

  ‘Hi Russ, you’re not prosecuting a two-handed robbery are you?’

  ‘No, I’m in the murder case.’

  ‘Russ, what are you up to today? Could you cover a bench warrant in court four?’

  ‘No, sorry, I’m in the murder case.’

  Yes, I don’t mind admitting it, that morning I swanned into the robing room lik
e I was the biggest hunter-gatherer in the pack.

  Roger Fish and Josh Benedict-Brown were sitting down by a desk on the far side of the robing room. With them were a couple of the young and beautiful clerks from Extempar Chambers who were unloading the case papers from some fancy wheeled suitcases with the logo: Extempar Chambers, ‘We Don’t Judge, We Just Care’ emblazoned on them. Normally, that would have annoyed me, but not today. I wasn’t bothered that I had my papers in a couple of Asda bags, hell, that morning, I even carried my blue bag of shame with a swagger.

  I confidently went over to them. ‘Hi Roger,’ I said, making sure that everyone knew that I, Russell Winnock, was in a case with Roger Fish, the Fishmeister.

  Roger was sitting impassively, reading through some documents, making efficient notations with his rather expensive fountain pen.

  He looked up at me. ‘Good morning, Russell,’ he said, ‘I’m afraid I’ve got some late additional evidence for you. Sorry that’s it’s come to light on the morning of trial. You know how these things are in a case like this.’

  That was the problem, I didn’t know, I’d never done a case like this before. I didn’t know how I was supposed to react: should I make a fuss? Should I stamp my feet at this eleventh-hour service of new material?

  I didn’t know.

  In the end I just sort of grinned and murmured something about how I was sure it would be okay.

  Josh Benedict-Brown smirked. ‘It’s not good for you, old boy,’ he said. ‘We’ve just had the phone records back from the mobile phone specialist. There are a few messages on there that you might want to have a look at.’

  He then handed me two copies of the same document. ‘One for you and one for Charlie Parkman,’ he said. ‘Where is your leader by the way?’ he added. ‘I hope for your sake he’s going to turn up. Don’t suppose you’ll want to do this solo.’

  Cocky bastard. And who uses the phrase ‘old boy’ for crying out loud.

  By now Kelly had arrived. She was taking her coat off.

  I went over to her and told her about the new evidence.

  ‘Bastards,’ she said, ‘they’ve had her phone for ages, it’s outrageous that they’ve only got round to serving it today. What did you say to Fish? I hope you gave him what for?’

  I decided to lie, I didn’t want Kelly thinking I was a pushover.

  ‘I told him that we weren’t very happy.’

  She scowled.

  ‘Where’s Charlie Parkman?’

  This was now starting to bother me. I had spoken to Charlie the previous day, when he had told me that he would see me in court.

  ‘He’ll be here any second,’ I assured her, ‘probably held up in traffic.’

  She scowled again.

  I sat down and started to read the new document. It wasa list of the text messages that had been sent to and fromGary Dickinson’s phone that were recorded on Tasha Roux’s phone.

  Kelly was right, they’d had Tasha’s phone and Dickinson’s phone since the night of the incident, there was no reasonable excuse for them serving this evidence on the first day of the trial. This was wrong. But even worse was the fact that Josh bloody Benedict-Brown was right – the messages were damning. My eyes fell on the very first one.

  4pm, Saturday 5th March: ‘Gary I mean it, if u do that again I’ll fuckin kill u.’

  5.15pm, Saturday 5th March: ‘U R a bastard! I hate U.’

  Then on the night Dickinson was killed: ‘I don’t ever wanna C U again. U come near me I’ll kill U.’

  I sighed. This wasn’t good.

  And where was my bloody leader?

  I tried phoning him but received an answerphone voice telling me to leave my message after the beep.

  I read more of the messages.

  2.13pm, Friday 15th April: ‘You don’t scare me Gary – I mean it.’

  Together with the odd. ‘I love U XXXX’ and ‘I can’t wait to hold you again! U R my man Gary!’

  It didn’t read like a woman who was in any way scared of the man she had killed. I needed to talk to my leader about these. I felt myself becoming frantic. I knew I shouldn’t have instructed a family lawyer, I knew he’d bottle it. He was probably at Gatwick airport or Dover getting the first plane or ferry out of here, leaving me to pick up the bloody pieces and try to defend a woman who had killed the man who one minute she wanted to hold and the next she wanted to kill. Fuck.

  ‘Any sign?’ asked Kelly.

  I frowned. ‘Not a bloody sausage.’

  Josh Benedict-Brown had now appeared behind me. ‘So what do you want to do about the telephone material?’ he asked.

  I scowled at him. ‘I’m going to take instructions,’ I said, adding quietly under my breath, ‘just as soon as my bloody leader shows up.’

  ‘Perhaps he’s outside the courtroom already?’ said Kelly.

