The Absurd and Abuse
A recent exchange on Facebook reminded me of one of the more absurd episodes of my life. For reasons which I won’t go into I had become involved with the Cambridge Settlement in the east end of London. I had never been to Cambridge University but the project needed a woman lawyer as a group of women wanted to establish a Battered Wives Centre and it was to be a rule that no man would be allowed over the threshold. As the Cambridge Settlement didn’t have a woman lawyer I was volunteered by a friend. 
So it was that one February night I found myself climbing over the wall of a large property in the East India Dock Road and helping to force an entry into the house. The building had been the home and surgery of a local doctor who had been provided with better premises from which to work and the property had been purchased by the now defunct GLC , prior to redevelopment of the site. They were not averse to unused properties being squatted and I duly arranged for us to pay rates and for the services to be reconnected. That was the easy bit.
The group of about four women who were the first group of wives trying to escape their abusive husbands moved in and with them came a number of social workers assigned by the local authority to ensure the children were not at risk. A number of house rules were agreed including that there was to be a meeting every Monday which all the residents had to attend. The idea of the meeting was to enable any issues surrounding the running of the house to be aired, the finances to be discussed and if there were disputes between the women for them to be resolved. Some of the social workers attended as well as me.
The women living at the house each had a separate room in which to live and sleep, but they shared the kitchen, bathrooms and a downstairs living room where the only TV was installed. It was here that the Monday Meeting was to take place. One of the mantra’s repeated all the time by the social workers was ‘There is no excuse for violence.’ Sure I thought although not without some reservations.
As the hostel began to fill up – if my recollections is right there were twelve rooms – the inevitable tensions arose. Someone would jump the queue for the bathroom or spend too long under the shower; not everyone was as good at washing up their plates as they should, the fridges rota wasn’t being adhered to. I’m sure you can think of many more of the small irritations that can arise in such cramped conditions.
Then, well let’s call her Pat, arrived. She had three children all under six, who ran wild around the house. They were always filthy and I found myself bathing them more than once. She always left the kitchen in a mess, the bathrooms dirty. She was disruptive, a heavy smoker who shouted and screamed all the time. She became the centre of heated debate at the Monday meeting and each time she was threatened with having to leave she would promise to behave.
One evening her husband came to the door and I went out to speak to him. He asked about the children and asked if they were OK as his wife was a very poor carer. He volunteered that he had slapped her across the face when he had come home from work to find the children hungry and very grubby. I had some sympathy for him and said so to one of the social workers we called Etty. She was furious with me and told me there was no excuse for violence.
A few weeks later when the Monday meeting was about to start, Pat was in the living room watching Coronation Street. Her behaviour had not improved despite the many promises. Etty asked Pat to turn off the TV, and she refused. Etty asked her again to which Pat replied, ‘I don’t want to attend your f….. meeting. I’m watching TV.’
Etty got up and turned off the TV. Pat retaliated by turning it back on. Etty turned it off again, only for Pat to turn it on. This was repeated another couple of times and then as Pat went to switch the TV on for the fifth time, Etty got up, grabbed Pat by the arm, swung her round and hit her across the face with the flat of her hand as hard as she could.
So, no excuse for violence then.
John Grisham and class actions
I’ve been away and out of contact with the internet again, but at least it has given me enough time to read some books and to do some thinking about my next novel. I’ve written the first 22,000 words so a long way to go on that. As far as the reading, I found a copy of The King of Torts by John Grisham and read it in a couple of days. It’s an awful title but seems to derive from the way class actions are brought in the USA. The protagonist is Clay Carter, a youngish lawyer working for the Office of Public Defender in Wasington DC. He is assigned the case of Tequila Watson who, inexplicably, has become a killer and murdered an acquaintance known as Pumpkin. Carter begins to explore Watson’s backgound and is puzzled by the lack of motive and the absence of any history of violence. Watson is a drug addict who has been in a rehabilitation program and when Carter makes enquiries at the project he is not convinced he is being told the whole truth. 
