by Peter Murphy
‘And how would you do that?’
‘I talk to the usher all the time, find out which cases are ready and which require more time, advise on the order in which cases should be called, and so on. And, as always, I take a note of the proceedings. That’s the most important part, really, to make sure there is an accurate note of the proceedings.’
‘Is that because the magistrates must keep an official record for future reference, for example if a higher court, or someone involved in the proceedings, needs to know?’
‘Yes, we have to be able to produce a certificate whenever necessary. As is the case in this court, I’m sure.’
‘Indeed. Can I ask you to look at this document, please?’
Mrs Hepple puts on her reading glasses.
‘This is a copy of the note I made regarding one particular case on that morning.’
‘On the seventh of May?’
‘Yes.’
‘Which case was that?’
‘That was case number thirty-two in my list, Abdul Khan.’
‘When did you make that note?’
‘As the proceedings were going on.’
‘Exhibit four, please, your Honour. Now, Mrs Hepple, refreshing your memory from your note as far as you need to – I take it there is no objection…’
‘None, your Honour,’ Susan confirms.
‘…I am obliged. Referring to your note, can you tell the jury what transpired in the case of Abdul Khan on that morning?’
‘Yes. The case was called on at about ten past twelve. Mr Khan was in custody and was brought up from the cells with an interpreter. I confirmed his identity, and he immediately asked why his solicitor had not been down to the cells to see him.’
‘How did you react to that?’
‘I think both Mr Tooley and I immediately looked at the sign-in sheet to see whether he was represented.’
‘May the witness please see Exhibit two? Do you recognise Exhibit two, Mrs Hepple?’
‘Yes, that is the sign-in sheet.’
‘The jury had heard from Mr Jessop that he does his best to make sure that representatives sign in before court begins, is that right?’
‘Yes, Ken updates the list from time to time and gives me the most recent edition, and I provide the District Judge with the information. In this case, there is a signature against case thirty-two, but it is very difficult to read.’
‘Then what happened?’
‘There were a number of solicitors in court at the time, and I think one barrister. The District Judge asked if anyone was representing Mr Khan.’
‘Did anyone respond to that?’
‘Yes, the defendant, Mr Moffett.’
‘Whereabouts was Mr Moffett at that moment?’
‘He was sitting in the advocates’ row with the defence solicitors.’
‘And how was he dressed?’
‘He was dressed properly for court, wearing a suit and tie.’
‘How did Mr Moffett respond?’
‘In a very strange way indeed. Instead of getting up and speaking to the District Judge, he simply raised his right hand.’
‘Let me ask you this, Mrs Hepple. Is it the practice in the Magistrates Court, as it is in this court, for an advocate to stand when addressing the bench?’
‘Yes, always.’
‘What did Mr Tooley say or do, if anything?’
‘He asked Mr Moffett his name.’
‘Did Mr Moffett reply?’
‘He did. He said, “Wilbraham Moffett, but people call me Wilbur.”’
There is some laughter, in which Susan joins with a glance towards the jury.
‘I see you looking at your note. Did you make a note of his exact words at the time?’
‘I did.’
‘Did Mr Moffett stand while giving that reply?’
‘No. He did not.’
‘Then what happened?’
‘Mr Tooley leaned down and said to me…’
Mrs Hepple is a professional and knows better than to answer that question without allowing Susan the opportunity to object. She pauses. Susan duly objects to the hearsay, taking full advantage of the occasion to remind the jury of the absence of Jungle Jim.
‘Without telling us what was said,’ Aubrey continues, ‘what did the District Judge do, and what did you do?’
‘Mr Tooley stood Mr Khan’s case out for a short time. Mr Khan was taken back down to the cells. Mr Tooley then rose, and at his request I brought him a telephone number for someone at the Law Society. I then heard Mr Tooley speak to someone on the telephone for several minutes.’
‘Then what happened?’
‘Mr Tooley and I went back into court. Mr Khan’s case was called on again, and he was brought back up. Mr Tooley asked Mr Moffett whether he was a solicitor representing Mr Khan, and Mr Moffett replied that he was, again without standing. Mr Tooley then said, “I don’t believe you. The Law Society has never heard of you. I’m going to do something about this.”’
‘What did the District Judge in fact do about it?’
‘There were two uniformed police officers in court waiting for their cases to be called on. Mr Tooley asked them to arrest Mr Moffett on a charge of exercising the right of audience when he wasn’t entitled to.’
‘Did they arrest him?’
‘They did. I heard the officers give Mr Moffett the proper caution and he was taken away. We adjourned Mr Khan’s case. One of the other solicitors in court volunteered to go to see Mr Khan and find out what was going on. I believe that solicitor’s firm ended up representing Mr Khan from that point on.’
‘Did Mr Moffett say anything when he was arrested?’
‘Yes. He said, “All I wanted was an adjournment for seven days.”’
‘Did you make a note of that answer at the time?’
‘Yes.’
‘Thank you, Mrs Hepple. Nothing further, your Honour.’
‘Mrs Hepple, there is nothing unusual about a man wearing a suit and tie to court is there?’ Susan begins. ‘It doesn’t necessarily mean that someone is a solicitor, does it?’
