A Matter for the Jury (37 page)

‘Whose fault was it?' Arthur asked. ‘The accident?'

‘Number one,' Bill replied,
without hesitation. ‘He took his eye off the ball. He's got to wait for his assistant to clear the drop. But don't make him wait, that's the rule. Not if you want to stay on the list. Right, come on. We'll try that again.'

After Bert had been hanged six more times, Bill pronounced
himself satisfied.

‘Now, you can be number one,' he said, hauling Bert up yet again. ‘We are not going to worry about time for now. Just go through the motions. So, put Bert back in his chair and let's stand by the door.'

‘Would he be sitting down?' Arthur asked.

‘Good question,' Bill replied. ‘The answer is, be prepared for anything. He may be standing with the chaplain if the chaplain is present. You have to size the room up immediately on entering. You have to notice if you've got two dozy officers who are taking too long moving the wardrobe. If so, take a second more with the pinioning of the arms.
Make the whole sequence as smooth as you can. You don't want to stop and start. Make sure your path to the drop is clear before you start walking. Now, a tip. Wear the white cap in your top pocket, like a fluted handkerchief. That way, the condemned has no idea what it is. Uncle Tom came up with that, I think. Uncle Tom's brother Henry, our Albert's dad, had a peculiarity too, by the way. He used to adjust the noose first and put the cap over it.
But I would not recommend that. It may have worked for Henry, but it's not standard procedure.'

Arthur fluted the cap in the top pocket of his jacket. Bill handed him the arm strap.

‘It's eight o'clock. Go!'

Arthur strode forward, lifted Bert up, and tried to hold his
arms behind his body while fiddling with the strap. He dropped the strap once, and needed two attempts before fitting it. But he then lost no time in standing the dummy on the drop. Bill had the legs pinioned and was off the drop before Arthur had got the cap fully on. But Arthur took his time and adjusted the noose over the cap. He pushed the lever. The deafening noise rang through the empty chamber again and Bert dropped.

Bill nodded.

‘Not bad for a first try, Arthur.
We will have to work on the arm strap. But it's just technique. The position of the noose looked very good. We are not worrying about time at this stage, as I said, so that wasn't bad at all.'

‘You were right fast off the trap,' Arthur said.

Bill smiled. ‘I'm taking no chances with a beginner like you,' he replied. ‘I don't want you pushing the lever too soon, do I?'

They practised for the remainder of that day and a good deal of the next. Arthur's last hanging of Bert as number one was accomplished in twelve seconds, and with
no mistakes.

‘I'm not supposed to say this,' Bill remarked as they shook hands at the door of the wing, ‘but I think you will do very well. They will send you a letter eventually. It may take a while, so be patient. Then you will just have to assist at one execution before your position on the list is confirmed. Good luck.'

* * *

Arthur's test execution took place three months later. The execution took place at Pentonville, so Arthur had the confidence of knowing his way around the prison and having seen the condemned cell and the drop before. The condemned man had killed his wife for no apparent reason, and said that he was sorry for what he had done.
He had not resisted at all. It all happened so quickly that Arthur could later remember almost nothing except for the man's last words of remorse. He was supposed to be studying his number one's technique but, apart from the sheer speed of the action, it was all a bit of a blur. His leg pinion had gone perfectly and he had raced off the drop.
The deafening noise seemed to come at the very moment when his rear foot was leaving the trap. In the ensuing silence he walked silently back through the condemned cell with his number one, the assistant governor, and the prison doctor. There was a required wait of one hour before the body could be hauled down for the doctor to pronounce the cause of death, though there was no doubt about the cause of death. Death had been instantaneous.

The prison doctor approached Arthur unexpectedly.

‘Give me your wrist, please,' he said.

Taken aback, Arthur hesitated before extending his left wrist. The doctor held the wrist with a finger on his pulse, and consulted a silver pocket watch he had taken from the pocket of his waistcoat. He held his finger in position for a full minute. Eventually he released the wrist with a nod to the assistant governor.

‘Calm as you like,' he observed.
‘He will do.'

Number one patted him on the back.

‘Well done, Arthur,' he said. ‘Come on, time for breakfast. Let's try the prison bacon and eggs. They are not bad here, usually.'

