On the face of it, Shandra Whithurst’s case was pretty straightforward. She was a large, jolly woman in her late forties who had been charged with shoplifting. She had gone into a supermarket, wandered around the fruit and veg aisle for a bit before walking purposefully over to the make-up section where she appeared to place four packets of ‘Luscious Lips Lip Liner’ inside her bra. Her problem was that all of this was captured on CCTV, which showed her in fairly clear HD quality, wandering from the cosmetics over towards the exit, making no attempt to pay, and being apprehended by a couple of massive security guards who manhandled her into a display of Czech lager as she protested her innocence. Interestingly, though, when the police searched her, there was no sign of the lip liner.
Shandra had elected to be tried by a jury rather than in a Magistrates Court. In her case, this was probably quite a good shout – you see, her defence depends upon a jury being confused by the fact that, even though CCTV footage clearly showed her putting items inside her clothing, the absence of any actual goods when she was searched might cast doubt on that. I knew that a bench of hardened Magistrates who had heard it and seen it all before wouldn’t be the slightest bit concerned about the absence of the stolen goods, but a jury just might. I also knew that a jury would be more likely to be appalled by the sight of a couple of burly security guards laying into a nice middle-aged Afro-Caribbean woman – especially if I got the cross-examination right.
I met Shandra in a conference room at court. She was lovely. We watched the CCTV together. We watched the clear images of her movements as she wandered from fruit and veg to the cosmetics – where she clearly tucked something into her bra – then towards the exit.
‘Is that you?’ I asked her.
‘Of course it’s me,’ she said.
I smiled, then tutted appropriately as we saw the security guard grab her, causing her to fall backwards into the stack of canned beer. When the video had finished I asked her if she wanted to see it again. ‘No,’ she said, ‘I know what I did and didn’t do.’
‘Good,’ I said, and at this point, I took off my wig, scratched my head and asked the question that I had to ask.
‘Miss Whithurst,’ I said, ‘look, I’ve got to ask you this.’
She smiled nicely at me as I paused. ‘What on earth are you doing over by the make-up aisles with your hands down your top?’
She leant in towards me, and whispered, ‘I was itchy.’
‘Itchy?’
‘Yes.’
‘You weren’t stealing anything?’
‘No.’ She is emphatic in her denial.
‘And the four missing Luscious Lips Lip Liners have got nothing to do with you?’
‘Absolutely not. Young man, what would I do with luscious lips, I’ve already got luscious lips.’ With this she laughed throatily. I smiled. She would be a perfect witness in her own defence.
‘Okay then,’ I stood up, ‘let’s go into court.’
Inside the courtroom, His Honour Judge Smithson was looking decidedly bored. Smithson had a reputation for being lazy and doing anything he could to avoid the trials that kept him from the golf course. As he spied me, he sat up. ‘Ah Mr Winnock,’ he said, ‘are you defending Miss Whithurst?’
‘Yes, Your Honour.’
‘Is this really going to be a trial?’
‘Yes, Your Honour.’
‘What about the CCTV footage – pretty damning isn’t it?’
‘Not in the absence of any actual stolen goods,’ I replied.
The Judge contemplated this for a few seconds, his lips turned inadvertently into his mouth, before he turned to my opponent, Sam Wilkins. ‘Mr Wilkins,’ he said, ‘in the absence of any actual goods, how are you going to prove theft? A bit thin isn’t it?’
The prosecutor was equally robust. ‘The CCTV footage clearly shows appropriation, Your Honour.’
The Judge sighed wearily. ‘Very well then, gentlemen, let’s get on with it.’
The jury piled in. The usual suspects: middle-aged men in sports jackets; old ladies with newly done hair; youths just thankful that they are in the jury box and not the dock, and the single attractive female.
They looked disappointed when they were told that they were about to try a case involving the theft of 25 quid’s worth of make-up. They were probably hoping for something involving a bit of death and mutilation. Still, this was what they had and I was determined that they would end up seeing things my way.
