One Law For the Rest of Us

by Peter Murphy

  ‘Yes. And a day or two after that, we also met Mr Pilkington, and two senior police officers.’

  ‘DI Walsh of the Met, and DI Phillips, who is based at Parkside police station in Cambridge?’

  ‘Yes.’

  ‘And did you report Emily’s complaint to those officers?’

  ‘Yes, we did.’

  ‘Mr Marshall, did any of that – your contact with Miss Cathermole, Miss Castle and myself, and the officers – have anything to do with any plan to sue Lancelot Andrewes School?’

  ‘No, not at all. It never occurred to us. Our first concern was to protect Emily, and our second concern was to make sure that there was an investigation, to find out what was going on at Lancelot Andrewes. We were completely in the dark. Our only purpose was to find the best way of getting an investigation started. Our main focus was on taking care of Emily. Suing the school wasn’t in our minds at all.’

  ‘Now,’ Ben said, ‘I want to go back to the time when Emily told Audrey that she had been touched. What happened in the early hours of the following morning, at about three o’clock?’

  Ken shook his head, and did not respond for some time. ‘I’ve never experienced anything like it,’ he replied quietly, ‘and I hope I never will again.’

  ‘Take your time,’ Ben said.

  ‘Audrey and I were in bed. She had cried herself to sleep, eventually. I checked on Emily, and then I went to sleep myself, and everything seemed normal – as much as anything could be normal, in the circumstances. And then I heard this terrible scream, almost as if someone was taking a knife to her. She was sitting up in bed, screaming, and telling me that men had touched her. To be honest, at first I thought she was having a nightmare, and I was trying to calm her down. But she wasn’t having it. She kept on and on, saying, “I remember now”. She said that she remembered now that men had been touching her.’

  ‘She told you she had remembered something about being touched?’

  ‘Yes.’

  ‘Did she give you any more detail about what she had remembered?’

  ‘Not that night. She was too distressed. She was making herself ill. She had to run to the bathroom once or twice. In the end, I had to call our doctor to come round and sedate her. There was nothing else I could do. As time went by, and she calmed down, she did gradually tell me what she remembered. She said that –’

  ‘Whatever she may have said,’ Norris objected, getting to his feet, ‘is hearsay and inadmissible.’

  ‘It may be hearsay,’ Ben replied at once, ‘but it’s not inadmissible. My learned friend has specifically accused Mrs Marshall of fabricating evidence in an effort to create corroboration for Emily, get Father Gerrard convicted, and then sue the school. The jury should hear what she said before she’d had any opportunity whatsoever to concoct such a devious plan.’

  Judge Rees nodded. ‘I agree, Mr Schroeder. You may answer, Mr Marshall.’

  ‘Over the next day or two, she described in some detail what she’d remembered when she’d been a pupil at the school herself in the early 1940s.’

  Norris stood again. ‘If it was a day or two later,’ he objected, ‘she’d had every opportunity to think about corroboration, as had this witness.’

  ‘That will be a matter for the jury to decide, Mr Norris,’ the judge replied. ‘You will have your chance to cross-examine. Continue, please, Mr Marshall.’

  ‘My Lady, she told me that she remembered at least four occasions when Father Gerrard had taken her from her dormitory to another room, where she was touched in a sexual way by two or three men.’

  ‘And did she, on later occasions,’ Ben asked, ‘tell you that she had identified one or more of the men who had touched her?’

  ‘Yes. I know this was as a result of seeing some photographs in The Times. I wasn’t present when she first saw the pictures, but she showed each of them to me later, and in each case, she told me that she remembered that man in the photograph as one of the abusers.’

  ‘Who did she identify to you in this way?’

  ‘Lord AB, Sir CD and Bishop EF.’

  ‘Thank you, Mr Marshall. Finally, I would like to return to the time when you and Audrey were dating, between 1960 and 1963. I’m sorry if you find this embarrassing, but it may be of some importance.’

  ‘I understand.’

  ‘Thank you. In the course of your getting to know each other sexually, did anything happen that struck you as strange?’

