A Matter for the Jury (39 page)

‘That was probably his last chance,' Ben said. ‘And I feel as though I've just been mauled by a pride of lions.'

‘That's the Court of Criminal Appeal for you,' Barratt replied sympathetically.
‘You did all you could have done, Ben. As the Court said, the case was put as clearly as it could have been put.'

Ben nodded. ‘Yes.'

They fell silent again.

‘Will you ask the House of Lords for leave to appeal?' Barratt asked eventually.

‘Yes,' Ben replied. ‘But I don't hold out much hope. The Court we had today seemed to think it was a pretty clear case. That's why they refused leave to appeal. The test is whether the case raises a point of law of general public importance.
Our problem is that it's essentially factual. It's simply a question of what is meant by “in the course or furtherance”, which is generally a jury question. We will be asking the House of Lords to interpret an Act of Parliament which is not obviously ambiguous on its face. I doubt they will want to do that. Still, we can but try.'

Barratt nodded. ‘I think the Court today got it wrong, but I agree with you about the House of Lords. So, now I have to put together my package for the Home Secretary on the subject of a reprieve.
Your job is done, Ben, but I would value your thoughts when we have got the materials together.'

‘Yes, of course. What avenues are you exploring?'

‘I've set wheels in motion on two fronts,' Barratt replied. ‘First, I have asked John Singer to comb through any school or medical records he can find in St Ives that might tend to suggest any mental slowness in Cottage – anything, really. I'm clutching at straws. I'm not very hopeful. Second, I have been in touch with Sydney Silverman MP. He is
a bit of a maverick, but he is the acknowledged leader of the abolitionist movement, and he is widely respected for that.'

Ben sat up in his chair. ‘And Silverman is prepared to help?' he asked.

‘I think so,' Barratt replied. ‘But there is a limit to what he can do. Most reprieves are granted in cases where the defendant is sympathetic in some way, or the case has exceptional features which would make it wrong to apply the death penalty. None of that applies to Cottage. It was a brutal attack for which there is no mitigation at all.'

‘So, what would he…?'

‘Silverman's view is that everyone knows abolition is coming. Legislation is on the way, and there is probably enough support in both Houses of Parliament, or there will be soon. So Silverman's argument is that it must be wrong to execute anyone so late in the day, when capital punishment will end in a year or two anyway.'

‘That's not a bad argument,' Ben observed.

‘No, it's not. Silverman will write to the Home Secretary, Henry Brooke, and he will try to arrange a meeting with him at the House of Commons. Our job will be to provide him with any materials which may help but,
to be honest, I'm not sure what those would be in this case. Our problem is that, once Cottage is convicted, this is a bad case – a really bad case.'

‘What is Brooke's record on capital punishment?'

‘Little known, but not all that promising. He is on record as having no objection in principle to the death penalty, though he is said to be a stickler for the law, and he has said that each case has to be judged on its merits.'

Ben reflected for a moment.

‘I think the law may help us with Brooke,' he said, ‘despite what happened today.'

‘Oh?'

‘Yes. All right, the Court of Criminal Appeal decided that we fall within the “course or furtherance” provision. Let's concede that for the sake of argument. Let's assume they have interpreted the Act correctly. Even so, there must be a question of whether Parliament really intended it to be capital murder when the murder was complete before any intention to steal was formed. It seems that Parliament failed to consider that point when they enacted section 5.'

‘They told us what “course or furtherance” means.'

‘Well, not really, because they ignore
d the question of when the intent to steal is formed – they didn't really address the timing point.'

Barratt was nodding.

‘And if they had considered it…?'

‘They might have provided a more precise definition of “course or furtherance”. It's a point Silverman may be able to make with the Home Secretary. We don't even have to say that the Court of Criminal Appeal got it wrong
today. We can simply say that the law is in an unsatisfactory state because Parliament has not defined its terms, and that it must be wrong to execute a man when we don't know what the boundaries of this kind of capital murder are.'

Barratt clapped his hands together.

‘Can you write me an opinion, saying that?'

‘I will have it with you tomorrow.'

‘Good,' Barratt said. ‘I'm afraid we may not have much time. A date for execution is usually fixed quite quickly once the appeal is out of the way – usually within two or three weeks. The House of Lords may buy us a few days, but not long.'

‘I'll make a start as soon as I get back to Chambers,' Ben promised.
‘Keep me up to date, so that I can look at the full package before you send it off.'

‘I will,' Barratt replied.

* * *

The three judges of the Court of Criminal Appeal had just risen for lunch, and were standing in the corridor outside their court. Lord Parker turned to Mr Justice Carver.

