Custody disputes are distressing. There are no winners and the children are usually the ones who suffer most. Today courts do their best to ensure that no child is upset by the proceedings and very few attend court, their views being placed before the Judge by a social worker. But, at the start of my career, contested custody cases were heard by the High Court Judge when he came on circuit.
My client, Sarah, was disputing the custody of her two children, a boy of ten and a girl of eight. Since the divorce, they had been living with their father. He worked and they spent a great deal of time with their grandparents, neither of whom enjoyed the best of health. That was the basis for Sarah’s claim for custody of her children.
She was a strange character. A tall blond who always wore dark glasses because, she claimed, of some medical condition. This was her second divorce, although to be fair to her, her first marriage had not lasted very long and there were no children. She had left her first husband for the man who she then married and who was the father of the two children. This marriage had lasted twelve years, but then she had found another man, left her husband and the children. The new relationship was over very quickly and now she wanted her children back. I, rather cynically, thought she was more interested in the maintenance than their welfare.
When the court’s children’s officer spoke to the children they said they wanted to tell the judge they wished to stay with their Dad. I advised Sarah that she should withdraw her application for custody as I believed the Judge would not go against their wishes. The lapse of time – they had been with their father for over a year – was against her as well. She insisted the hearing should go ahead as she thought the children were being pressurised by their father.
The hearing was at Lancaster Assizes. The High Court Judge was on circuit and was sitting in the courtroom inside the Castle. This case would not be heard in that room but in the judge’s chambers. We waited outside the room in a narrow corridor, all of us crushed together. The children had been brought by the social worker. They ignored their mother’s smiles.
The door was opened by a very tall slender young man with lank fair hair dressed in a morning suit. He stood to one side and waved us into the room. He introduced the case in a rather high pitched voice. I had to suppress a smile at the thought that his voice hadn’t broken. The judge was sitting at his desk in the centre of the room. His robes lay over a chair and his wig on the desk. The room was quite large with windows that overlooked the Priory Church and a small square. One of those windows was the size of a door with a small step in front of it.
‘Come and stand here,’ the Judge said to the two children. They inched forward, eyes wide open.
‘Now, do you know what this room is called?’
They shook their heads, their eyes fixed on the Judge.
‘It’s called the Drop Room. And can you guess why it’s called that?’
Again they shook their heads. ‘Oh no.’ I thought. I knew what he was about to say.
‘You see that window there?’
This time they nodded but their eyes were even wider and they stared at the window.
‘You see it’s got a step up?’
Their faces were rigid and they only tipped their heads down.
‘They used to hang people from there. Pushed them out of the window with a rope round their necks.’
The children’s faces were white.
‘Well that’s not going to happen to you. Now, I understand you want to tell me about where you want to live.’
The little boy stuttered, ‘With Dad.’
The Judge looked at the girl. ‘And you?’
She took her brother’s hand and nodded, but couldn’t speak.
Not surprisingly the Judge awarded custody of the two traumatised children to the father.
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Identification issues used to be a frequent problem for the courts. The case of George Davies highlighted how unreliable an eyewitness can be. As an aside a friend of mine was involved with the Free George Davies campaign and was one of those who dug up the cricket pitch at Headingley just before a test […]
The trial was to take place at the Old Bailey and the Crown main’s evidence was that of the Professor. Although he had never seen Enid he wrote a full report on her and the dead children, dismissing the results of the post mortems and concluding she had murdered all three children. The silk leading me wasn’t over impressed but he didn’t think we could object to the report being presented to the court. We also sought the advice of one of the most experienced forensic pathologists in the country. He thought the Professor’s report was probably correct. We had a conference with him to try and see if there was any way of disputing it. One of the features of the case was that all the children were very premature.
‘Is it possible that being born prematurely would make them more susceptible to being the victim of SIDS?’ I said. I asked the question because I had been recently diagnosed with late onset asthma and my GP had asked me if I was premature. When I confirmed I was, she said there was a link between poor lung function and asthma. Also a friend of mine had a young child who was very premature and I knew he still had a number of problems.
‘The children wouldn’t have been discharged from hospital if there had been any risk,’ the pathologists said. The QC nodded his agreement.
