Chapter Three Part Seven:


I accompanied Ham back to the robing room for the briefest of post mortems. I had to hand it to him, he had a skin like a rhinoceros, and seemed completely unfazed by the mauling he’d just received. ‘Well,’ he whined, ‘now you’ve seen the cut and thrust of advocacy at its highest level, has it whetted your appetite for a life of crime?’

Frankly, I couldn’t think of anything to say in reply.

‘I’m going back to Chambers,’ he continued. ‘I’ve brought my own sandwiches’ – no expense spared – ‘so I’ll see you later.’ And, with that, he was gone.

I watched him go. I would have liked to discuss the case, and perhaps learn something from what had gone wrong, but I judged that now was not the time. Instead, after performing the dance of the starched collars in reverse, I made my way up to the Bar Mess, the dining room set aside for barristers. Over by the window sat Sir Archibald with assorted acolytes, deep in animated conversation. Seeing no familiar faces, I selected the plat du jour and sponge pudding with custard, and sat down on my own, trying not to draw attention to myself. I had just finished when, to my trepidation, I saw Sir Archibald making his way over. I immediately stood up.

‘Please sit down, young man. Do you mind if I join you?’

‘I.. I.. I…’

‘I didn’t quite catch your name when we met earlier,’ he said, sitting down opposite.

‘Potts, sir, Toby Potts.’

‘Please, Toby, call me Archie,’ he said, smiling kindly. ‘And where is your pupil master?’

‘Gone back to Chambers to eat his sandwiches,’ I blurted out, immediately feeling disloyal.

‘Ah, that’s Berger for you, not one for socialising. Still, it takes all sorts. So, what did you make of this morning’s high drama?’

‘I was rather confused, to be honest,’ I said. ‘I don’t pretend to understand all the rules of evidence, but the case seemed to fall apart with the first witness. The prosecution made certain assumptions about her evidence that they were clearly unable to prove.’

Sir Archibald chuckled. ‘A very perspicacious observation.’

‘I mean, I hadn’t read the papers or discussed the case with Berger before going into court,’ Sir Archibald raised his eyebrows, ‘but it seemed an open and shut case.’

‘On the face of the papers, you are right. We all know Miss del Fabro earns her living staring up at the ceiling, but knowing it and proving it are not always one and the same thing. My advice to you, Toby, starting out on what I hope will be an illustrious career at the Bar, is that you can never over-prepare. Never assume that some fact or other will prove itself, always be ready to prove it, just in case your star witness loses the plot.’

‘So should Sir Adrian have been acquitted?’

‘Under our system of justice, yes. The prosecution must prove the guilt of the accused to a very high standard, and even if the guilty are acquitted from time to time, you don’t throw the baby out with the bathwater. Our system may not be perfect, but it’s the best we’ve got. God help us if our lords and masters get their way, and abolish trial by jury. Although it worked for the defendant today, can you imagine anything worse than being tried by Sourpuss on his own?’ I smiled deferentially. ‘And as for Sir Adrian, whatever else, he behaved foolishly, his career is in ruins, and he’ll never rise to high office again. That is his punishment, so justice of sorts has been done.’

Sir Archibald paused. ‘So, your first day with Ronald Berger? Can’t say I know him well, an honest journeyman rather than a shooting star. To quote Robert Louis Stevenson, “Here stands one who meant well, tried a little and failed much: that should be his epitaph.” Should make it to the Circuit Bench in a few years’ time.’

‘Really?’ The surprise in my voice didn’t go unnoticed.

‘Being a good or able advocate is no longer an essential prerequisite to judicial advancement, and more’s the pity. If you keep your nose clean, don’t upset anybody on the way up, and toe the party line, you’ve got as good a chance as the next man. Not so long ago it was different. Judges were appointed on ability, and usually after a distinguished career at the Bar. They had a feel for it, and the Bench was the richer for it. Sourpuss is a case in point. He can be intimidating, but despite his gruff manner he’s a good judge, and, above all, he’s fair. Nowadays, all sorts of nonentities are getting appointed.’ I laughed, and wished I hadn’t. ‘They get their idiot guides printed for them by the Lord Chancellor’s department, together with their specimen directions, and even their hours of sitting. You can’t get a feel for the case if you don’t observe human nature. It’s not what a witness says, it’s the way he says it, the body language, that can make the difference between truth and lies, conviction or acquittal.’

I sat transfixed as Sir Archibald glanced down at his watch. Should I ask him for his autograph, or perhaps a photo opportunity for posterity? What a story to tell my friends and parents – ‘This one is of me and my good chum Archie… you know Archie? The former Attorney-General?’ If only…

He stood up to go. ‘It’s been a pleasure chatting to you, Toby, but I’ve detained you long enough. Let me leave you with one final piece of advice – never settle for second best. Why be ordinary if you have it in you to be extraordinary. Good luck!’ And with that he was gone.


