Broadchurch Episodes 3 & 4
The series continues with heightened drama but the representation of the legal process is corrupted by the story line. 
In episode 3 the prosecution call DC Miller, the wife of the defendant, and while there is nothing intrinsically wrong with that; the law is that a wife is a competent witness against her husband, but she is not compellable. What that means is that her evidence is capable of belief but if she declines to give evidence she cannot be forced to do so. In the circumstances where she is known to have assaulted her husband, I think most barristers would be reluctant to call her. She added very little to the issues for the jury.
Episode 4 has a number of glaring errors in the trial scenes. It is a long time since a witness was allowed to make a dock identification. In a real trial, if that was to happen, the defence would ask for the jury to leave the court and make an application for a retrial. Actually it makes Justine look incompetent as she allows the witness to deviate from her witness statement by asking if she recognised the man. There was no need for the question; the witness had given the evidence about seeing a man already, although what evidential value that had was difficult to understand. If the judge ruled that the trial should continue, cross-examination would be much more rigorous. The witness would have been asked about her previous statement, the time she made it and why she had left out the name of the man she saw. It is one of the common mistakes that a witness makes to say I told the police but they left it out. The police officer who took the statement would then be called and would inevitably say that the witness had not identified the person they saw and the defence can then assert that the witness is at best unreliable or a liar.
I did like the part where the defence silk says to her junior who is convinced their client is guilty, ‘Don’t say that. We never know for sure. He gets his defence.’ The sort of comment a real barrister would make to a pupil, particularly one who is described by her opponent as a rottweiler.
Broadchurch
I didn’t watch the first series, but the criticism about the courtroom drama in the current series has been such that I decided to catch up with the first two episodes with the benefit of the BBC i player I have now done that. Oh dear, they may have had a legal consultant but the script writer must have ignored any advice they were given. I know the fact that the Bar is a referral profession is 
inconvenient for drama, but the writer could have made a little more reference to reality. I cannot imagine any solicitor instructing someone who has not been in practice for three years ever; the law changes and the skills need to be kept up, never mind the question of a practising certificate.
Then the prosecuting barrister asks the police officer in the case to visit her at home to discuss his evidence about injuries to the defendant. The defendant’s wife appears to have been invited as well. I know she is an important character in the plot, but surely a little more thought might have dealt with this issue in a more realistic way. Then she discusses with them the injuries and tells them they need to find a good reason for the assault on a prisoner. No decent lawyer would do that; she was almost telling them what to say
In the trial process, prosecuting counsel would not refer to the confession in opening the case to the jury and arguments around the issue of admissibility of a confession are made in the absence of the jury. Defence counsel did quote the correct sections of the Police and Criminal Evidence Act, but that was the only bit that was right. Surely it would have been just as dramatic to have the legal argument in the courtroom and then switch to the family outside in the waiting area worrying about what was going on.
My main complaint is the idea that the prosecuting barrister is the bereaved family’s lawyer. Criminal Prosecution are taken on behalf of the state, ‘Regina v Miller,’ not the victim or their relatives. The way it has been portrayed is misleading to ordinary members of the public who may be involved as witnesses or where a family member is a victim of crime. Writers of popular series have in my view a responsibility to ensure viewers are not given a totally misleading impression of the way something as important as the criminal justice system works.
Oysters and George
I suppose George Carman was one of the more colourful members of the Bar and my first meeting with him was a little strange to say the least. I was still an articled clerk and I was sent to 
Blackpool Quarter Sessions to sit behind him in a case of causing death by dangerous driving. He was a small rather busy man, always dressed in pinstripe trousers with a black jacket and the silk waistcoat worn by QC’s. The client was pleading guilty to the charge and after a rather tedious conference, with him George went off to do some work in the robing room. I was left sitting with the client until, about half an hour before the midday adjournment, I was summoned to see George.
‘Go and find out if there is any chance of our case coming on before lunch,’ he said. I did as I was told and scurried off to find the court usher. My enquiries revealed that we were unlikely to be called before the court rose. I returned with the news to the robing room. When I told George he snorted and said, ‘Damn, well I suppose we’d better make the best of it. Do you know where Robert’s Oyster Shop is on the promenade?’
