Walden of Bermondsey

by Peter Murphy

  Hubert is not the only one who might be inclined to make assumptions about who was to blame based on tribal loyalty, and justice has to be seen to be done. We must do our best to ensure that we have a fair-minded, impartial jury. The problem is that we can’t take the obvious step of asking them how they voted. It would be against the law. Everyone is entitled to keep their vote a secret; and if we ask them whether they support, or are members of, any given political party, we are effectively violating that rule. So some time ago, at a trial readiness hearing, counsel and I came up with the following solution.

  This morning, when they reported for jury service, each juror was given a form to fill in. The form gives a short statement of the facts of the case, and asks them to answer five questions. The first is whether they have been following the story of the Clavering West with Baddiefield election in the press, on TV shows, or on the internet.

  The next is whether they have seen the TV footage of the fight in the church hall.

  The next is whether they strongly support, or are members of a political party. In bold, capital letters, underlined, the juror is instructed to answer this question simply yes or no, without naming the party.

  The next is whether they voted in the recent election. A similarly emphasised instruction directs them to answer simply yes or no, and not to say for whom their vote was cast.

  The final question, the crucial one, is whether they can put aside any sympathies or prejudices they may have and decide the case solely on the basis of the evidence, which is what they will have to promise if they become members of the jury. We have not, of course, asked them whether they regard themselves as upper, middle or working class, though you can almost make an argument for asking that question in the circumstances – which is a further indication, it seems to me, of how out of hand this case has been allowed to get. While the panel makes its way down from the jury assembly room to court, counsel and I read through the results. It seems promising.

  There is always one, of course. One juror cannot resist telling us that he has served as secretary of his local Conservative party. Another has served as a local councillor, but mercifully does not disclose her party affiliation. Everyone is fully aware of the story, and only one claims never to have seen the TV footage. Everyone thinks they can be fair and impartial and put everything aside except the evidence. It is not going to get any better than this, and fortunately the prospect of a Bermondsey juror knowing anyone involved in a case from the Midlands is fairly remote. It does not take us long to empanel the jury: six men, six women, one of the men Sikh, one of the women Muslim, two other men sounding Eastern European but with perfect English; altogether a rather typical Bermondsey jury. I give them the standard warnings about not discussing the case with anyone else, and staying away from the inevitable press and TV news coverage, and away we go.

  Roderick opens the case briefly, provides the jury with copies of the indictment, takes them through it, and shows them the TV footage. There are a few sniggers as they watch, only to be expected. He then announces that he will call his first witness, the Returning Officer, Matthew Malone. Mr Malone appears to be wearing the same dark suit and red tie he was wearing at the count.

  ‘Mr Malone,’ Roderick begins, ‘the jury may not be familiar with what it is a returning officer does. Can you briefly describe for us what your duties are?’

  ‘I can indeed,’ Malone replies, rather self-importantly. ‘As returning officer, I am wholly responsible for the conduct of the election in the constituency. On polling day itself, I am responsible for making sure that the polling stations are properly manned, and are open for the prescribed periods of time, and that voting is conducted in an orderly manner. I am also responsible for ensuring that all the ballots are brought safely to the hall to be counted, that the count is conducted properly, and that all the postal ballots are mixed in with the other ballots to be counted. If there are disputed ballots which may have to be discounted, I must discuss them with the candidates’ agents and then make a decision.’

  ‘You mean, if a ballot is unclear?’

  ‘Yes, or if someone votes for two candidates, or signs the ballot and discloses his identity.’

  ‘And I think there were some examples of such ballots in this election?’

  ‘Yes, there were one hundred and twelve in all, if I remember rightly. Then, once the count is complete, if the result is close, I ask the candidates whether anyone wants a recount, and if so, a recount is conducted. Finally, I must announce the result. I do this verbally at the end of the count, and I must then prepare a written report. In the following few days, there are various administrative duties, such as returning the deposits to all the candidates who received at least five per cent of the vote.’

  Roderick nods and consults his notes.

  ‘I want to return to the question of recounts for a moment,’ he says. ‘This was a close election, wasn’t it?’

  ‘Relatively close; the Conservative majority over Labour was four hundred and fifty-two.’

  ‘In those circumstances, should a recount take place?’

  ‘Not unless one of the candidates, or his agent, requests one.’

  ‘And how do you manage that?’

  ‘When the votes have been counted, and all the bundles of ballots have been checked, we have what we call the provisional result, which is the final count unless anybody objects. I notify the candidates and their agents of the provisional result, and give them time to consider. If anyone asks for a recount, we conduct a recount as quickly as possible. If no one requests a recount, the provisional result becomes the final result, and I declare it.’

  ‘Did you follow that procedure in this instance?’

  ‘I did.’

  ‘Did anyone ask for a recount?’

  ‘No. The only person who could really have asked for a recount was Mr Voss’s agent, Sam Friend. His candidate was the only one who could have been affected. But Sam didn’t ask.’

  ‘In the TV footage the jury have seen, Mr Voss is heard to describe Mr Friend as an “idiot” for not demanding a recount. Do you agree with Mr Voss?’