Chapter Three Part Six:

At the Bailey:

Ham smiled thinly. ‘Very well, my lord.’ Taking a deep breath, he plunged on. ‘Do you know the defendant?’ he asked, pointing to the dock.

This time Sir Archibald was up like a jackrabbit. ‘Again, my lord, and with respect to my learned friend, identity is in issue, and there has been no formal identification in this case.’

‘Is that right, Mr Berger?’ His lordship was not amused.

‘Well… er.’ Ham was going down for the third time, ‘Sir Adrian Browne is a well-known public figure, arrested in Argyle Square whilst persistently importuning for sexual favours…’

‘Yes, yes, that, as you explained in your opening address, is your case.’ Sourpuss was losing patience. ‘The question, however, for the jury, is can you prove it on admissible evidence? The jury are not remotely interested in what you say, it doesn’t amount to a row of beans.’

There was a long pause, the silence broken only by the ticking of the court clock, as Berger took stock of his hopeless situation. ‘But, but…’ he whined.

But, but will not do, Mr Berger. Have you any admissible evidence connecting the Defendant with Miss del Fabro, and, more to the point, any evidence that Miss del Fabro was even there on the night in question?’

Going down he might be, but Ham could picture his prosecution practice sinking without trace, and taking him down with it. He was not going to do so without a fight. There was now an irritable note to his whine. ‘My lord, had Miss del Fabro come up to proof, and given evidence consistent with her witness statement, the question of identity would not have arisen. She is obviously a recalcitrant witness, and I apply to treat her as hostile.’

According to my law lectures, still fresh in the memory, a hostile witness is one who is deliberately distorting the evidence, and who refuses to tell the truth. If Ham’s application was successful, he could cross examine Dolores and put her witness statement to her. I was also taught that a hostile witness was next to useless as a witness of truth, wholly discredited and unlikely to be believed by the jury. It was a high-risk strategy.

Sourpuss’s eyebrows had shot up like fireworks. ‘Do you agree, Sir Archibald?’ he asked.

‘No, my lord, I do not,’ came the reply as Sir Archibald rose from his seat. ‘My learned friend has not even begun to lay the foundations for such an application. A forgetful witness is not, and can never be, a hostile witness under any circumstances.’

‘Sir Archibald is quite right, Mr Berger,’ said Sourpuss, ‘and I rule against you. So where does that leave you?’

One last headlong rush into the Valley of Death. ‘I have another prostitute to call…’

Dolores was about to explode, but Sourpuss waved her down. ‘Mr Berger, this is intolerable. You have not proved that Miss del Fabro is a prostitute, so even if your next witness surmounts that particular hurdle, do you have any admissible evidence of a formal identification? I thought not,’ he continued, before Ham could reply. ‘And besides, where is your evidence that the defendant was persistently importuning for immoral purposes? “Persistently”, in my vocabulary at least, suggests more than once. Am I right, Sir Archibald?’

Sir Archibald rose with all the dignity that his high office and professional esteem could muster. ‘Your lordship is, as ever, a Solomon come to judgment,’ he purred. Game, set and match.

Sourpuss turned to the now totally bemused jury. ‘There you have it, members of the jury. On the admissible evidence called before you, the Crown haven’t even begun to establish a case for this defendant to answer, and I direct you to return a verdict of not guilty. The defendant may leave the dock without a stain on his character. I shall rise.’




There was an audible stir of anticipation in the court as Dolores entered, drenched from head to toe in a strongly-scented, not to say overpowering, perfume. My eyes began to water with the sheer intoxication of it as she swayed seductively past me on her way to the witness box. Dolores, otherwise known as Sharon Turner, was a dyed-bright redhead on the wrong side of 40, plump, with a painted face worthy of Toulouse-Lautrec. Mutton dressed as lamb, I thought uncharitably, as she minced her way to the witness box in a provocative polka dot minidress which was only just decent by anybody’s standards. His lordship’s eyes lit up, and his welcoming smile had an almost lascivious edge to it. He was beginning to enjoy himself, and it showed.

Dolores took the oath in a quiet, demure voice, gave the judge an engaging smile, and then sat down.

‘Please state your name and address,’ said Ham, totally unmoved by this vision of loveliness.

‘Dolores del Fabro,’ she said, before adding ‘Miss’, for good measure. ‘Of 24 Eaton Square, London. Do you want my phone number as well?’ She giggled, displaying a row of pearly white teeth.

