by Peter Murphy
‘Your Honour, I have heard the Church of England described as the Conservative Party at prayer, so I am not sure it is beyond argument, but I am content to rest my case solely on the basis of racial aggravation.’
‘I am much obliged to my learned friend,’ Cathy replies without conceding even the ghost of a smile, although personally, I rather enjoyed Roderick’s response. ‘Racial aggravation is defined by section 28 of the Crime and Disorder Act 1998. It defines a racial group as: “a group of persons defined by reference to race, colour, nationality (including citizenship) or ethnic or national origins”. By no stretch of the imagination is the upper or working class a racial group as defined by the section.’
‘Why do you say that?’ I ask. ‘After all, as much as we might prefer to think we have put all that behind us in this day and age, people are born into one class or another, aren’t they?’
‘Your Honour, class is in the mind of the beholder,’ Cathy insists. ‘It is not a legally recognised category. We recognise racial and ethnic groups as part of the British community; we define them, we keep statistics on them. But there is no legal definition of upper class, middle class, or working class. Those are simply terms used by certain people who, for one reason or another, would like to see themselves as being socially different from others, and create that image of themselves in their mind.’
‘But if people think of class as belonging to separate groups,’ I reply, ‘might it not be argued that groups based on class are just as deserving of legal protection as other groups in society, and that Parliament must be taken to have extended that protection to them?’
‘That is not what Parliament has done, your Honour. Parliament has accorded protection to people who are readily recognisable as members of racial groups based on race, colour, ethnicity or nationality. If someone demonstrates hostility to a member of that kind of group, it is easy for a court to decide whether he knew, or must have presumed, that the other person belonged to that group. It’s usually obvious. But you can’t know, or presume, someone to be upper class or working class by looking at them. Applied to members of a political party, it is pure speculation, a cliché at best.’
Cathy and I continue in this vein for some time. I am not really sure how far we are getting in probing the tricky question of what, if anything, Parliament intended to do about class when enacting section 28 of the Crime and Disorder 1998, but both of us are keenly aware of the growing number of reporters in the courtroom taking copious notes. The Top Judge menace is not far from my mind. Julian Blanquette has nothing much to add on behalf of Richard Mayfield. Finally, I turn to Roderick.
‘Miss Writtle has a point, doesn’t she?’ I ask him. ‘One can be identified quite easily as belonging to a group identified by colour or national origin or ethnicity, and so on, but how can you say that someone belongs to the upper or working class when there is no way to tell from his appearance, and there is no legal definition of what upper class or working class means?’
‘That’s where the word “presumed” comes in, your Honour,’ Roderick replies. ‘Actually, I agree with my learned friend Miss Writtle about one thing. It is simply a cliché to call someone an upper class git just because he is a member of the Conservative Party; just as it is to call someone a working class moron just because he belongs to the Labour Party. Of course it is. But that is exactly what the legislation is about. Parliament intended to criminalise demeaning language, even if the defendant is mistaken about the actual group to which the victim belongs, as long as it is proved that the defendant presumed the victim to belong to that group.’
‘But today, people are free to become socially mobile, aren’t they? You’ve had your champagne socialists joining New Labour, and you’ve had your East End barrow boys-made-good joining the Tories.’
‘Yes, your Honour. You also have high-born individuals like Tony Benn becoming socialists. But that doesn’t mean that the old stereotypes don’t still exist.’
‘No. But can’t people change class nowadays, if they make enough money, for example? And what about people from ordinary backgrounds who are elevated to the House of Lords?’
Roderick has to think about that one.
‘Your Honour, I am not sure that being socially mobile is the same thing as changing class. In America, I suspect it probably is. Of course, the Americans pretend that they don’t have a class structure, although they obviously do, and it is obviously very much based on money, power, influence and the like. But not in this country. Money has never been a portal into the upper class, particularly if earned in trade. Neither has marriage, or even a life peerage. There are some echelons of our society, your Honour, into which one has to be born.’
