KATE
27 April 2017
Twenty-four
It is late afternoon before I pick up the call from Ali. I noticed her number flash up on my mobile as I made my way to Middle Temple just after seven this morning. The sky was a non-committal blue as the Strand roused itself from an uncomfortable night’s sleep. I bought a double-strength cappuccino for myself, and a hot chocolate with extra sachets of sugar to place by the olive-green sleeping bag, curled up in a shop doorway. The girl didn’t stir and I scrutinised her small, hunched figure to check that she was breathing for the night was cold: temperatures dipping below freezing. My toes in my thin tights and court shoes were numb as I bent down, the chill of the grey pavement running through me. Only when I noticed a faint movement – the tiniest of shivers – did I move away.
I didn’t have time to listen to Ali’s message then: was too focused on thinking about Kitty Ledger’s evidence and on a quick pre-trial preliminary hearing I had to do at ten. The icon for my answerphone registered a small red dot but I filed the fact that she had left a message neatly away. I spent the afternoon preparing for my cross-examination of James Whitehouse and it was only after I’d finished that I pressed the dot – expecting a chirpy suggestion of dinner or perhaps meeting for a drink, for it has been over a month since I saw her and she is good at keeping in touch – far better than me, with my tendency, when work overwhelms, to shut down my social life and be reclusive. There were three missed calls – odd, since she knows I don’t take social calls when in court – and three short messages. I played them back, my breath quickening as her voice, taut with anxiety, and increasingly querulous as if desperate for reassurance, filled my head.
‘Kate. It’s about your case. James Whitehouse. Can you call me?’ then. ‘Kate. Please can you call? It’s important.’ Finally, at 6.03 p.m., about the time when I think she’d usually be picking Joel and Ollie up from after-school club, a message that is more businesslike: her voice irritated but with a touch of hurt that I have been ignoring her all day. ‘Kate. I know you’re busy but I need to talk to you. Can I come round this evening?’ There is then a small sigh, as if I am one of her children and she cannot contain her disappointment. ‘I think it’s important, Kate.’
And so she must know. I look out of the window of my Georgian office, and across the court towards others in this rarefied setting. The pane is splattered with a flurry of raindrops: the evidence of the brief hailstorm that drenched me as I ducked out of my cab and raced back into chambers, struggling to manoeuvre my wheelie case of documents, as the storm clouds turned the late-afternoon sky a deep plum like a bruise that settles and takes time to fade. I watch the drops trickle down, and I think of how I would peer out of the library windows at college: those elegant panes of glass that offered a view into other worlds: that let me look down onto those who weren’t able to enter; and of how my elevated position here lets me do the same. Enclosed in the heart of the British legal establishment – in the heart of this maze of Georgian buildings – I am completely safe.
And then I think of how James Whitehouse must have thought he was similarly protected in a much more fortified, rarefied place: the House of Commons. Secure at the very heart of the political establishment, involved in devising and voting through our legislation, for heaven’s sake. I think of the protection his position affords him – and then of how he may finally be unmasked, caught out by the very laws he and his predecessors helped to create. How his ministerial status does not preclude him from having to stand in the dock at the Old Bailey, as accountable as the most prolific, apparently amoral recidivists. The criminals who break the biggest taboos in society. The murderers, the paedophiles, and the rapists.
I think of how justice is not always done. Of how a recent CPS report admitted that in three quarters of cases there are issues with disclosure: the crucial question of whether all the evidence needed for the administration of justice, evidence that may help the defence or undermine the prosecution, is provided; and whether this disclosure comes too late or is incomplete.
All of us working in the criminal justice system know of trials that have collapsed because it emerges late in the day that a star witness has contradicted themselves and is not as trustworthy as presumed; or because information suddenly emerges – perhaps gleaned from social media – that contradicts the Crown’s case. We all fear that unreviewed evidence may be sitting in a box somewhere: the police disclosure officer and CPS lawyer not having had the time to review it and put it on the schedule of unused material. Since such potential evidence is sent to lawyers, it is not impossible that some material becomes lost: left in a post room; abandoned by a courier. Miscarriages of justice may be occurring in the welcome rush to speed up the judicial process.