Overworked and underpaid, Carter is ripe pickings for Max Pace who tells him a major Drug Company is willing to pay compensation to Pumpkin’s family and his legal fees if he is acting on their behalf. The secret he must keep is that Watson along with others were treated as guinea pigs with a drug that ‘cures’ addiction but has a side effect in about 8% of the addicts that makes them a killer. Carter quits his job with the Office of Public Defender and earns himself about $15 million. He justifies his actions to himself by arguing that Watson has no defence to the charge of murder. I don’t know if that would be the case in the US but I think under English Law he would have a defence to murder of not to manslaughter. If the drug that turned him into a killer was given to him by the staff at the rehabilitation project as part of his care program then he would be able to claim his mental state was not self-induced and therefore he was not responsible. I had a similar case when Diego Cogolato killed the dress designer Ossie Clark, under the influence of a combination of illegal drugs and prescribed drugs that made him believe Clark was the devil and he heard voices telling him to kill.
Carter is then told about another drug that is widely prescribe and has the side effect of causing growths in the bladder. He files a claim against the Pharmaceutical Company and advertises for other users to contact his law firm so that a large number of complainants are joined in the same action against the company, a class action. These actions enable lawyers involved in the proceedings to earn large sums of money. The novel describes the way these proceedings take place and the dangers in them. I won’t say anymore because it will spoil the story. In the UK these type of actions are rare although the courts can give consent for what is called a Group Litigation Order but the proceedings are controlled by the Judge. Also cost capping orders are made which limit the amount lawyers can earn. There are no juries in civil cases of this type in England so exemplary damages are rarely given. Although there are proposals to have this kind of collective action in certain cases at the moment any move towards that is very slow.
This book perhaps under scores why American writers of legal thrillers have so much more to write about as the US system provides more drama than the UK one. I was certainly told that it was very difficult to sell a legal thriller/mystery to the publishing industry and that only John Grisham can write them. Are there any writers using the English Criminal Justice System as Grisham uses the US one?
Reviews 2
A librarian friend commented that he thought the plot of my novel Crucial Evidence was ‘dodgy’ because he couldn’t see why the police had arrested Barker for the murder of Shelley Paulson and why they were so convinced he was guilty just on the basis of a witness identifying him as the killer. It’s an interesting comment and I have questioned myself as to why he thinks that is a fault in the plot. Is it because when a reader opens a crime novel they expect it to begin with a murder followed by a detective following up clues which lead to the identification of the killer and his arrest? Of course that is what many crime stories do, but I wanted to write something different and my story begins after the investigation has finished and at the point where lawyers have been instructed to represent Barker and the trial is about to begin. It is written from the point of view of the barrister, Cassie Hardman and she would not be concerned with why Barker was arrested only whether there was enough evidence to support a prosecution. 
Do crime novels present an unrealistic view of policing and of their powers of arrest? Don’t police officers act on anonymous tip offs and informants whose names they don’t reveal? They would be criticised if they did not and programmes like Crime Watch would have little or no part to play in investigation. An identification of the perpetrator of an offence is good evidence and if the accused has admitted he was close to the scene of the murder it seems reasonable for the police to believe he is the killer. Again on the basis of that evidence the relatives of the deceased would expect the accused to the prosecuted and let the jury decide, wouldn’t they?
Colin Stagg the man accused wrongly of killing Rachel Nickell on Wimbledon Common was arrested because they had information he frequented the common. They arrested him and decided he was rather strange and therefore he must be guilty. There was virtually no evidence against him apart from a forensic psychologist’s assessment made on the basis of letters written to an undercover policewoman offering sex if he admitted to the crime. He did not make any admissions, but was charged with the murder because the police were convinced he was guilty. I remember well the TV shots of Rachel Nickell’s grieving parents as they were interviewed outside the Old Bailey, saying if only the jury had heard the whole story, They were clearly convinced their daughter’s murderer was walking free, and that conviction can only have come from their conversations with police officers.
Is truth stranger than Fiction?
Reviews
I have been at sea for over two weeks and without any internet connection. I’ve missed two episodes of Silk but I will catch up with those thanks to BBC iPlayer and see what Martha Costello has been up to. So wait for those comments in due course.
