by Peter Murphy
Jurors start their first week of service as a collection of individuals who have never met each other before, and who often resent being dragged away from home or work into a new and strange environment to meet each other now. But once they are engaged in a case, something remarkable happens. This random collection of individuals somehow becomes a jury – a unique creature with its own identity and its own values, a creature that won’t be told what to do, and stubbornly does what it thinks is right. This isn’t always convenient, as every judge knows to his or her cost. If you try too hard to nudge a jury in one direction, they’re likely to go in the other, and we’ve all had cases where we’ve subtly suggested an acquittal only to find ourselves staring at a conviction delivered in record time – and vice versa. It’s frustrating, but at the same time comforting, because stubborn juries are one of the great protectors of our liberties; and besides, no judge I know would want the responsibility of finding defendants guilty or not guilty. We are only too glad to leave it to juries, because at the end of the day there is safety in numbers and in collective common sense. Apparently, this jury is no exception, because after deliberating until three-thirty about the foregone conclusion we are all expecting, they send me a note, signed by the foreman.
Your Honour, we regret to advise you that the jury is hopelessly deadlocked. Six of us think the defendant is guilty. Six of us think we should find him not guilty, because without evidence from the District Judge we can’t be sure we really know what happened. Nobody is moving and it seems that we won’t be able to reach a verdict. Sorry.
I sit and ponder the note for some time. I can’t help smiling, but it’s not a happy smile. Jungle Jim’s ‘dignity’ has played its part in the case after all. Now, thanks to him, we’re looking at a retrial, involving not only three or four more days of Crown Court time but also weeks, if not months, of anxiety about his future for Wilbraham Moffett. But that’s down the road. For now, I have to manage the situation, and it’s not quite as straightforward as the note might suggest.
The foreman, I’m sure, thinks that’s the end of it; that I’m about to discharge them and send them home, their work on this case having come to an end. But it’s not quite as simple as that. I can’t just accept the deadlock and discharge them. In the old days, verdicts had to be unanimous, but for many years now, once the jury has been out for a little over two hours, the court can accept a majority verdict of ten to two or eleven to one. But first, I have to give them what’s called the majority direction. I have to tell them what majorities are acceptable, and I have to ask them to keep on discussing the case and do their best to reach a unanimous verdict. The note makes it pretty clear that that’s not about to happen in this case, but I have to ask them to try. There’s no point in giving them the majority direction today. By the time I give it, we would be within half an hour of sending the jury home for the day. I decide to explain all this to the jury, after which I send them away until tomorrow morning.
* * *
Friday morning
Arriving in chambers armed with my latte from Jeanie and Elsie, I find a message from Marjorie, asking to see me before court to ask me about a sentence she has listed this morning. I remember the case well. It’s a horrific GBH involving a nasty permanent injury to the victim, and she’s contemplating sending Chummy down for a very long time. That’s something that gives all of us the jitters, even when we are convinced that there’s no alternative, and a friendly ear is always welcome. There’s no doubt at all that Marjorie has got it right, and after I’ve reassured her, she asks about my case. A friendly ear sounds good to me, too, at this juncture, so I sit down in front of her desk with my latte and unburden myself to her about my impending hung jury and my frustrations with Jungle Jim, and indeed the case in general.
‘The worst part of it,’ I say, ‘is that this young man is going to be kept hanging on until we can fit the retrial in, wondering whether he’s ever going to become a solicitor.’
She thinks for some time. Then, without replying, she reaches for Archbold, flicks through the index and alights on the page she needs. She walks around to me and points me to the passage she has found.
‘What about this?’ she asks. ‘If you have a hung jury, why don’t you give this a try?’
I read the passage she’s found and suddenly I feel a weight fall from my shoulders.
‘Thank you, Marjorie,’ I say. ‘You always seem to find answers like this. How on earth do you do it?’
She shakes her head. ‘It’s bloody Jungle Jim who should have found this, not me,’ she replies.