It was a silly question; everyone living in Blackpool knew where to get oysters. I told him I did.
‘Good. Go and tell Robert I want a dozen oysters and a pint of Guinness and tell him I’ll pop in and pay later.’
I was to meet George on many occasions; there were a few other cases while I was still an articled clerk and then when I was living in London and had become a barrister, we frequented the same drinking holes, but I was never in the same case as him again until much later on in my career.
In early 1981 I was instructed to represent a solicitor who was charged with defrauding the Legal Aid Fund of many thousands of pounds. The case was tried in Manchester and I was being led by the leader of the Northern Circuit Mick Mcguire and George was prosecuting. As George called the various witnesses, court clerks, law society staff we began to undermine the prosecution case, which was based on a number of false premises, one of which was that a bail application would only take ten minutes of court time. That was torpedoed when a bail application was interposed in our trial; the judge said it would only take fifteen minutes at the most. It took over an hour as Mick Mcguire pointed out. George was clearly getting rattled as we scored again and again, until one lunch time we heard him on the telephone to the Director of Public Prosecutions. ‘I can take a few bullet holes below the waterline but a bombshell is too much.’
No oysters for George that day.
Life at the Bar – second murder case
I received the telephone call at about nine o’ clock in the evening. The police officer on the other end of the phone asked me if I could come to the station in Blackpool immediately. They had woman in custody and they thought she should speak to a solicitor. This was before the days of the Police and Criminal Evidence Act and asking any lawyer to see a prisoner before they were interviewed and charged was unusual.
Noahs Ark
‘It’s a serious case. She’s stabbed her husband and he’s in surgery at the moment. If he dies….’ His voice trailed off leaving me to deduce she might be charged with murder.
When I arrived at the police station in central Blackpool, I was shown into a cell where I saw Eleanor for the first time. She was in her late thirties, dressed in a tweed skirt and a thin blue sweater. Sitting upright in the edge of the concrete shelf that served as a bed, she was twisting and turning a white handkerchief in her hands. Her wedding ring caught the light from the single bulb.
‘Is there any news,’ she said.
I shook my head and said ‘No, not yet.’ And before she could say anything I sat down next to her and introduced myself.
‘Yes, the solicitor. They told me you were coming.’ She continued to turn the handkerchief over. ‘I didn’t mean to kill him.’
‘We don’t know that you have.’ I took hold of her hand.
‘We had such a row. He’d come in late the night before. Playing football. More likely down the pub. I’d had his dinner waiting for him since six. He said he didn’t want it. He went to work this morning, whistling away to himself. I thought I’ll show you. He came home at midday and I gave him the meal I’d prepared the previous night. What’s this he said?.I told him, it’s your dinner. He went mad and was swearing at me, then he picked up the plate and threw it at the wall. I went over and grabbed his arm. He shook me off and ran upstairs, pulled my clothes out of the wardrobe and starting ripping them. I tried to get hold of him but he pushed me away and went back downstairs. I followed and he told me to get out of the house. He opened the front door and tried to force me to leave. I told him I wasn’t going and ran into the kitchen. That’s where it happened. We were struggling, throwing pots and pans at each other. He was shouting at me to leave and I was screaming. I was backed up against the table and I reached back and the bread knife was there. I picked it up and thrust it at him.’
She began to sob. ‘That’s when the police officers rushed in and they took him away.’
I had been told that two off duty officers had been passing when they heard the sounds of a fight coming from the house. They’d rushed into the house and seeing Eleanor’s husband with the handle of a knife protruding out of his stomach, had carried him to their car and while one drove to the Hospital, the other held the knife in place and tried to staunch the flow of blood from the wound.
Eleanor continued to cry and I sat and held her hand. A police woman brought us cups of tea as we waited for news. A little later another officer and came and gave us a couple of blankets. I still had my coat, so I tucked one round her legs and the other over her shoulders. From time to time she still shivered. I pulled my coat around me. Eventually in the early hours of the morning, the officer who had summoned me to the police station, came into the cell..