The other thing Arthur learned in connection with that execution was that Thwaites would extend him a day's unpaid leave whenever he was called away to an execution. He had made the request to his manager rather sheepishly but, to his surprise, the firm seemed only too pleased to have someone performing an important public service. Naturally enough, in return, they wanted to hear all about it when he reported for work the following day, and Arthur
had to quickly learn the discretion required of an executioner in not talking about the detail of his work with the curious and the pruriently minded.

Within three years he had conducted his first execution as number one. The condemned was an East London villain who had used too much force on a guard in what was supposed to be a routine lorry hijacking. When Arthur entered the condemned cell he seemed paralysed with fear, and Arthur conducted the execution in a respectable eleven seconds. The result was the fracture of the spinal cord between the second and third cervical vertebrae –
and instantaneous death. The assistant governor was delighted and congratulated Arthur warmly before inviting him to breakfast.

53

1964

14 July

Court 4, the Lord
Chief Justice's court, is the showpiece of the Royal Courts of Justice, a large, richly appointed courtroom full of dark wood and brass fittings, the Royal Coat of Arms above the judicial bench hand-carved, the sheer dimensions of the place calculated to strike terror into any young barrister, without even considering the ordeal of an appearance before the Court of Criminal Appeal.
The room was big enough to make any advocate worry about whether his voice would even carry to the judges' bench, and Ben had many times heard a familiar joke at the Bar that you could only see the judges from counsel's row after any morning fog had lifted.

The Court had been created by Parliament in 1907 as a contemporary appellate court, to appease public concern about the fairness of jury trials, in the wake of several notorious miscarriages of justice. Unlike its predecessor, the Court for Crown Cases Reserved, the Court of Criminal Appeal was empowered to consider the facts of a case, as well as the law, and so was designed to provide an added layer of protection for defendants convicted by juries. But, even to experienced advocates, Court 4
did not feel reassuring. The Court, which consisted of the Lord Chief Justice and two High Court judges, had a reputation for having little tolerance for weak arguments or weak advocates. Anything less than a compelling argument, attractively presented, tended to get short shrift. The three members of the Court sat on high on their bench, far above the B
ar, intimidating in their austere black robes, offset only slightly by the subdued pale grey of their wigs.

As a pupil Ben had watched proceedings in Court 4 with Gareth Morgan-Davies, and had witnessed the judges' propensity to dissect without mercy and reduce to nothing what at first had seemed promising grounds of appeal.
Despite Gareth's reassurance about how much the Court had mellowed under Lord Chief Justice Parker, the aura of the place hit him as he walked into court at 10.20, ten minutes before the Court was due to sit. As a capital murder conviction, Ben's case had priority over other cases, and was first in the list. The list was substantial and other members of the Bar were already milling around, talking jovially to each other and to the usher. Ben sat quietly in junior counsel's row, doing his best to tune them out. They were not carrying the burden he carried. Perhaps they were representing
a burglar, or a fence who had been given a year or two for some act of routine, mediocre dishonesty. Perhaps some wayward lad who had gone a bit too far with a beer glass in a pub brawl. You could afford to be jovial when you had a case like that. The defendant probably had a long record and doubtless deserved every day of his sentence, so when the inevitable happened you could hardly feel too bad about it. You had another war story to share with your colleagues, the story of how abrasive they were to you in the Court of Criminal Appeal,
and of how you had bravely stood your ground and gone down with all guns blazing. Certainly, no one was going to blame you if the appeal was dismissed. It was only to be expected. But you had an outside chance of persuading the Court that the trial judge had erred in law, leaving the Court with no alternative, albeit with the great regret which always accompanied the triumph of form and technicality over substance and merit, but to allow the appeal. Some appeals had to be won, and if yours was one of them, it was a triumph, another feather in your cap, evidence that your advocacy was respected in high places.

