KATE
24 April 2017
Twelve
The courtroom is quiet. Quivering with the weighted anticipation that comes in the second before a Wimbledon player serves for the championship or a fly-half lines up a penalty kick that will win the rugby world cup.
We have gone through the administration. The choosing of the jury; the organisation of our work desks; the last-minute horse-trading between myself and the defence barrister, Angela Regan, so that we agree on what can and can’t be brought as evidence and so that there will be no further disclosures at this eleventh hour. We have coughed and shuffled and sought to endear ourselves to the judge’s clerk, Nikita, a young Asian woman who, by virtue of her closeness to the judge, is one of the most important people in the room. We, with our juniors, Tim Sharples and Ben Curtis, who have done some of the background work, the drafting of statements and liaising with solicitors, and who sit beside us, have marked out our territories, physically, intellectually and legally, as carefully as two tomcats out on the prowl.
His Lordship, Judge Aled Luckhurst, QC, has spoken to the jury, explaining their responsibility in judging this case. The man being tried, he reminds them, is a high-profile individual whom they may recognise from the newspapers. There are a couple of blank faces at this – the young black guy on the back row; and a grey-haired wisp of a woman dressed as if the past three decades have passed her by entirely – but most of the jurors brighten at this news. Fresh and alert, on this Monday morning at the start of their two weeks’ jury service, they know full well that James Whitehouse is a junior minister in Her Majesty’s Government, although they may not have known, or cared, about his title or role. What they do know is that he is the politician who is accused of raping a colleague in a House of Commons lift. They watch him shrewdly. Does he look like a rapist? What does a rapist look like? He looks less like a politician than one of the new breed of top public-school actors.
They have struck the jackpot in the lottery of jury service. Short of a trial involving a television celebrity, or a gruesome murder, they could not have landed a more interesting or gossip-worthy case. But His Lordship suggests they should be impervious to this fact. ‘We hear a lot about rape at the moment in parliament and the papers,’ he intones, his voice more patrician than ever. ‘We all have prejudices and you must make sure you do not let prejudice, preconceived ideas or conjecture influence you in the least.’ He pauses, letting his words hit home, and, though he has said this over a hundred times before, the formality of his language; and the authority he exudes – through his wig; his voice; his position high on the bench on his throne – creates an intensely solemn moment. No one seems to breathe; no paper rustles. ‘This case must be tried solely according to the evidence.’
He pauses and there is that heavy anticipation; that frisson of apprehension and excitement. You can see the enormity of what they are being asked to do weighing them down. The young Asian man stares, eyes widening; a woman in her thirties looks stricken with fear. His Lordship elaborates, explaining that though they may have read about the case in the newspapers or on the internet, they are not to do so from this point. Nor, and he looks at them down his nose, over half-moon glasses, are they to conduct their own research. Most importantly, they are not to discuss the case outside the jury room, not even with family and friends. He smiles here, for he is a very human judge, one whom I admire and the jury will grow to like; in his early fifties and so not one of the judiciary who seem divorced from the real world, even if he refers to ‘the internet’ as if it is to be regarded with suspicion. I suspect he knows more about the net than many of the jurors. He recently presided over a lengthy fraud trial by two City bankers and, before that, the trial of a paedophile ring that met in an internet chat room. He knows all about the work of the criminal internet retrieval unit, which can unearth documents apparently erased from hard drives, and though he may not use WhatsApp and Snapchat, himself – preferring to sing in a Bach choir and grow orchids in his spare time – he knows exactly how they work.
The jurors smile back at him and nod, these twelve good men and true, though seven are women: a jury that’s not ideal as women are more likely to acquit a personable man for rape. Two or three are making notes: the rotund man in suit and tie on the far right of the front bench, who I suspect will become the jury foreman; and two of the women, both in their thirties, whose gaze flits from the defendant to the judge. An Essex boy – goatie; gelled quiff; cable cardigan; impressive tan – stares at the man in the dock behind me; a hint of menace simmering just below the surface. I look down at my note, hands soft in my lap, and wait for my moment to come.
