KATE
1 May 2017
Twenty-seven
The jury is sent out late on Monday morning, after closing speeches and Judge Luckhurst’s reminder that they take their time to weigh up all the evidence. He repeats the stricture he gave them at the start of the trial: that ‘it is the Crown who bring this case and the Crown who have to prove it. Mr Whitehouse doesn’t have to prove a thing.’ He summarises the most salient points in our arguments and reiterates the definition of rape; hammering home that it is consent that is at the heart of this case; the crucial question – one person’s word against another’s – of whether James Whitehouse could reasonably know at the point of penetration that consent wasn’t given.
The jurors are alert during this master class in jurisprudence, chests no longer caved in or bosoms easing onto the desk in front of them; backs straight; notes taken – for they are the diligent students listening to their headmaster; keen to accept this responsibility; to step up to the mark. For over a week, they have watched as highly educated professionals have sought to persuade, cajole and argue; to perform to the best of our capabilities and impress them; and – yes – to score points off one another. Now, for the first time, the power is entirely with them. The judge will determine any sentence. But the decision, the choice over whether James Whitehouse is innocent or guilty; a rapist or a lover; someone who called his victim a prick-tease, bruised her and yanked down her underwear; or someone who merely laddered her tights and gave a love bite in the heat of that moment? That decision is entirely theirs.
I retire to the barristers’ mess. DC Rydon and DS Willis are heading to the canteen for a coffee but I decline their offer to join them. They make me nervous and I crave either silence, or the distracting black humour of my colleagues railing against the inefficiency of the judicial system or the sheer ineptitude that stymies us each day. John Spinney, from my chambers, is incandescent about a child abuse case that was adjourned because an engineer removed the equipment required for the video link for the victim, from court, overnight. ‘Have they any idea how difficult it was to get this highly vulnerable nine-year-old girl here in the first place?’ David Mason is offloading about a defendant who pulled every trick in the book to suggest he was physically incapable of standing trial – but managed a remarkable recovery once acquitted. Caspar Jenkins is spitting about a pre-trial preliminary hearing that had to be adjourned because the court documents hadn’t been uploaded electronically.
It is cathartic, this expletive-loaded conversation; the almost-competitive telling of worst-case scenarios; this sense that we are all battling against bureaucratic incompetence and working with some morally devoid individuals; and oh! how we need this camaraderie, as well as our more highfalutin quest for justice, and the high of getting the right, the just, result to drive us out to each godforsaken court in our circuit each day.
I listen to their banter and take a call from Brian about a murder trial scheduled for later in the year in Norwich. I don’t do murders but there’s a sexual element: the defendant is charged with killing the man who abused her as a child, thirty years ago, over several years. I am being asked to defend and feel easier: begin to imagine how my mitigating arguments might play out. He emails the preliminary documents across and I try to immerse myself.
An hour ticks by. Will they come back before lunch? Unlikely, and it’s almost a relief when one o’clock comes and I know they can’t be recalled for the hour when the judge is dining. Tim asks if I want to pop out for a sandwich but I decline. I don’t eat in the day: too little time; and there’s too much acid in my stomach, which is gurgling and swishing at the moment, fizzing away. I run on nerves and adrenalin: the low-level need to be alert to rush from one court to another with half-minutes to spare; the demand that I think clearly and swiftly; the imperative that I never drop my guard; never stop listening or questioning how best to break through a narrative and tease out a different story.
And then, at a quarter past two, comes the adenoidal voice down the tannoy: ‘Will all parties in the case of Whitehouse come to Court Two immediately.’ A taste of bile spurts in my mouth and I try to calm the adrenalin – that curious combination of excitement tipping into fear that surges inside me as quick as a sprinter straight off the blocks. My hands – as they gather laptop, papers, bag; as they cram the wig back on my head – are shaking and I race to the loo: suddenly desperate to wee; and afraid that I will be distracted if I don’t. Alone in the cubicle, I rest my head against the door, ambushed by the memory of what happened in those cloisters: the rasp of stone on my back, the pain of his movements; the heft of his body shoved against me; that internal burn. I see the gargoyle, hands covering its eyes and mouth, and, more recently, my older self, convulsed with grief as I slid under my greying bathwater. I feel the howl that accompanied that slither and that has threatened to burst out, time and again, over the years.