But these were not Ben's concerns. Ben had an altogether different case. His client had not committed an act of routine, mediocre dishonesty, or gone too far in a pub brawl. He would not do a year or two and then be released. Ben's first appeal in this court was a case of life and death. If his appeal was dismissed, the court's
judgment would be a second death sentence, and this time it would be final. His stomach still churned from the recent experience of the verdict of guilty and the death sentence passed at the Assize Court in Huntingdon. Now, with little time to recover emotionally, here he was in the Court of Criminal Appeal, facing the only chance left to any lawyer to save the life of Billy Cottage. Even worse, his leader, Martin Hardcastle, had abandoned ship under cover of embarrassment that his professional conduct was being questioned.
As it should be, Ben reflected, but surely Billy Cottage ought to be represented by someone more senior, someone the court was more likely to heed. He should not have been left alone in this place. The only relief was that Billy Cottage would not be produced for the hearing. He would be notified of the outcome by the prison governor in due course. Ben thought that he could not have coped with his client, in addition to the court. His head was throbbing and his starched collar stuck stubbornly to his neck as if determined to hold his head in a fixed position. He looked up at the clock on the side wall of the courtroom.
Two minutes to go. Around him barristers were slipping quietly into their places and untying the lengths of ribbon that held their briefs. The jovial banter had stopped now. Barratt Davis tugged gently on his gown from the row behind and whispered ‘good luck'. Andrew Pilkington nodded in a friendly way from his place on the other side of counsel's row.

At exactly 10.30, an usher knocked loudly from outside court on the door leading to the judges' corridor, as another loudly ordered all in court to rise. The three members of the Court entered briskly. The Lord Chief Justice, Lord Parker, took his seat quickly in the middle, with Mr Justice Carver to his right and Mr Justice Melrose to his left. The robed associate stood.

‘My Lords, the first case in your Lordships' list is the appeal of William Cottage against conviction.'

Ben stood. Lord Parker was searching the bench for the list of counsel appearing before him, as judges often did when counsel had not yet become a familiar face.

‘Yes, Mr… Schroeder,' the Lord Chief Justice said. Ben caught the briefest of glances that passed between the three judges, and knew exactly what it meant. What was junior counsel doing arguing an appeal in a capital murder case?
If they gave him a chance, they would find out. His obviously junior status offered a slim hope of some sympathy. But not if he failed to make an impression. He felt, rather than saw, every eye in the courtroom on him as the Bar asked the same silent question as the judges. ‘Who are you, and why are you here in this case?' He had to subdue his churning stomach and aching head,
and answer their question.

‘May it please your Lordships,' he began, ‘I appear for the appellant, William Cottage. My learned friend Mr Pilkington appears for the Crown.'

He thought his voice sounded confident enough. None of the judges seemed to be straining to hear. He felt a slight surge in confidence.

‘My Lords, the appellant was convicted of capital murder at the Huntingdon Assize before Mr Justice Lancaster and a jury, on the 26 June of this year, and was sentenced to death. There are three grounds of appeal. The first relates to the learned judge's decision to allow the Crown to adduce evidence that Jennifer Doyce was raped.'

Ben studied the court's reaction.
He saw a faint smile cross the face of the Lord Chief Justice.

‘A point which your learned leader abandoned in front of the trial judge,' Mr Justice Carver observed.

So, has Mr Justice Carver been designated to take the lead?, Ben wondered. One judge took the lead and had responsibility for delivering the judgment of the Court in each case, so that there was a fair division of work between them. It seemed that the Lord Chief Justice might have called on Mr Justice Carver for Cottage's case. ‘
He likes to think of himself as tough but fair, a no nonsense kind of judge
,' Gareth had said, when Ben told him who the members of the Court were
.
But Ben was not ready to appeal to fairness directly – at least not yet. That would come later, after they had disposed of the points of law.

‘Yes, my Lord , but…'

‘And he was right to do so, was he not? As the learned judge himself pointed out, if the jury focused on the rape, that would provide the best opportunity for them to reject the allegation of the course or furtherance of theft.'

‘My Lord, yes. But it increased the appellant's chances of being convicted of murder, and did so in a highly prejudicial way.'

‘Why do you say that?' the Lord Chief Justice asked. ‘The issue was really the identity of the killer, wasn't it? Whoever it was committed an act of rape, but that in itself did not incriminate Cottage at all.'

‘In addition,' Mr Justice Melrose chimed in, ‘why should the Crown not be entitled to lead the evidence of rape? It was part and parcel of the whole transaction, wasn't it?'