But it cuts both ways. If there are issues with disclosure, a case can be thrown out in legal argument before we even get to offer the evidence, meaning that those we are sure are as guilty as hell sometimes ‘get off’ on a legal technicality. And I think of how I cannot bear this to happen here. How, even if there is a modicum of doubt in Olivia Lytton’s case – for she admits she entered the lift with James Whitehouse; that she kissed him willingly; even, initially, that she welcomed it – there is the evidence that mounts up: the bruise on her breast; the wrenched tights and ripped knickers; that phrase with which he dismissed her, as painful as the thrusts in its utter contempt.
I can hear him whispering it now, in that honeyed voice which carries the potential to be loving but was anything but in this instance. ‘Don’t be such a prick-tease.’ And I know, right down to my bones, that he said it to her there in the lift.
It’s not the sort of thing witnesses make up.
And, besides, it’s exactly what he said to me.
We meet at my flat in Earl’s Court. Somewhere Ali rarely comes: a schlep from Chiswick, though I am on the right side of town. I have picked up a few M&S salads, though I’m not hungry: my stomach a mass of anxiety, bile swirling instead of the pangs of hunger I would normally feel by eight. I pour myself a large goblet of wine and watch the white spikes cling to the inside of the glass. It is cold and tastes of nectar. An aromatic Sancerre. I take another greedy gulp and perch on the edge of my armchair, the burnished leather still glossy for, like all my furniture, this is relatively new: not the lived-in leather armchair I crave, that smacks of age and casual dishevelment; that tells of a long lineage. The seat is overstuffed and I find it hard to relax.
Or perhaps it’s difficult to relax because I know that I have done something wrong – at least according to the code of conduct of my profession. I knew it, as soon as Brian handed me that printout of the legal documents – my billet doux despite the lack of pink fabric ribbon – with R v Whitehouse on the cover sheet.
The prosecution has to disclose anything that might undermine their case or help the defence right at the start of the judicial process and they have a continual duty to do so throughout the trial. And I think it’s pretty clear that prosecuting a defendant you know – even if he might not remember that he knows you – is an abuse of process. And if you believe that he raped you? Well, you can see how that might look.
The Bar Standards Board – the body that prosecutes barristers – doesn’t stipulate that you mustn’t prosecute someone you know outright. Perhaps it doesn’t feel it needs to. But it is pretty unambiguous about barristers needing to behave in such a way that justice is not only upheld but is seen to be upheld. By not revealing the connection, I am possibly breaching its code in three ways: by not observing my duty to the court in the administration of justice; by not acting with integrity and honesty; and by behaving in a way that undermines the profession in the eyes of the public. I suspect the Bar Standards Board would take a pretty dim view of me.
I start shaking, then. Properly shaking. A compulsive trembling which is utterly alien to me and which I have only experienced once before, as I scrubbed myself raw in that college bathroom. A distillation of true fear. It continues for around five minutes, my wine glass quivering in my hand before I manage to right it on the table, stem banging and threatening to smash, knees knocking despite my attempts to hold them together. To quell them. I tell myself to breathe, to get a grip: that the thing I now fear the most – being betrayed; being exposed – will not happen for Ali loves me and I can make her understand. I can persuade her for persuasion is what I excel at. And even if it weren’t, she would see, wouldn’t she? My breathing quietens. She will see. Of course she will. She has to see.
For I should have disclosed the fact that I know him – or I knew him, of course I should. I should have willingly passed the case over to a colleague and trusted that they would prosecute him as assiduously as me. And yet, given that choice, I couldn’t do it. I couldn’t relinquish control and trust something as important as this to someone else. For in relationship rapes, the chances of securing a conviction are slight and I couldn’t risk not tipping the scales of justice. I could not trust that anyone else would prosecute as passionately, as wholeheartedly, as me.
For what I am concerned with is natural justice. With trying to bring someone to account for a crime they committed over twenty years ago and ensuring they cannot commit it ever again. And I have a less edifying motive. I have felt such pain and self-loathing because of this man; have felt violated by that act: diminished, reduced, irrevocably altered; my trust that he would stop when I asked him, shattered like a wine glass hurled on ancient flagstones, crushed to smithereens. I’ve never been able to trust anyone entirely after that: never been able to give myself completely. I don’t want him to get away with doing that to Olivia or any woman in the future, no; but nor do I want him to get away with doing it to me.
Ali is flushed when she arrives: hair a little mussed, her face red either from racing from the tube or, more likely, because she is steeling herself for what she has to say.