‘Young Schroeder did very well, didn't he?'

‘He did indeed,' Carver replied. ‘We didn't give him an easy ride, but he didn't seem intimidated, did he?'

The Lord Chief Justice thought for a moment.

‘What do you think we should do about Hardcastle?'

Carver shook his head.

‘It's a problem,' he replied. ‘On his day, the man is as good as anyone at the Bar, capable of brilliance at times. But we have been hearing rather disturbing rumours for quite some time now,
haven't we?'

‘I've certainly heard rumours of drinking, and not turning up at court from time to time,' Lord Parker said. ‘And what's worse is that the rumours come from a number of sources. If you hear such things from one man – well, you know what the Bar is like, it's the world's biggest rumour mill – you might be disposed to disregard it. But when you are hearing it from everyone, it's a different matter. You saw the letter Steven Lancaster wrote to me
about the Cottage case once the grounds of appeal had been filed.'

‘Yes.'

‘I didn't think it would make any difference to the way we looked at the case, and it didn't. But Lancaster said that Hardcastle failed to appear on a rather crucial day during the trial, claiming to be suffering from food poisoning, and left Schroeder to cross-examine Jennifer Doyce.'

‘What do you think?' Carver asked.

‘Well,' Lord Parker replied, ‘the problem as I see it is that, like all Silks, he may be carrying on in the happy expectation of a tap on the shoulder for the High Court bench one of these days. I think we need to bring that expectation to an end.'

‘So you will…?'

‘Unless either of you disagrees, I will have a quiet word with the Lord Chancellor's people and suggest that they offer him something at the County Court level.
Hopefully, he can't do too much damage there, and even if he does, the Lord Chancellor can dismiss him for misconduct.'

‘I don't disagree at all,' Carver replied.

‘Neither do I,' said Mr Justice Melrose.

55

Ben put his
head around the door of the clerks' room for the briefest of moments and exchanged a wave of the hand with Merlin to signal his return to Chambers. The senior clerk did not press him to come in. His experience had long ago taught him that there were times to talk to his barristers, and there were times to leave them alone with their thoughts.

Ben was grateful for Merlin's consideration. He walked quickly across the narrow landing which ran between flights of stairs and led to his room on the opposite side of Chambers. Closing the door behind him, he threw the bag containing his robes on to the floor in the corner of the room behind his desk and flopped into his chair. He hurriedly opened a notebook and wrote a heading:
‘
Application for Leave to Appeal to the House of Lords'.
It sounded hopeless even before he had completed the title. He sat and stared at it blankly, incapable of making a start.

As he gazed through the large windows of his room out into space and began to come to terms with his feelings, they seemed unexpectedly familiar to him and, to his surprise, memories quickly came flooding back. He had been here before. At the Old Bailey, during his first jury trial, he had found himself having to stand up to the fearsome Judge Milton Janner who was interfering with his vital cross-examination of the prosecution's main witness. Ben had bluntly defied the judge at 1 o'clock, just before lunch, and had been rewarded at 2 o'clock when the judge, recognising his error, apologised. But during that lunch hour, the same demons had come. Seated in a dark corner of the bar mess with a cup of coffee, fully expecting to be disciplined and expelled from Chambers, he had asked himself why he was there. During that one hour, he tortured himself with every imaginable doubt about his ability to succeed as a barrister. Now the demons returned with a vengeance. He had spoken with Billy Cottage. He had shaken his hand. Cottage had placed his trust in him. But Billy Cottage had been sentenced to death, and today Ben had lost him his last real hope of avoiding the gallows. His rational side told him that he must keep his role in perspective. He was junior counsel, and he lacked the power to restrain a forceful but wayward Silk like Martin Hardcastle. But his feelings did not end there, with the rational view. They never did.

Darkest of all was the thought that he did not belong to the barristers' club –
the white Anglo-Saxon public school and Oxbridge clique which seemed to surround him everywhere he looked – and that he did not belong to it, not because of any lack of ability, but because of who he was. He was a Jewish kid from the East End. He came from the wrong family. He had been to the wrong school, the wrong university. Who did he think he was?
During that lunch hour at the Old Bailey, he had almost talked himself into taking the next bus to Whitechapel and announcing that he was, after all, ready to devote his life to a career at Schroeder's Furs and Fine Apparel.