It began to look as if there would be no defence to the case. However the psychiatrist’s report from the secure unit described Enid as having an IQ of 65, very low indeed. Additionally she had no sense of reality and confabulated all the time. That meant she told lies and she remembered her lies better than the truth. Their view was that her admissions to the social worker and the police were unreliable. Without the admissions the prosecution case was reliant on the Professor who didn’t examine either the children or Enid and was in conflict with the evidence of the pathologists who had carried out the post mortem.
The prosecution had their own psychiatrists examine Enid and they too came to the conclusion the admissions could not be relied on. The prosecution was dropped and Enid acquitted on all three counts of murder.
That wasn’t the end. When Enid gave birth to her fourth child the baby was taken into care and the subsequent care proceedings in the Family Courts confirmed that decision. The judge found on a balance of probabilities she had killed her children, but of course he was relying on the Professor’s theory which has been discredited.
So did she kill her children? What about the low IQ of both Enid and her husband? In addition the children were all born prematurely; what role did that play? Both Enid and her husband smoked – a known factor in SIDS. Then they were very poor and that too may have meant Enid could not afford the new mattresses, a recommendation to reduce the risk of cot deaths. Enid was probably incapable of raising a small child but a finding of killing your child must be very difficult to recover from.
The death of a child is a tragedy for the parents, but imagine not only has your baby died but you are arrested and interviewed as a murderer. A number of cases which were highly publicised were brought against mothers who were diagnosed as having Munchhausen’s by proxy. The condition was the brainchild of a pediatric Professor working in Leeds. He believed that some women harmed their children in order to get attention and sometimes went so far as to kill them. The child was usually a quite young baby and the cause of death was asphyxiation. These deaths were often given the name of Sudden Infant Death Syndrome or more commonly ‘a cot death.’ The Professor’s theory was that one cot death was a tragedy, two was suspicious, three and it was murder. I was instructed to represent one such woman. I’ll call her Enid.
She had given birth to three children all of whom had died on and around their first birthday. Forensic pathologists had carried out post mortems and found nothing suspicious. Two were said to be ‘cot deaths’ and, one the result of a viral infection. Now she was expecting her fourth child and not surprisingly the local Social Services Department were anxious that this child should not meet the same fate. The practice at the time, and I assume still is, was for joint committees of social workers, police and health professional discussing problem cases. Enid’s was one of those. Someone made the decision to ask Enid to travel to Leeds and see the Professor. She agreed to do so.
Normally she would have been escorted to Leeds by one or two social workers. However, instead it was a social worker and a female police officer. On the train journey north, Enid admitted she had killed the three children. The three women returned to London and Enid was interviewed under caution, where she repeated the admission. She was charged with their murder and remanded to a secure psychiatric unit. When she saw a solicitor she denied murdering the children.
I had a QC leading me in this case and when we saw her at the hospital she again admitted the offences. I returned to Chambers and almost as soon as I arrived Enid was on the telephone saying it wasn’t true and she had not killed her babies. Normally when a client says they have committed the offence the barrister cannot represent them if they plead not guilty, but the circumstances here were unusual because of Enid’s fragile mental health and we decided to press on with her defence.
To be continued.
PS. For one week only Trials and Errors in free on Kindle. It contains some of the stories published on this blog and a few extra ones.
One of the most frequently asked questions of any lawyer is ‘How do you defend someone you know is guilty?’ The answer is it’s nothing to do with me. I’m just an advocate, only a judge and jury can decide someone is guilty. Of course, it’s not as simple as that. If a client tells me they are guilty, except in very particular circumstances, I could not defend them. If however they insist they are innocent, then no matter how strong the evidence is against them, the advocate’s duty is to put their case to the best of their ability.
Usually, if on the basis of the evidence you have, the case looks overwhelming, I would advise the client to plead guilty to the offence as doing so will probably result in him getting a less severe sentence. Sometimes that can result in the barrister or solicitor getting the sack. Very early on in my career, I learnt to be careful about the amount of pressure I put on a defendant who insisted he was innocent in the face of very convincing evidence.
The client was a juvenile and because of his age, the trial was to take place in the Juvenile Court. At that time, the prosecution, in this case, the Metropolitan Police Solicitors, were under no obligation to serve any of the witness statements. Usually, the police officer would provide a brief summary of the evidence to the lawyers involved. The charge against my client was one of arson. I was told that the fire had been very destructive but there had been no loss of life. The seat of the fire was in a community hall attached to a school and entry had been gained to the premises through the school kitchens, which joined the two buildings and were used by both. Whoever had gone into the hall had used a serving hatch and on the top edge of the glass window was a perfect set of fingerprints. Those fingerprints were my clients. He denied he had ever been in the kitchen. He was lying and the magistrates would have deduced the reason for the lie was to cover his guilt.