  He smiled. ‘I think it struck both of us as strange. Neither of us had any particular sexual inhibitions; we were quite open and free with each other. But there was something she couldn’t bring herself to let me do for her – not at first, anyway.’

  ‘Would you mind telling the jury what that was?’

  ‘She wouldn’t let me put my fingers inside her.’

  ‘I’m sorry to press you, Mr Marshall, but it may be important. When you say, “inside her”, what do you mean?’

  ‘I’m sorry. Inside her vagina. Anything else wasn’t a problem; it was just that one thing. I couldn’t understand it, and she couldn’t understand it any more than I could. Looking back on it now, it all seems so obvious… but at the time, as I say, it was a bit of a mystery.’

  ‘How did her unwillingness to allow this one thing manifest itself?’

  ‘She would push my hand away, tell me no, she didn’t like it. Sometimes, she would giggle and complain that I was tickling her. There was nothing I could do, at least at first. She just couldn’t bring herself to let me touch her in that way.’

  ‘You say, “at first”. Were you able to overcome the problem?’

  ‘Sometimes, yes, but not every time. Often, we just moved on, a bit awkwardly, to another activity. She could only let me do it if I asked her to keep her eyes open the whole time and look at me, so that she knew it was me, and she would feel safe. There were times when that made her relax, and I was able to touch her, and she had an orgasm. I can’t believe we didn’t work out what it was all about. It seems so obvious looking back now, but –’

  ‘Let’s not have too much speculation, please,’ Norris muttered without getting up.

  ‘Thank you, Mr Marshall,’ Ben said. ‘That’s all I have. Wait there, please.’

  ‘Mr Marshall, when your wife woke up screaming, you thought she was having a nightmare, did you?’ Norris asked.

  ‘That was my first reaction, yes.’

  ‘Thank you,’ Norris replied. ‘Nothing further, my Lady.’

  ‘That’s as far as we will go this afternoon, members of the jury,’ Judge Rees said, after the court had adjusted to the abrupt conclusion of Ken Marshall’s evidence. ‘Please be back in time to resume at ten thirty tomorrow morning.’

  She waited for the jury to file gratefully out of court.

  ‘Where do we stand now, in terms of the evidence?’

  ‘My Lady,’ Ben replied, ‘tomorrow morning I will call DI Walsh as the officer in the case. DI Phillips is also available. Those two officers can deal with the investigation generally. There are other officers who played a role in interviewing potential witnesses. If my learned friend would like to indicate which officers he would like me to call, I will make sure they are available.’

  ‘My Lady,’ Norris replied, ‘it may be that we can save some time. All I’m really interested in is, how many potential witnesses the officers interviewed. If my learned friend and I can agree the number, I have no reason to call the officers.’

  Ben nodded. ‘My Lady, I’m sure my learned friend and I can agree on that if we can put our heads together outside court for a few minutes now; and in those circumstances, I will be in a position to close the prosecution case more or less first thing tomorrow morning.’

  ‘As I’m sure your Ladyship will have anticipated,’ Norris added, ‘I will have a submission of no case to answer.’

  �
�I can’t say that I’d anticipated it, Mr Norris,’ Judge Rees said. ‘But I will look forward to hearing it. I will rise until tomorrow morning.’

  27

  Thursday 9 May 1974

  ‘My Lady,’ Anthony Norris began, ‘now that my learned friend has closed his case, and in the absence of the jury, may I come to my submission of no case to answer?’

  ‘Yes, Mr Norris.’

  ‘My Lady, I don’t say that there is no evidence on which the jury, properly directed, could convict. But I do say that it would be extremely dangerous to leave the case to them as the evidence stands. There would be a real potential for a miscarriage of justice.’

  ‘In what way?’