With a nod from the judge, I stand, positioning myself with my head up and my body at ease. My left hand holds my opening speech, at which I will barely glance, my right a disposable fountain pen with purple ink, my tiny act of individuality to counter the innumerable conventions of the court. I won’t need this pen for my speech but it and my sheaf of paper are props to prevent me gesticulating wildly: the last thing I must do is fidget and risk distracting the jury or irritating the judge.
I hold the judge’s gaze and then I turn to the jurors and make eye contact with them all. I am going to speak to these people, concentrating on wooing them above anyone else. Like a lover intent on seduction, I will use the tenor and tone of my speech and the way in which I hold their attention to persuade them. I will use every trick in the book.
For, on this opening day, everything is unfamiliar and disorientating for these jurors: the wigs, the gowns, the language which could come from an eighteenth-century textbook: my learned friend; Your Lordship, if I may interject? An issue of disclosure? Well, there it is. I am mindful to suggest an adjournment. Mens rea. The burden of proof.
By tomorrow, they will be used to the canteen; will know where to go to the loo and how long they will have for a cigarette break. They will realise how hard they will have to concentrate – will agree that, as the judge says, ‘five hours a day is quite enough for all of us’. By then, they will have understood the legal definition of rape and the concept of consent and their eyes will no longer widen, their bodies freeze in surprise when words like penis, penetration, oral and vagina are used.
But for now, they are keen pupils at the start of the school year: in polished shoes and smart uniforms; with new folders and pencil cases; excited and apprehensive about what the week will entail. And I will settle them in; will reassure them that we can do this together; that they will understand the terminology as well as the magnitude of what the British justice system is asking them to do. I won’t bamboozle them with law. Most crimes centre around dishonesty, violence and lust: the last two in full play here. Juries sometimes surprise me with the astuteness of their questions and they will be fully capable of understanding the question at the heart of this trial: at the point of penetration, did James Whitehouse understand that Olivia Lytton did not consent to sex?
I begin to speak, still ignoring the man in the box behind me, whose eyes I imagine boring through my black gown, my waistcoat, my tailored shirt and into the soul of me; but taking heart from the fact that his wife, whom we had thought would be unfailingly supportive, is not in the public gallery high above the court. My voice is low and reassuring, caressing the words, and only interjecting a note of sorrow and indignation when strictly necessary. I reserve my anger for my closing speech. I may need it then. For now I will be calm and steady. And this is how I start:
‘This case is centred on an event that took place between two individuals. James Whitehouse, who you see behind me in the dock, and a young woman called Olivia Lytton.
‘Mr Whitehouse, as His Lordship has said, may look familiar. He is a Member of Parliament and, until he was charged with this offence, a junior minister in the government. He is married with two young children and Miss Lytton was his parliamentary researcher who started working for him in March last year.
‘By the May, the two of them had embarked on an affair, despite his being married. It was a consensual relationship and Miss Lytton believed she was very much in love. The relationship ended on October 6th when Mr Whitehouse told her he needed to be with his family. And that might have been that. Except that on October 13th, a week after their affair finished, they had sexual intercourse once again in a lift off the committee corridor in the heart of the House of Commons.
‘There is no dispute that this event took place. Both sides acknowledge that. What is in dispute is the nature of it. Was this, as the Crown submits, something sinister: an act forced upon Miss Lytton by the defendant? Was it, in fact, a rape? Or was it, as the defence will submit, an act of passion: a frenzied bout of lovemaking by two individuals caught up in the moment?
‘You will hear evidence from both sides but for you to reach this verdict you must agree on three things. One, did penetration by a penis take place? The answer is yes: neither side disputes this. Two, at the point of penetration, did Miss Lytton consent? And, three, at the point of penetration, was Mr Whitehouse aware that Miss Lytton did not consent?’
I pause and push my heavy-rimmed glasses up my nose then look at the jury, managing eye contact with each and every one of them; trying to impress upon them that they must concentrate but simultaneously to reassure them that they can do this. I smile as if to say that this is simple.
‘It really is no more complicated than that.’