‘He’s out of theatre and he’s going to live,’ he said.
Eleanor who had stood up when he came into the cell, sank back onto the bed, bent over and began to weep. I picked up the blanket and wrapped it round her again.
‘I think I’ll get matron. Perhaps she can give you something,’ the officer said. ‘Miss Barnes will want to go.’
‘I’ll see you tomorrow,’ I said.
Matron bustled in and took over. I left the cell with the officer and once away from the cell where I could not be overheard by Eleanor I said, ‘Will you charge her?’
‘Yes, Attempted murder. I assume you’ll be in court tomorrow.’
‘Yes.’ I said.
Eleanor was lucky. Not only did her husband survive the assault but after she pleaded guilty he pleaded with the judge for mercy and she was given a suspended sentence.
But I received no payment for the night I spent in the cells.
Eleanor was fortunate, her husband lived and what is more went to court to plead on her behalf
My Life at the Bar – First Murder Case
First Murder Case
The cell under the courtrooms at Blackpool was bare, the walls and floor the dull grey of unpainted concrete. There was no furniture. In the corner of the room crouched down, his head touching his knees, and rocking to and fro was the figure of my client, David W. He was dressed in a curious mix of ill-fitting clothes garnered from some unknown source; his own clothes having been taken for examination by forensic scientists. The door of the cell closed with the thud of heavy metal behind me and for a moment the rocking ceased as he looked in my direction. 
‘I loved her. Why would I kill her?’
‘Do you want to tell me about it?’ I said.
The rocking began again. As I waited I thought about David’s wife, Lynn, a thin anxious woman in her early twenties and known locally as the Mandie Queen, on account of her swallowing Mandrax tablets like they were sweets. Her body had been found three days ago lying naked on their bed in a rundown holiday flat on South Shore. The pathologist said she had died as a result of vagal inhibition when pressure was applied to her neck. That assault had resulted in the hyoid bone in her neck being fractured. Although her blood contained a high level of the drugs, they had not been the cause of death, indeed the level was insufficient to have killed her.
David continued to insist he had not murdered her. He said they had both smoked some cannabis and taken other illegally obtained drugs. Lynn had been totally out of it but was demanding he go out and get some food. He’d left her and gone to a local shop where he had bought some bread, ham and milk. When he returned to the flat she was lying on the bed asleep, but when he tried to rouse her he couldn’t. He felt for her pulse and then realised she wasn’t breathing. There was a stash of drugs in the flat, which he decided to get rid of before calling the police, but then he panicked and decided to run for it.
‘I loved her, why would I kill her?’ he repeated.
I didn’t tell him that I was aware he had been violent towards her in the past. Lynn had been to see me a few weeks previously, asking me to represent her in divorce proceedings. I had immediately told her I couldn’t do so as David was already my client, so I didn’t hear what she was complaining about, but a large bruise under her left eye told me all I needed to know.
I stood on the other side of the cell watching him rocking back and forth. It wasn’t really the image I had of a murderer. In my imagination they were tough, brutish, large men with snarling faces, a fairy tale thug, not this disturbed young man with a pale thin face and long dark curly hair who looked more like Prince Charming than a killer.
David maintained his plea of not guilty and the case was heard at Lancaster Assizes in the same court room where the Pendle witches were tried over four hundred years ago. The only issue in the trial was the cause of death, was she strangled or did she die of an overdose. The pathologist I had instructed took the view that the evidence of strangulation was weak, but when in giving evidence he accused the Home Office pathologist of breaking the hyoid bone in a clumsy dissection, the QC representing David advised him to plead guilty to manslaughter and he agreed to do so. He was sentenced to serve six years in prison, some of which he served at Parkhurst in the Isle of Wight, where his brother was serving a sentence for armed robbery.
A few years later the doctor we had instructed to give evidence about the effects of taking large quantities of Methaqualone, the active ingredient of Mandrax tablets sent me a paper published in a scientific journal which argued that the level of Methaqualone, in the kidneys was a better indication of poisoning than that in the blood stream. The levels in Lynn’s kidney was over the safe limit described in the paper.
