Tag Archive | Barrister

Life at the Bar – The Unquiet American part 2

Walt was an interesting character, half American and half German. He had two older sisters. Their father was a GI serving in Germany. Walt told me the American Army were against marriages between natives and members of the armed forces. Nor were they interested in assisting immigration by families any soldiers had established in Germany. His father was sent back to the USA leaving his mother to bring up the three children alone in a war torn country.

His father kept in touch with the family but after a few years he wrote to say he had married an American woman, (shades of Pinkerton) and he wanted the children to come and live with him so they could have a better life. His mother reluctantly agreed, believing the USA to be some kind of promised land. The two girls went first and Walt joined them when he was seven. To his horror, he found himself taken to a wooden shack in the back woods of Mississippi, where he and his sisters were treated as little more than slaves. Their father’s wife instead of being a mother to them forced them to do a lot of the housework. There was no electricity, no running water and Walt’s job was to chop what seemed an endless supply of timber. They were forbidden to speak German together and were beaten when They were not given any education at all.  DSC0486-M

One day when he was about nine years old Walt decided to run away. He was fortunate in making it to the highroad where he was picked up by the local sheriff. The equivalent of our local authority was informed. The two girls were taken from their father and all three were placed in the care of the Local Authority. However the three siblings could not be kept together and they were adopted by different families. Walt ended up in Florida living with a quite wealthy couple who had no children. They encouraged him to speak German and he went to university. When they died he inherited their wealth. He said there was not an enormous amount but enough for him to come and live in the UK, buy a modest flat in London without having to find work. He did describe himself as a writer and poet.

After he moved to the UK, he began to search for his mother and his sisters and was able to locate his mother just before she died. His father he never wanted to see again. Just before the incident he had found his sisters and they had an emotional reunion in the States with the sheriff who rescued them. He showed me newspaper cuttings about their meeting.

The trial in the Crown Court took four days. We had sought discovery and had obtained the papers about the murder investigation which illustrated how close local police officers had become to the family. The Judge, probably on the basis that it could do no harm let the evidence about that relationship be given to the Court. Similarly, I was allowed to ask the sergeant about her connection with the family and to ask her about her bias in favour of the fish shop owner.

Walt gave evidence and admitted the threatening words in the witness box, but he was acquitted of the common assault charge. He wasn’t happy about that. I advised him he had no grounds to take the matter to the Court of Appeal and I thought he had accepted that. Then I started to get letters from him asking to see the notes I had taken at the hearing and a copy of my closing speech. I declined and he reported me to the Bar Council. Something every barrister dreads. When I explained the reasons for not letting him have my notes the Bar Council dismissed his complaint. Anyway, my writing was so bad I couldn’t read the notes of my speech, so I doubt they would have given him an assistance.

Life at the Bar – The Unquiet American

In the calendar of offences, threatening behaviour comes fairly near the bottom, although it can have disastrous consequences. It is an offence for which there is no right of election to have the case tried by a jury, so most senior barristers are only rarely instructed in such cases. However, I was instructed to represent a defendant who had been convicted of threatening behaviour and a common assault in the Magistrates court and was appealing that decision to the Crown Court, where the court would comprise a Judge and two Magistrates.

The defendant was an American and was in his late forties. I can’t remember his name so I’ll call him Walt. The circumstances of the case did have an unusual twist. Walt had gone to buy fish and chips at a shop near to his home. He had gone on his bicycle intending to return with a meal for him and his girlfriend. He had gone by bicycle and when he went into the shop he propped the bike up against the plate glass window. As he joined the queue, Mike, one of the grown up sons of the owners, who was serving in the shop, asked him to move it. Walt began to argue with Mike and the language became more abusive. The abuse escalated when Walt said Mike’s brother, who had been murdered about eighteen months previously, had probably deserved it.     Modern_fish_and_chips_(8368723726)

Mike grabbed hold of the bike and threw it into the road, damaging the front wheel. Walt was very angry and a scuffle started. The police were called and Walt was arrested. At the police station, Walt was interviewed under caution by a woman detective sergeant. He said she was rude, refused to listen to his account of the evening’s events and told him the damage to his cycle was minimal. Furthermore, she had no intention of arresting Mike for an offence of Criminal Damage, nor for any assault on Walt. It transpired later she had been involved in the investigation of the murder of Mike’s brother and, at one stage had been the family liaison officer. Walt’s view was that she was a biased investigator in his case and, he believed, could not envisage the shop owners and their family could lie. He may have been right. Unusually the local police station had conducted the murder inquiry rather than the Murder Squad. I assumed it was because the murderer was known and had recently been released from a secure hospital in the area.

As a way of proving the police were not independent of the fish shop owners family, Walt decided to keep watch on the premises and count the number of times officers arrived and, he said, were given food. There were further incidents but none serious. No one was arrested but Walt was warned not to persist in his surveillance. He didn’t take any notice of the warning and continued often in disguise. He didn’t fool anyone and in the end, an injunction was obtained to keep him away from the shop.

When the case came to trial in the Magistrates Court, Walt was convicted. The evidence he had put together alleging police bias was disallowed. He decided to appeal and it was then I was instructed to represent him in the Crown Court.