The memory of his trial at the Old Bailey led him to remember his grief for his mentor, Arthur Creighton. Ben had only just returned from Arthur's funeral in Scotland when Merlin presented him with the Old Bailey brief, and it was Arthur Creighton who had, as if by premonition, reminded him of the duty to stand up to unfair judges, the last time they had met. He wondered what Arthur would have had to say about his first foray into the Court of Criminal Appeal. He smiled despite himself, remembering what Arthur had said on another occasion when all seemed hopeless.
‘
Remember, Ben, we don't make the facts. The clients do that all on their own and, having made them, they sometimes have to live with them.'
Perhaps that was what had happened to Billy Cottage. He had made the facts and now he was living with them – and dying with them.

He started as the door opened. Harriet Fisk came in and stopped awkwardly in her tracks as she saw him.

‘I'm sorry, Ben. I didn't know you were back.' She paused. ‘I hear it didn't go too well over the road this morning.'

‘Bad new travels fast,' Ben replied. ‘Merlin had heard all about it by the time I got back, I'm sure. He didn't say anything, but I could tell.'

‘Merlin would have heard before anyone, with his network,' she smiled. ‘I really am sorry, Ben. But I heard they were nice to you…?'

He looked up at her as if considering the question carefully.

‘Yes, in their own way, I suppose they were,' he replied. ‘They didn't have me thrown in the Tower, or disbar me, or order me to pay all the costs.' He laughed. ‘It's strange what passes for niceness when you're over there in front of that lot. Anything other than outright abuse, I think.'

‘I heard they were a lot nicer to you than that,' she said. ‘And… well, you had grounds that could have… well… could have gone either way, couldn't they?'

‘Hopeless, you mean?'

‘No… I…'

‘No, I'm sure you're right,' he said. ‘You have to believe in your own grounds of appeal, don't you? If you don't believe in them, why should the judges? But that doesn't mean you are going to win the appeal. I'm sure I will see it all in a more objective light at some point. Just not today.'

She walked across to her desk and threw down the heavy brief she had hauled back from her hearing in the Queen's Bench Division's applications court, in a recess of the Royal Courts of Justice affectionately known as the Bear Garden.

‘Come on,' she said decisively. ‘On your feet.'

‘Why? Where are we going?'

‘The Edgar Wallace, for lunch,' she replied. ‘On me. There's no point in sitting here getting ever more depressed. Let's try a pint and some bangers and mash. If it doesn't work, you're no worse off. And let's not pretend you're going to get any work done today.'

He shook his head.

‘I have to start a petition for leave…'

‘Anything you write today, you will tear up tomorrow,' she said. ‘Aubrey taught me that. Never try to draft grounds of appeal on the same day you lose a case. You have to give yourself a day to get over it – sometimes more than a day.
“You can't take a case to the next level until you have come to terms with the last level.”
– A Smith-Gurney, circa 1963.'

Ben reluctantly pushed his chair back.

Oh, Harriet,' he said wearily. ‘The trouble with you is that you are always so bloody logical.'

‘Thank you,' she replied, smiling.

* * *

The Edgar Wallace, which stands on Essex Street, just outside Middle Temple and a stone's throw from the offices of Bourne & Davis, has a pleasant, airy dining room upstairs and, as they arrived just before the 1 o'clock rush, they were able to secure a corner table for two.

‘The truth is, Ben,' she said, once the drinks and bangers and mash had been ordered, ‘that I can't imagine what you are feeling. Aubrey would never touch crime, so I've never seen a client go to prison, much less sentenced to death. You are fully entitled to be as miserable as you like. I will listen until you can't stand the sight of me any more, then I'll go.'

He smiled, and they allowed some time to pass in silence.

‘I suppose, when it comes right down to it, it's not about the Court of Criminal Appeal. As you put it so nicely, the grounds could have gone either way – even though I still think we were right.'

‘Of course,' she said.

‘It's really about me. Wondering what I should have done differently, how I could have dealt with Martin Hardcastle differently. Perhaps if I'd made more of a scene at the time, perhaps even told the judge that I wasn't happy with what was happening.'

She was shaking her head.

‘I know, I know,' he said. ‘I couldn't do that, and it probably wouldn't have made any difference anyway. Even if Cottage had given evidence… perhaps Martin was right.'

‘And perhaps at some point, Ben,' she said, ‘you should try to contemplate the possibility that Billy Cottage is the monster the prosecution say he is, and that he attacked those two young people as savagely as they say he did, and that he deserves everything that's coming to him. Perhaps it wouldn't have made any difference what you did, or what Martin Hardcastle did. Have you thought of that?'

‘Yes, he replied. ‘I have thought of that, and I know that it may well be the truth. But he is my client, and…' He allowed his voice to trail away.