  ‘My Lady, let me begin with the historic charges in counts three and four. The prosecution has presented the jury with two witnesses, Mrs Marshall and Woman B. The evidence of both is open to serious doubt. In Mrs Marshall’s case, she asks us to believe that she spontaneously recovered memories of being abused, some thirty years earlier, in circumstances identical to those related by her daughter. We don’t even know whether this so-called recovered memory is memory at all, or simply an exercise of the imagination – and I’m sure your Ladyship remembers her husband saying that even he thought it was a case of a nightmare, very understandable, given what her daughter had just told her.’

  ‘He said that was his first reaction,’ the judge pointed out. ‘He seemed to be quite clear that he later came to believe that she had recovered the memories.’

  ‘He changed his mind subsequently. Of course, he did. He had to support his wife. But first reactions are telling, and your Ladyship must bear in mind the rather obvious motive both of them have to provide corroboration for the evidence of their daughter. Getting Father Gerrard convicted in this court is an essential step in preparation for their action against the school.’

  ‘They both denied in the strongest terms having any intention of suing the school,’ Judge Rees interrupted.

  Norris smiled. ‘They did, my Lady, and that in itself is suspicious.’

  ‘In what way?’

  ‘Well: why wouldn’t they sue the school?’

  ‘Excuse me?’

  ‘My question was rhetorical, my Lady. Why wouldn’t they sue the school? It’s the logical thing to do, surely. If they truly believe that Father Gerrard has exposed their daughter to this horrendous sexual abuse, why wouldn’t they sue? It doesn’t make sense not to: and for Mr Marshall, a solicitor who practices in the field of civil litigation, to tell the jury that the idea never occurred to him, is simply absurd. But even without that, they would naturally want to support their daughter, and providing her with corroboration is the best way they could possibly support her.

  ‘And then, your Ladyship must consider what it is Mrs Marshall is claiming. She can’t say when she lost her memory. But how could she have forgotten during those six or seven long years after she became, as she believes, too old to interest the molesters anymore? During those six or seven long years when she was living at Lancelot Andrewes School, trudging up and down those staircases every day, walking past the door of Father Gerrard’s library? How could she have forgotten when she discovered her sister’s body, and that sad note her sister left for her to find? Could she really have had no memory of the abuse at those times?’

  ‘She suggested that her mind suppressed her memories, to protect her; and that a traumatic event later led to their recovery,’ Judge Rees said. ‘That can happen, can’t it? These things can be very unpredictable. That seems to be the state of scientific opinion, doesn’t it?’

  ‘The jury haven’t heard any evidence of the state of scientific opinion, my Lady, so they are in no position to judge. But that just goes to prove my point. If it’s all so unpredictable, how can the jury be sure they can trust her evidence? Mrs Marshall is asking the jury to believe that she had such a vivid and complete recollection that she could later identify the three men who abused her – from photographs of them taken thirty years later and published in The Times. But the fact that the prosecution hasn’t charged any of those three men speaks for itself. How could they, on that evidence? And by the same token, how could they charge Father Gerrard?’

  ‘But they have Woman B too, don’t they?’ the judge asked. ‘She’s not claiming to have recovered her memory.’

  ‘Another witness who comes forward after thirty of years of silence,’ Norris replied, ‘in her case, after a meeting with Mrs Marshall’s solicitor, and after telling the police that she wouldn’t give evidence. It’s not hard to imagine what was said between her and Miss Cathermole, is it?’

  ‘You’re suggesting that she’s part of the conspiracy to sue the school, too?’

  ‘I haven’t called it a “conspiracy”, my Lady, and I do not call it such. A conspiracy is an unlawful agreement. There’s nothing unlawful about suing the school. Why are they all being so coy about it?’

  ‘It’s unlawful to commit perjury, Mr Norris, to give false evidence to this court: and you’ve certainly suggested that.’

  ‘Indeed, I have, my Lady. But it’s an extraordinary coincidence, isn’t it: after thirty years of silence, not even telling her husband, Woman B comes forward now, after talking with Mrs Marshall’s solicitor? Yesterday afternoon, my learned friend and I agreed between us that the police interviewed five other girls from Emily’s intake, and their parents, and four women who were contemporaries of Mrs Marshall at school: yet with the solitary exception of Woman B, not one of them has come forward to offer corroborating evidence.

