On 11 November 1987, after nearly a year of incarceration, a pristine and miraculously unmarked Bishop stood flanked by prison officers in the dock of Court One, Lewes Crown Court.
The nineteenth-century building stands majestically at the top of School Hill in the shadow of the ruin of Lewes Castle. It faces the opulent White Hart Hotel, less than a hundred yards from the spot where seventeen sixteenth-century Protestant martyrs were burned at the stake by order of Queen Mary I. A fitting place to dispense today’s fairer and more humane justice.
On the narrow steps, outside its white-fronted facade, nervous defendants puff a last cigarette as they wait apprehensively for the jury to announce their fate. They jostle for space with gowned barristers frantically scanning their papers or taking instructions from clients or the Crown Prosecution Service.
Over the years I have seen many of my cases won, and a few lost, within these walls. During murder trials I practically lived at the court, either waiting to give evidence or as Queen’s Counsel’s gofer.
Whatever you felt about Bishop, it is understandable why, when faced with a lifetime of looking over his shoulder, he would do anything to secure a not guilty verdict. A life sentence would not be worth living. No other suspects had emerged in the thirteen months since the murders. Bishop, in the eyes of the police, was the only person who could have possibly committed these dreadful crimes. His equivocal accounts of where he was and what he was doing over those critical hours between the girls going out to play and their deaths had remained conveniently confused. Clearly someone was lying.
Jenny was vague too. Was he at the pub when she got home, or was he indoors doing the washing, having just had a bath?
Then there was the Pinto sweatshirt. While there was no definitive evidence that Bishop was wearing it when the girls were killed, it seemed almost certain that it had been worn by whoever killed them. With the variety of paints on both the sweatshirt and his trousers, it was incredibly likely that the top was his, as Jenny had said then denied. And crucially, how did Bishop manage to describe the girls’ repose when he simply did not see them well enough after they had been found? Time would tell.
Prosecutions rarely rely on one irrefutable fact. Some testimonies and some forensic results are stronger than others but even if a case is built on a cornucopia of circumstantial evidence that can sometimes be enough.
As Bishop stood in the dock, the packed courtroom hushed as the indictments were read out. None of the jurors who would hear, assess and interpret all of the evidence for and against him could have been oblivious to the murders. However, they would never have expected to try the sole suspect a year later. Would they have made their minds up already? The judge warned them to ignore everything but the evidence they heard in the courtroom – but would they? Could they?
Bishop had appointed a formidable state-funded defence team. All he could do was trust their skill in seeding the tiniest doubt in the jurors’ minds. Achieve that and, assuming they heeded the judge’s warning, he would walk. His barristers would have reassured him that there was, indeed, no ‘slam dunk’ piece of evidence to nail him so they could methodically chip away at the patchwork of suspicions.
It is the prosecution’s job to prove, beyond reasonable doubt, that the person in the dock is guilty. The accused has to prove nothing, only inject uncertainty. If just three jurors waivered, Bishop would walk free. Scanning their faces, he would be trying to read which, if any, would wobble. He could not go back to that hellhole where he had miraculously survived since he was charged.
Brian Leary QC, for the prosecution, was an accomplished orator and his opening statement was sound. He did what great barristers do best in hooking juries. He set out the whole sordid story as simply but as vividly as he could. He talked of playmates, worried mothers, swirling mist. He painted the picture of hundreds of cops and locals frantically searching until Kevin Rowland and Matthew Marchant stumbled across the pitiful bodies.
Carefully avoiding language or detail that would shock the jury – that would come later – he described the girls’ injuries and the signs of their abuse. Then he moved on, cataloguing Bishop’s fluid accounts, the sightings of him and the Pinto sweatshirt. Leary drummed home that it was Bishop, and only Bishop, who could possibly have killed the girls. Any suggestion they had been killed by anyone else was a ruse to deflect from the man sat in the dock.
Drawing on his brief summary, he insisted that Bishop had become overwhelmed with sexual desire and tried to molest Nicola. Then, struck with the realization that he was doomed if there were any witnesses to his perversion, he strangled both girls with his bare hands. If the trial had stopped there, Bishop would have been finished.
But his wily lead counsel, Ivan Lawrence QC MP (it is almost unthinkable that today a sitting MP would be the lead barrister in a major criminal trial), reclined expressionless, taking it all in; he was plotting where to aim his arrows. Trials are never won on opening statements and Lawrence was convinced this one was based on a devastating flaw.
On the second day, the trial was sensationally halted. A woman juror fell ill with a stomach upset. Reluctant at that early stage to continue with just eleven jurors, Mr Justice Schiemann QC – adjudicating his first murder trial – adjourned, warning that they may not resume for a few days. Recognizing the jurors’ curiosity had been piqued, Schiemann drummed home his grave warning that they were not to visit the scene, nor turn private detective in the meantime.
The jurors must have been devastated when, on what would have been day three, the judge instructed that the trial would start again but with an all-new jury. When it resumed the next day, an emotional Susan Fellows revealed that some on the estate had accused her husband of being the girls’ killer. Whispers had grown until their house was daubed with ‘Fellows Out’, ‘Murderer’, ‘Child Killer’ and ‘Child Molester’ in white paint. As if they were not suffering enough.