As soon as I take my seat in court, I give the jury the majority direction and send them back out. It only takes about five minutes. I have other matters to deal with during the morning, of course, but I’m not going to leave the jury out for long. I have no illusions that further time is going to make any difference, and in any case, I’m now very keen to see if Marjorie’s suggestion will work. I can’t rush them too much, but if they don’t send another note within an hour or so, I’ll bring them back and discharge them. Which, just over an hour later, the foreman having assured me that no amount of time would enable them to reach a verdict, unanimous or otherwise, I duly do.
‘Your Honour,’ Aubrey says, ‘my learned friend and I will consult the list officer about a date for the retrial. May we interrupt and mention the matter once we’re ready?’
‘Well, just before you do that, Mr Brooks,’ I reply, ‘can we just consider whether a retrial is really necessary?’
Both Aubrey and Susan are looking blank.
‘Your Honour,’ Aubrey says hesitantly, ‘the prosecution intends to proceed against Mr Moffett, so there must be…’
‘Let me explain,’ I interrupt. ‘I’ve listened to the evidence in this case for two days, which is two days longer than the District Judge was prepared to devote to it. I have also considered further the provisions of section 70 of the Courts and Legal Services Act 1990. It provides that anyone guilty of the offence of exercising a right of audience when not entitled to do so is also guilty of contempt of court – an offence which could and should have been dealt with in the Magistrates Court.’
‘Yes, your Honour. But…’
‘Having reflected on this provision,’ I continue, ‘I have reached three conclusions.
‘The first is: that if the District Judge had paid half as much attention to section 70 as I have, he might well have dealt with this case as a contempt, instead of having the defendant arrested and tried in the Crown Court.
‘The second is: that Mr Moffett is undoubtedly guilty of contempt of the Magistrates Court.’
I see Susan begin to twitch.
‘Give me a moment, Miss Worthington. I haven’t quite finished. My third conclusion is: that his contempt was a matter of stupidity rather than criminality, and that he was badly treated and let down by a solicitor who was supposed to be training him for the profession. From this I conclude that it would be out of all proportion for his legal career to be brought to an abrupt end by a conviction for this offence.’
I see I now have their undivided attention.
‘So, what I propose to do now is to rise for, shall we say, twenty minutes. At the end of that time, if Mr Moffett is disposed to plead guilty to contempt of court, I would propose to give him an absolute discharge. The result of that would be that the Law Society would take no action against him and he would be able to continue his studies to become a solicitor.’ I pause, just for a moment. ‘Of course, if he doesn’t want to plead, we will have to set a date for a retrial. I’m hoping that won’t be necessary but we shall have to see. Let me know.’
‘I will take instructions,’ Susan says.
‘Your Honour,’ Aubrey says, ‘I would have to consult with the CPS as to whether that plea would be acceptable to the Crown.’
‘Yes, of course, Mr Brooks,’ I reply. ‘And when you do so, please e
xplain to them that I take a very dim view of the prosecution’s failure to compel the District Judge to give evidence. In fact, I think it might fairly be described as a failure of prosecutorial discretion on the part of the Director of Public Prosecutions; and it may well have made it impossible for Mr Moffett to receive a fair trial. No possible criticism of you, Mr Brooks, of course; you did your best. But if we have to try this case again, I would be obliged to consider the implications…’
Aubrey looks at me for some time.
‘In the circumstances, your Honour, I feel confident that the Director would leave the matter in my hands.’
I smile contentedly.
‘Good. Well, let me know. If you need longer than twenty minutes, you can have it, of course.’
* * *
Friday evening
There are some weeks when things just go right. This week has been one. Legless is going to get his secure dock in court three and Wilbraham Moffett is free to continue his quest to become a solicitor. I only hope that he finds the real thing this time to help him reach his goal, rather than Ellis Lamont. But all things considered, it has been one of those weeks when the job seems really worthwhile. I have taken the Reverend Mrs Walden out to La Bella Napoli to celebrate with some excellent steamed sea bass, a fresh salad, and a fine Valpolicella.
