Alibi For A Judge

CHAPTER ONE

On Alibis

William Burford’s defence was an alibi and the judge who presided at his trial was Mr Justice Carstairs. The alibi was not one of the best alibis and the judge was not one of the best judges. It may perhaps help to an understanding of the case and its curious consequences to consider first the nature of an alibi and then the nature of a judge.

From time immemorial the alibi as a defence has been popular with criminals. And not only with criminals. Most people remember Mr Weller senior’s despairing cry, ‘Oh, Sammy, Sammy, Vy worn’t there a alleybi?’ when Mrs Bardell won her action against Mr Pickwick. It is logical enough. The charge against William Burford was safe breaking on a pretty large scale. It was alleged that, with the help of another or others, he had not only blown open the safe but removed about £80,000 as well. No doubt William said to himself: ‘If I can prove I was elsewhere when the safe was blown, I’m bound to be acquitted.’ And he was quite right; it was a cast-iron defence – if it succeeded.

That is the trouble with alibis. They are at the same time the best and worst defences. They are the best because, if you weren’t there when the man was murdered, you couldn’t have murdered him. They are the worst because, once you raise an alibi, no other defence is usually open to you. In the case of murder, for example, you can’t rely on self-defence, accident or extreme provocation. You say you weren’t there. So you can’t have been provoked; you can’t have been threatened by the man and picked up a weapon with which to defend yourself; he can’t have slipped on a piece of orange skin and fallen accidentally on to the knife with which you were peeling the orange. You were nowhere near the man at the time. Or so you say. And, if the jury don’t believe you, that’s an end of the matter.

Criminal cases are not like civil cases in this respect. Judges and barristers are quite used to inconsistent and alternative defences in civil matters. Says the plaintiff in the County Court: ‘Your Honour, the defendant owes me £50 for goods sold and delivered.’

‘What do you say?’ says the judge to the defendant.

‘Oh, your Honour,’ says the defendant, ‘I never agreed to buy the goods.’

‘An excellent defence,’ says the judge. ‘Any other?’

‘Oh, yes, your Honour. He never delivered them to me.’

‘Better and better,’ says the judge. ‘Any more?’

‘Oh, yes, your Honour. They were no good and I couldn’t resell them.’

‘Yes,’ says the judge. ‘What’s the next one?’

‘He agreed to take them back.’

‘Fine,’ says the judge, ‘and now he refuses to do so?’

‘Exactly, your Honour,’ says the defendant. ‘And I’ve one further defence.’

‘I felt sure of it,’ says the judge. ‘Keep the best till the last. What is it?’

‘I’ve paid for them, your Honour.’

‘As I thought,’ says the judge. ‘How many children have you got?’

‘Five, your Honour.’

‘Very well, then. Pay £2 a month.’

Well, perhaps it isn’t quite like that, though, according to a current story, that is how it seemed to an American lawyer who was visiting the English Courts.

But, though this sort of thing can be done in a civil court, where the only issue is usually whether A should pay B and, if so, how much and when, it is quite impossible in a criminal court. For example, in William’s case it was alleged that he was seen running from the scene of the crime. Having sworn that at the time he was some miles away in bed with his wife, it would have been impossible for him to rely alternatively on the inconsistent defence that he was a customer of the bank and he had gone to sleep while waiting in a queue of people all of whom were paying in vast numbers of cheques and notes, which had to be counted and recounted; that, when the bank closed, he was somehow or other forgotten and locked in; that he was disturbed by the real thieves, that when he realised the position, he thought he might find himself in a compromising situation if he remained and so he bolted down the street. Nor, if that story seems anyway rather fantastic, could he have said more simply, as an alternative to his alibi, that he was certainly seen running from the scene but that it was a pure coincidence; he happened to be in the neighbourhood at the time and was in a hurry to get home.

No, once you’ve committed yourself to an alibi, that is your only mode of escape, and, if that breaks down, you must wait, as composedly as you can, for the sentence. In consequence the wise criminal thinks carefully before he relies on an alibi. And the wisest prepare it in advance, as in a military operation, with watches synchronised and excellent reasons arranged for the supporters of his alibi being able to remember the time when the accused was supposed to have been with them. Up to midnight the wireless is a most useful asset. The supporter listens to the programme and (provided the accused doesn’t get arrested on the spot) primes him with it later.

Many people are rather sceptical of alibis and, indeed, some cynics say that they are never genuine. They argue that, if the accused really was somewhere else at the time the crime was committed, he would never have been charged with it. But this implies that no innocent person is ever charged with crime, and, though it is a very rare occurrence, it does occasionally happen. William passionately declared that it had happened in his case.