Turning Point
Sometimes you don’t see the significance of a chance meeting. You think it’s just another turn in the road, a way through the latest problem, not something that will change the course of your life. I was in a hard place, a difficult tutorial with a lecturer in the biochemistry department, had ended with me confessing I hated the course, and was sure I was unlikely to pass the exams at the end of the second year. Despite his reassurances, I knew I did not want to carry on into the third year. At best I would only scrape through my finals, and then what sort of future did I have. I didn’t want to teach and the suggestion I could become a forensic scientist left me cold. I was struggling as it was, bursting into tears when the strain of the work in the laboratory got too much for me. But going home and facing my parents, who were so proud of me was unbearable. The thought of my father’s face, trying to hide his distress, his pale blue eyes struggling with tears as he tried to tell me, that he simply wanted me to be happy. And my mother would be cross, the sacrifices they had both made so I could go to university would have been pointless.
I left my tutor’s room feeling sick as I wrestled with the problem of my future; the smell of formaldehyde wafting from the laboratories didn’t help either. I forced myself to put one foot in front of the other, along the corridor, through the double doors with the Krebs cycle etched in the glass above. I heard as if somewhere far away, the sounds of chattering voices and the clack of my heels on the black and white tiles floor of the entrance hall. 
I walked along the path towards the Students’ Union, my mind whirled as I went through the alternative roads I might take. I crossed Western Bank, hardly noticing the traffic until a car hooted at me. Once on the far pavement I turned to cross the lawns towards the door to the Union. I was so distracted that I jumped when a voice said to me, ‘You look like you’re rather upset. Can I help?’
In front of me was the stocky figure of the Dean of the Law Faculty, Professor Wood. I knew him because, I had stood for and been elected to the Students’ Representative Council and the law Professor was the Staff Treasurer.
He smiled, encouraging me to tell him what was troubling me. I swallowed hard and then like a pipe bursting, the whole story came out; how unhappy I was, how I hated the long days in the labs; how awful the prospecting of failing and how upset my parents would be. ‘Come and see my on Monday afternoon and I’ll see what I can do. I think I can find you a place in the Law Faculty.’
Holland Walk London
Holland Walk is the scene of the murder of Shelley Paulson in my novel Crucial Evidence. I describe it as a being ‘poorly lit, the overhanging trees creating areas of deep shade; just the sort of place for a murder’ I am not the only one to describe it in those sort of terms. In 1845 the Kensington Gazette was receiving letters which described the Walk as a ‘dark sink hole’ dismal and dangerous owing to the erection of high fences and the lack of lighting. One correspondent wrote of apprehension of insecurity being such that his wife and daughters had to be warned not to use it. Yet another writer said he was ‘constantly afraid of forbidding presence of a thug’ and it was a ‘rendezvous for the obscene’ 
The Walk did not follow the same route as it does now, but at that stage turned across the front of Holland House but two years after the correspondence in the press the footpath was straightened so that it was as it is now.
There has been a death there in the distant past when after a robbery occurred in the Walk during one afternoon in October 1772, Lady Mary Coke who lived in Aubrey House (which also features in my novel) heard the sound of a pistol while she was reading in her library. A highwayman had been shot on the road outside her grounds.
It certainly is a suitable place for a murder.
I want to acknowledge the publication by Barbara Denny ‘Notting Hill and Holland Park Past.’
Something that made me laugh
Sometimes when I am out walking my dog, I see something that makes me laugh and this week a little girl called Lydia had me in stitches. She was walking along a track on Woodbury Common, a large stretch of open land that has great views of the sea. We were following the little figure, I guess she was about three, as she toddled along following her Dad, her older sister and their two dogs. Lydia, I knew her name because her Dad was shouting to her to hurry up as the rest of the family were way out in front of her. She was not to be hurried. Dressed in pink from head to toe, pink
Pink Mac
Wellington boots with yellow butterflies, pink over trousers and a pink mac she was determined to paddle through the pools of water that lay along the path. At each puddle and there were quite a lot of them, she stood arms outstretched like birds wings, waited for a second or so and then leapt into the air only to come down with both feet firmly in the water. She laughed and giggled as the water splashed up around her, her blond hair flying in the wind. It didn’t matter how many times her father called her, she repeated the action at each stretch of water she came to, until one of the dogs, a puppy called Polly vanished into the undergrowth, followed by the elder daughter, Emma. At that point, father gave up waiting for her; he ran back to Lydia and grabbed her under his arm before running off in the direction Emma and the puppy had gone. We heard him calling for the dog for quite a while but didn’t see them again. The picture of Lydia thrusting herself feet first into those puddles kept me laughing most of the day.