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Life at the Bar – A Case of Incest Part 2

The trial took place at the Old Bailey in front of a judge who might have come straight out of central casting; I don’t know he if he was an old Etonian but he had certainly been to public school. I thought he was a good judge for this case as I knew him to be fairly independent minded and I thought likely to be lenient. I tried to persuade David to plead guilty to the offence but he continued to deny he had had sexual intercourse with his sister. Old Bailey

As I had warned him, his sister was a reluctant but compelling witness; she  did not want to condemn her brother and was desperate for him not to be punished. She was adamant that she had not been forced into having intercourse and said she loved him.

David’s case was that although there had been some physical relationship it had fallen short of sexual intercourse and his sister had made that up at the instigation of her mother. She was such an obvious truthful witness that cross examination was difficult. Despite, I thought, some quite skilful cross examination by me, she repeated the assertion that they had sexual intercourse and denied her mother had suggested she say they had when they had not. However her mother did not present in the same way. There was no suggestion of any reluctance to give evidence against her step son – she spoke in anger rather than in sorrow. Her reasons for abandoning the two little boys seemed feeble when she tried to explain in the cold light of the court room, yet there was no hint of remorse about it; her own interests were paramount.

When David’s father gave evidence, he told the court how guilty he felt when his new wife had said she could no longer care for his sons. He had tried to find a solution to their problems and thereby enabling his two children to stay living with them, but  it proved impossible. ‘I have felt guilty about it every day since. I was so glad when they came to find me and to see they had grown up to be such great young men.’ He went on to say that he had not thought through how difficult the reconciliation might be between the two families.

David gave evidence and the jury heard how he had felt first at the loss of his mother, and then how happy he had been when his father remarried because he had a mother again. He explained that his step mother had been kind and loving towards him and his elder brother and he had believed they would live happily as a family forever. He described the last time he had seen his father; he and his brother had gone with him to some offices – at the time he didn’t know what they were. He was left there with his elder brother. At first, he thought his father and mother would come back for him, but soon he realized they would not. He described the feelings, first of disbelief but then he said he felt like he had fallen into a black hole, totally abandoned and unloved. He wondered what he had done wrong to deserve such punishment. Both boys were adopted but not by the same families. They were encouraged to keep in touch with each other so he always knew he had a brother and that he was adopted. He described  his adoptive parents as being loving and supportive. Certainly one or other of them came to court each day.

When it came to describing the reunion with his father and step mother, he said he felt uneasy particularly with his step mother. He acknowledged they had helped him to buy his flat and furnish it. He had been thrilled to find he had a sister and, he said, the two of them had a similar sense of humour, enjoyed the same music and liked similar food. When he moved into his flat, she began to visit him after school and in the evenings. At first, they had just played music but then they had begun to kiss and cuddle each other. He felt flattered by her attention and although he knew he should not encourage her he didn’t stop her from visiting him, but he did not have intercourse with her. He asserted that it was his step mother, who he believed hated him, who had persuaded his sister to make the allegations against him.

The jury had listened carefully to his account. Certainly when I was addressing them concentrating as I did on the step mothers attitude some of the jurors had nodded sympathetically and one or two of the women wiped what appeared to be tears from their eyes, but in light of the sister’s evidence David was convicted.

In my plea in mitigation I stressed how David and his sister had not grown up in the same family and so the usual relationship between brother and sister had not developed. I directed the Judge to the loss of his birth mother and then the abandonment by his father and the step mother he had learnt to trust. In passing sentence the Judge said that David may have been abandoned at seven, but his father and step mother had made it up to him by helping him with the purchase of his flat. Surely I thought only someone who had been sent to a prep school at such a young age could think that money could make up for the trauma the seven year old child had suffered. However he passed a very lenient sentence on David – I think a short period of community service, so perhaps his words reflected what he thought was required by the system and in his heart he remembered what it was to be separated from your parents at such a tender age.

Life at the Bar – A case of Incest.

 

Most of the cases of incest we hear about are fathers and daughters, but the offence covers other family members; in the case of a man his mother, sister or grand-daughter.  Very often those cases involving a brother and sister are not prosecuted, if the parties concerned are both consenting adults, but in the case I am about to describe, the sister was under age and her mother was on the warpath. The Old Bailey

The defendant David X was in his early twenties and his story was unusual and, I found, rather upsetting. David was the younger of two brothers; their mother had died when he was three and his brother five. They remained living with their father and when he remarried his new wife only a couple of years later, she took on the role of their mother. For two years all was fine, but then problems began to arise that were no fault of the two boys, now aged seven and nine. The wife was Australian and her mother became ill back in that country. Trying to organise care for her mother at that distance was difficult and then the step-mother suffered a miscarriage.  Not surprisingly she was very upset and she blamed the loss of her baby on the stress of having the responsibilities of caring for two boisterous young boys. What happened between the boys’ father and her was never disclosed but it resulted in the brothers being put into the care of the Local Authority. The boys were separated when they were adopted by different families. Their step-mother then became pregnant and gave birth to a baby girl.