After further exchanges, I decide to take some time to consider the matter. By now one thing has become abundantly clear. The question of law I have been asked to decide is the Top Judge’s hospital pass. I need to think about it, and I need to get some advice, before I open my mouth. I adjourn until two o’clock.
And so to lunch, an oasis of calm in a desert of chaos.
‘Who is the Conservative candidate?’ Hubert asks after I have tried to explain the problem to my assembled colleagues.
‘What has that got to do with it?’ I ask.
‘Well, if it’s anyone I know, I can tell you immediately whether he’s upper class or not.’
‘That’s hardly the point, Hubert,’ I reply. ‘But if you must know, his name is Richard William Mayfield.’
Hubert looks up from his dish of the day – moussaka according to the weekly menu – and appears to be searching through his memory banks.
‘Mayfield… Mayfield… no, doesn’t ring a bell. I am fairly sure he’s not a member of the Garrick. I would remember if he was. Some new chap, probably – the Edward Heath wing of the party, by the sound of him.’
‘Thank you, Hubert,’ I reply.
‘But in any case, it must have been the other chap’s fault, mustn’t it?’ he says.
‘Excuse me? What?’
‘The other chap, left-winger, Labour party fellow. It was obviously his fault. Mayfield was doing no more than defending himself.’
‘How do you know that?’ I ask. ‘You haven’t even seen the TV footage.’
‘Stands to reason,’ Hubert replies. ‘No Conservative is going to pick a fight with another candidate at the count, especially with a socialist. No, it’s obvious. The Labour fellow must have started it. That’s how they work. Violence is a part of their political creed. You only have to read Marx.’
Mercifully, Legless weighs in before this exchange can go any further.
‘The prosecution’s argument is a complete load of cobblers, Charlie,’ he insists. ‘Cathy Writtle is exactly right. A person’s class, assuming that means anything in law, doesn’t make him a member of a racial group, not in any normal use of the language.’
‘Yes, but we are not talking about normal use of the language, are we?’ Marjorie points out. ‘We are talking about Parliament’s use of the language. That’s the problem when you give something such a wide definition. You end up catching people in a net who were never meant to be caught. It wouldn’t be the first time Parliament didn’t think something through before rushing it on to the statute book.’
‘Are you saying that a defendant can be convicted of a racially aggravated offence just for calling someone upper class?’ I ask.
‘I don’t think that should be the law,’ Marjorie replies, ‘but the way the Act is written, it’s definitely arguable.’
‘It’s all gone too far,’ Hubert says.
‘What has?’ Legless asks.
‘All this nonsense about racial aggravation. That’s why children can’t have the Robertson’s Golly any more when their mothers buy marmalade, isn’t it? We all had them as children, and it never did us any harm.’
‘We can’t have racial abuse, Hubert,’ Marjo
rie replies. ‘Parliament was right to do something about that.’
‘I couldn’t agree more,’ Hubert says, ‘if it is a case of racial abuse. But look at the kind of nonsense we have to deal with all the time. A group of lads go out on Saturday night, and they are all getting on perfectly well. But at the end of the night, they’ve all had a few drinks, and there’s a bit of an argument over a girl or over the football, and someone calls someone else a “white bastard” or a “black bastard”. Usually, nothing comes of it. It’s just a bit of banter. If blows are exchanged, it’s because the chap doesn’t like being called a bastard, not because he’s been called white or black, which is no more than a statement of the obvious. And in the old days, if anyone got arrested, the police would keep him in the cells until Monday morning and the magistrates would deal with him. Now, it has to come up to us because it’s racially aggravated and we have to get a jury to deal with it. And Charlie’s case is just another example. Stuff and nonsense. It’s all gone too far.’
‘That’s all very interesting, Hubert,’ I say, ‘but it doesn’t help me very much. I’ve got the world’s press in court, listening to the case and hanging on my every word. Which way should I go on this? The way it looks to me, I’m damned if I do, and damned if I don’t.’