Sam Wilkins opened the case for the Crown, then called his first witness – one Eddie Horton.
Eddie is the first of the two massive security guards who would be giving evidence. Wilkins gets to question him first. Wilkins is a sure-footed if unspectacular prosecutor. He took Horton through his examination-in-chief, which allowed Horton to describe in his own words how he spotted a large lady of African appearance ‘clearly conceal items of make-up within her clothes’.
‘Don’t be shy,’ said Wilkins, ‘where exactly?’
‘Her bra, Your Honour,’ said Horton coyly.
After Wilkins had finished, it was my turn to cross-examine the witness.
Some barristers swear that there is an art to cross-examination, a particular way to best put forward your case and take down a witness. Some barristers write down all their questions with meticulous care; some do it effortlessly off the top of their head because they are that good; and some, let’s face it, find the whole process a challenge. Me, well, I have no set way. Maybe I will once I’ve got a few more years under my belt, but at the moment, when I get to my feet to cross-examine, I’m never entirely sure what I’m going to do until I’ve started.
You see, to me, being on your feet questioning a witness in a Crown Court is, and I don’t want to sound excessively dramatic or self-important about this, an intensely human experience.
For me, when I deal with a witness, I am embarking upon a series of rather intimate relationships: first, with the witness, who I am questioning; second, with the Judge, who I am having to ensure doesn’t stop me for asking irrelevant or unlawful questions; third, with my opponent, who wants to beat me; fourth, with my client, who wants me to ask the right questions and put their case forward effectively; and fifth, perhaps most significantly, with the jury, who you want to draw towards you.
In this case, I would be attempting to get this jury to dislike Mr Horton, but I wouldn’t bully him or shout at him, ridicule him, or patronise him, because there is a good chance that they would end up disliking me if I did that. If I can possibly help it, I won’t call him a liar, either, because if I suggest that, and the jury don’t agree with me, then me, my case and my client are doomed.
Instead, I would attempt to get him to agree with me as much as I could, because that will make it easier for the jury to agree with me in due course.
I would of course try to trip him up, but I would do so in the nicest possible way.
And, in accordance with one of the first and most important rules of advocacy, I would try to avoid asking him questions to which I didn’t know the answer – because if I looked silly, I’d lose the confidence of the jury, which would be disastrous.
I got to my feet, trying to look confident. Trying to look like I knew everything there was to know, trying to give the impression that I was a massive and glorious bull elephant and that the courtroom belonged to me. Of course I have no idea if I achieve this because no one ever tells you.
‘Mr Horton,’ I said. And all eyes fell on me.
It began.
It is theatre, and that’s why I love it.
I started by asking a few easy questions – stuff he couldn’t possibly disagree with.
‘You’re a big man, Mr Horton?’
‘Some might think so.’
This is the best response he could have given me. It’s evasive and told me straight away that he was going to be defensive. Most juries don’t like defensive, evasive witnesses. What he should have said, the correct, easy answer that would have posed me more difficulties would have been, ‘Yes, I am, massive.’ But Horton wanted to be clever, so he doesn’t give me a straightforward answer, and in the process of trying to look clever, he made himself look shifty.
I questioned him about the supermarket and the procedure and his training.
‘How are you trained to deal with people who may have been shoplifting?’ I asked him.
This is an open question, by that I mean that I haven’t put it to him as an assertion which requires only a yes or no response, as in ‘You’re trained to be polite and helpful aren’t you?’ which is the way we normally ask questions when we want to control the witness. I’ve asked him an open question as I’ve got a good idea what he’ll say, and the answer will have more force coming as a result of this type of question.
‘We all undergo very specialised training in dealing firmly, yet fairly, with those who are suspected of theft.’
‘So you’d never assault anyone?’
‘No, certainly not.’
‘You’d never attempt to injure anyone?’
‘No.’
He had now cottoned on to where I was going with this line of questioning. So have some of the jury. As I said, it’s theatre and they’re desperate for more, they want to know what will happen next, they want to get as close to the action as they can.