When the elder brother was twenty-one he decided he wanted to find his birth parents. His search took a little time but eventually he was able to meet his father, step-mother and half-sister. They were welcoming and he liked them. However, David was reluctant to meet them; he said he felt uneasy about having contact with the woman who he considered had abandoned them. After a few months he was persuaded to go with his elder brother to their home. Although he was distant with his step-mother, he had an immediate rapport with his sister, and they soon established a close relationship.

David was an industrious young man and had saved almost enough money for the deposit for a one bedroomed flat. (This was some years ago when property in London was more affordable) His father agreed to provide some extra money and assisted David with obtaining a mortgage.

After David moved into the flat, his half-sister became a frequent visitor. She was fifteen and what had been a close friendship quickly developed into a real attachment and eventually they became romantically involved. The relationship didn’t last for long before the girl’s mother found out about it and it was her who reported it to the police. The girl was reluctant to give a statement but under some pressure from her mother she did do so. David denied the offence when he was interviewed.

To be continued

Life at the Bar – A Date with a Judge

A few years after I had been called to the Bar, I was at a drinks party in The Temple to which a number of Judges had been invited. Amongst them was a Judge I knew quite well because he had been a solicitor and appeared at one of the London Magistrates Court on a daily basis. He was about five or six years older than me, single, quite good looking and an entertaining conversationalist so when he invited me to have dinner with him one evening I accepted. We arranged to meet the following Wednesday outside the Royal Court Theatre in Sloane Square, Chelsea.

On the day of our date, I can’t remember what happened but at some time in the afternoon I realised I would be unable to get to Sloane Square by the agreed hour or at all. This was before the days of mobile phones, so I tried to ring the Court where I knew he was sitting. After some delay, I was put through to the Court Clerks’ room, only to be told the Judge had risen for the day and he had left the building. I tried various other numbers hoping I could catch up with him, but failed to do so. Eventually, when I was able to do so, I left court and went home. I resolved to write the Judge a short note apologising for standing him up, but didn’t manage to get round to it as quickly as I should have done. london_courthouse

A couple of days later I was instructed to represent two brothers who were facing a number of counts of burglary. They both had a number of previous convictions and were reluctant to plead guilty to these new offences, although the evidence against them was fairly conclusive. The case was listed for plea and directions, which meant they would be asked whether they were pleading guilty or not guilty.

I arrived at court determined to persuade them it was in their best interests to plead guilty to the charges on the indictment. Quite often when a defendant pleaded guilty they were sentenced immediately; this was particularly true if they were persistent offenders and the only possible outcome was a custodial sentence. I had anticipated that is what would happen with these two brothers.

When I arrived at the Court House and checked which judge would be trying the case, my heart sank when I discovered it was the Judge I had stood up the previous Wednesday. Here was a dilemma; was I advise them to plead guilty and hope the Judge would not inflict any greater sentence because of my actions or let them plead not guilty and hopefully be in front of a different judge on a later occasion.

I decided my initial opinion was the right one, and in conference with them both I advised them to plead guilty. They were still reluctant and one of them asked me if I knew the Judge. I told them I did and that I thought he would be fair and reasonable when he passed sentence on them. I didn’t reveal my indiscretion of the previous Wednesday.

They maintained their innocence and I left them in the cells and went up into court, a little relieved that I would not have to mitigate on their behalf in front of a Judge I had offended. Just as the two brothers were called into court, the dock officer called to me and said they wanted to speak to me; I had to ask the Judge to allow me a few minutes. He did so and when I spoke to my clients they said they had changed their minds and would plead guilty to the indictment.

The Judge must have felt he needed to put out of his mind my failure to keep our date, because he gave them, what I thought was a very lenient sentence.

Life at the Bar-Difficult Judge II

That episode with such a difficult judge contributed, I believe, to the decision by the Lord Chancellor’s Office to refuse my application for Silk. It wasn’t the events in Court but my reaction to it, which meant I was thought to be ‘not quite the right style for Silk.’

The Judge’s behaviour towards me in the course of that hearing had left me feeling rather bruised. In my view, I had been belittled in Court in front of my client, other barristers, solicitors and probation staff. Many of the Court staff were shocked by his behaviour and had apologised as if it was their fault. Barrister's Wig

I heard nothing from the Judge until a couple of weeks later I was at the same court and one of the court clerks said the Judge would like to see me in Chambers. I asked if prosecuting counsel in my case was wanted as well.

‘No. He’s just asked for you. I think it is about the other week.’

We both knew what she meant. I didn’t want to go and see him at 10 am before Court sat, not least because he liked to offer a glass of sherry to counsel invited to his chambers and I refused to drink at that time in the morning. On previous occasions, I had poured mine into the soil surrounding a potted plant, but on my own I would find it impossible to do  that. But, and more importantly to me, his rude remarks had taken place in open court, I felt he should make his apology in court as well. I knew it was never going to happen.

I declined his invitation and although there was never a repetition of that scene, nevertheless I had clearly been struck off his Christmas Card list (not that I was ever on it) and I suspect was deemed by him to be unsuitable for Silk.