She looked at him closely. He turned his eyes away from her. She gave him some time.

‘Ben, we know each other too well. This is not really about Billy Cottage, is it?' she asked gently. ‘It's about you. You're still beating yourself up, questioning whether you have the right to be at the Bar, aren't you?'

He nodded.

‘Well, I'm going to give you the same answer I've given you before. You
are
at the Bar, and you are a member of our Chambers because you are good at what you do, and you have every talent you need to succeed. You just need to believe it. You did everything you could have done for Billy Cottage, including going into the Court of Criminal Appeal without a leader. And they complimented you on your argument.'

The drinks arrived. Ben gratefully raised his glass in a toast.

‘Thank you,' he said, simply.

He took a deep draught of beer.

‘To better days,' she replied, raising her own glass.

There was a pause while they both savoured their drinks, then Ben suddenly sat up straight as if he had just remembered something.

‘Harriet, I have to know what happened when I was taken on in Chambers,' he said suddenly.

There was real urgency in his voice. The change of tone took her aback.

‘I thought we had been through that,' she said, after a pause. ‘When you talked to Gareth, didn't he…?'

‘I got part of the story from Gareth,' he replied, ‘but there's something missing. Gareth told me that there was a problem in Chambers because of Anne Gaskell's divorce case. Well, we all knew that. Bernard Wesley had to do something to make it all right, and that involved only taking one of us on. That one was going to be you. But somehow, we were both voted in.'

Harriet had been nodding.

‘Yes,' she replied. ‘Did it ever occur to you that Chambers realised what a huge mistake they would be making if they let you go?'

He shook his head.

‘There's more to it,' he said. ‘There must be. Anthony Norris…'

‘Anthony Norris is an anti-semitic bigot,' she replied with fervour. ‘We both know that. You can't let a man like that rule your life. And Ben, even Norris was impressed with the work you did. Aubrey told me he was ready to vote for you. I really think he had changed his mind. I know it doesn't make it any easier that we have a man like that in our Chambers. But let's not give him power over us. He took much the same approach towards women, you know.'

She looked at him again for some time. He did not respond.

‘All right,' she said. ‘I will tell you everything I know. You do know almost the whole story. But there is one piece of the puzzle you don't have, and the reason you don't have it is that only Bernard Wesley and I know what happened. It's not something Gareth could have told you about.'

Ben was leaning forward, his arms crossed in front of him on the table. Harriet looked around the room. She saw no one she recognised.

‘And you have to promise that this will stay between us.'

‘I promise,' he replied.

She nodded and leaned in towards him.

‘Kenneth Gaskell had an affair with Anne while he was acting as her counsel in the divorce case,' she began. ‘They were old flames and it all flared up again. Why they couldn't have waited until… anyway, there it was. Bernard was leading Kenneth. They had a very strong case. The husband drank and was violent – well, you know all this through talking to Simon, probably. Miles Overton was on the other side, leading Ginny Castle. Their instructing solicitor had the idea of having Anne followed by a private detective. They struck gold, including photographs.'

‘How do you know that?' Ben asked.

‘Through my father.'

‘Your father?'

‘All will become clear. Give me time.'

She sipped her gin and tonic.

‘Armed with this, Miles had lunch with Bernard at the Club and essentially blackmailed him. He gave Bernard seven days to allow the husband incredibly generous terms, or Miles would serve a cross-petition naming Kenneth as a Party Cited and asking for damages for adultery.'

‘Which would have been the end…'

‘It would have been the end – for Chambers, not just for Kenneth,' she agreed. ‘Remember, Ben, Anne was a client of Herbert Harper. You know how much work Harper Sutton & Harper send to Chambers. So Bernard had seven days to save Chambers.'

‘How did he do it?' Ben asked.

Harriet took another sip and smiled.

‘Partly by good fortune, and partly by sheer animal cunning,' she replied. ‘The good fortune was that Miles Overton's son, Clive, now Gareth's pupil of course, asked Chambers for help. He was a friend of Donald Weston, Kenneth's pupil. You know the background to that story, of course. Everyone does now. When Clive was up at Cambridge, he was ringleader in a drunken escapade after the college rugby club dinner. They threw another student into the river and he drowned. Miles disowned Clive and sent him abroad, to America, where he remained, until he happened to call Donald during the aforesaid period of seven days. He told Donald he wanted to come back to England and that he wanted to come to the Bar. Donald offered to help, and he went to Bernard. Bernard saw a glimmer of light.'