Eighth in the Best Defence Series
The most common question asked of a criminal defence lawyer is: how can you possibly defend someone you think is guilty?
Top answer, most people think, is money, and it does definitely help. However, the fact is that most defence lawyers are interested in justice, and most clients have the decency not to say if they are guilty. Often it’s the guilty ones who sound the most innocent and come up with the best lines of defence. Some of them have had a lot of practice. What’s important for defence agents is not to prejudge the issue; there are enough people doing that already.
So, I like to respond to that question with another question. How is it a prosecutor can seek to convict someone he or she may think, indeed, must presume by law, to be innocent? That was a question you heard asked about as often as Sheriff Albert Brechin putting ‘not’ and ‘guilty’ together in the same sentence.
‘It was an assault, Mr Munro. Plain and simple. Did you not hear the evidence of the two witnesses? Are you deaf as well as...’
‘As well as what, M’Lord?’
Sheriff Brechin put a hand under the front of his yellowed, horse-hair wig, scratched whatever it was lived under there, and looked down at me from the Bench. ‘As well as extremely stubborn. When will you realise that it doesn’t matter how long you stand there addressing me, the facts of the case remain unalterable. Your client struck—’
‘There you have it then! You admit it yourself.’
‘A slap from my client does not necessarily amount to an assault.’
The Sheriff sat up straight, raised his right eyebrow an inch and his voice an octave. ‘Really? Since when?’ The day Bert Brechin was appointed Sheriff of the Sheriffdom of Lothian & Borders, was the day the theatre world missed out on a fine pantomime dame. ‘Has someone changed the definition of assault and not told me? It is still defined as an attack by one individual upon another with evil intent, is it not?’ Brechin glanced around, as though some legal messenger might arrive hot-foot from Parliament House with news of a change to the law.
‘Yes, it’s still the same,’ I said, ‘and that’s why I’m certain your Lordship will take my point.’
‘Point?’ Brechin’s left eyebrow caught up with the right, both threatening to disappear somewhere under the fringe of his wig. ‘Point? I didn’t realise you had a point, Mr Munro. It’s most unlike you.’
‘My point, M’Lord, is evil intent and the distinct absence of it in this case.’ I stepped to the side to allow the Sheriff a better look at the young woman in the dock. Heather Somerville was a student teacher, one week off her twenty-third birthday, two away from graduation and six from her wedding. One Saturday afternoon, a couple of months previously, Heather had arranged to meet her fiancé and go shopping. When he hadn’t shown up at the allotted time she’d gone looking for him, and, with her woman’s intuition requiring only to be placed on a low setting, had tracked him to the pub where he was watching a game of football with his mates. There had been an argument. He’d called her a nag. She’d slapped his face. The barmaid had ejected the pair of them and phoned the police.
Subsequently, and on him apologising to her, the two had kissed, made up and considered the matter closed. Not so the Scottish Justice System. It was clearly an act of domestic violence. As such it fell to be dealt with under the prevailing zero-tolerance policy on such matters.
Heather Somerville had been arrested and held in custody. After a weekend pacing a police cell, she had appeared in court late on the Monday afternoon. A conviction for assault would spell disaster for her future career as a primary school teacher, and so on my advice she’d pled not guilty and opted to take her chances at trial.
Unfortunately, Heather’s boyfriend had been extremely helpful to the prosecution. That was the problem with dragging nice, law-abiding people to court. If you asked them to put their right hand up to God and swear an oath, they had the annoying habit of telling the truth, even if they’d rather not. Had her boyfriend been one of my regulars, asked to testify against his girl, there would have been a sudden and violent onset of amnesia at the mere sight of the witness box.
Of course, while it was bad news for some that the Crown insisted prosecuting even the most trivial of relationship spats, there was good news for others. The silver-lining to the leaden cloud of zero-tolerance was an increase in prosecutions, and more prosecutions meant more work for me. No matter how much I despised zero-tolerance policies, eventually I came to view them the way dentists viewed bags of boiled sweets: dead against them in principle; happy for the business.