In the meantime a number of people have written reviews about my novel Crucial Evidence on Amazon and on Good Reads. Some of the comments confirm what I have long suspected; that many people have very little idea about how the Criminal Justice system works. In particular one criticism of the novel was that Cassie Hardman gave away too much information about the case of R v Barker, because he believed the the proceeding were private. I do wonder if that is because cases are rarely reported in full in the newspapers these days, although the case involving Rebekah Brooks has been followed fairly closely in the news and we are getting a blow by blow account of the Pistorius case.
Perhaps the Bar ought to do more to ensure the general public do understand the process and how important it is and then perhaps the public would be more supportive of the Bar in their fight against cuts to Legal Aid.
Incidentally Crucial Evidence is receiving 4 to 5 star reviews on Amazon.
Silk Episode 2
How could Clive Reader ask such an obvious leading question? There were very few inaccuracies in this episode, and I suspect that was because there were fewer courtroom scenes, but that leading question did stand out. In case anyone doesn’t know what a leading question is – it’s a question that suggests the answer to the witness. It used to puzzle me when I first qualified but I was told I would know one when my opponent asked one and the advice was right.
In contrast I thought the scene where Caroline Warwick cross examines the defendant in the rape trial was worthy of an experienced barrister. Of course she really shouldn’t have been sent off to Bury St Edmunds to prosecute in a rape trial and her indignation is understandable. Unfortunately women are instructed in sexual abuse cases far too often, and I remember a very senior female Silk complaining about being given yet another rape trial. One thing that did jar however was her rudeness to the barrister defending in the case. Silks try to be nice to more junior members of the Bar as they can often be the source of work. Although Martha Costello is shown representing a defendant without a junior barrister, Silks usually have a junior barrister with them. If a junior barrister is instructed and wants a Silk to lead them in the case they are unlikely to suggest someone who has been rude to them.
Amy Lang is a new pupil in chambers – a trainee barrister. Once a young lawyer passes their exams, they are called to the bar in a ceremony at the Inn of Court of which they are a member, but they are not allowed to practice until they have completed pupillage. For twelve months they serve a kind of apprenticeship, accompanying their pupilmaster (never a Silk) to court, reading their briefs and doing any paperwork they are asked to do. The first six months they can not appear in court or accept instructions on their own behalf and now they are assisted by their chambers with a grant. In the second six they are able to work and will receive payment – fees for that work. Amy should have already done six months as a pupil so her ignorance about the acronyms was a little surprising. Poor Amy makes a complete hash of her first appearance in court – she isn’t the only one and won’t be the last- but a ruling that your instructing solicitors should pay the costs of the hearing is a real no-no. A barrister is meant to cover the back of their instructing solicitors . She was lucky that Billy was in a good mood-upsetting solicitors who regularly instruct chambers could have ruined her chances of success
Waiting for the jury to return with a verdict is a difficult time,many barristers escape to the Bar mess, drink coffee with friends, read the newspaper and a few try to work, but concentrating is often impossible. For Martha the client comes first, so she spends the time with him. It is a reflection of the type of barrister she is;as Clive says she always ends up liking her clients, so she stasy with him.
Silk on BBC
I really enjoy this series, although at times the errors in the legal process make me want to squirm. The courtroom scenes are awful – it just isn’t like that and no-one who behaved as Martha Costello does would ever get Silk.
However the tensions that arose in this first episode are very real. I’ve been in the Court of Appeal (awful place three ghouls ready to tear every comment, every argument to shreds particularly if you defend ) and wanted to shout at the judges that they are being unfair and can’t they see how the evidence has been concocted. But, you don’t do it, you sit in your seat, stand when you have to stand you do it, and show respect to the court even if you don’t feel it.
