The system has operated in this way for hundreds of years and the spread of English-style administration around the world in the sixteenth, seventeenth and eighteenth centuries carried this legal system with it. Consequently it remains the practice in much of the world, including in the United States and in most of the old British Commonwealth.
However, in most of continental Europe the courts follow a different pattern known as the inquisitorial system where the judge, or a panel of judges, investigate the facts in the case, question the witnesses, determine the verdict and then pass sentence, all without the use of a jury. Exponents claim that it may be more precise in finding out the truth, but there is no real evidence to say that one system is more accurate than the other in reaching the correct conclusion.
Number 1 court at Oxford was set out for the adversarial system, as was every other Crown Court in the land, and both the prosecution and the defence teams were laying claim to their space. In our case, the defence consisted solely of Bruce Lygon, his secretary and me. I had asked him to bring his secretary to court so that we didn’t, as a line-up, appear too thin on the ground. To be fair, we also had Nikki Payne at our disposal. Nikki was an eager young solicitor’s clerk from Bruce’s firm, but she wasn’t in court at the start of the trial because she was busy in London trying to discover the answers to some questions I had set her the previous evening.
The prosecution, meanwhile, had seven players in situ. A top QC from London was leading, with a local barrister as his junior. These two sat in the front row, to our right, and also slightly to the right of the judge’s bench as we looked at it. Two CPS solicitors sat behind them, with two other legal assistants in the row behind that, plus a cross between a secretary and a gofer in row four. If they were trying to impress and intimidate the defence by weight of numbers, it seemed to be succeeding.
‘They look very well organized,’ Bruce said to me quietly.
‘So do we,’ I replied. ‘So appearances can be deceiving.’
Members of the public and the press were admitted, taking their respective places on the right-hand side of the court. The press were represented in force, both front-page and back-page reporters of the national dailies filling all of the green upholstered seats in the press box. This trial was going to be big news, and the thirty or so seats reserved for the public were mostly full as well.
Mr and Mrs Barlow, Scot’s parents, were both seated in the front row of this public area, which, in Oxford, was not an elevated gallery as at the Old Bailey, but on the floor of the courtroom alongside the press.
Next, Steve Mitchell was brought into court from the cells by a prison officer in uniform. Both the prison officer and Steve sat in the glass-fronted dock at the back of the court, behind the barristers’ benches. I turned round and gave Steve an encouraging smile. He looked pale and very nervous but was dressed, as I had suggested, in the blazer, white shirt and tie that I had bought for him in Newbury the previous Saturday. Courts are formal places and most of the trial participants were in legal dress or lounge suits. Only juries and the public galleries were casual, and seemingly more so each year.
‘All rise,’ announced the clerk. Everyone stood and the judge entered the court from his chambers behind. He bowed. We bowed back. And then everyone sat down again. The court was now in session.
The court clerk stood up. ‘The defendant will rise,’ she said. Steve stood up.
‘Are you Stephen Miles Mitchell?’ said the clerk.
‘Yes, I am,’ Steve replied in a strong voice that was partly muffled by the glass front of the dock that ran right to the ceiling of the court.
‘You may sit down,’ said the clerk, so he did.
‘Are you leading for the defence, Mr Mason?’ the judge asked loudly, making me jump.
I struggled to my feet. ‘Yes, My Lord,’ I said.
‘Do you not think that your team needs strengthening somewhat?’ he asked.
It was his coded way of asking whether I thought that a QC might be more appropriate, as he clearly did.
‘My Lord,’ I replied. ‘Sir James Horley is nominally leading for the defence in this case but is unable to be here today due to another case in which he is acting having run over time.’
‘You have not asked for an adjournment,’ he said, somewhat accusingly.
‘No, My Lord,’ I said. ‘Sir James and I have made the preparations for the case, and my client is content for the case to proceed today with me acting for him.’ I couldn’t exactly tell the judge that my client had been ecstatic that Sir James was not here when I’d told him earlier in the cells beneath the court.
‘I need to make it clear to you, and to your client, that this will not be grounds for an appeal if the case goes against you.’
‘I understand that, My Lord,’ I said. ‘And so does my client.’
Steve Mitchell nodded his agreement to the judge from the dock.
‘Very well,’ said the judge. ‘I have, in fact, spoken to Sir James this morning when he called me to present his apologies.’
Then why, I thought, did you ask me in the first place, you silly old fart?
The prosecution team were all looking at me and smiling, confidence oozing out of their every pore. I simply smiled back.
‘The defendant will rise,’ the clerk said again.
Steve stood up in the dock.
‘You are charged,’ the clerk said to him, ‘that on the seventeenth of November 2008, you did murder Hamish Jamie Barlow, also known as Scot Barlow. Do you understand the indictment?’
‘Yes,’ Steve replied.
‘How do you plead?’ the clerk asked him.
‘Not guilty,’ Steve said strongly.
Next came the selection and swearing in of the jury.
Everyone watched as a mixed bag of individuals entered the court and sat on more green-covered seats on the other side. There were eighteen of them in total, drawn randomly from the electoral roll and summoned to attend the court, whether they wanted to or not. Unlike in the United States neither the defence nor the prosecution had any prior knowledge of who they were or where they lived. We were not allowed to ask them any questions and, since 1989, the defence has not been able to object to a juror simply because they didn’t like the cut of his coat. Objections to jurors now had to be based on firm grounds and, even then, the judge was most likely to dismiss the objection.
Twelve of the eighteen had their names drawn from a box by the court clerk and each one, in turn, took their places in the jury box to my left and were sworn in, on oath, promising to try the case according to the evidence.
The six people, four women and two men, who had not been selected looked decidedly disappointed as they were excused by the judge back to the jury rooms upstairs, maybe to get luckier in one of the other courts.
And now we were ready to begin in earnest.
The court clerk stood up and read out the indictment to the jury. ‘That on the seventeenth of November 2008, Stephen Miles Mitchell did murder Hamish Jamie Barlow, known as Scot Barlow, contrary to common law.’
‘Ladies and gentlemen of the jury,’ the prosecution QC was on his feet almost before the clerk had sat down. ‘You will hear, in this case, of a bitter feud in the world of horse racing that was so acrimonious that it led to the gruesome killing of one jockey at the hands of another. A story of rivalry and revenge that goes far beyond the accepted limits that exist in any competitive sport.’ He paused briefly to draw breath, and also to find a sheet of paper that he picked up from the desk and consulted, not that he probably needed to. It was simply for show. ‘Members of the jury, you will hear how the defendant did premeditatively murder the victim by driving a metal-pronged pitchfork deep into his chest, deep into his heart, and how the defendant now claims that he is innocent of the charge and is being framed by person or persons unknown. But the evidence presented to you will convince you, beyond a reasonable doubt, that the defendant is, in fact, culpable of the murder, and that his claims of being framed are meaningless and unfounded, nothing more than the last refuge of a guilty soul.’ He replaced the paper onto the desk.