In a criminal court, while the judge has the best seat and we all stand and sit at his or her command, seasoned barristers know it’s only the jury that matter. Every witness chosen, each argument made and every syllable of their rhetoric has just one purpose: to persuade every juror that their version of events is the correct one. Underpinning all of that, however, are tactics.
Brian Altman had spent nearly a week embedding his case in the jury’s minds and now he would move straight into calling his witnesses who, with their sworn testimony, would bolster his side of the story.
Despite it being nearly a year since the Court of Appeal quashed Bishop’s 1987 acquittals, and there had been the Plea and Case Management Hearings intended to sort out all the legal argument in the meantime, Joel Bennathan QC, who had remained Bishop’s counsel since the Court of Appeal hearing, needed to create some time for the ferocity of the prosecution’s opening statement to fade in the jurors’ minds.
An appeal specialist, Mr Bennathan has an unrivalled reputation in overturning wrongful convictions and miscarriages of justice. His dexterity in arguing the nether reaches of law, procedure and convention make him a formidable opponent, even for the likes of Altman. Knowing he risked the judge’s wrath, he asked permission to take the unusual step of addressing the jury prior to Altman calling his witnesses. This, he said, would involve discussing a point of law. He would have known that, despite the fact he’d had months to argue the points he was now raising, no judge would deny a previously acquitted defendant the opportunity of a fair trial. Certainly not on procedural grounds alone.
A full eight days later, the jury were finally back in court. None will have known what the gap week was all about but they would soon find out. Crucially for the defence though, the jurors may have forgotten the strength of Altman’s arguments.
With the legal argument won and his opening statement green-lit, Bennathan took to his feet. In a thinly disguised jibe, he assured the jurors he would not keep them a week, far from it. He made four simple points.
For the first time in public, Bishop – or in this case his barrister – effectively admitted the attack on Claire. Under the bad character rules, this had been ruled in as evidence but Bennathan had a different take. Awful as this was, he urged the jurors not to be fooled into deciding Bishop’s 1986 guilt on that attack alone. He cautioned them against being seduced by the science. It was complex and far-reaching but just because certain results emerged, did it necessarily mean Bishop was guilty? He reminded them of the ‘mind-boggling’ sensitivity of DNA which made it hugely prone to contamination.
He then moved on to the fact that Bishop had changed his story time and again and said this was being held against him. Why? So many others had done this too. Why was it damming for one person to be unreliable, but for others their explanation was accepted?
Finally – and this was his trump card and the basis for the week’s legal jousting – what if there was another suspect they should keep an eye on? Despite there being only one person on trial, he said, Bishop could point to facts that indicated another person might have committed the offences. Someone close to the girls who had no alibi. Who made comments after the killings which were far more incriminating than anything the defendant had ever said. Someone who might have been able to order Nicola to go to the park. Someone with a guilty secret regarding the sexual abuse of the little girl.
What if the police and CPS had been looking at the wrong man for thirty-two years? What if, instead of Bishop, they should have been looking at someone else? What if that someone else was Barrie Fellows?