I go to kiss her when I open the door but she deflects me, bending to put her bag down and shrug off her coat then turning to hang it on the pegs in the hallway. She is unusually silent. Normally she doesn’t stop talking when we meet as if aware that we both have limited time and that we need to cram as much news into our allotted two or three hours as possible. Silence is a luxury that comes with everyday familiarity but even when we briefly shared a flat or lived alongside each other in college, we were never silent – still less distant. We were both too busy; her too naturally extroverted and me too enamoured of being in her company.
She looks at me coolly now. Not a sentiment I would ever attribute to her for she is the warmest of friends even if our lives have recently felt more distant. And there is something else in those big blue eyes: a hint that she is hurt, perhaps. Aggrieved.
The milk of human kindness that Alistair so painfully accused me of lacking flows through Ali’s veins and I try to read sympathy in her eyes for she is nothing if not compassionate. I smile: a smile that is more nervous than I would wish; holds none of the self-belief I convey in court. She glances down, her mouth in a twist, and doesn’t reciprocate.
‘Would you like a drink?’ Alcohol has always eased our most difficult conversations: when I told her I was leaving Alistair; and when we first met after I left Oxford. It was eighteen months later and I was no longer Holly but Kate by then, and she was visibly perturbed by the change in me. I was all angles: sharp elbows and knees and cheekbones like blades beneath newly bleached, straightened hair. She hadn’t recognised me in the pub and we covered up our mutual embarrassment and confusion by ordering vodka and oranges and slinging them back, the burn of the spirit soon loosening our tongues. ‘Another?’ she had asked, and: ‘Why not?’ I replied until we had downed six shots in quick succession and the swirly carpet was rearing up; the smoky room bearing down. We had staggered from the bar, ignoring the catcalls that followed and laughing with the abandon of young women who have escaped unwanted male attention as we burst into the cold December night.
‘Why not?’ she says now, affecting nonchalance, and perches on the edge of my sofa, her hands in her lap and fingers threaded through each other like a basket weave. I place a wine glass in front of her, generously filled with the golden Sancerre. She glances at it, then picks it up and takes a sip, her face relaxing as the liquid slips down so that it is a sombre Ali in front of me but no longer a cold one. I sit on my chair to the side of her and wait for her to speak.
‘I’m worried about you,’ she says at last.
I look down at my toes in their opaque tights, not wanting to risk incurring her anger, waiting for her to finish.
‘James Whitehouse. I know he’s married to Sophie – the Sophie who did English in your year, your tutorial partner?’
I sense her eyes on me, and look up, tentative.
‘I can’t work out why you wouldn’t have mentioned the connection. Was it . . . it wasn’t him who did it to you, was it?’
I meet her gaze.
‘Oh, Kate.’ Her look softens, eyes brimming with tears now, and she shifts forwards as if to hug me. I can’t bear it; would almost rather the harsh burn of her anger than the warmth of her touch.
‘Don’t.’
‘Don’t what?’
‘Touch me.’ My words come out wrong; my voice tight as a vice.
A flash of hurt crosses her face, and I look back down, hands in my lap, shoulders hunched forwards; trying to contain my emotion. The second hand on my watch ticks: one, two, three, and I wait.
‘I can’t believe it was him,’ she says, as if seeking reassurance that it wasn’t.
I remain silent. There is little I can say.
She looks agitated, her cheeks flushed, for the truth seems particularly unpalatable. Her fingers twist until she thrusts her hands beneath her thighs.
‘All these years, it never occurred to me it might be him . . . I mean, we didn’t know him, did we? Did you know him?’
‘No.’ I clear my throat.
‘He was never in college, really, was he?’
‘No.’ I’m not sure where this is getting us. ‘It didn’t happen in our college and I didn’t need to know him.’
‘No – of course not . . . Oh, Kate.’
I wait, not quite sure what she wants from me. I cannot rail or weep about this now, for I have boxed up my anger and, if it occasionally takes me by surprise, it is not for public consumption – not even with the woman to whom I am closest and with whom I couldn’t share it, then. My colleagues sometimes call me the Ice Queen: a compliment of sorts, for a barrister has to be capable of putting emotion aside and being forensic, detached, even severe. I am icy now. Cannot let myself show anything as messy as grief or fury. Somehow I expect her to know this; and hope she will let the issue drop in a show of sympathy.
But, of course, I have underestimated her.
‘Kate, should you really be prosecuting him when he did this to you?’ Her voice is beseeching but she has pinpointed the kernel of the problem: the probable lack of impartiality given that I am prosecuting a man who raped me for exactly the same crime. ‘I can totally see why you’d want to do it but how could you have got yourself into such a position? Shouldn’t you tell the judge or something?’ And she looks at me as if I have the power to right all this now, though I can’t without the trial being abandoned and a fresh one ordered; one prosecuted by someone who cannot care as much as I do; one which will ensure Olivia has to go through this whole ordeal again.
