The attorney general initially proposed that the court should simply be regarded as an extension of the Assizes of the Western Circuit, convening in London instead of Exeter. The proposal created as many procedural problems as it solved, but it was accepted for the moment as the only workable solution.
Before they adjourned, Mr Collins, who had been studying the final version of the Special Verdict produced for the court, made a request that appeared to disconcert Baron Huddleston.
‘My Lord,’ Collins said. ‘We have made an application to the Treasury and I believe there is some difficulty about it, but I have no doubt the attorney general will be good enough to comply with my request to be furnished with a copy of the shorthand notes.’
‘The shorthand notes of what?’ Huddleston said.
‘Of the trial.’
Sir Henry intervened: ‘My friend need not trouble Your Lordship. He shall have anything he asks for. Whatever we can give my friend, he shall have.’
‘You can have a copy of my notes if you like,’ Huddleston said. ‘But what do you want the shorthand note of the trial for?’
‘I wish to read it, My Lord.’
It was close to an open challenge from Collins: a suggestion that the final version of the Special Verdict did not accord with that found by the jury. Huddleston’s lips whitened, but he suppressed his anger before he spoke. ‘Very well, Mr Collins. It shall be done.’
A week later, on 2 December, only two days before the hearing, Huddleston, Collins and the attorney general reassembled before the Lord Chief Justice, Lord Coleridge, who had decided that there were legal difficulties in maintaining the fiction that the judges were to sit as an extension of the Assizes of the Western Circuit.
He had asked Sir Henry to propose a suitable alternative. He now suggested that, ‘The court, certainly as far as it can be constituted, should sit not as the old Court of the Queen’s Bench, but as the Queen’s Bench Division. There was a transfer to this court and it is to this court that I shall have to bring this record of the trial at Assizes.’
The diffidence with which Sir Henry spoke reflected his uncertainty. As components of a single High Court of Justice, the Queen’s Bench Division had no more authority than the Assizes of the Western Circuit. There was also a further problem: the arrangement by which a bench of five judges could adjudicate on contentious points of law and give rulings binding on all other criminal courts applied only to the Court of Crown Cases Reserved. Judges of the High Court of Justice normally sat alone, but to give the court that they had reawoken from oblivion the legal weight required to establish a leading case, it was to be packed with five senior justices.
The 1873 Judicature Act, which had abolished the Court of Queen’s Bench, had specifically limited the number of judges sitting together to consider ‘such cases and matters as are not proper to be heard by a single judge’ to a maximum of three.
Even if the transfer of the case from Exeter to London was lawful — itself by no means certain — the court that was to assemble in two days’ time was improperly convened and therefore illegal by the letter of the law. If challenged, its rulings could not fail to be overturned.
Any half-competent defence counsel, let alone one of Arthur Collins’s standing, would have been expected to have noted and raised this in the interests of his clients. He never did.
When Tom travelled up to London on the morning of 4 December 1884, his mood was black. His thoughts were focused not on the hearing that morning but on his youngest daughter, Winifred. She had been seriously ill for several days with congestion of the lungs and it was thought unlikely that she would live. He had been nursing her night and day and could think of nothing but her pale, feverish face as the train rattled in towards Victoria. The thought gnawed at him that, even if he was released that night, she might already have died.
As he walked along the Strand, he saw a large crowd of people thronging the entrance to the Royal Courts of Justice. A street vendor had set up a brazier near the crowd and the sweet, smoky smell of roasting chestnuts filled Tom’s nostrils. He paused, the scent transporting him in an instant to a long-distant Christmas in Tollesbury.
They had eaten a wild duck, shot by his father on the marshes, then sat around the iron range roasting chestnuts while his father told them tales of the sea. He could still recall nestling on his mother’s knee, drowsy from food and warmth, hearing the soft crack of chestnut shells as they split in the heat of the fire. It was the last Christmas before his mother had died.
The memory seemed an ill omen and, lost in his own dark thoughts, he hurried past the vendor and pushed his way through the crowd to reach the entrance to the court.
The hearing opened at eleven, before the five most senior judges in England: Lord Chief Justice Coleridge, Mr Justice Grove, Mr Justice Denman, Mr Baron Pollock and Mr Baron Huddleston. The attorney general himself led for the Crown, assisted by Arthur Charles, Charles Matthews and William Danckwerts. Arthur Collins again appeared for the defence, with Henry Clark and Lionel Pyke, who practised at the Admiralty Bar and was, like Danckwerts, a specialist in wreck inquiries.
The attorney general first sought a ruling on whether the prisoners should be present. ‘They have had notice to appear and, I believe, are in the precincts of the court.’
‘We think it better they should be here,’ Coleridge said.
Knowing of Tom’s anguish over his daughter, Collins made some attempt to have the two men excused from attending. ‘Your Lordships order that they should be present? They were bailed to appear in Exeter, not London.’
Coleridge waved the question away. ‘Yes, we think it will be proper.’
Tom and Stephens were summoned and took their seats alongside their counsel. The Master of the Crown Office then began the interminable reading of the formal record of the proceedings of the trial in Exeter. ‘The jurors for our said Lady the Queen upon their oath do present that Thomas Dudley and Edwin Stephens on the twenty-fifth day of July eighteen eighty-four with force and arms on High Seas within the jurisdiction of the Admiralty of England, feloniously, wilfully and of the malice aforethought of them, the said Thomas Dudley and Edwin Stephens, did kill and murder one Richard Parker against the Peace of our said Lady the Queen, her Crown and Dignity.’
The recital included the commission of the Assizes of the Western Circuit, the name of every judge qualified to sit there, the findings of the grand jury, the record of the trial and finally the Special Verdict.
When it was at last at an end, Collins got to his feet. ‘I have to raise before Your Lordships an objection to that record. It does not set forth the real Special Verdict given by the jury.’
‘What are the words that you object to?’ Huddleston said, his voice like ice.
‘“A registered British vessel,” and “belonging to said yacht”. Those words were never in the Special Verdict and are not in the copy of it, nor the shorthand note supplied by the Treasury. The jury did not return that verdict.’
When the Special Verdict was being transcribed, Huddleston had realized that he had made a potentially critical error by not stating that the Mignonette was registered in England and that the dinghy belonged to the Mignonette. Knowing that Collins would use the omissions to query the courts right to try the case at all, Huddleston had amended the verdict to block the loopholes.
He held his expression neutral. ‘It is true those words were not in the actual findings of the jury, but they were upon my notes and there are precedents for a Special Verdict being amended from the judge’s notes.’ He paused, aware of the eyes of the other justices upon him. ‘However, these statements are not material.’