Ben reeled under the force of the combined onslaught. He was now experiencing at first hand the horror stories he had heard about
the summary demolition job of which this court was capable. He felt himself bathed in sweat, and his field of vision seemed to have shrunk to a narrow tunnel connecting him to the Lord Chief Justice. He struggled desperately for a reply.

‘Why don't you move on to the second ground of appeal?' Mr Justice Carver suggested. ‘That involves a point of law, does it not?'

Ben took the hint.

‘Your Lordship is quite right,' Ben agreed. ‘There is a question of law. As the case was presented by the Crown, on any view, this was not a case of killing in the course or furtherance of theft and, therefore, was not a case of capital murder. My learned friend very fairly opened and presented the case on the basis that the defendant killed Frank Gilliam primarily in order to further his intent to rape Jennifer Doyce.
That was the Crown's case throughout. They portrayed Mr Cottage as a sexual predator, even adducing his previous conviction for indecent exposure, and the jury must have convicted on that basis.'

Ben saw that the Lord Chief Justice had been about to speak, but that he then deferred to Mr Justice Carver. Now, Ben was sure who he was dealing with.

‘But, Mr Schroeder, there was evidence, was there not, from which the jury was entitled to infer that Cottage stole Miss Doyce's cross and chain at some time during the events that occurred on board the house boat, the
Rosemary D
, on that evening?'

‘My Lord, I must accept that there was.'

‘Well, in that case…'

‘But, my Lord, there was no evidence that the killing of Frank Gilliam was in any way directed to that end. The evidence was equally consistent with any theft having been no more than an afterthought at the conclusion of the rape of Miss Doyce, by which time a substantial time had elapsed since the killing of Mr Gilliam.'

The judge nodded.

‘Is there the law on that point?'

Suddenly, Ben felt on stronger ground. He had the feeling that he was warming to the courtroom.

‘My Lords, the Homicide Act 1957 provides that killing in the course or furtherance of theft is one of the categories of capital murder.
The term “in the course or furtherance of theft” is not defined, except that by virtue of section 5 (5) (e) :
“theft includes any offence which involves stealing or is done with intent to steal”.
It is straining the meaning of “in the course or furtherance” to suggest that it covers a case in which the killing may have been committed before any intention was formed to steal, and in which all the direct evidence pointed to an intention to rape.'

‘But that is not a point of pure law, is it?' Mr Justice Melrose was asking. ‘Surely everything depends on the view the jury took of the evidence?'

‘My Lord, not if there was no proper basis on which the jury could be invited to draw that conclusion. It was so improbable in the light of the evidence as a whole that it cannot have been safe to invite them to draw it. There was no evidence that the murderer knew of the existence of the cross and chain, much less formed any intent to steal it, until Frank Gilliam was already dead.'

They were not shooting him down summarily on this ground, Ben noted with satisfaction.

‘I believe your Lordships have been provided with a copy of the case of
Jones
, reported in the first volume of the Queens' Bench Division Reports for 1959, in which Lord Parker gave the judgment of the Court.'

‘Yes, I remember the case, Mr Schroeder,' the Lord Chief Justice said, smiling. ‘But that was a case where the accused committed a murder in order to facilitate his escape after the theft had been completed.'

‘My Lord, it was. And I cite it in the hope of persuading your Lordships that there is a clear point of distinction. Where the theft has been completed, it does follow, as your Lordship held, that killing to make good one's escape should be regarded as being in the course or furtherance of theft. But where the killing occurs, not only before the theft occurs, but before there is any intent to steal, the same logic cannot apply. Indeed, it would seem that the only conclusion the jury could properly reach is that the killing
was wholly unrelated to the theft.'

‘But I am not sure why the jury could not properly conclude that there was an intent to steal before Gilliam was killed,' Mr Justice Melrose persisted. ‘If that is the case, surely the learned judge was right in leaving that issue to them. He directed the jury that they must first consider whether Cottage murdered Frank Gilliam. If they were not sure of that, then the verdict would be one of not guilty. If they were sure of that, they must go on to consider whether the murder was in the course or furtherance of theft. If it was, they would convict of capital murder; if not, they would convict of non-capital murder. Surely, the learned judge took exactly the right approach?'