‘No, of course not.’
‘A man employed by a solicitor might dress in that way, isn’t that fair to say?’
‘I would hope he would.’
‘Quite. A person employed by a solicitor might also carry a briefcase, wouldn’t you agree?’
‘Of course.’
‘When Mr Moffett was arrested, what steps, if any, were taken to establish whether he might have privileged papers relating to Mr Khan’s case in his briefcase, and to safeguard those papers properly?’
Mrs Hepple is visibly taken aback.
‘I wasn’t aware that Mr Moffett had a briefcase.’
‘So, for all you know, if he had a briefcase and if that briefcase contained privileged papers, they might have been seized by the police with no intervention by your court, is that right?’
‘I suppose so, yes.’
‘Can we agree, from the description you have given of the proceedings, that Mr Moffett obviously didn’t have the first idea about how to behave in court?’
She smiles. ‘I would have to agree. Yes.’
‘Not the first idea of how to act as an advocate in court?’
‘I would agree.’
‘Not only that – he hadn’t even been down to the cells to see Mr Khan before court began, had he?’
‘Apparently not.’
‘Again, he seemed to have no idea of what he was doing?’
‘None at all, as far as I could see.’
Susan pauses.
‘Mrs Hepple, the only point on which I challenge your evidence at all is this. You said that Mr Tooley asked Mr Moffett whether he was a solicitor representing Mr Khan, and that Mr Moffett said he was?’
> ‘That is correct.’
‘Might it be that Mr Tooley asked whether his firm represented Mr Khan, not whether Mr Moffett himself was a solicitor?’
‘That is not the note I made.’
‘I appreciate that, Mrs Hepple. I am asking you whether there is any possibility that your recollection and your note may be mistaken.’
‘I don’t think so. I am always careful about my notes.’
‘No doubt Mr Tooley could clear it up for us, if he were to be called to give evidence about what was said?’
Aubrey struggles to his feet to object, but does not quite make it in time.
‘I’m sure he could,’ Mrs Hepple replies brightly.
‘Thank you, Mrs Hepple, nothing further.’
Next, the prosecution calls Mr Abdul Khan, who is celebrating his recent release from prison after serving the prescribed half of a sentence imposed on him by Hubert following his plea of guilty to two counts of supplying crack cocaine and heroin. Mr Khan gives evidence with the assistance of an Urdu interpreter, because although his command of English is adequate for normal social and business conversation – such as that involved in selling wraps of class A drugs on the street – it is apparently not quite up to the more intricate language of the courtroom. Mr Khan tells us that he wanted Ellis Lamont to represent him in connection with the charges he faced last year, as he had in the past in connection with other matters, and that Mr Lamont had applied for legal aid. Mr Khan had understood that there might be some slight delay and an application for a short adjournment, but he expected Mr Lamont at least to come to see him in the cells. But no one came to see him on the seventh of May before he was taken to court. He was surprised when Mr Moffett claimed to be representing him, because he had no idea who Mr Moffett was. He had no recollection of what was said between the District Judge and Mr Moffett, and was very surprised to see Mr Moffett being arrested, an event which he claimed not to understand at all. He subsequently asked another firm of solicitors to represent him, and pronounced himself very satisfied with their work on his behalf. Susan has no questions in cross-examination.
Aubrey calls evidence of Ellis Lamont’s being struck off, followed by the evidence of the police witnesses dealing with the defendant’s arrest and interview, all of which passes quickly and without challenge. He then asks for the jury to be sent home for the day, so that he can have one last chance to reflect on the District Judge before formally closing his case. The jury seem none too impressed by this, and as an additional irritant, Aubrey’s clerk has called to say that he has a case in the morning list in the Court of Appeal tomorrow morning, which takes precedence over the Crown Court, so we will be unable to resume the trial until after lunch. I send the jury away. He then asks if he and Susan might see me in chambers. He seems unusually diffident.
‘Jungle Jim is playing up, is he?’ I ask.
‘That’s one way of putting it,’ Aubrey replies. ‘I have already told Susan this, so there is no reason why I shouldn’t tell you as well, Judge. The CPS have made repeated approaches to District Judge Tooley to make a witness statement and give evidence, but he refuses point blank.’
‘For what reason, for God’s sake?’
Aubrey exhales heavily.
‘He says it’s beneath his dignity, Judge.’
I am truly taken aback.
‘Beneath what? Oh, for God’s sake. Leaving aside the fanciful concept of Jungle Jim having such a thing as dignity…’ I pause. ‘We are in chambers, you understand?’
‘Of course, Judge,’ they both reply at once.
‘Leaving that ridiculous notion aside, has anybody explained to him that I have power to order him to attend this court to give evidence? Would you like a witness summons? All you have to do is ask.’
Aubrey nods.
‘I’ve been giving some thought to that, Judge. It’s one of the reasons it’s taking so long. If it had been a more serious offence, I would be pushing more. But in this case I thought it would be prudent to consult at the highest level of the CPS before asking for a witness summons for a sitting judge. It may have reached the desk of the Director of Public Prosecutions himself, I’m not sure. I have given them a deadline of four o’clock this afternoon, so hopefully we will know soon.’