  ‘Lastly, my Lady, I come to Emily and counts one and two. Emily was, your Ladyship may think, by some margin the best witness the prosecution has called, a very intelligent, articulate, and brave young girl. And I confess freely that, but for the fatal weakness in their other evidence, she would be enough to doom my submission to failure. But your Ladyship is required to direct the jury that it would be dangerous to convict on her uncorroborated evidence, both because she is a child and because she is a complainant with respect to sexual offences. It would be dangerous in the extreme to allow the jury to consider the evidence of her parents and Woman B as corroboration, when that evidence is so plainly unreliable.

  ‘In those circumstances, I respectfully submit that your Ladyship has no alternative but to withdraw this case from the jury.’

  Norris resumed his seat. Ben stood, but after some seconds the judge shook her head.

  ‘I needn’t trouble you, Mr Schroeder. Mr Norris, you’ve made some points which the jury will have to consider very carefully, and, as you rightly say, I will have to give the jury a very careful direction on the danger of convicting without corroboration, and explain to them what corroborating evidence there may be. But, at the end of the day, the strength of the evidence is a question for the jury to decide. You’ve raised some classic jury questions about the credibility of the witnesses, and the jury will have to answer those questions. But that’s why we have juries, and I’m not persuaded that it would be in any way dangerous to allow them to do their job. I shall, therefore, leave the case to them.’

  ‘As your Ladyship pleases,’ Norris said, rising to his feet again. ‘Before the jury return to court, I should tell your Ladyship that Father Gerrard will not be giving evidence, nor will he be calling any witnesses. I will open and close the defence case when the jury come back, and we can proceed without further delay to closing speeches.’

  Ben stood slowly.

  ‘In that case, my Lady, may I please have half an hour to regroup?’

  ‘Take an hour, Mr Schroeder,’ Judge Rees said. ‘We all need to regroup.’

  28

  ‘Members of the jury,’ Judge Rees began, ‘you’ve now heard all the evidence you’re going to hear in this case. You’ve heard closing speeches for the prosecution and the defence delivered by polished English voices, and now you have to listen to a rougher voice from the South Wa
les valleys for a while.’

  She smiled, and the jury chuckled.

  ‘I won’t take too long, I hope, but I have to sum the case up to you. Let me begin with two important matters. Firstly, what is your job, and what is my job in this case? As the judge, members of the jury, my job is to deal with the law: to decide what principles of law apply, and how they should be applied; and then to direct you about the law. That’s my job. You, on the other hand, are the judges of the facts. It’s your job to say what evidence you accept, what evidence you don’t accept, and what weight – in other words, what significance – any given piece of evidence has. You must then draw such conclusions as you think should be drawn from the evidence, and based on those conclusions, you must say where the truth lies, and you must return verdicts accordingly. No one else’s opinion about the facts matters at all – including mine. I don’t intend to express any opinion about the facts. But even if I did, or if I seemed to, it would be your duty to disregard it, because that’s not my job – it’s yours.

  ‘The second matter is what we call the burden and standard of proof. Members of the jury, in this case, as in all criminal cases, the prosecution bring the case, and the prosecution must prove it, if you are to convict. The defendant, Father Gerrard, doesn’t have to prove his innocence. In fact, he doesn’t have to prove anything to you at all. Therefore, the fact that he has decided not to give evidence or call witnesses is of no significance at all. The prosecution has the burden of proof. If you are to convict, the prosecution must prove the case beyond reasonable doubt. Nothing less than that will suffice. If you have any reasonable doubt at all about Father Gerrard’s guilt on any count, you must find him not guilty on that count.’

  ‘Now, members of the jury, please find your copy of the indictment, and let’s look at it together. As you know, there are four counts. Counts one and two relate to recent events, based on Emily’s evidence, and both allege a conspiracy. Counts three and four relate to older events, based on the evidence of Audrey Marshall and Woman B, and each of these counts also alleges a conspiracy. What is a conspiracy?