‘Absolutely,’ Legless agrees. ‘If you chuck out the racial aggravation, they will say you are soft on racially motivated crime. If you leave it to the jury, they will say you are pandering to political correctness and stifling freedom of expression.’
‘So, what I should I do?’
‘I have no idea,’ Legless replies.
I turn to Marjorie. She shakes her head.
‘It’s a tricky one,’ she says.
‘Well, thank you both,’ I reply.
‘Don’t do anything,’ Hubert suggests.
‘What?’
‘Don’t do anything,’ he repeats, ‘at least not for now.’
‘But…’
‘Charlie,’ he continues, ‘it’s not necessary to decide it now, is it? Let it go until the end of the prosecution’s case. That’s when it should be decided, in any case. That will give you some time to think. You can always withdraw the racial aggravation from the jury at that stage.’
I find myself nodding in agreement.
‘That’s not a bad idea,’ I reply.
‘In addition,’ Hubert continues, ‘if you wait, there’s every chance that you might get some movement during the trial.’
‘Movement?’
‘Yes. One assumes that both these chaps want to live to fight another day.’
‘I’m not sure…’
‘I don’t mean literally fighting, Charlie,’ Hubert points out. ‘I mean fighting an election next time round. They may be a bit worried about what their party’s head office thinks about it all. As the trial goes on, it will probably occur to them that it’s not doing them any good to have their antics paraded before a jury under the gaze of the press. I wouldn’t be surprised if someone comes forward with a creative solution. In which case, you are off the hook. Worst comes to worst, you have a day or two to think about the law. But I still think it was all the Labour fellow’s fault.’
There are times when Hubert produces some genuine wisdom. I congratulate him on it. He looks pleased, but feigns an offhand wave of the hand.
‘Think nothing of it, Charlie. Just a matter of having cantered round the paddock a few times.’
‘Talking of which,’ Marjorie says, ‘and forgive the horrible segue, but I have a case about a racehorse and I need some advice about it. The defendant is a woman in her seventies. She’s called Gertie.’
We all look at her.
‘What is she charged with?’ Legless asks.
‘Fraud,’ Marjorie replies. ‘Her husband Jimmy trained racehorses in stables at Newmarket. She acted as secretary for the stables.’
‘Newmarket?’ I say. ‘Is this another example of Bermondsey attracting work from afar? We must be establishing a bit of a reputation.’
‘Either that, or we are a convenient place to dump cases no one wants,’ Marjorie smiles. ‘Anyway, they had a horse called Major Stanley, two-year-old, very promising, already attracting serious attention. Sadly, he broke a leg in training one morning and they had to put him down. Nobody’s fault, just one of those things. In fact, it wasn’t even obvious at the time. He pulled up lame, but it wasn’t until they got him back to the stable that they realised how bad it was. Unfortunately, there had been an administrative error. Jimmy hadn’t renewed the owner’s insurance policy and Major Stanley wasn’t covered – or at least, not for anything like what he was worth.’
‘Oh, dear,’ Legless says.
‘Yes. Unfortunately, they tried to solve the problem by getting a binder later that same morning without disclosing what had happened, and only reported the death two days later. The only other people involved were the horse’s work rider, who was riding him when he fell, and the vet who issued the death certificate. The police don’t think the work rider was in on the fraud, and he is going to be called as a prosecution witness. The vet, on the other hand, almost certainly was in on it. Not many insurance companies cover racehorses, and they are extremely vigilant, especially when a horse dies within a short time of being insured. They would have insisted on a certificate from the vet, so the prosecution say it couldn’t have been done without his connivance. But the vet seems to have gone walkabout a year or two ago, and nobody knows where he is. Unfortunately, while Jimmy dealt with the insurance policy, Gertie was the one who called to report the death.’
‘Sounds like fraud to me,’ Legless says.
‘Well, what about the husband, Jimmy?’ Hubert asks. ‘Hasn’t he been charged?’