CHAPTER TWO

On Judges

It should perhaps help to an understanding of Mr Justice Carstairs’ behaviour after the trial of William Burford to have some appreciation of a judge’s position in England.

How are they appointed, what qualities do they require to make them satisfactory judges, how and why do some of them fail to be satisfactory and what is the effect upon themselves and upon the public of such failure?

Mr Justice Carstairs had been appointed in the normal way, that is to say, he had had a substantial practice at the Bar, was looked upon as a sound lawyer and a person of complete integrity; he was offered the appointment by the Lord Chancellor, and he accepted. There was no surprise at his appointment and no expectation that he would either be very good or very bad.

In some countries there is a judges’ profession and, if you want to become a judge, rather than an advocate, you must join that profession. If you do join it, you no doubt start off in some administrative capacity with no judicial duties, but you see how the judges do their work. Then, in due course, you will be given some very minor judicial post, and your progress thereafter will presumably depend upon how you acquit yourself in that post and in any more important posts which you may be given.

The result is that no one in those countries is appointed to high judicial office unless he has proved himself to possess not only the qualities necessary for a good judge but the ability to make full use of those qualities as well. In consequence, the public in those countries can be almost certain that, unless the extra power suddenly goes to a man’s head, the judge holding high judicial office will be patient and fair-minded, intelligent, a good lawyer and, perhaps most important of all, not an advocate on the Bench. It can also be reasonably sure that he will not be a person who worries excessively. No one can, of course, be quite certain of that matter, as a judge may carry on his worrying entirely in private and never disclose it to any superiors, colleagues or subordinates, but this does not often happen.

It is, of course, possible that preferment to high judicial office will suddenly go to a man’s head, but, if he has been having continuous preferment for many years, it is fairly certain that he is not a person whom power corrupts.

The position of a High Court judge in England is extremely important and there is, therefore, obviously something to be said for ensuring that no one is appointed to that office unless he has proved himself to be fitted for it. A man may be a brilliant lawyer and a brilliant advocate and an appallingly bad judge. And you cannot tell for certain what sort of a judge he will make until he is on the Bench. If a mistake has been made, it is then too late to correct it.

In spite of this danger the English system of the appointment of judges entirely from the Bar has worked, on the whole, extremely satisfactorily, but undoubtedly it has fallen down from time to time. It was a mistake to appoint Mr Justice Carstairs, though neither he nor anyone else realised it at the time. But the advantage of the system is that the judge, having been at the Bar most of his working life, understands all that has been happening before the case comes into Court and all that is happening from the advocate’s point of view in Court. This knowledge is of the greatest value and is only available to judges in those countries where they are appointed from the Bar.

The one case where the English system has in the past been known quite unnecessarily to fail has been in the appointment of the Lord Chief Justice. His position is of the greatest importance, both to the judges and to the public, but until comparatively recently there was a practice by which he was appointed direct from the Bar, the Attorney-General of the day being considered to have some kind of moral right to be so appointed. The strong probability is that this practice is now defunct and that no Lord Chief Justice of England will ever be appointed except from among the judges themselves. It would seem elementary that no one should be appointed to such high office unless he has proved that he is a judge of the highest quality. The unfortunate result of appointing as Lord Chief Justice an Attorney-General, who was a man of brilliant ability in many respects but whose judicial qualities had never been tested, and were in fact dreadfully deficient, is well within the memory of many lawyers, and it is unlikely that such a risk will ever be taken again. It was necessary to take a risk in appointing Mr Justice Carstairs a judge of the Queen’s Bench Division. It would have been ludicrous to take the risk of making him Lord Chief Justice. How ludicrous this story will show.

No little handbook entitled Do’s and Don’ts for Judges is issued to barristers on their appointment to the Bench. Most of them realise instinctively what is required of them. Even those who do not turn out to be particularly good judges try to act as particularly good judges do act. This has the advantage that on the whole litigants feel that justice has been done, even if it hasn’t, and apparent justice is the next best thing to justice itself. Nor do newly appointed judges attend a short course of lectures with the object of receiving helpful advice from their more experienced brethren.

All the same, a class for new judges is a pleasant idea.

‘Now, Toothcombe J, what would you do in a case where the plaintiff said, etc, etc?’

Toothcombe J remains deep in thought.

‘Come along, Toothcombe J, one of the things a judge has to do is to make up his mind.’

Still no answer.

‘Very well then. Next. Next. Next. I see your hand is up, Blinkers J. What is your answer to the problem?’

‘I was just stretching, I’m afraid.’

‘Oh, very well. So long as it was a genuine yawn, I don’t think it matters very much. But never do it on purpose.’

