‘Because if one committed the act, the others need not do it.’
‘No,’ Huddleston said. ‘Brooks said, “I would rather die myself, I will have nothing to do with it,” and they knew it because they ordered Brooks to go to sleep while they proceeded to kill the boy.’
Collins shook his head. ‘That is what he said but, with great respect, it does not meet what I was saying about unavoidable necessity. Someone must be killed, and although he says he went to the other end of the boat, the moment the boy was killed, Brooks took a share of the flesh and blood.’
He paused and glanced along the row of judges facing him. ‘Those are the only points I have to urge why these men are not guilty of the crime charged against them.’
‘Mr Attorney General,’ Coleridge said, ‘if we wish to hear further from you, we will let you know when we come back.’ The five judges retired to consider their verdict.
Sir James Fitzjames Stephen’s History of the Criminal Law of England, written the previous year, had made the prophetic remark that the law on the subject of necessity was ‘so vague that, if cases raising the question should ever occur, the judges would practically be able to lay down any rule which they considered expedient’.
There was never any doubt what the five judges in this case would find expedient. They were out of the courtroom for less than ten minutes. When they returned, Coleridge announced, ‘I have had an opportunity of conferring with my learned brothers and we were all of the opinion that the conviction should be affirmed.’
There had been no conviction and yet the Lord Chief Justice and his fellows had confirmed it. Their Lordships then tied themselves in further linguistic knots in trying to avoid the appearance — the reality was not in doubt — of usurping a jury’s function by pronouncing a verdict.
Coleridge looked at the attorney general. ‘Can you tell me what course you propose to invite us to take?’
‘By law, in order that the proceedings should be regular, the only course that I am aware of will be to ask Your Lordships in this court to pronounce judgement.’
‘To pronounce judgement on the question of guilty or not guilty?’
‘Yes, and continue the judgement by passing sentence. Judgement must be passed after sentence,’ Coleridge said.
Sir Henry nodded. ‘But would not a convenient course be for Your Lordships to say, “We do not formally convict until four days have elapsed”?’
Coleridge sighed. ‘It is very difficult when we get into these technical things. If we do that, what is there for the prisoners to appeal against? They cannot appeal against a mere conviction.’
Tom sat with his head in his hands. ‘They have set themselves up to be judge and jury of us,’ he muttered to Stephens. ‘Now they wish to pretend that it isn’t so.’
Once the justices had settled that procedural point, the defendants were then forced to sit through a further lengthy argument about when and where the sentence of death — there was no other penalty for men convicted of murder — should be pronounced and carried out.
Huddleston argued that the case should be returned to the Assizes for sentencing, but Coleridge overruled him. ‘We will give our formal judgement now,’ he said, ‘and we will give our reasons accompanied by the sentence on Tuesday next. In the meanwhile, Mr Collins, you will understand that the judgement is formally given against you?’
‘If Your Lordship pleases,’ Collins said.
The four-day adjournment was to give Collins the chance to prepare ‘a motion in arrest of judgement’, the standard process by which a condemned man was asked if he could put forward any reason why sentence of death should not be pronounced.
The attorney general again got to his feet. ‘I have to ask what direction you think right for the disposition of the prisoners?’
‘We have considered that and I think they must remain in the custody of the court now.’
‘We have bail for them,’ Collins said.
‘But it was a very different thing before today.’ Coleridge gestured to Huddleston. ‘My learned brother had not decided the point. We have done so now.’
‘I will not argue with the court,’ Collins said, ‘but they surrendered to the court today merely on a notice. They were not bound to.’
Coleridge shook his head. ‘We are all of the opinion that it would not be right to free them from custody. They will be sent to Holloway Prison, which I understand, as far as there is a difference between prisons, is the most comfortable for them.’
Both men were too shocked and distraught to be much consoled by Coleridge’s generosity. Still frantic with worry about his daughter, Tom was taken down from the court and manacled to Stephens. Collins followed them down from the courtroom. ‘I would wish a private word with the prisoners before they are taken away.’
The police sergeant in charge gave a grudging nod and led the two constables a few paces away.
Collins removed his wig and dabbed at his perspiring forehead with a linen handkerchief. ‘Captain Dudley, Mr Stephens, I have tried to prepare you for this moment, but I am afraid you have not been of a mind to heed the warnings I have given.’
He hesitated. Stephens kept his head bowed, not even seeming to hear him, but Tom’s steady gaze was fixed on Collins’s face.
‘The merits or demerits of your particular case are not and never have been the central issue in these proceedings.’ Collins paused again, his expression showing his discomfort. ‘For some years, the Home Office has been seeking to establish an unshakeable legal precedent outlawing the custom of the sea. They have tried before and failed.’
Tom nodded. ‘I know of the case.’
‘You provided them with another opportunity and the home secretary took all necessary steps to ensure that you were prosecuted without any risk of an acquittal. Baron Huddleston was hand-picked to hear the case. As you have seen, he is a clever man,’ Collins’s lip curled, ‘and still a very ambitious one. Even at his age, he yet harbours hopes of further advancement.
‘Huddleston had been left in no doubt that the home secretary required a precedent to be established. A case before a single judge, delivered on assizes, was not regarded as binding on other courts, and Huddleston had to ensure that the case came before a bench of judges in a higher court.
‘The Crown’s first step in that process was to offer Brooks immunity from prosecution and enlist him as a hostile witness. The fact that his deposition to the collector of customs in Falmouth had allegedly been lost was not without significance. The Crown undoubtedly had no wish to have self-incriminating or contradictory testimony from their chief witness available to the defence. Without even allowing me to address them, Huddleston then delivered his lecture to the grand jury, rejecting out of hand the possible defences of necessity and self-defence.’
Collins paused, avoiding Tom’s eyes. ‘To rule on a case before hearing the evidence is in my experience without precedent.’ He checked, as if surprised by the force of his own anger. ‘The grand jury found a true bill, but the baron now had to convince the trial jury. He was well aware of the risk of an acquittal.
‘He allowed the prosecuting counsel to outline its case but prevented me from putting to the jury a defence based on the necessity of the act until he had planted in their minds the idea of finding a Special Verdict. When I insisted on stating my case to the jury, he immediately directed them to ignore my remarks.’
Collins’s voice grated in Tom’s ears. It had taken on a plaintive, almost whining quality, as if the greater offence had been to prevent Collins from speaking, rather than the injustice perpetrated on his clients.