‘Deceased,’ Marjorie replies. ‘This all happened almost ten years ago, and it only came to light because the insurance company ceased trading and they brought in auditors to pore through the books from the dawn of time. By that time, Jimmy had died.’
‘What on earth is her defence?’ I ask.
Marjorie shrugs. ‘In interview she told the police that she didn’t understand what was going on. She just kept the books and did what her husband told her to do, she didn’t really know what was going on, and there was no dishonesty.’
The reaction around the room does not bode well for this line of defence.
‘I know, I know,’ Marjorie says. ‘I did try to nudge her and her counsel towards a plea, but she wouldn’t budge. I am sure she is afraid I will send her inside, and then of course there will be confiscation proceedings. She will lose everything. I would like to give her a suspended sentence. Do you think I can?’
‘What was the loss to the insurance company?’ I ask.
‘A little over a quarter of a million.’
We are all silent for some time. Legless shakes his head.
‘I think you could,’ I say. ‘Just. She is unlucky that she is the only one left to prosecute. Given her age, and I assume she is of previous good character?’
‘Yes.’
‘Then, I would say you could suspend it,’ I say, looking for support. ‘Just.’
‘It ought to be about two years,’ Hubert says, ‘straight inside. You can’t have people doing that kind of thing when it affects racing. People invest a lot of money in good horses. I know several chaps at the Garrick who have a share in a racehorse. There’s a lot of money at stake. You might knock a bit off for her age, bring it down to eighteen months, perhaps.’
Marjorie sighs in frustration.
‘Give her a suspended, Marjorie,’ Legless says. ‘You probably shouldn’t. But I suspect that no one except Hubert will criticise you.’
* * *
Monday afternoon
The lunchtime discussion has clarified the options for me. Hubert is right. I can buy myself some time, and perhaps avoid making a decision at all.
If that doesn’t work, of course, I will eventually have to decide what to do, and I am being pulled in two directions.
Part of me is leaning towards Cathy Writtle’s side, because I know exactly what has happened here. The investigating police officers would have charged both men with ABH in the interests of fair play, and bunged it up to the CPS to decide what to do next. Some bright spark in the CPS has seen the political dimension – two public figures misbehaving so spectacularly in public, calls for strong action. Not to mention a bit of positive publicity for the CPS. It’s a bit like the parliamentary expenses scandals, in a way. It becomes more serious because it is Members of Parliament fiddling the books rather than your average member of the public. They ought to know better. They must be made an example of. The same bright spark has found just the way to do that.
Once he or she committed the words ‘racial aggravation’ to paper, the fate of Richard Mayfield and Liam Voss was sealed. They are words which, once written down, cannot be unwritten. In the world of the CPS, if you suggest that a possible case of racial aggravation, however tenuous and improbable, might be ignored for reasons as politically unacceptable as common sense, you might as well start thinking about your next career move. You have committed one of the few unpardonable sins. Once the bright spark proposed an indictment for racially aggravated ABH, the case moved past the point of no return. Part of me wants to stand up for common sense.
But another part of me is seeing the Top Judge headline: ‘Race laws don’t apply to MPs – Top Judge’. And it won’t only be the tabloids. I could write the leader in the Guardian myself.
When court assembles, I thank counsel profusely for their clear and well-presented submissions on a most difficult and troubling point of law, and announce that, in my view, the proper time to deal with the matter is not now, but at the close of the prosecution’s case. No one seems unduly distressed by this, so I immediately ask for the jury panel to be brought down to court.
In this country, there is usually nothing particularly complicated about selecting a jury. The jury manager typically sends us a panel of fourteen to sixteen, from which we select twelve at random. Thank God we don’t do what they do in America, where they cross-examine the prospective jurors for any hint of possible bias, and where it sometimes takes days or even weeks to put a jury in place. We do ask a few questions, to weed out any jurors who may happen to know someone involved in the case, and sometimes we mention a venue such as a pub, just in case any of the panel may be a regular there. Subject to that, we take the first twelve, their names drawn by Carol after shuffling the name cards. But this case is a bit more tricky than usual.