Then there is the criticism that Martha is too emotional. Clive Reader tells her in this first episode that she is acting like the client’s mother not his lawyer and that is another conflict in a legal life, trying to be as objective as you can because that is the best thing for your client. The reason for that is that if you fight a case you can’t possibly win and the client is convicted then he will be given a tougher sentence than he would if he pleaded guilty. In this episode I believe the correct course of action would have been for the client David Cowdray to have pleaded guilty to manslaughter ( the Crown would probably have accepted that on the basis that he could not have reasonably foreseen that pushing the police officer would result in him falling and hitting his head on a metal lamp post which then resulted in his death ) The court would then have asked for Social Enquiry Reports which would have identified his schizophrenia. Martha could then have argued that instead of a prison sentence he should receive a Hospital Order for him to be treated for his illness. So bad law but good story line.
There is another rule broken for the sake of the drama; never ask a question you don’t know the answer to. The photographs taken of the police officers together outside a house while one of them was still giving evidence did reveal a breach of the rules, but no barrister would use that without knowing whose house it was. In the scene where David’s girlfriend confirms that he had a camera and the police took it, Martha realises she can’t call her as a witness because when she was cross examined by counsel for the prosecution she would give evidence that would support the Crown’s case. These are the sort of decisions a barrister makes every day, the programme makes them more extreme.
The senior clerk Billy Lamb could have been based on my original clerk. Old fashioned, not really interested in change. I am looking forward to the arguments between him and the new practice manager Harriet.
Looking forward to Episode 2.
Age of Consent
Should the age of consent for sexual intercourse be reduced from 16? It’s a good question and I would say no, it shouldn’t. However I would add a caveat to that which is to acknowledge that many young people under the age of 16 are physically mature and that it is societies’ decision that they are not emotionally mature enough to indulge in
English: This map displays the legal age of consent for heterosexual sex in various countries. – puberty – less than 12 – 12 – 13 – 14 – 15 – 16 – 17 – 18 – 19 – 20 – 21+ – varies by state/province/region/territory – must be married – no law – no data available (Photo credit: Wikipedia)
sexual behaviour.
Also those aged between 14 and 16 rarely see themselves as children even if parents and the community at large do, and a number of them want to have intercourse whatever the law says. There are other things to consider as well, such as boys under 16 are children as well even though they are capable of having sex. (When I first qualified a boy of 14 was considered incapable of SI and therefore could not commit rape) Zoe Williams makes the same point in her article in todays Guardian. And as many parents know, often boys mature emotionally more slowly than girls (Isn’t that why girls and young women tend to have relationships with men a few years older than themselves?)
As in the case I outlined in my blog Serious Stuff, these cases are often more complicated than the press and media generally allow for in their condemnation of underage sex. I can think of a number of examples of cases where the girl was a willing participant in the sexual activity and was not a victim in any real sense of the word.
Expert Evidence
- The Times Newspaper has given some prominence to the case of Jayda Wray who, after eighteen months has been returned to her parents Chana al-Alas and Rohan Wray after a lengthy battle in the Courts. The young couple, they were both under twenty, were charged with the murder of their first child Jayden, when he was discovered to have multiple fractures to his body. When Chana gave birth to their second child, Jayda, she was taken into care immediately.
- They stood trial for the murder of their first-born, and were acquitted after experts for the defence said the injuries were caused by rickets due to a vitamin D deficiency that his mother suffered from, and had past on to him. The prosecution experts disagreed and claimed the injuries resulted from the parents assaulting the child. The couple then endured the trial being repeated in the Family Court as the Local Authority continued with proceedings to keep Jayda in their care. This second hearing lasted six weeks as experts gave their conflicting opinions again, eventually the judge rules in the couples favour and their now eighteen month old child has been returned to their care.
- How could this happen you might ask? The answer lies in the difference between the standard and burden of proof required by the two courts. In the criminal trial the standard is high, it stays with the prosecution throughout the trial, and they have to make the jury sure of the defendants guilt. In the family court the Local Authority only has to satisfy the judge on a balance of probabilities that the defendants caused the injuries. Presumably the Social Workers involved in the case believed that on balance it was more likely than not Chana and Rohan had murdered their child, so went ahead with the care proceedings.
- No doubt the Social Workers concerned wanted to ensure the safety of the younger child and therefore were right to continue to seek care orders for Jayda, but I can’t help but feel there must be a better way than this double trial of the issues. Has anybody any ideas?
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