Stella has given me another historic for Monday, but oddly, the thought doesn’t bother me. I do need to talk to someone about it all, and I really think I will. But it is true that a change is as good as a cure, and the nonsensical case of Wilbraham Moffett has been a breath of fresh air. It is also true that a drop of something nice and some great music can pour balm on the evils of the world.
When we return home, the Reverend Mrs Walden has a few things to do before retiring for the night, so I decide to relax in my favourite armchair with a nice glass of Armagnac, and I find myself in the mood for some music. I investigate the Reverend’s impressive jazz collection, acquired during her student days, which contains some great classics. Not normally my first choice in music, if I’m honest about it, but tonight for some reason it seems right. I select a Billie Holliday album, lie back, and allow her beautiful, sad, haunting voice to wash over me.
‘Oh, that’s lovely,’ the Reverend calls out from somewhere in the distance. ‘Turn it up a bit. I haven’t heard that for such a long time.’
When Billie approaches the end of the song, I sing softly to myself alongside her, and we reach for the high final notes together.
I’d lie for you,
I’d cry for you,
I’d lay my body down and die for you.
If that isn’t love, it will have to do,
Until the real thing comes along.
ARTISTIC DIFFERENCES
Last Friday afternoon
I daresay most Crown Courts have some kind of memorial to Resident Judges past, but I think it is fair to say that not many go to quite the same lengths to remember them as we do at Bermondsey. Let it never be said that we don’t do things in the grand style. There is a tradition we have kept going from the court’s earliest days that, on retiring, each Bermondsey RJ has his portrait painted and hung with due ceremony in the judicial mess. The portraits are the work of a Dutch artist called Jan van Planck. On Friday it was the turn of my immediate predecessor, Terry McVeigh. Terry retired when I took over, and is now living an apparently blissful life in Herefordshire somewhere, where he breeds some special kind of rabbit, serves on the Parish Council, haunts one or two good local hostelries, and generally blends in with the natives. But on Friday he sportingly returned to the court to play his part in the great tradition, his part consisting of joining us for lunch and a glass or two of wine before the portrait was officially hung.
It all seemed to go well. We enjoyed lunch (catered in, you understand, from Basta Pasta, a nearby Italian deli, not the usual stuff from our court kitchen). I made a short speech. Terry made a short speech. We congratulated Jan van Planck, who is always invited to lunch on these occasions, on his work. And finally we hung the painting alongside the others already in place. With Terry’s, we now have five. Rather dreamily, after a glass or two of an acceptable white Burgundy selected for the occasion by Marjorie, I found myself envying Terry; anticipating my own time in this happy situation; seeing in my mind’s eye my own portrait enshrined in the mess for posterity – which, the way things are working out, will be my only and modest claim to making a mark on history – and then returning to some idyllic life of leisure shared with the Reverend Mrs Walden. After lunch, we bade Terry farewell and sent him home to his rabbits with our blessing and an open invitation to visit us whenever he wishes, an invitation which has to be made, but which neither he nor anyone else expects to be taken up.