Lawyers in Literature
I have just finished reading The Children Act by Ian McEwan and it has made me think about how lawyers are described in fiction. The immediate names that come to mind are Tulkinghorn from Bleak House, Dickens’ masterpiece about the law, incidentally a novel that was on the reading list when I first began to study law at the University of Sheffield, Soames Forsyte from John Galsworthy’s Forsyte Saga’s and Rumpole, John Mortimer’s delicious character. Tulkinghorn and Soames Forsyte are both solicitors and are rather dry characters, brooding over wills and conveyances in dingy offices. In Bleak House the lawyers are the villains of the novel, in an interminable legal action 
In Bleak House the lawyers are the villains of the novel, in an interminable legal action Jarndyce and Jarndyce which only comes to a conclusion when all the money in the estate has been used in paying legal bills. Tulkinghorn is a manipulative lawyer who glories in the power he has over his clients as he learns their secrets.
Soames Forsyte is equally unimaginative and scheming as he tries to control his wife who he sees as his property as indeed women were until the Married Woman’s Property Act of 1882 which gave women the right to own property in their own names. The series of novels by John Galsworthy were written between 1906 and 1921 when that independence had taken root. Soames is obsessed with property and considers his wife as just another chattel. He is a cold character with little to commend him to the reader.
On the other hand John Mortimer by creating Rumpole as a caricature of the people around him at the Bar, some of whom are recognisable to me from my own career, has created a likeable rogue. Put upon by his wife, she who must be obeyed and his colleagues who he always gets the better of in the end, most readers enjoy reading about him.
In The Children Act, the main character is Fiona Maye, a High Court Judge in the Family Division who hears a case which involves the refusal of medical treatment. McEwan has written with great elegance about the reasoning HH Judge Maye uses to arrive at her decision. The character has her own private sorrows but as Tessa Hadley says in her review of the novel in The Guardian, nothing in the character’s life is as interesting as the legal arguments. In my own experience, this is true my own difficulties always seemed so petty compared with the troubles my clients face. It is perhaps the reason that writing giving a lawyer the main role in a novel is so difficult.
St Petersburgh
I haven’t posted anything for over two weeks because I have been on a cruise around the Baltic and had very limited internet connection – far too expensive on the ship and too little time to find an internet cafe on shore. We visited Copenhagen for an afternoon in the pouring rain, Rostock and Warnemunde on the German Coast with a watery sunshine, Tallin, where it rained again. The furthest destination was St Petersburgh where the temperature dropped and there was a smattering of snow. We spent two days there before returning to Tilbury calling at Helsinki where the temperature dropped to minus 5 and then Klapedia in Lithuania – never heard of it, neither had I- but it was sunny and the band played in the town square.
St Petersburgh was the highlight of the trip. Two days in not enough to see the city, its churches and palaces but we did our best.
We liked these beach chairs we saw in Warnemunde and thought we might like one for our garden.
Warnemunde
Tallin is like a film set from Walt Disney, but we found a great restaurant and sat watching other tourists scuttle around the Town Hall Square whilst we enjoyed beautifully cooked rabbit followed by a raspberry parfait.
City Wall Tallin
In St Petersburgh, I was reminded of the novel ‘The Seige’ by Helen Dunmore – chillingly graphic description of the days the city was surrounded by the Nazi’s during the WW2. Catherine’s Summer Palace was trashed by the German Army but has been restored to it’s former glory.
The Ball Room In the Summer Palace
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