‘I’d like you to look at this then please.’
I pushed the button on the video remote control and the images of Shandra Whithurst being approached by Mr Horton and his mate appeared. I stopped the tape. ‘That’s you there, isn’t it?’ I said.
‘Yes, it could be.’ There he was again – evasive – of course it’s bloody him!
‘Could be, Mr Horton? Well it is, isn’t it?’
‘Yes, I think so.’
At this point Judge Smithson got involved. ‘What do you mean, you think so? Is it or is it not you?’
‘It is, yes.’
I gave the jury a quick look of exasperation. Just a little one, nothing too much, but enough to let them know that I shared their irritation at the witness’s wriggling – a look to suggest to them that we were in this together.
‘Thank you, Mr Horton.’ I spoke clearly, as polite as a Boy Scout.
I now played the next bit of the video, the bit that showed Miss Whithurst put her hands in the air, then move away from the security guards as they tried to grab her.
‘Was Miss Whithurst trying to avoid you at this point, Mr Horton?’
‘Yes, I believe she was,’ he said.
‘Or perhaps she was just telling you that she was innocent?’
‘Well …’
‘That’s what she was doing, wasn’t she, protesting her innocence?’
‘Yes, but we’d seen her on CCTV stealing something.’
‘I’ll come on to that, Mr Horton, but first …’ I played more of the video. The two men grab Shandra and she topples over.
‘Were you taught to assault customers as part of your training, Mr Horton?’
‘She fell,’ he answered.
‘You pushed her, Mr Horton, look, you can see it again if you like. You and your colleague push this lady into the display of beer, don’t you?’
At this point the court was enraptured – in fairness to Mr Horton, he probably was trying to apprehend her, but it didn’t look good on the CCTV, and the fact that he now didn’t seem to give a toss just made it worse for him. It was an exercise in getting the jury to sympathise with my client.
I moved on. ‘Now, Mr Horton, you’ve told us that Miss Whithurst was a thief.’
‘Yes.’
‘What makes you say that?’
This was a bit of a dumb question by me, I’ve given him a free kick, a chance to simply regurgitate what can be seen on the earlier part of the CCTV footage. I cursed myself as soon as the stupid words left my stupid mouth.
‘Because of what we saw on the CCTV.’
But he slipped up. I’d been saved. My heart leapt. This was an unexpected opening.
‘Who saw it on the CCTV?’
‘Well, control saw it, and they relayed a description of the offender to me.’
‘So you didn’t see it yourself?’
‘Not exactly, no.’
‘Well did you or didn’t you?’
‘No.’
‘So why in your police statement did you say you’d seen the CCTV footage showing Miss Whithurst steal some goods?’
‘Well … it was a slip-up.’
‘No, Mr Horton, you were misleading the police and this jury.’ I turned emphatically towards the jury, beseeching them with my eyes and the expression on my face: look at this liar who is trying to mislead all of us.
‘So what else have you got wrong, Mr Horton?’
‘Nothing,’ he said.
‘You’re sure?’
‘Yes.’
‘So you never saw Miss Whithurst do anything wrong?’
‘Not me personally, no.’
‘And so you just went up to a woman who, for all you knew, was entirely innocent and pushed her over.’
‘Well …’
‘I bet they didn’t teach you that on your course, did they, Mr Horton?’
I sat down, I felt ace. I felt like Perry bleeding Mason.
It took the jury twenty minutes to acquit Shandra Whithurst. She gave me a massive hug as she left.
‘Thank you, Mr Winnock,’ she said, and I looked coy and bashful, ‘you are the best barrister in the whole world.’
‘Oh,’ I said, and did a little limp-wristed ‘give over’ gesture with my hand.
‘From now on, whenever any of my friends get caught by the police they’ll be coming to you.’
I wanted her to stop now. Even I was getting embarrassed.
But, funnily enough, as you’ll soon see, she was as good as her word.