“Well, strictly speaking we don’t have to ask anyone to give oral evidence,” Metcalfe replied, “since the defence agreed all our witness statements at the committal proceedings. Except Susan McCormick’s, that is.”
“Makes sense.” Collison nodded as he swallowed a piece of something which was masquerading as ham. “The only chance they have is to shake her evidence, and they can only do that in cross-examination.”
“Quite so,” Metcalfe agreed, suddenly realising that he was lapsing into legal patois himself. “Anyway, she’s here for when we need her. I checked.”
“OK, come on,” Collison said as someone pushed clumsily into them from behind, “let’s get out of here if you’re finished.”
“Has anyone noticed if Dr Barker is in court?” Karen Willis asked as they walked back.
“He’s not coming,” Metcalfe announced. “I went yesterday to make sure he had all the details of which court we were in, but he said he didn’t think he could face it.”
“Understandable,” Collison said briefly.
Towards the end of the afternoon Mr Barratt, by now noticeably a little hoarse, concluded his opening speech to the jury, and turned to address the judge. “May it please the court,” he said, “we now come to the question of oral evidence, on which an issue arises which both Mr Smithers and I are agreed might most happily be dealt with by your Lordship in the absence of the jury.”
“Yes,” said the judge, who had been expecting just such an eventuality ever since he had read his papers the day before. “Members of the jury,” he continued, addressing them with what he imagined to be an avuncular smile, “an issue has arisen of a strictly legal nature, which it is right that I should discuss with counsel alone. You should not infer anything at all from the fact that such submissions are being made. Indeed they are quite common in criminal trials. Would you now please go with the usher, who will take you to the jury room. I hope we will not detain you long.”
He waited for them to file out of court and then looked down at the two QCs. “Now then, Mr Smithers,” he said, reaching for the appropriate folder, “I assume you wish to address me on Ms McCormick’s evidence.”
“Indeed, my Lord,” replied the defence QC, rising to his feet. “Your Lordship will note that, as agreed between the prosecution and the defence, two different versions of the McCormick witness statement have been prepared, one including matters to which the defence objects and the other which does not. According to whatever decision your Lordship reaches on this matter, one can be used and the other discarded. It was felt by my learned friend and myself that this would be the most convenient way of dealing with the matter.”
“Very sensible,” the judge commented.
“I’m obliged, my Lord. The issue arises in this way. The defendant, when questioned, put forward alibi evidence for the night of the killing of Katherine Barker, the nature of his alibi being that he spent that night at home with Susan McCormick. When she was asked to confirm this, however, she declined to do so. My Lord, we recognise that this raises an express issue of fact on the evidence and that it is right that she should give her evidence on this and be cross-examined upon it.”
“Indeed,” the judge acknowledged, “but presumably you seek to exclude the wider evidence which she gave on other matters.”
“Your Lordship has the point exactly. Ms McCormick says that she visited the defendant’s flat on one occasion only, that she was there only for a short period, that she cut short her visit because she felt him to be behaving strangely towards her, and that after leaving the flat she began to believe that a drink she had been given by the defendant had in fact been drugged.”
“And the basis of your submission is…?”
“My Lord, this evidence is hugely prejudicial to the defendant and yet is vague and incapable of independent verification. What sort of behaviour constitutes ‘strange’ or ‘weird,’ and to what extent may Ms McCormick’s view have been coloured retrospectively by the fact that by the time she was asked these questions it must have been obvious that the defendant was being investigated by the police? As to the allegation of the defendant attempting to drug her, no medical evidence at all of this has been submitted. We do not question Ms McCormick’s good faith, but again hindsight may be colouring her views. Suppose she just felt sleepy for perfectly natural and unconnected reasons?”
He watched the judge’s pencil and waited for it to stop moving.
“My Lord, this is not similar fact evidence. It is common ground that each of these killings featured the topical application of chloroform, not the ingestion of some sort of sleeping draught. My fear is that if your Lordship should allow this evidence to go before the jury then its prejudicial effect would far outweigh its probative value.”
“Thank you, Mr Smithers, that is most helpful. Mr Barratt, what do you say?”
“My Lord, may I say at once that I do not seek to argue that this is similar fact evidence. I hear what my learned friend says on that, and am content not to contest it. However, I do say that as a matter of common sense and practicality, it may prove very difficult to excise it. The accused says the witness spent the night with him. She says she did not. My friend will presumably ask her in cross-examination how she can be so sure about that. Surely any answer she gives is likely to lead us straight into the circumstances of this earlier meeting?”
“I think we can leave it to Mr Smithers how he chooses to put matters in cross-examination, Mr Barratt. This is your witness. The issue is surely what matters you may properly put to her during examination in chief?”
The judge looked over his glasses at the prosecution benches with the air of a man who knows he has just scored a palpable hit.
“My Lord, clearly I do seek to put these matters to the witness.”
There was a pause during which the spectre of the Court of Appeal hovered menacingly over the proceedings.