I slide the bolt open. I must hold on – though my insides feel like falling out and my legs are water. I concentrate on trying to think rationally as I clatter down the stairs behind Angela, who is walking at her usual magisterial pace. They can’t have come to a decision yet; they won’t have come to a decision, yet. Though we all know of quick decisions – seventeen minutes for an acquittal is my fastest yet – these are few and far between. They have been out for an hour and twenty minutes. Long enough to have made a show of arguing if the decision is unanimous; not long enough if there is a sizeable amount of doubt in many minds.
How long will they take? It will have taken up to half an hour to return to their room, elect a foreman and take a show of hands; and then it will take time to dissuade those who think he is innocent for I am trying to persist in believing that I will get my guilty verdict: that Essex Boy and the Asian man and hopefully my tubby foreman will win over Orange Face and her comely sidekick and the elderly lady who wouldn’t possibly think that a man of his status could be so unchivalrous and the obese middle-aged matron who kept rearranging her bosom as she gazed starstruck at him.
Do they all need winning round? After all these years of waiting for juries’ verdicts, I still find them hard to read. Urban juries are more likely to acquit; and female-dominated ones, too. Juries in rape trials don’t like to convict: all of which is stacked against me. And yet there was that sharp intake of breath when Olivia revealed that put-down; the sympathy that met her evidence; the suspicion – that I sowed in the jurors’ minds – that James might be the sort of man to wrench clothing. That nasty insult: Don’t be a prick-tease. Not the sort of expression a young woman giving evidence in a rape trial is likely to make up. Not the sort of thing she would want to repeat.
We pile into court: counsel, judge, defendant – his jaw set; his face a little drained of colour. High above us, I sense, from the rustles, the public gallery filling and I wonder if Sophie is up there, stomach as tightly knotted as mine. Fear must be coursing through her veins as she waits to discover if her husband is a rapist – and if her world is about to irreparably change.
And then a moment of anticlimax. No jury shuffles in: there is merely a note, handed over by the usher.
‘The jury would like to know if they could have a copy of Miss Lytton’s statement,’ the judge reads. He gives an indulgent chuckle. ‘Well, I’m afraid the answer to that is no.’
The usher bows her head and scurries out; Nikita tells us to be upstanding in court; and we do; and then we hurtle back; back to the stuffy robing room and a wait, the length of which we cannot predict or control.
‘I’d have thought it was pretty cut and dried,’ Angela sniffs, as we climb the marble stairs; and I try to detect a flicker of doubt but her face is as impervious as ever. I cannot answer, my throat nursing a lump; my mind crammed with thoughts I don’t want to acknowledge: of a jubilant James, acquitted; of me, diminished, disbelieved, defeated by him, once again.
‘You’re very quiet?’ My learned friend sounds sharp; cocks her head – a jay eyeing an earthworm. Her dark-grey eyes are more than usually perceptive.
And I can only nod, trying to shake my ricocheting thoughts away.
The afternoon stretches like a cat rolling on sun-drenched concrete. Justice takes time; and these jurors – assigned to jury service for two weeks; and taking their duties seriously – are in no rush to hurry things.
The steel hands of the clock in the robing room judder: three-thirty; three thirty-five; three-forty; three forty-five. Any minute now, the tannoy might sound. Four hours, now four hours and five minutes? Is that enough time? Sufficient for these twelve people to analyse the evidence and to come to the right, the only just, verdict?
‘I bloody well hope they don’t sit late. I need to get away sharpish.’ Angela stalks the room, breaking off a finger of a chocolate biscuit with a crisp snap and a silvering of the wrapper.
‘Repulsive.’ She swigs warm black coffee from a paper cup and continues to pace. It matters to her, this result; it will not help the practice of Angela Regan, QC, if she cannot manage to get James Whitehouse acquitted. But it cannot matter one iota as much as it does to me.
I have tried to remain positive, though in the dead of night, the chill certainty of defeat engulfs me. Now, hope is easing with every minute the jury takes. I always knew a conviction would be hard. Rape is a particularly nasty crime and if it’s not stranger rape, a rape of the kind we have been implicitly warned about in fairy tales, and then more explicitly in early girlhood: the man in an alleyway who holds a blade to our throats, or pins us down; if it’s a rape committed by a personable, attractive, dare I say it, middle-class professional who has already had a relationship with the complainant; the sort of man you might acknowledge in the street or at the school gate; that you might be happy to have for dinner or to introduce to your kids or parents; if it’s that sort of rape and that sort of man, then it’s a huge thing to do as a juror: to cast that particularly dirty, intransigent stain.