  ‘No, not at all. Sam has been the Labour agent for years, and he knows that Clavering West is a marginal constituency. The Clavering part of the constituency is mainly rural, which tends to vote Conservative, but there is a sizeable urban area around Baddiefield, which tends to go for Labour. The margin of victory has often been a matter of a few hundred votes, usually in favour of the Tories, but not always. In 1992, it went Labour with a majority of less than a hundred. In some other constituencies, a majority of four hundred and fifty-two might well trigger a recount, but not in Clavering West with Baddiefield.’

  ‘Are you aware of any evidence which suggests that there was any fraud involved in the election?’

  Mr Malone takes a deep breath and exhales slowly.

  ‘I was not aware of any such evidence at the time when the result was declared. I and my staff are always on the lookout for any irregularities. We look carefully at the postal ballots, and we keep a check on all the polling stations as voting proceeds. Nothing untoward was brought to my attention. If anything like that had been reported, I would have delayed the declaration and investigated the matter.’

  ‘Are you aware of any fraud, as you stand here today?’

  ‘Fraud? No,’ Malone replies. ‘But there was a suspicious circumstance, which was brought to my attention later in the evening, after Mr Mayfield and Mr Voss had been taken to hospital.’

  ‘Please tell the jury what that circumstance was.’

  ‘Two boxes containing ballots were found in a storage room at one of the polling stations. One of Mr Voss’s supporters, who had considerable experience in that part of the constituency, thought the number of boxes taken to the count was too low and raised the alarm. I was told later that he was signalling to Mr Voss while I was declaring the result. Unfortu
nately, neither Liam nor Sam knew anything about it until it was too late.’

  ‘Did you cause an investigation to be made?’

  ‘I did. I’m afraid the results were inconclusive. We are not able to determine with any certainty how it happened. There were reports of Conservative supporters hanging around outside the polling station when they shouldn’t have been, while the boxes were being removed, but there was no evidence of actual wrongdoing. It was a bit sensitive, because the polling station was in a district which traditionally leans towards Labour.’

  ‘I see. Were the votes in those two boxes counted?’

  ‘Yes, of course. Thankfully, they did not alter the outcome of the election. It turned out that there had been something of a swing back to the Conservatives in that district, so their majority remained more or less the same.’

  ‘Thank you, Mr Malone. Finally, did you see how the altercation between Mr Voss and Mr Mayfield started?’

  ‘Not really. To be honest, you have a better view from the TV footage than I had. I had one standing each side of me. Just after I declared, I remember the various candidates shaking hands, then I remember Richard beginning his speech, and some words were exchanged, and suddenly there was a flurry of arms, and the next thing I knew, they had rolled off the stage. As to who moved first, I couldn’t say.’

  ‘Too close to call?’ Roderick smiles.

  ‘Exactly,’ Malone replies. ‘We would definitely need a recount on that.’

  ‘How long have you served as a returning officer?’

  ‘Oh, it’s been more than twenty years now. I’ve returned for local and national elections, everything.’

  ‘Have you ever seen anything like this before?’

  ‘No. I’ve seen groups of supporters have a go at each other once in a while, which usually doesn’t last long because the police are never far away. You will occasionally get two candidates exchanging a few words, but I’ve never seen it go further than that – not between candidates. It was quite a shock, I don’t mind telling you.’

  ‘I’m sure it must have been,’ Roderick says. ‘Please wait there, Mr Malone. There may be some further questions.’

  ‘Mr Malone,’ Cathy begins, ‘may I ask you to look at part of the TV footage with me?’

  The DVD has been paused at the critical moment, just after Mayfield has called Voss a ‘working class lout’. I suspect the jury is going to see the record of these few seconds quite a lot as the trial proceeds. Cathy rewinds, plays the scene to the same point, and stops.

  ‘Now, Mr Malone, you are standing behind the podium and slightly to the right, as seen from the body of the hall, when the first punches are thrown, yes?’

  ‘Yes.’

  ‘The first punches are thrown just in front of you, over the top of the podium?’

  ‘That’s correct.’

  ‘And Mr Mayfield turns to his left, doesn’t he, turns his whole body towards Mr Voss?’

  ‘Yes.’

  ‘And brings his right arm around to punch at Mr Voss with his right hand?’

  ‘So it appears, yes.’

  ‘And he connects before Mr Voss, doesn’t he?’

  ‘I couldn’t say who struck or landed first. It all happened so fast.’

  ‘But looking at the TV footage now, would you not agree that Mr Mayfield struck and landed first?’

  ‘To my mind they seem to strike at the same time.’

  ‘Would you like to see it again?’

  ‘Not really. I’ve seen it lots of times, and it doesn’t improve my memory of the events.’

  ‘Mr Malone, Mr Voss made a clear suggestion that some fraud had occurred, didn’t he?’

  ‘I don’t know about clear. He did say there must have been fraud, but he didn’t say what he was referring to.’

  ‘He asked for a recount, didn’t he?’

  ‘He did, yes.’