I carried on. ‘M’Lord, the complainer, if you can call him that because he never actually complained about what happened, may have given evidence to say that he was slapped…’
Brechin snorted. ‘No may about it. He did say that. Precisely that.’
‘But he also said that he deserved it.’
‘No-one deserves to be slapped, Mr Munro.’
I could think of a few who did. One of them was sitting ten feet away, keen to uphold some twenty-first century, politically-correct notion of justice, while frowning at me from under the type of hairpiece made popular circa the mid-eighteen hundreds. ‘Surely, your Lordship will agree that some people deserve the occasional slap?’
‘Such as whom?’
‘Such as errant boyfriends who don’t show up when they say they will and are then rude to their partners.’ If not, what was the world coming to? What would Mae West, Rita Hayworth and just about every Hollywood leading-lady of yesteryear have done if they kept being hauled off to choky every time they gave Jimmy Cagney a drink in the face or John Wayne a scud on the jaw?
‘And what about errant girlfriends, Mr Munro? Do they deserve the occasional slap too?’
It was a neat switcheroo, I’d give the old devil that much. ‘Vive la difference, M’Lord. As I say, my submission is that the complainer—’
‘The fiancé saw the slap as less of an assault and more of a correctional aid. However, if, as you say, it was an assault, it was justifiable. How about we call it reasonable chastisement?’
Brechin smiled like a gutted fish, cheery at the imminent prospect of ruining some young person’s career over a lover’s tiff. ‘How about we don’t? How about we call it what it was – an assault.’
‘But nothing. I’ll decide who deserves to be slapped, Mr Munro. Not you, not your client and not even the young man who was unfortunate enough to have been on the receiving end of this vicious attack. Now are you quite finished?’
I’d been presenting my closing submission for half an hour. Hugh Ogilvie, the Procurator Fiscal, had done his in thirty seconds, pushing at a door to a conviction that was not so much open as falling off its hinges. Clearly Brechin was satisfied that the slap comprised the necessary wicked intent. It was time for a change of tack. ‘If your Lordship is not with me when it comes to the mens rea, is this not perhaps a case where the Court could consider these proceedings to be de minimis?’ Latin often helped when dealing with sheriffs as well as impressing the hell out of clients.
Brechin looked at me as though I was speaking an alien language as opposed to his favourite dead one. ‘De minimis?’
That the law did not concern itself with trivialities was a well-established rule and set out, as every law student knew, in Limerick form.
There was a young lawyer named Rex,
Who had a very small organ of sex,
When charged with exposure,
He said with composure,
‘De minimis non curat lex.’
I didn’t think a recital would help; nonetheless, for some Sheriffs, those with a shred of humanity, to find the incident de minimis would have been a way out. All Brechin had to do was accept that while, legally speaking, there had been an assault, the whole matter was so trivial that there need not be a conviction. His brother Sheriff, Larry Dalrymple, Livingston Sheriff Court’s Yin to Bert Brechin’s Yang, would have seized the opportunity with both hands. The most annoying thing about it all was that the trial had originally been set down for Dalrymple’s court because Brechin was supposed to be on vacation. Sheriffs were allowed an inordinate number of holidays. Bert Brechin took far too few. On this occasion, for some unknown reason, he’d returned early from a two-week bird-watching expedition on Madeira and volunteered to do the trials’ court. It meant that on this, the first day of May, when I should have been giving my face a wash in the morning dew, I was instead getting a hosing from the Bench.
‘Your client is guilty, Mr Munro.’ The Sheriff had heard enough of my legal argument. ‘Stand up,’ he ordered the accused, his words accompanied by wails of grief from my client’s mother in the public benches. ‘Miss Somerville, I fine you four hundred pounds. Do you require time to pay?’
She did. Twenty-eight days to pay the fine. The rest of her life to pay for the conviction.