‘I think not,’ replied Ham, colouring visibly.

‘Eaton Square?’ asked the judge. Dolores nodded. ‘What a coincidence,’ he continued, smiling warmly. ‘We’re near neighbours.’

‘I thought your lordship looked familiar.’

There was an audible chuckle from the public gallery as the judge cleared his throat and regained his composure. ‘You were saying, Mr Berger?’

‘Madam,’ he began, putting both feet right in it. Even I could see that one coming.

Dolores immediately burst into tears. ‘Madam?’ she exploded through hysterical sobs. ‘Who do you think you are, calling me Madam? I didn’t come here to be insulted by an ignorant little moron like you!’

His lordship rushed to her side – metaphorically-speaking, of course. ‘Please calm yourself, Miss del Fabro, no slight on your character was intended, I am sure. The ignorant little moron is prosecution counsel who is duty-bound to ask you questions, and we must all bear with him – for the time being, at least.’ The judge stared icily at Berger. ‘Shall we try again, Mr Berger, and this time with a little sensitivity?’

‘As your lordship pleases,’ Ham whined, and turned back to Dolores. ‘Were you in Argyle Square on the night of the eleventh of November?’

‘No, my lord,’ said Sir Archibald, rising from his seat. ‘That, as my learned friend should know, is a leading question, and is not permitted under the rules of evidence.’

Young and inexperienced as I was, I knew that leading questions, which suggested the answer, or which contained information Counsel wished to have confirmed, were strictly ‘verboten’.

His lordship nodded. ‘Quite right, Sir Archibald. Mr Berger, it is a basic rule – a very basic rule – of evidence that you cannot lead your own witness. Even your pupil knows that.’ I winced. ‘Rephrase your question.’

‘I apologise, my lord.’ Back to Dolores. ‘Where were you on the night of the eleventh of November last?’

‘That’s nearly a year ago, how can I possibly remember? I’m a very busy girl.’

‘Busy at what?’ snapped Berger, beginning to lose his composure.

‘That’s none of your business,’ Dolores snapped back.

‘Yes it is.’

‘No it isn’t.’

‘Really, Mr Berger,’ interrupted the judge as Sir Archibald was on the way up again, ‘this is getting us nowhere. I suggest you try another approach.’


Chapter Three Part Four:


‘Quite so, my lord,’ Berger stammered, shuffling through his papers. ‘The Defendant stands charged with the grave offence of persistently importuning in a public place for immoral purposes, and on arraignment, pleaded not guilty.’

“The gravity of the offence is for me to decide, Mr. Berger, not you or the jury as well you know.  But now that you mention it, I have in all my years on the Bench tried many grave offences, and have handed down some very severe sentences.’ Ham smiled weakly. ‘However, I can state without fear of contradiction that I have never been called upon to try a case as grave as this. So I ask, in a spirit of enquiry, why me, and why is this case here?’

Was it my imagination, or had the judge taken against Ham Berger?

‘My lord,’ said Berger, at his most unctuous, ‘as your lordship will recall, the murder trial listed before your lordship this morning has been vacated to enable the defence to instruct their own forensic expert, so by hap’ chance this trial was allocated to your lordship at very short notice. The case is here because, as your lordship may know, this offence was committed within the bailiwick of the Bailey, which is the only court having jurisdiction to try it.’

‘Very droll, I’m sure.’ There was the faintest of smiles playing around the judge’s mouth.

‘I’m sorry, my lord?’

‘Within the bailiwick of the Bailey, very droll, Mr Berger.’

Berger stood open-mouthed, the fleeting moment of his own unintended wit going right over his head.

‘Never mind, never mind,’ said his lordship, with some irritation. He sat back and closed his eyes. ‘Get on with it.’

The jury duly empanelled, Ham rose to his feet to open the case for the prosecution.

‘Mem’ jury,’ he began, ‘I appear on behalf of the prosecution in this case, and my learned friend Sir Archibald Scott-Malden QC appears for the Defendant.’

I drew in my breath sharply. My saviour, and the distinguished man with the friendly face, was none other than the former Attorney-General who, after the last General Election, had stood down to return to private practice. This was history in the making, and I was there to witness it. Whatever else, Berger was hopelessly outgunned. A distinguished Defendant, an even more distinguished defence counsel, and a hostile judge. An irresistible combination. Good luck, Ham, I muttered to myself, you’re going to need it.

‘At approximately nineteen thirty six hours…’

His lordship threw down his pen and pushed back in his chair. ‘What is this gibberish, Mr Berger?’ he snapped irritably. ‘Nineteen thirty six hours? The purpose of an opening address by prosecution counsel is to illuminate, not obfuscate. The jury and I are totally bemused, and, I dare say, so is your neglected pupil.’