  ‘On the ground of fraud?’

  ‘Partly on the ground of fraud. He also said that the voters of Clavering West with Baddiefield couldn’t possibly have preferred a toffee-nosed git like Richard to his good self.’

  General laughter, including from the jury. Cathy walked into that one. She joins in the laughter, taking it with good grace.

  ‘It’s normal banter,’ Malone adds, rather sheepishly.

  ‘But you wouldn’t agree to a recount, would you?’

  ‘I have no power to conduct a recount once the result has been declared,’ Malone replies. ‘Once the result is declared, it can be set aside only by an election court, and even then, only in the most exceptional circumstances. If Liam or Sam had come to me with any concerns before I declared the result, I would have looked into it.’

  ‘Lastly, as we have all heard, Mr Voss called Mr Mayfield a “toffee-nosed, upper class git”. Did you understand any of those words to be a racial slur of any kind?’

  ‘No, of course not,’ Malone replies. ‘You hear that kind of thing all the time between candidates and their supporters – well, except for the Green Party, of course. It’s just a bit of banter. Usually people have a laugh about it, but that night, for some reason, it got out of hand. But it’s got nothing to do with race, if you ask me.’

  Cathy nods.

  ‘Yes. Thank you, Mr Malone.’

  She resumes her seat and Julian springs lightly to his feet.

  ‘Mr Malone, would you say the same about Mr Mayfield calling Mr Voss a “moronic working class lout”?’

  ‘I would.’

  ‘Thank you. Did you see Mr Mayfield offer to shake hands with Mr Voss immediately after the declaration?’

  ‘Yes, I did.’

  ‘What was Mr Voss’s response to the offer?’

  ‘He refused to shake hands with Mr Mayfield, and folded his arms across his chest.’

  ‘Yes. Was Mr Voss the only candidate to make any complaint about the count?’

  ‘Yes, he was.’

  ‘And, as you have said, you have a considerable responsibility as returning officer for the proper conduct of the election. How seriously did you take that responsibility?’

  ‘I took it with the utmost seriousness.’

  ‘Thank you, Mr Malone. I imagine that if I put to you that Mr Voss was the one who struck first, you would give me the same answer as you gave to my learned friend. You would say that you really didn’t see, and the footage has not assisted you in remembering. Is that right?’

  ‘It is,’ Malone replies.

  ‘In that case, I won’t take up your time unnecessarily,’ Julian says with a smile, resuming his seat.

  On that note, we adjourn for the day. The case will not proceed any further this afternoon because I have to sentence two elderly gentlemen who were caught operating a small-time cannabis factory in a modest house not all that far from the court. The police found thirty-five mature female plants under cultivation, with high intensity lights, watering system, extractor fans, and all mod cons, plus a number of wraps, digital scales and plastic bags – the drug dealer’s tool kit – plus about five hundred pounds in cash. For personal use, they explained to the police, medicinal, since both of them have arthritis and God knows what other ailments of approaching old age and they can’t seem to persuade the NHS to give them a serious remedy. And, yes, perhaps when friends come round they might offer them a smoke – in much the same way as one might offer a guest a glass of wine, as one defendant told the police in interview – but they don’t sell the stuff. The only money changing hands would be a voluntary contribution to expenses.

  Complete nonsense, obviously, but all the same I dislike these cannabis cases. What a bloody waste of time – our time, the police’s time, everybody’s time. It is legal in so many places now, especially for medicinal purposes, that as a judge I’m buggered if I’m going to send anyone to prison if there’s any way to avoid it. If I can gi
ve a defendant a discharge or a community order – and I almost always can – then that’s what I am going to do. The Reverend Mrs Walden is in favour of legalising cannabis completely, so much so that the other day she actually took a few like-minded parishioners to their first 4/20 rally. Her bishop didn’t bat an eyelid. The Reverend Mrs Walden thinks it’s only because people like Mayfield and Voss don’t have the courage to stand up to the puritans in their parties and act on the evidence of their own scientific advisers that we have this problem. I feel myself agreeing with her more and more. These gentlemen are of previous good character except for a couple of cautions for simple possession, and they are not going anywhere near prison. I find myself resenting making the inevitable order for forfeiture and destruction of the plants and growing equipment.

  * * *

  Monday evening

  I hurry home, and I am in good time to settle myself down in front of the TV with a bottle of Old Speckled Hen for the start of the BBC news. The Reverend Mrs Walden has set the ITV news to record, and joins me with her glass of amontillado. The news begins with stories from the Middle East and one about the economy. Well, that’s fair enough, I think. I can’t expect top billing. There are other important things going on in the world. But when we get to a story devoted to the question of whether badgers constitute a serious danger to other wildlife in Wiltshire, I find myself getting anxious. Surely one of the great political stories of the day should take precedence over a few predatory badgers in Wiltshire? Where is the BBC’s sense of priorities? What can the producer be thinking about? And then the unthinkable – what if they don’t think it’s newsworthy at all? Absurd, I tell myself. After all, I didn’t imagine the TV van outside court. And then, finally, my patience is rewarded.