But, although handbooks and lectures are quite unnecessary for the average judge, it would have been a good thing if Mr Justice Carstairs could have had the advantage of both. For, although in private life he was a kindly and generous man, he was one of the few judges who did not appreciate instinctively his responsibilities, or realise how easy it was to abuse the power vested in him.

An omnibus conductor has considerable authority in his omnibus. He can’t tell people to take their hands out of their pockets or to stop sucking sweets but he can order people about to a substantial extent. Few conductors abuse this power but some do. Such abuses cannot do much harm, although they can start an unfortunate train of events moving. If a conductor is rude to a businessman, it may rankle until he reaches his office. He may find there that a clerk has made a mistake. Normally he would have overlooked it, but, unconsciously, in order to be avenged for the conductor’s rudeness, he creates a fuss about it all and makes some unwarranted remarks to the clerk. Eventually the clerk is provoked into answering back and is given a week’s notice. This may lead to all sorts of domestic complications.

‘Lost your job, have you? What am I going to use for housekeeping, tell me that?’

‘It wasn’t my fault, really, Mary.’

No, it wasn’t. It was the conductor’s.

So, even the abuse of authority on that very small scale can have serious effects. And, conversely, good manners and helpful conduct, even on a small scale, can start a chain reaction of a happier kind.

But abuse of power by a judge may very well have serious effects. It is one thing for a man to be told in public to get off an omnibus, it is quite another for a judge to say of him in public, with the probability that it will be reported in the press: ‘I have never seen such a nauseating spectacle as Mr X in the witness box. He is incapable of telling the truth except when it suits him and he tells his lies in a sanctimonious and self-righteous manner which I find utterly repulsive.’

When Mr Justice Carstairs, on his way home from Court, read in the newspaper ‘Mr X … a nauseating spectacle. Judge,’ he entirely failed to appreciate that in speaking of Mr X in that way he had simply satisfied his own personal dislike of the man. For the purposes of his decision it was quite unnecessary for him to do more than to say that he did not accept Mr X’s evidence and why: for example, that some of his evidence was contrary to letters which he had written or that he contradicted himself in the witness box or the like. But to describe him as a nauseating hypocrite was to indulge in mere abuse. Perhaps the judge was right in this view, perhaps he was not, but, though his judgment could be reversed in a higher Court, his words could never become unspoken.

And, after all, he had seen the man in the box for perhaps an hour. It may be that in the unaccustomed atmosphere of the Court Mr X went to pieces and did not do himself justice. It is indeed surprising that so many witnesses are able to control themselves sufficiently to appear outwardly calm. Justice can never be perfect and, if a man is a bad witness, he may lose his case, but he should not have to suffer the sort of treatment which Mr Justice Carstairs handed out. And unfortunately no one who knew the judge well enough ever told him of this defect in his behaviour. It was as bad as that of a judge who said to an acquitted prisoner: ‘You’re discharged. You’re very lucky in your jury.’

In saying that, the judge had endeavoured to cast doubt upon the jury’s verdict in order to satisfy his own sense of annoyance at the prisoner being acquitted.

A further serious fault of Mr Justice Carstairs was his complete inability to restrain himself from intervening during the course of a case. Everyone knows the man who can’t refrain from taking the lead in private conversation. If a story, which he happens to know, is being told, he can’t resist interrupting and finishing it off. So with Mr Justice Carstairs in Court. It has frequently been said that a judge should hold himself aloof from the struggle going on in Court between the advocates. Of course sometimes he has to blow his whistle when there has been an infringement of the rules, or when someone has been hurt, but otherwise he should leave the battle to the advocates. Mr Justice Carstairs, however, girded himself for war and joined lustily in the fight.

Another of his serious faults was to have carried his advocacy to the Bench. That is one of the prices of the system of appointing judges solely from advocates. But it is impossible to tell whether a man will do this until you see him at work on the Bench. It by no means follows that, because a man has been a fierce and determined advocate, he will not be completely fair-minded on the Bench. One even finds such an advocate, on appointment to the Bench, having difficulty in coming to a decision. But the judge who carries his advocacy to the Bench makes up his mind (often much too early) as to what in his opinion the result of the case should be and proceeds to press that point of view, just as though he were the advocate whose duty it was to press it. A judge cannot help forming a view about a case as it goes on; that is what he is there for. But, as far as possible, he should keep it to himself and in no circumstances should he try to steer the case to the result which he considers it should have. A judge who apparently seems to procure a particular result in a case must invariably appear unfair.

It was unfortunate that Mr Justice Carstairs should have these faults but by themselves they would only have resulted in his being a bad judge. It was the combination of these faults with two other faults which caused him to act so strangely. He was a worrier and he indulged in self-deception.

It is important for a judge, both for his own peace of mind and for the quality of his decisions, that he