‘Yes, well, I see the wisdom of that,’ I agree. ‘If it is of any help to you to mention to the Director that the court is growing impatient, please don’t hesitate.’
‘Thank you,’ Aubrey says, ‘though I am actually more worried about the jury.’
‘You should be,’ I observe. ‘I sense they really want to hear from Jungle Jim, and I think they are likely to hold it against the prosecution if they don’t.’
‘As they should,’ Susan says. ‘In any case, I don’t think it’s got anything to do with his dignity.’
‘Oh?’
‘He’s embarrassed,’ she continues simply, ‘because he could have prevented this whole piece of nonsense, and he knows it.’
‘How could he have done that?’ I ask. ‘The defendant is entitled to come to the Crown Court for trial for this offence.’
‘It should never have got as far as that. We are only here because Jungle Jim had him arrested. Surely, all he had to do was to threaten him with contempt, or say, “Look here, young man, you’re getting yourself into trouble. Call your boss now and tell him to get down here within the next hour, or he’s the one who’s going to be in hot water.” There was no need to have him arrested. In addition to the waste of public funds involved in trying this nonsense, it caused all sorts of problems for Mr Khan and his new solicitors. It took them weeks to recover the privileged papers in Moffett’s briefcase, and I am sure the police took a good look at them before handing them back.’
I nod. She has a point. It was a typical Jungle Jim piece of palm tree justice. Make ruling first, engage brain later. But there is nothing we can do about that now, except to conclude this ‘nonsense’ as quickly and as fairly as possible.
* * *
Wednesday afternoon
It has been a light morning. Stella unloaded on me the few bail applications and plea and case management hearings we had listed, so I have at least freed up the other judges to get on with their trials, even if I can’t resume mine until Aubrey returns from whatever savaging he may be getting in the Court of Appeal. Lunchtime is likewise uneventful. Legless has been told to expect a verdict in his trial, a domestic burglary, immediately after lunch. Marjorie and Hubert are making progress with their street robberies. All seems in order.
When we resume, Aubrey tells me and the jury, without any elaboration at all, that the prosecution does not intend to call the District Judge as a witness, and that he is now closing the prosecution’s case. Susan is on her feet in a flash.
‘Your Honour, there is a matter of law I wish to raise in the absence of the jury.’
The jury trail wearily out of court, looking quite forlorn.
‘Your Honour,’ she begins as soon as the jury have gone, ‘I’m going to ask that you withdraw the case from the jury. There is no evidence on which the jury, properly directed by your Honour, could safely convict Mr Moffett of this offence.’
I stare at her for a few moments. Aubrey is hovering, but I signal to him to leave it to me.
‘Miss Worthington,’ I reply, ‘the defendant is charged with impersonating a solicitor. He attended the Magistrates Court dressed like a solicitor, signed in as a solicitor, gave the usher his card, seated himself in the solicitor’s row, and when questioned, told the District Judge that he was a solicitor.’
‘Yes, your Honour. That’s my learned friend’s, “if it walks like a duck and quacks like a duck…” argument. But it doesn’t work.’
‘I’m afraid I don’t follow.’
‘Your Honour, my learned friend thinks he is prosecuting Mr Moffett for impersonating a solicitor. But that’s not w
hat Mr Moffett is charged with. He’s charged with “doing an act in the purported exercise of a right of audience.”’
I take a moment to digest this.
‘It’s not an offence to attend the Magistrates Court wearing a suit and tie,’ she continues, ‘even if carrying a briefcase. It’s not an offence to look like a solicitor. It’s not even an offence to sit in the row reserved for solicitors, though admittedly it’s not the most intelligent thing to do.’
‘So, what does that mean?’ I ask eventually. ‘What amounts to exercising a right of audience?’
‘Ah, well, there your Honour has, if I may say so, hit the nail right on the head.’
‘I’m glad to hear it,’ I reply, disingenuously.
‘Because in fact, your Honour, this case seems to raise that very question.’
For the first time, I am beginning to feel slightly uneasy. When counsel says that a case ‘seems to raise’ a question, the implication is that there is going to be a point of law which may not have been decided before, and that I am going to be called upon to decide it myself. That’s just a short step from finding myself being mauled in the Court of Appeal one of these days, as may well have happened to some poor sod in Aubrey’s case this morning.
Susan pauses to consult a note.
‘Your Honour, at the Bar, we’re not allowed to exercise a right of audience before completing the first six months of our pupillage training. According to our rules of conduct, exercising a right of audience means “conducting any part of a case in court”. The natural meaning of “conducting part of a case” is that you advance the client’s case in some way: either by addressing the court about the law or the facts of the case or by asking the court to take action of some kind.’
‘Well, he did say something in court about wanting an adjournment for seven days,’ I reply weakly.
‘That was in reply to the caution when he was being arrested,’ Susan points out. ‘It hardly qualifies as advancing the client’s case.’
I recover slightly.
‘But he did address the court twice when Mr Khan’s case was called on, didn’t he? In fact, according to Mrs Hepple, he said he was Mr Khan’s solicitor. Isn’t that enough?’