He was fifteen years of age and of good character. His parents were clearly caring and supportive. Not always the case with juvenile offenders. Because of the seriousness of the fire, I believed a custodial sentence was inevitable, but if he pleaded guilty he might get and detention centre order rather than be sent to the Crown Court for sentence and the real possibility of being sent for Borstal training. I tried to persuade him that he should admit the offence. He refused. His parents had also tried as had my instructing solicitor. All to no avail.
I started the trial with a heavy heart, convinced I was just going through the motions until the prosecuting lawyer called the forensic expert. Usually in cases of arson the expert gives evidence as to the seat of the fire and the method by which it was started. Typically some sort of accelerant is used petrol, paraffin or alcohol. The expert told the court the fire had started in a plastic ashtray on the bar but did not give evidence of any accelerant being used.
There is a rule of thumb that one never asks a question to which you don’t know the answer. I decided to take the risk.
‘Is it possible the fire started as a result of somebody leaving a lighted cigarette stub in the ashtray?’
‘Certainly. If someone had not stubbed out their cigarette properly, the plastic of the ashtray would melt and then ignite.’
The offence of arson require the prosecution to establish the fire was started deliberately and this they could no longer do. My client was acquitted and I was relieved my persuasion had failed.
Kings Cross in London in 1993 was a well known as a place to buy or sell drugs. In order to clean up the area the police began an operation known as Operation Welwyn. Undercover officers posed as buyers and when they were offered drugs the person selling was arrested and charged with offences under The Misuse of Drugs Act 1971. They used video cameras in fixed positions and also in vans. Many people were arrested in the course of this operation and it resulted in a number of trials. There is a fine line when undercover officers make such a purchase between encouraging the crime and trapping a defendant, which is illegal, and simply taking advantage of the dealer’s willingness to supply the drugs.
My client, Angela was of mixed race and in her mid-twenties. She was charged with one offence of supplying cocaine in the form of crack. The police officers said they had bought cocaine from her. Angela was filmed meeting the two officers and going to a telephone booth. According to the officers they paid her for drugs and she handed them over when they gave her two twenty pound notes. That transfer of drugs and money was obscured by a large traffic sign pointing the way to Cambridge and The North. There was no question that it was anyone other than the defendant. She was clearly identifiable wearing a denim jacket and her long hair tied up with a brightly coloured ribbon.
Angela was arrested some time later. This was to avoid others being alerted to the ongoing operation. When she was interviewed she denied supplying drugs to the police officer but said she made a telephone call to another person who could have supplied the police woman with cocaine. If that was the truth then she would still have been guilty of the offence but on a different basis, although it raised the issue of entrapment. Legal argument on that point was resolved by the Crown agreeing that the jury could only return a verdict of guilty on the grounds that Angela had sold cocaine to the officers.
When the two police officers gave evidence they said they had spoken to Angela on the street and asked to buy drugs from her. She had suggested the deal took place in the telephone booth and they had followed her but had stood outside while she took the drugs out of her handbag. They had handed her two twenty pound notes in exchange for the crack. The numbers of the notes had been recorded, but none were found in Angela’s possession. The Crown’s explanation was she had spent it between the offence being committed and her arrest.
Although the traffic sign obscured not only the telephone booth but the two officers as well, I could follow their shadows as they crossed the pavement. At no time had they approached the telephone booth, instead, after they had spoken to Angela they had walked towards a pedestrian crossing where they became visible on the film. They were unable to explain their movements when I cross examined them.
The Judge trying the case became so interested that on his way home he drove to Kings Cross to see for himself the location of the traffic sign and the telephone booth. He summed up for an acquittal and Angela was found not guilty.
This story along with others appears in the very slim volume Trials and Errors.
I have just received the proof copy of a slim – anorexic actually – volume of tales from my Life at the Bar. It includes some of my blog posts and some new stories. The front cover shows the colonnades between Inner and Middle Temple built after WW2 when the building on that site, if my recollection is right it was called Fig Court, was destroyed along with Inner Temple Hall by enemy action.
There is also the first chapter of my novel Crucial Evidence.
The book is already available on Amazon without the final proof reading and will be available for your Kindle on 24th October. I hope you enjoy this little book.