I woke up the next morning with a tongue as dry as a camel-herder’s sandal and a massive grey cloud of guilt and self-loathing sitting uncomfortably above me.
What was I thinking? Going to the Purple Velvet Club in search of a witness, after having a skinful of beer was possibly the stupidest thing that I had ever done.
And then getting myself chucked out. I groaned to myself as the awful reality of what had happened came back to me.
It got worse. I checked my phone and saw that at some point I had sent a series of text messages to Kelly Backworth. The first, cockily proclaiming my decision to go to the Purple Velvet Club in search of Lilly, to which she had replied, with incisive prescience, ‘Do you really think that’s a good idea Russ?’
Then twenty minutes later, a rather pathetic drunken message that read ‘bin checked out of the Purple Club.’
To which she replied with a single word – ‘Tit’.
I limped into chambers, drinking Lucozade and eating bananas and extra strong mints (my age-old, tried and trusted hangover cure), and decided to carry out the next task on the list of things that Charlie Parkman wanted me to do: draft the application to adduce the bad character of Gary Dickinson.
Bad character is a tricky issue, though on balance it’s probably slightly more interesting than disclosure.
I’ll tell you about it.
Bad character is, as you’d expect, the generic term to describe whether someone has ever been in trouble before. To put it simply, if you have no previous convictions, cautions or reprimands, then you are entitled to call yourself a person of good character. If you have a list of form as long as your arm, or even a single conviction, then you are not – you have bad character.
How much a jury should know about your character has been debated by lawyers, Judges and clever people for as long as there has been trial by jury.
And it can be massively significant. If you are charged with, say, the offence of indecent assault, and in the past you have been convicted of possessing indecent images of children, then as soon as the jury hear about that previous conviction, the chances of you being acquitted pretty much disappear, regardless of the evidence. Because, understandably you might think, if there is one thing that juries hate, it’s child pornography. And of course, it doesn’t just apply to sex offences. In any case, as soon as the jury hear that someone has broken the law in the past, the task of making them like that person becomes that little bit harder.
Most defence lawyers want to keep their client’s bad character as far away from a jury as possible, but will be quite happy to bandy around the bad character of the complainant or a witness who is adverse to them.
Now, in the old days bad character really only went before a jury if, either someone had previously committed a crime which was ‘strikingly similar’ to the one with which he was now charged, or if he had cast aspersions on the character of someone else – which is called losing your shield.
That situation worked well for years, so, of course, they decided to change it. So now the issue of character and whether a jury should find out about someone’s antecedent history is extremely complicated, both in terms of law and in terms of judgement. The defence or the prosecution can make an application to bring someone’s form before a jury if they think that it will help a jury to decide an important issue in the case or that it will establish that the defendant has a propensity to commit the crime he is charged with.
It can be a massively devastating piece of information for a juror, and a Judge has to think long and hard before allowing it in.
Take the following two cases.
I once prosecuted a case in which an Albanian man had been charged with raping a sixteen-year-old girl. The prosecution case was weakened because the girl had waited for a week before complaining and then had admitted that she had gone back to the Albanian fella’s flat voluntarily because he had promised her lager.
I knew that he had a conviction in his homeland for what was termed in Albania as ‘serious sexual violence’, which I took to mean rape. Sadly, I didn’t have any of the details of his offence. I applied to the Judge for the conviction to go before a jury, saying that it showed that the man had a propensity to commit offences of a sexual nature, which, as he was denying it, was an important matter in the case. The Judge asked me what ‘serious sexual violence’ meant. I had to confess that, not being entirely au fait with the Albanian criminal justice system, I wasn’t sure.
‘Well, Mr Winnock,’ said the Judge, with a great deal of reluctance, ‘how can I allow a conviction before a jury, when neither of us are quite sure what it means?’
And, reluctantly, I had to agree, the Judge was right. It would be unfair.
The Albanian man was acquitted of everything apart from stealing beer. An acquittal that made me feel sick to the stomach.
After they had returned their verdicts I read out to the jury the defendant’s previous convictions. When I said that he had a conviction for ‘serious sexual violence’, collectively, their hands went up to their mouths. It was obvious that they felt that they should have known about it – but, would that have been fair? Would it have been fair to prejudice a jury with the knowledge of an offence that I wasn’t even sure I understood?
I don’t know the answer to that.
Then take another occasion – the exact opposite. My client was a young lad, Ashley Hunt, who’d got into a fight in a nightclub with a squaddie (alas, squaddies get into fights with a depressing regularity). Ashley told me that the squaddie was a known thug with previous convictions. Unfortunately for Ashley, he too had a load of previous convictions, including a rather nasty one involving a spade.
‘If I ask the Judge to allow me to cross-examine the squaddie’s previous convictions, then he’ll let the prosecutor put yours in,’ I told him. But Ashley was adamant, he wanted them in.
The Judge looked at me. ‘Are you sure, Mr Winnock?’
‘Those are my instructions, Your Honour,’ I said, which is code for: I think my client is completely daft for making me do this, but, hey-ho, it’s his funeral.
‘So be it,’ said the Judge, and I was duly given leave to cross-examine Private Matt Davis about an assault in a pub a few years ago.
It was a disaster.
‘So, Mr Davis,’ I began, ‘this isn’t the first time you’ve been involved in a fight in a pub, is it?’
‘No, sir,’ said Private Davis, then he turned to the jury with doleful eyes. ‘After I came home from Iraq, I was in a bad place, having witnessed two of my colleagues killed in an ambush by insurgents. I admit, sir, that I went off the rails a bit after that. Since then I’ve received counselling and help with my anger from the army.’
Ouch.
Ashley Hunt on the other hand, wasn’t quite so attractive a witness, in fact he was awful. He stood there in the witness box looking every inch the thug he was. The prosecutor was an experienced old brief called Roger Cairns. As Cairns got up to cross-examine my client, I wondered how he would deal with his previous convictions.
‘Are you a violent man, Mr Hunt?’ he asked.
I cringed, I knew what was coming. Ashley Hunt shrugged and muttered something that sounded a bit like, ‘No.’
‘I see,’ said Cairns. ‘What about the time you hit someone over the head with a garden shovel?’
Ouch again.
It took the jury twenty minutes to convict Ashley Hunt.
In the case of Tasha Roux, the issue of character was going to be absolutely vital, we wanted the jury to know that Gary Dickinson was a bastard. We wanted them to know that he was a man who had a temper and would resort to his fists. But, at the same time, we knew that this would probably mean that Tasha’s, albeit limited, convictions would also go in. But that wasn’t what bothered us. What bothered us was the possibility that the jury might think we were unnecessarily tarnishing a man who couldn’t defend himself because our client had chucked him over a banister.
It was a difficult call. If the jury didn’t like Tasha, then they wouldn’t like us resorting to tactics like this, and that was why it was so crucial that we tracked down a witness who might be able to give proper evidence about what Dickinson was really like. I was convinced that Lilly Spencer could provide that evidence, which is why I had been so desperate to speak to her.
I finished the bad character application and emailed it to Charlie Parkman with a little note telling him that we were doing everything we could to find a corroborating witness but that it was proving to be tricky.
Then I put my head on my desk and waited for my hangover to subside.