“Then I must give a ruling,” the judge said calmly. “I find I am with Mr Smithers on these points. You may ask the witness how many times she visited the defendant’s flat and how long any such visit may have lasted. I will exclude any further aspects of the McCormick evidence. Mr Barratt, in case you might at any time wish to raise this point in other proceedings I will happily deal with it fully during my judgment.”
“I am obliged, my Lord,” Barratt replied, bobbing up and down again languidly with every appearance of indifference.
The jury were now recalled and informed that the prosecution had concluded their opening speech. It was explained that all the evidence in the case had been agreed as just stated by prosecuting counsel save only for the question of a disputed alibi.
“It is of course for his Lordship to direct you,” Barratt said with a deferential nod in the direction of the bench, “after both the prosecution and the defence have closed their cases. However, if it assists at this point, the prosecution would willingly concede that if you believe the accused’s evidence as to his alleged alibi then clearly you must acquit, since by definition he could not have been at the crime scene at the time when the murder was committed.”
“That is indeed helpful, Mr Barratt,” the judge said. “Thank you.”
“I call Susan McCormick,” Barratt said.
The tall figure of Susan McCormick took the stand and recited the oath in a clear, steady voice as she glanced calmly around the courtroom.
“Ms McCormick,” Barratt said, “there is only one matter I wish to ask you about. Can I ask you please to look at the witness statement in front of you? My Lord, members of the jury, in the interests of convenience the witness is being shown a photocopy of the document you have beginning at page 14 in bundle number 3.”
A rumbling of folders and fluttering of pages now ensued as the jury self-consciously found the right place in the right bundle.
“What you have there, Ms McCormick, is a statement given to the police by the accused after his arrest but before he was charged. Can I take you to the second page? You
will see in the second paragraph that he says that he was with you on the night Katherine Barker was killed. In fact, not to put too fine a point on it, he claims that you spent the night with him at his flat. The whole night.”
“I see that, yes,” she said. “It’s not true. I’ve already told the police that.”
“Quite so,” Barratt said, “but it is contested by the defence and so I am afraid we have to ask you to tell the jury and his lordship as well. Just to be clear, when you say it’s not true, does it contain any truth at all? Did you, for example, spend some part of that night, or even the evening, at his flat?”
“No,” she said firmly, glaring at him. “I did not.”
“How can you be so sure?”
Smithers jumped to his feet. “Really, my lord,” he exclaimed. “Is my friend intending to cross-examine his own witness?”
“Yes, Mr Smithers,” the judge acknowledged. “Mr Barratt, I am uncomfortable with giving you too much leeway here, particularly in view of my earlier ruling.”
“Then perhaps I could make the question less open-ended,” Barratt suggested smoothly. “Ms McCormick, have you ever in fact spent the night at the accused’s flat?”
“I will allow that,” the judge said, “but after Ms McCormick has answered the question I think we must leave it to Mr Smithers to decide whatever he may or may not wish to raise in cross-examination.”
“I am in your Lordship’s hands, of course,” Barratt said loftily. “Ms McCormick, could you answer my last question, please?”
“I have never spent the night with the accused,” came the reply, “whether at his flat or anywhere else. Just to be clear, I have never had any form of sexual contact or physical intimacy with him—of whatever nature. Nor would I ever wish to.”
She seemed to shudder at this thought, and an expression of distaste, or even disgust flitted across her face. It was only there for a moment, but Barratt was quick to notice it, and hoped the jury had too.
“Thank you,” Barratt said, sitting down. “Could you stay there, please? I think my learned friend may have some questions for you.”
Smithers stood up and shuffled his papers. “Ms McCormick,” he said finally. “I have to put it to you that what you have just said is not true.”
“It most certainly is true,” she responded very firmly indeed.
“I put it to you,” he pressed on, ignoring her reply, “that in fact you did over a period of time have some form of relationship with the defendant, a relationship which perhaps you now regret, particularly in the light of the grave accusations which have been made against him, but a relationship which nonetheless happened?”
“No,” she said, “I did not.”
“You may wish to reconsider that reply,” Smithers said, looking at her gravely. “I know you do not have the full trial bundles in front of you, but let me point out from the forensic reports that when the defendant’s flat was examined by Scene of Crime Officers, some DNA was discovered which did not belong to the defendant. It was subsequently identified as being your own, after you gave a saliva swab to the police.”
“That’s hardly surprising,” she riposted with a tight smile. “I didn’t say I had never been to the flat. I went there once and once only after he did me a favour by fixing my computer for me. He invited me round for a drink and I felt it would be churlish to refuse.”
“Which rooms did you use?” Smithers asked.
“The living room, of course—and the bathroom, I think. Yes, I used the bathroom while I was there, just before I left.”
“Not the bedroom then?”
“No, of course not.”
“Then can you explain how your DNA came to be found in the bedroom—on the bed itself, in fact?”
A murmur ran through the court. For the first time, Susan McCormick seemed rattled and taken aback. “No,” she said uncertainly.
“No further questions, my Lord,” Smithers said, sitting down with a sigh of relief.