Beyond a reasonable doubt: that’s the burden of proof the jurors need to apply before they can do this to someone. And it’s far less damaging, far more understandable to give him the benefit of this doubt. To mark it down as a bad sexual experience: unpleasant, certainly, morally questionable, but not illegal. Not, by any stretch of the imagination, rape.
But then, as Angela becomes increasingly irritable, I let myself hope that I am being unduly negative. Perhaps there are only one or two jurors unconvinced of his guilt. The judge could call them back, now, and give a majority verdict direction: tell them that he would accept the verdict of at least ten of them, though it would be better all round if it were unanimous, if there were never any room to argue there was dissent or ambiguity. That some persisted in believing he was innocent to the very end.
I spool through my arguments: the closing speech I first sketched out on receiving the brief, and most of which I retained. There is no silver bullet. No forensic evidence that points unequivocally to the truth, for the bruise, the tights, even the knickers can all – just – be explained away. I know he’s guilty: Don’t be a prick-tease nails him even if I didn’t know of his past guilt. But for these jurors there’s just one woman’s word against one man’s. Two narratives that start off the same and then diverge. A few small discrepancies – did she or he call the lift? Did she or he kiss first? – and then one crucial, glaring, irreconcilable difference.
If they believe her, I will feel not just ecstatic – of course I will be ecstatic – but vindicated: James Whitehouse will be exposed as the charming, ruthless, utterly narcissistic man that I know him to be. If the jury believes him, Olivia will have been branded a liar. And I – well, I cannot bear to think of what this means for me, and what it says about my skill, my judgement, my willingness to let my personal prejudice, my lack of objectivity, override my professionalism so that I have become obsessed with bringing James Whitehouse down.
‘Could all parties in Whitehouse come to Court Two immediately.’
Four-fifteen p.m. Four hours fifteen minutes. The woman on the tannoy sounds bored, with no awareness of the potential drama of her announcement; its effect on Angela and me as we spring up, grab papers and laptops, cram on our wigs.
‘Verdict – or sending them home for the day?’ my opponent asks, more even-tempered now for there is nothing we can do to influence events; and at least something appears to be happening.
‘The latter,’ I say, though I am not quite sure how I will bear a night of agonising over whether they will come to the right verdict as they turn the evidence over in their minds.
But in Court Two, the atmosphere is dense with the pressure of expectation. The press benches are filled; the print journalists knowing they must move fast to meet their first-edition deadlines; the broadcasters thinking of the six o’clock bulletins in which a conviction would be placed high. Jim Stephens is in his front-bench seat. He hasn’t missed a day. My throat thickens as I see the way he watches the usher. She nods to Nikita. We have a verdict. I swallow. We have a verdict.
The jurors shuffle in and I try to read their faces. Most are inscrutable but none refuse to look at the defendant. That’s not a good sign. Avoiding eye contact’s something they do if they have decided to convict. Orange Face has the trace of a smirk on her lips, but that’s habitual; and the officious middle-aged man who I predict will be the foreman is sombre for he is about to take centre stage.
‘Please answer my next question, either yes or no. Have you reached a verdict on count one?’ Nikita asks. The air stills as the foreman looks down at a piece of paper in front of him. For a split second, I imagine Sophie Whitehouse and wonder if she is leaning over the front row of the public gallery, watching this man who has marshalled a decision on her husband’s future. Or perhaps she is watching her husband and wondering if she really knows him at all.
It seems incredible that they have come to a decision, and yet: ‘Yes,’ the foreman says, and there is a collective intake of breath. My fists clench and my knuckles whiten. This is it: one of those pin-sharp moments that shape your life. Like that June night, in the cloisters. The rasp of stone on my back; the pain as he entered me. Don’t be a prick-tease. His voice soft yet I could feel the menace there.
‘Do you find the defendant guilty or not guilty of count one?’ Nikita asks, and I find I am holding my breath and digging my nails hard into the palm of my right hand as the foreman opens his moist, pink mouth and his voice comes out almost brazenly loud and clear.
‘Not guilty,’ he says.
A woman in the gallery cries out in relief; and another – Kitty? for Olivia is not in court – calls ‘No’. The cry is guttural, instinctive; the no of a woman who knows that a miscarriage of justice is taking place and there is nothing she can do at all.
It’s the cry I want to make; that I will echo oh so loudly in the sanctity of my bathroom, later – but for now I am silent. Just the smallest nod of acknowledgement. A neat, grim nod as if I am filing the verdict away.
Beside me, Angela turns and permits herself a smile. It’s a good result, I see her mouth. My face tightens into a mask. I remain calm and professional, but, inside, my heart roars and roars.