I broke the golden rule in criminal defence: the less evidence the better. And it is the client who pays when a barrister makes a mistakeby Alex McBride / November 20, 2005 / Leave a comment
When a barrister makes a mistake, it is his client who pays, and in criminal law the price is often imprisonment. Nothing you say can make it better, as I discovered when Arthur, a 23-year-old client of mine, was charged with arson. On a drunken Saturday night, Arthur and some friends had driven to a half-built industrial estate to steal diesel for his van. The fuel caps on the diggers were all locked, so someone thought of burgling the temporary offices that had been erected on the site. Arthur smashed a window with his elbow, slicing his arm. The lads helped themselves to computers and drove back towards the exit, allegedly to see whether the police had been alerted. No one came. Feeling braver they returned to a second complex of offices, six feet from the one they had just burgled. At some stage soon thereafter, the second complex burned almost to the ground.
In criminal trials it is for the prosecution to prove a case beyond reasonable doubt. The prosecution’s take on the gang’s return to the site was this: Arthur ransacked the second complex and then, realising he had bled profusely, set the fire to cover his tracks. The prosecution had photos. His blood was everywhere. The spatters were marked out with plastic numbers. It looked like a crazy-golf course. Arthur had also bled on the computers, which had been found neatly piled in his flat. The weakness in the prosecution case was that the blood had been found at the first set of offices—but it was the second complex that had burned down. My case was simple: if you wanted to break an evidential link, why torch the wrong building?
The prosecution had one eyewitness, a 17 year old called William. In a previous statement he had recalled Arthur saying, “Let’s go back. I’m going to torch the place.” William was the witness who glued the circumstantial evidence together. If convicted, Arthur was looking at five to six years. With live witnesses, a jury can use only what they say in court. When questioned by the prosecution, William hadn’t mentioned Arthur’s words. There is a golden rule in criminal defence: the less evidence the better. If something hasn’t been said, shut up. Sticking too closely to my notes, which assumed William would have given Arthur’s “verbal” to the jury right between the eyes, I picked up a copy of William’s statement and smashed the golden rule.
“Mr Sykes never said, ‘Let’s go back. I am going to torch the place,’ did he?”?
As the words left my mouth I knew it was bad. The jury sat saucer-eyed, staring at Arthur. My solicitor looked at me like I was a child-murderer. The prosecutor covered her mouth. The judge sniggered silently. I had no choice but to brazen it out. I suggested to William that he had dreamt it all up. “Was it the case that you couldn’t remember which lie you’d told last?” I asked. It was desperate bluster.
When the court rose, I turned to face Arthur in the dock. He knew. “It’s been up and down today, hasn’t it?” he said.?
I couldn’t tell him I’d just got him convicted. “It’ll be better once they hear your side of the story,” I lied. He said he’d spend the evening with his three-year-old daughter. I worked through the night. Sleep was out of the question; whenever I dropped off I saw Arthur’s little girl crying for her dad. The next day the omens were bad: my solicitor had failed to return and the investigating officer was very chatty. He was the last witness and would be my foil: sometimes cross-examination is simply a way to set out your case. I got him to point out on the building plans how far the blood spatters were from the start of the fire. He confirmed that no propellant had been found where the fire began. The questions for the jury were: “Can you be sure that Arthur started the fire to break the evidential link between him and the burglaries? If not, can you be sure he started the fire at all?”
The prosecutor, who speaks first, pointed out the strong circumstantial evidence linking Arthur to the fire. William’s “verbal,” she said, underlined Arthur’s intention to cover up his guilt. Then it was my turn. I drew all Arthur’s points together. I tried to rubbish the “verbal,” but its echo persisted. Once the jury retired, I retreated to the barristers’ restaurant. I couldn’t face Arthur. He had brought his uncomprehending parents and a stunned girlfriend. After three quarters of an hour the jury asked to hear the damning part of William’s statement. I winced as the judge read out the words. Fifteen minutes later they returned, averting their gaze from the defendant. The foreman confirmed there was a verdict and that it was unanimous.?
“Members of the jury, do you find the defendant guilty or not guilty?”
There was a pause. I wrote a big G in my notebook.?
“Not guilty,” replied the foreman.
The judge was astonished. I leapt up. “May Mr Sykes be discharged, your honour?” He was. The burglary sentence could wait; he wouldn’t go inside for that. Outside court Arthur dissolved, weeping into my shirt. Even his family clung to me. Arthur would have his freedom, his little girl would have her daddy and I wouldn’t be haunted. I had blown a lifetime of luck in an afternoon.? There was no better way to have spent it.