Barratt had already risen. “Ms McCormick,” he said soothingly, “do you remember if you had a coat or a handbag, or both, with you when you visited the accused’s flat?”
“A handbag certainly,” she said, with a nod. “I’m not sure about a coat, but possibly. In fact, I remember I had some shopping with me as well. I’d just been to the supermarket.”
“Do you remember what happened to any of these items when you put them down?”
She wrinkled her face in concentration. “I do have a dim recollection that he took them away from me, because I can remember him going to get them when I left, so I suppose they must have been in a different room.”
“Thank you very much,” Barratt purred. “No further questions.”
Chapter Twelve
After all the legal sparring over Susan McCormick’s evidence, the few minutes which it had taken to deliver and test it seemed to pass very quickly.
“That concludes the case for the prosecution, my lord,” Barratt said, and sat down with the air of a job well done.
Now it was Smithers’s turn to stand up again. “May it please the court, I call the defendant, Mr Clarke.”
Collison noted to himself that the defence team would always refer to the accused as “the defendant,” as if to blur the line between criminal and civil proceedings, whereas for the prosecution it was always “the accused” or even “the prisoner.”
Clarke took the stand looking tense.
“Mr Clarke,” Smithers said, “would you please tell the jury where you were on the night of 15th May last? If I may be permitted to lead on this point, just to be clear, that was the night on which it is common ground that Katherine Barker met her death.”
“I was at home all night,” Clarke replied.
“Alone?”
“No, I was with Susan McCormick, the lady who gave evidence earlier.”
“So you heard her say that your claim was untrue?”
“I did, yes.”
“But you still say that you were at home that night and that she was with you?”
“Yes, she stayed the night.”
“Just to be clear,” Smithers said, turning to the jury as if to apologise for trespassing on a sensitive area, “when you say she stayed the night, do you mean that she spent the night with you in your bed?”
“Yes, I do.”
Smithers turned again to the jury, before continuing. “Could I now take you to a different point? Much has been made of a box which the police found in the loft area accessed from outside your flat.”
“Which they say they found there, yes,” Clarke replied.
“Well, as to that the jury must of course make up their minds—,” Smithers said hurriedly, but Barratt was already on his feet.
“My Lord,” he said, looking deeply pained, “could I remind the court that the witness statements of the police officers concerned were agreed by the defence at the committal proceedings. Does my learned friend now seek to re-open these matters? If so, that would of course give rise to various procedural issues…” He let the sentence hang in the air.
The judge was also clearly unhappy. “Quite so, Mr Barratt, quite so,” he concurred. He glanced at the clock. “Mr Smithers, since you will undoubtedly wish to take instructions on this point, would that be a convenient moment for me to rise? And will you please inform my clerk as soon as possible what the basis of those instructions might be?”
“Thank you, my Lord,” Smithers said. “That would indeed be convenient.”
The court rose while the judge gathered his papers and left, having first bowed to the members of the bar, who reciprocated.
The police team gathered once again in the lobby, this time in the august company of both Alistair Partington and Patrick Barratt QC. The latter had pushed his wig towards the back of his head as if to signal that the day’s serious business was over.
“Clients who won’t follow the script really are a barrister’s worst nightmare,” he said. “I’m sure he’ll have been told that
he wasn’t allowed to say that.”
“Does it matter, do you think?” Collison asked.
“Not a scrap,” Barratt said confidently. “The defence will bob up tomorrow, withdraw the remark and ask the judge to ask the jury to disregard it.”
“But they’ve already heard it,” Karen Willis pointed out, not unreasonably.
“Yes, but if anything it hurts the defence,” Barratt replied. “A defendant casting doubt on the word of two senior police officers with not a shred of supporting evidence? No, I rather think they will take it for what it obviously was: the last throw of a desperate man.”
“What about that DNA evidence?” said Metcalfe. “Funny, I don’t remember that from the lab reports.”
“That one came late, if you remember,” Karen explained. “We only just had time to get it into the bundles before they went out.”
“I don’t think it really adds much, does it?” Partington said sceptically. “We know she was in the flat and if her coat or something was put on the bed that would explain the DNA. It was only a minute amount, after all.”
Barratt nodded sagely and gazed meaningfully at his watch. Taking the hint, the party stood up and took their leave, the barristers sauntering off towards the robing room. Collison sensed, with some amusement, that the other two wanted to be on their own and left them with a cheery farewell. Metcalfe looked at Karen.
“Oh Bob. Not here, not now, please.”
“I just need to know,” he said abjectly, “whether you’ve made a decision, I mean. I’ve been on tenterhooks since you went away.”
“Yes I have, and yes, it’s you,” she said. “There, so now you know. But please give me time to do this right, or as right as I can anyway.”
“Have you said anything to Peter?”
“No, and that’s why I need some time,” she said calmly. “We’ve been together for five years now, and it’s not the sort of thing I can just blurt out. I need to choose my moment.”
“OK, OK,” he said hurriedly, trying to stop himself from beaming. “You must play it exactly how you want. Don’t worry. Now I know how you feel I can be as patient as you like.”
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