Not for the first time, I have been struck how true to life was Victor Meldrew from One Foot in the Grave. That capacity to become involved in some horrific comedy of errors seems to increase as my life goes on. Perhaps people gain too much experience of the world so that their reaction to something said has too many potential permutations with which to toy. Whatever it is, I had an example of it in Chambers only this morning. I had descended into the bowels of our building to work in our library whilst an electrician tried to repair the heating unit in my room.
The library used to be a busy place. Tenants and pupils regaling each other after court with their war stories of the day’s battles before Mr Justice Ice, His Honour Judge Moan, or the lay bench at Camberwell Magistrates’ Court. That ill-fated hunt for a volume of the Criminal Appeal Reports, knowing in your heart that there will be only one missing volume in the entire collection – the one for which you are searching. Then, it would likely have been taken by Gabriel Gollange QC, who had a legal collection to rival the Temple libraries housed in the boot of his Jaguar. Alternatively, just as your fingers forced a space between tightly packed books to the location where ‘your’ volume should have been, there would be a little piece of paper reading ‘gone for re-binding’.
Now, the library is as empty as a rural church: everyone can access authorities online. I do, however, miss the stories. It was fun to laugh at someone’s incredibly stupid mistake in court and, at the same time, make a mental note not to do the same thing, which you had only just learned was wrong, yourself.
As I settled down to type a rude memo to Chambers about constantly leaving lights on at night in the building, I noticed Frank Delaney reading something in the corner of the room. Frank is a down-to-earth Midlander of Irish descent who never minces his words in court. His father had been a shop steward in a car factory. Frank went to a rough secondary school and was the only boy in living memory from that academy who had gone to Cambridge.
‘Gosh!’ he said. ‘Fancy that! Gosh!’ ‘Gosh’ seemed an incongruent word for Frank to utter, just like his saying ‘super’ or my using ‘cool’. I looked up and we exchanged a glance. ‘Gosh!’ he said again and as if in explanation: ‘It’s been overturned.’ ‘What has been overturned?’ I enquired. ‘Gosh!’ he said for the umpteenth time. He then slid a copy of The Times across the desk. He had, unusually, been reading a Law Report – called ‘Ivey’ versus something.
As my eyes fell on it, I realised for the first time that he hadn’t been saying ‘gosh’ at all. He had been talking about a case called ‘Ghosh’ and pronouncing it with a short ‘o’. Like all criminal practitioners, I knew all about ‘Ghosh’ with a long ‘o’. Knew all about it and never entirely understood it. When directing juries on dishonesty there was the obvious test: on the facts as the jury find them to be, and taking into account what it can be proved the defendant thought them to be, was the defendant dishonest by the standards of ordinary decent people? So far, so good.
Then the lawyers got going. What if a defendant, notwithstanding he was guilty under the first test, genuinely did not believe or realise that what he had done, although dishonest by the standards of ordinary decent people, was, in fact, dishonest? ‘Ghosh’ seemed to decide, that if this was the case, he was Not Guilty. The only fly in the ointment is that the standards of ordinary decent people the jury has to apply are likely, for obvious reasons, to be their own standards, which makes the defence a touch unattractive.
Anyway, the long and short of this ‘Ivey’ case was that the Supreme Court had now decided that we have got it all wrong for the last 35 years and there was no, in their words ‘warped’, ‘Ghosh’ defence at all and, although this part of the judgment is obiter, the fact that their Lordships have now cast an Olympian eye upon the legal meanderings of mere mortals in the criminal justice system is likely to prove conclusive.
Guy Fawkes’ Day, 2017:
‘I still don’t understand what a sea god would be doing in Atlanta.’ Leo snorted: ‘What’s a wine god doing in Kansas? Gods are weird.’
– Rick Riordan, The Mark of Athena