  We went to find him. We looked outside court three, which was where we were listed. There was no sign of him.

  I went to the security queue: there was no sign of him.

  I looked in the lobby and up the corridors: nothing.

  He’d bottled it. He couldn’t handle the pressure. I felt myself wanting to scream in fear, anger and exasperation, but mainly fear.

  Finally we tried the public canteen, which was about the last place most barristers go, as it invariably means bumping into clients, or worse, clients’ families. But, lo and behold, there he was. Charlie Parkman QC, sitting having a cup of coffee, and with him was Shandra Whithurst.

  She had both his hands in her own and was clearly talking to him in impassioned tones. Charlie was nodding at her and occasionally smiling, kind, gentle smiles. As I got closer I could hear what she was saying. ‘You must help her, Mr Parkman, she is a good girl.’

  ‘Well,’ said Charlie, ‘perhaps we can help her together. Now you know what you’ve got to do?’

  Shandra sucked in her lips as if fortifying herself for whatever it was Charlie had told her to do. ‘I understand,’ she said, and with that, she got up and walked away, giving me a wave as she did.

  ‘Charlie,’ I said, ‘you’re here.’

  ‘Yes,’ he said, ‘I prefer it in here. I can get some peace and quiet away from the robing room bullies.’

  ‘Well,’ I said, ‘you’re going to love this.’ I handed him the new telephone material.

  He looked at it for a short while, then looked up at me. ‘When did we get this?’

  ‘Just now.’

  ‘That’s a bit sneaky isn’t it?’

  ‘I thought so.’

  Charlie sighed then took a final swig from his cup of coffee. ‘Right,’ he said, ‘let’s go and make acquaintance with Mr Fish.’

  We made our way back upstairs to the robing room where Fish and Benedict-Brown, now minus the beautiful Extempar clerks, were sitting down robed and ready for action.

  Parkman went over. ‘Good morning Roger,’ he said, then without waiting for a response, he added tersely, ‘now what’s this new evidence that you’ve served on me this morning?’

  ‘Telephone evidence,’ replied Fish, before adding with snake-like smoothness, ‘very sorry, I realise that you should have had it a few weeks ago but I’m afraid that these things do happen in the Crown Court.’

  ‘Not in this trial,’ replied Parkman, ‘I’m not having this type of caper. If you’ve got any more surprises I want to know about them now.’

  I stood behind Parkman, my chest heaving with pride as he stood up to the formidable Roger Fish.

  ‘Steady on, old chap,’ replied Fish, ‘I’m just the messenger.’

  ‘Well, you can give a message to the Judge that we can’t start today, because the defence need another day to deal with this new evidence that has been served weeks late.’

  And with that my new hero Charlie Parkman turned on his heels and walked out of the robing room, with me, star-struck, in awe and half tempted to blow a raspberry at Josh Benedict-Brown, following in his wake.

  It was only when I got outside int
o the corridor that I realised that Charlie was shaking slightly and that beads of sweat had formed on his brow. ‘I can’t be doing with this kind of slippery nonsense, but more significantly, we’ve got a problem, those text messages don’t help us at all.’

  We went to see Tasha. We sat across from her. It was no longer time for soft, cuddly avuncular lawyers, now was the time to prepare her for the roasting that she was going to get from the prosecutor.

  ‘Why did you send a text message telling Gary Dickinson you were going to kill him?’ asked Charlie. Tasha was taken aback by his tone.

  ‘Because he was a bastard,’ she replied.

  ‘A bastard who deserved to die?’ continued Charlie. ‘A bastard who you were quite happy to throw over a banister?’

  ‘No.’

  ‘Because you knew that if you managed to get him over that banister he’d be seriously injured didn’t you?’

  ‘I didn’t mean to hurt him.’

  ‘Then why send him the message saying you were going to kill him?’

  ‘I didn’t mean that.’

  ‘Well what did you mean?’

  Charlie grilled her and grilled her. We went through every message, over and over again.

  ‘Did you love him?’

  ‘Yes.’

  ‘Then you weren’t scared of him, were you?’

  ‘Not always.’

  Tasha struggled and I sat there silently watching her struggle. I listened to her as she tried to explain why she had sent a particular message at a particular time. It wasn’t easy. None of us send texts that we think will come back and haunt us, but often they do. Of course Tasha hadn’t planned to kill him, of course those messages were idle threats. If Tasha had planned to kill him she would have done it with a weapon, a knife probably, she wouldn’t have tried to throw him over a bloody banister. I knew that, but I also knew that the Crown would take those messages and use them to goad her and provoke her, to try to get under her skin in order to try to prove to the jury that she intended to hurt this man, that she wasn’t scared of him and that he was no threat to her.

  By the time we left, Tasha was tired and tearful and under no illusions that this was going to be tough. Charlie was tired as well. The slight tremor to his hand had returned and he looked drained, his face lined and grey.

 

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