‘My lord.’ Ham was going down for the second time, and he was still a long way from the shore. With grim determination, he plunged on. ‘At approximately seven thirty six in the evening, the defendant was seen in a notorious red light district of London, driving his motor car slowly along the street. You will hear evidence that he stopped and was approached by a lady of easy virtue.’

‘A lady of easy virtue, Mr Berger?!’ snapped Sourpuss, barely disguising his impatience. ‘What on earth does that mean? Do you mean a prostitute?’

‘Er… yes, my lord, I suppose I do, but…’

‘Then say so. This is not some eighteenth century soap opera dreamt up by Dame Barbara Cartland over a box of soft-centred chocolates. We are in the twentieth century, for goodness sake, and we are all familiar with prostitutes, are we not, members of the jury?’

I wasn’t quite sure if that was what Sourpuss meant to say, but it produced a few titters.

‘Very well, my lord.’ Berger returned to the jury. ‘As I was saying, mem’ jury, the Defendant was approached by a… prostitute, there was a brief conversation, and the defendant drove on. The Crown say that he was importuning for an immoral purpose.’

I noticed that Ham had now broken into a gallop. In fact, he was babbling like a baboon, such was his anxiety to conclude his opening speech without further interruption.

‘At approximately nineteen….I mean seven forty four, he stopped for a second time, was again approached, and before he could agree terms he was arrested. With your lordship’s leave,’ he panted, triumphantly, ‘I will call my first witness. Miss Dolores Del Fabro.’



‘All rise,’ intoned the judge’s clerk, as the judge emerged from behind the impressive solid oak throne to take his seat in the place of judgment. As I was later to discover, this was the Honourable Mr Justice Boniface, known as ‘Sourpuss’, and one of Her Majesty’s High Court Judges. He wore a robe of scarlet red, fetchingly trimmed with ermine, and clutching a pair of white gloves. A small wig perched precariously on his bald pate, and nearly slipped off as he bowed to the court. Pink, fleshy and bejowled features glared out at the assembled multitude, only breaking into a fleeting and wintry smile as he acknowledged defence counsel.

The court clerk rose, as did the Defendant, a dignified-looking man with thinning, grey hair.

‘Are you Adrian Donald Fortescue Browne?’ asked the clerk, in a loud and sententious voice.

‘I am,’ came the reply.

Startled, I looked harder at him. Could it be? It was! I tried not to stare. The man in the dock, this Fortescue Browne chap, was the former Director of Public Prosecutions, and the object of intense press and media speculation. Not a bad start to my career – albeit merely an interested observer in the unfolding drama.

Calm and composed, he stared straight ahead as the gentlemen of the Press began scribbling feverishly. This was very exciting indeed.

‘Sit down.’ Mr Justice Boniface glowered at Ham. ‘Is this to be a trial, Mr…’ He glanced down at the slip of paper containing the names of counsel, ‘Berger?’

‘It is indeed, my lord,’ replied Ham, confidently.

‘So be it,’ said Sourpuss, with no discernible enthusiasm. ‘Then summon the jury panel.’

It took a good ten minutes for the jury panel to assemble in court, brought as they were from the catacombs of the building usually reserved for filing cabinets, refuse disposal and miscellaneous. As they stood, blinking in the cold light of the court, and totally disorientated, Mr Justice Boniface glared over at me, and then back at Berger.

‘Mr Berger.’ The Judge was plainly not amused. ‘There is a young man fully robed sitting in the well of the court.’ He nodded towards me. ‘Have I missed something, and if so, what part is he to play in these proceedings?’

Ham leapt to his feet, shot a glance over to me, coloured visibly, and started to jerk his head uncontrollably in my direction. Defence Counsel rose slowly to his feet, bowed, and turned towards me.

To my amazement and relief, it was the same tall, distinguished and friendly face from the robing room. He leant down towards me and whispered, ‘Don’t worry, old chap, but you’re sitting in the jury box. Why don’t you go and sit behind Berger?’

This was the worst day of my life – or so I thought, naïvely, at the time. I clambered out of the jury box, all eyes upon me, and made my way down to Counsel’s benches. Ham, for his part, was apologising profusely, which, in the circumstances, was the least he could do.

‘Mr Potts is my pupil, my lord,’ he whined, ‘and this is his first day in court. He is obviously unfamiliar with our ways.’

‘A self-evident observation, Mr Berger,’ snapped his lordship, ‘and precisely why pupils have pupil masters – to show them the ropes.’

The unspoken criticism of Ham was lost on nobody. He looked uncomfortable, and glowered at me.

‘Now shall we get on?’