She went on to take the jury through her recollections of that devastating night. In cross-examination she was quizzed to verify Barrie Fellows’ and Dougie Judd’s movements. Mr Lawrence was laying the foundations for what would become a drip-feed of suggestions – and only suggestions – that the killer was even closer to home than Bishop.
When it was Barrie’s turn to take the stand, he resolutely confirmed his movements on the night and rebuffed accusations that he had previously broken Susan’s grandmother’s nose. The pressure increased when Mr Lawrence challenged him about what happened when Bishop visited him while on bail. He also alleged Barrie had shown flashes of temper towards Nicola. Barrie held up well, but the seeds of doubt were being sown. For Bishop and his team, it was all going to plan.
Karen’s parents, on the other hand, were never in the frame. Like the Fellowses, they were hugely protective of their daughter but had a lower profile than Barrie so attracted less ire. Michelle poignantly told the court she would forever be telling Karen to stay away from Bishop and Marion Stevenson. She took exception to their relationship given the age gap and Jenny, like her, being heavily pregnant. She described the dreadful night, calling out along Brighton seafront, then how hope was cruelly ripped away as she saw the officers running into Wild Park’s woods.
As with every witness who knew or saw Bishop, she was asked a simple question, ‘Have you ever seen Russell Bishop wearing this sweatshirt?’, as the Pinto was lifted aloft.
‘No,’ came her reply. Of course she had not. Mr Lawrence already knew that. The first rule of advocacy is to never ask a question you do not know the answer to.
Sometimes juries have to be shown gruesome and distressing photographs. Be it dismembered corpses, injuries inflicted on the helpless or hardcore pornography, they must study the images of cruelty or depravity that are central to the trial.
When I was running a major child abuse image investigation in 2002, we provided our investigators with regular counselling, such was the volume and nature of the revolting images they viewed day in, day out. I have known many SOCOs suffer breakdowns following years of poring over countless brutal murder scenes and mutilated bodies. The police are only human and they bleed on the inside like everyone else. What chance was there then for a juror whose experience of horror was confined to the odd hour-long TV crime drama or World War II movie?
The pictures of Karen and Nicola were dreadful. How do you prepare twelve ordinary people for seeing the bruised, grimy and grazed corpses of two sexually abused playmates? Despite having the nature of the charges laid out for them, hearing the eloquent prose of counsel and the more down-to-earth testimony of witnesses, seeing it with their own eyes would scar them for life.
If the jury struggled it was hardly surprising that, as Lawrence brandished the explicit photos while cross-examining Kevin Rowland, Barrie Fellows stormed out of court. It would be disingenuous to claim that counsel was trying to shock, but it was rare that a judge would feel compelled to instruct a barrister to put pictures away as Mr Justice Schiemann did.
The finding of the bodies was central to the prosecution case. For Bishop to describe so accurately how the girls lay it was clear he must have seen them before Rowland did. After that, he simply did not get close enough. He must be the killer. The defence therefore banked on being able to render young Rowland and Marchant so unreliable that the jury would take their recollections of Bishop’s movements at the den with a pinch of salt. It was put to nineteen-year-old Rowland that with ‘all his experience as a hospital porter’ he would surely have gone closer to the body than the fifteen feet he claimed. Wouldn’t he have checked in case she was still alive?
Next in Mr Lawrence’s sights was the discrepancy between Rowland’s original account to the police, that he saw both bodies, to now, that he saw just the one. An Evening Argus interview he had given shortly after finding the bodies also came back to bite him. In that, he repeated that he had seen two bodies who appeared to be sleeping in each other’s arms. He explained he had told Barrie Fellows that just to provide him a little comfort and had therefore repeated it to the journalist for consistency. The coincidence of this fabricated tableau matching the reality, despite, like Bishop, Rowland not having been in a position to see, was left for the jury to ponder.
Marchant had no option but to admit to lying to the police in the same way as his friend. If he had also lied to the police, why was it only Bishop in the dock?
It is a big ask to expect traumatized witnesses to present evidence that is perfectly faithful to their first account. Witnessing crimes, finding bodies or hearing confessions are, thankfully, alien to the average man or woman. Memory can become tunnelled so that part of the event is recalled in fine detail while peripheral information is blurred. Despite the expectations of investigators and lawyers, it is virtually impossible for a shocked or stressed witness to give untainted testimony.
Kevin and Matthew had known that they were looking for two girls. Is it not reasonable, either through their own minds conflating what they expected to see with what they actually saw or by an inadvertent slip made to an interviewer, that they claimed they saw both girls? Over a year later, with all they now knew and under the glare and scrutiny of bewigged and learned gentlemen, scrutinized by dozens of journalists, family and friends, and a jury hanging on their every word, it was no wonder their recollection was shaky.
But that is how the adversarial system works. Ignoring the natural frailty of the human mind and its inability to recall like a mainframe computer is grist to the mill.
In fairness, the prosecution similarly exploited Bishop’s inconsistencies. That is counsel’s job, to shed doubt and influence juries, but it can make an honest witness appear dissembling, with major consequences for the verdict.
The first real drama came on day five.