Everyone seemed to enjoy the occasion, but I could not quite bring myself to relax and have a good time like everyone else. This, I admit, was entirely my own fault. I had a guilty conscience, you see. Stella and I had practised a subterfuge on my fellow-judges by concealing a rather awkward circumstance from them. In mitigation, I honestly believed at the time that it was a necessary evil, but for some reason that reflection did not salve my conscience very much. The only good news was that it worked. No one knew of the awkward circumstance during the unveiling, although inevitably, that is now about to change. The subterfuge and the awkward circumstance concerned Jan van Planck’s presence at lunch. By way of explanation –
The relationship between Jan van Planck and the Bermondsey Crown Court has always been a slightly delicate one. It dates back to the earliest days of the court, which became operational in the mid 1990s. The RJ at that time, the first of the lineage, was Freddie Prideaux, a strange, taciturn man who I remember from my time at the Bar as someone lacking a sense of humour and having a rather inflated idea of his own importance. Hubert had just been appointed when the court opened. He is the only one of the current Bermondsey judges who was here in Freddie’s day, and it is from Hubert that I derive my knowledge of the Jan van Planck history. The story Hubert tells is that when Freddie was drawing close to retirement, about four or five years after taking the helm as RJ, he decided to initiate the tradition of the portraits. The tradition would begin immediately with a portrait of Freddie himself. One might have thought that a suitable photograph, nicely framed, would have sufficed for this purpose, but Freddie had grander ideas. Freddie’s vision was for a portrait in oil executed by a distinguished artist. The artist he selected for his portrait was Jan van Planck. Don’t ask me where Freddie found the funding for this project. It is a secret handed down on a strictly need-to-know basis, that is to say, from RJ to RJ, and that’s all I’m going to tell you. If the Grey Smoothies got wind of it, Terry McVeigh’s portrait would be the last in the series, and I have a personal interest in ensuring that it continues – at least to the extent of one more.
Jan was undoubtedly qualified for the task in terms of ability. He was about thirty years old at the time, with a number of portraits and other works, landscapes and still life studies in the Dutch tradition, to his credit. He had his studio and shop above an Indian restaurant in London Bridge Road, and was attracting some attention on the London art scene. The only slight problem was that he had also attracted the attention of the Bermondsey Crown Court. A year or so earlier, Hubert had presided at Jan’s trial on a charge of handling stolen goods. I had heard the story before, but Marjorie and Legless had not, so when I happened to announce that the van Planck portrait of Terry McVeigh was complete and ready to be delivered, Hubert took it upon himself to tell the story again in the judicial mess over lunch.
‘Freddie knew all about it,’ Hubert points out, ‘but it didn’t seem to concern him at all. He didn’t seem to have any problem with commissioning van Planck to paint his portrait, despite everything.’
‘What was the case about?’ Marjorie asks.
‘Jan has three very nice watercolours for sale in his studio,’ Hubert r
ecalls. ‘Very nice, actually. Unfortunately, it transpires that they were all stolen from a private collection in Hertfordshire, a country house, forget exactly where, not too far from St Albans, I think. Unfortunately for Jan, the police get a hot tip as to where they might find some of the loot, they get a search warrant, they turn his place over, and lo and behold, abracadabra, what should they stumble across but three of the best pieces from the burglary. So Jan is nicked, the police interview him, and he gives them a complete cock-and-bull story about some man turning up unannounced out of the blue at his studio with the paintings. “Morning, Jan, my name’s Joe Bloggs, and I’m liquidating my dear old deceased grandmother’s estate, and would you be interested in acquiring these fine watercolours at a reasonable price amounting to about a fifth of their real value?” Poor old Jan, being a trusting fellow, doesn’t suspect for a moment that there might be anything dodgy about it, perish the thought, so he stumps up the money and the deal is done. Unfortunately for Jan, the police don’t believe a word of it. They suggest that, as a professional, he must have known that he was getting the watercolours at a ridiculous price. So he is charged with handling stolen goods, and it comes before me. Open and shut case if I ever saw one.’
‘But he was found not guilty, wasn’t he?’ I ask rather nervously, recalling that Jan van Planck has received the court’s commission and been entertained to lunch five times since then.
‘Freddie knew all about it,’ Hubert insists. ‘But he still commissioned van Planck and invited him to the court.’
‘Well, yes,’ Marjorie says, ‘but if he got off –’
‘Well, yes, he got off,’ Hubert replies. ‘Of course he did. We had Harvey Steel prosecuting, didn’t we? Absolutely bloody useless. It’s a wonder anyone was ever convicted of anything in those days. Harvey Steel couldn’t get Fagin convicted of handling stolen goods, never mind Jan van Planck. And he’s prosecuting serious frauds now, so I hear. No wonder the banking system is falling apart. And Jan van Planck remains a man of previous good character. Absolute bloody travesty.’