She does not see this: does not realise, either, that if I confess to this prior knowledge, the trial will be stopped on the grounds of abuse of process and my entire world will come tumbling. The only other option is to hold my hands up and claim that I have only just realised the connection. But who on earth will believe me?
I must tread gently here for I have a choice. Do I lie – and try to convince her that my experience is irrelevant; that as a professional I can put it aside – or do I tell the truth and try to appeal to her sense of natural justice and compassion? She wouldn’t betray me, I know that, however clear her moral vision, her need to do the right thing. But I need her to understand my stance – or at least be convinced of the reason to stay silent. I don’t want her to think me corrupt but to realise that, in that moment of accepting the papers from Brian, I didn’t feel I had a choice.
I begin to talk and I find that my voice is trembling as I try to explain why I took the decision to accept the brief, even though I knew I could lose everything. The spectre of me sitting in front of a disciplinary tribunal hovers, just out of eyeshot: the prospect of me being barred from working. I think back to the moment when Brian handed me the documents and I could – perhaps should – have said, very calmly, ‘No thank you.’ Why didn’t I? Because I am a control freak who couldn’t bear to pass up the opportunity? Because I wanted to wreak my revenge? My accepting felt involuntary. I held out my hand and took it and it felt as if Fate intervened. Here you are, she said. And I know this sounds like madness: the ramblings of a schizophrenic who pleads diminished responsibility; who argues that a voice in her head told her to do something. But, in that split second when I took the papers, I wasn’t thinking rationally.
‘Can you imagine if something happened to Pippa?’ I say, and I am aware that this is dangerous ground, my asking my closest friend to imagine the very worst thing happening to her daughter. ‘If, God forbid, she was assaulted.’
She looks sickened.
‘Wouldn’t you do everything possible to avenge that – especially if you thought there was a good chance the man who hurt her might get off?’
She nods.
‘I haven’t got a daughter and I never will,’ I say. ‘But the girl I was – that naive, idealistic, virginal student who was so excited by life – is the girl I want to avenge, the girl I want to help.’
I pause and my voice comes out in clots now: the pain suddenly building until my words are ragged and I sound like someone else entirely. ‘He has done so much damage,’ I try to explain. ‘He damaged me – and what he did has stuck with me and still affects me, over twenty years later, when I should be completely over it.’
‘Oh, Kate.’
‘I try so hard to be happy – and, sometimes, I manage it. I feel real happiness when I’ve won a case and I see a sunset over Waterloo Bridge; or when I’m in the warmth of your kitchen; or the odd night with Richard when I let myself just relax and enjoy being with him. But then I’ll be lying in bed and some memory will rear up: the tone of his voice; the shock of having my shirt wrenched open and my knickers shoved down; that grip of fear as my back was rammed against the wall of the cloisters and I realised that I couldn’t get away.
‘Taking the brief was rash and I’m never rash . . .’
‘No – you’re not,’ she agrees.
‘It was the least sensible thing I have done. But I have accepted it now and I have to see it through. Don’t you see that he has got away with so much: not just to me but to Olivia, too? I know he raped her: there are too many parallels with my case. But he’ll get away with both rapes if I hold up my hands now.’
‘But if you admitted to knowing him and the judge ordered a retrial, with another barrister, he might still be convicted?’
‘He might. But Olivia might well feel she couldn’t go through another trial. And I would feel I’d let her down immeasurably if that happened – or if someone prosecuted him without my knowledge of what he was capable of; of what he did.
‘I will be ruined if I confess but he will be politically rehabilitated and his star will rise.’ My voice goes up in desperation and I look at her, suddenly frantic, for I need her to see how unjust this probable ending will be. How he – a man born lucky – will continue to thrive and excel; once more the golden boy – for this will be seen as a blip; a madness brought about and prosecuted by vengeful women. An unfortunate stain that will be eradicated over the years.
I am gesticulating now: catching at the air with my hands as if hoping to grab hold of some certainty; my eyes bright, filled with the threat of tears.
And my oldest, loveliest friend turns to me, and quietly nods. Just the gentlest of nods: complicit, understanding. And I gulp down my gratitude at her making this choice. Of her unconditionally backing me.