Brief Tales From The Bench (8 page)

‘Do you say that he never came to your hotel at all?’ I asked.

‘We have indeed got the registration of a Mr Blandish on the day that he said he stayed there,’ said Mr Cutworthy, ‘but either what he says is almost entirely a complete fabrication, or he’s mixed up our hotel with some other hotel at which he stayed on a different occasion.’

‘Well,’ I said, ‘this is extremely odd. Mr Benton, I don’t believe your client, when in the witness box, actually identified Mr Cutworthy. Don’t you think he’d better be recalled at once, in case there has been some mistake about it?’

So Mr Blandish was recalled into the witness box and was asked to look at Mr Cutworthy and say if he was the man whom he’d described as being the manager of the hotel where he stayed on the night in question.

‘Yes,’ said Mr Blandish, and then paused. ‘I think so,’ he added.

‘You
think
so?’ I asked.

‘Well, your honour,’ said Mr Blandish, ‘I only saw him on one day and that was some little time ago.’

‘But your name is in the visitors’ book,’ I said.

‘It’s in the visitors’ book of a lot of hotels,’ said Blandish.

‘Any in the same neighbourhood?’ I said.

‘Quite possibly. But, your honour, I don’t think there is any doubt that this is the man. I must admit, however, I haven’t got a good memory for faces, and I’ve been asked on my oath if I can swear positively that he is the man. Naturally I want to be careful about this.’

‘You are quite right to be careful,’ I said, ‘but you described in detail your first entrance to the hotel and what you saw and heard. Have you any doubt about what you’ve told us?’

‘None at all, your honour,’ said Blandish.

‘Have you any doubt about the position of the hotel?’

‘No, your honour.’

‘Then,’ I said, ‘the only thing you are not absolutely certain about is whether the gentleman standing in the witness box is the manager of that hotel?’

‘That is so, your honour.’

‘But,’ I said, ‘he swears that he is.’

‘He also swears,’ said Mr Blandish, ‘that the conversations to which I referred didn’t take place. One of us must be wrong. Perhaps there has been a change of managers.’

I went into that question but it became plain that Mr Cutworthy claimed that he was quite definitely the resident manager of the hotel on the date when Mr Blandish said he’d visited it. Mr Blandish was then asked if he recognised the young lady sitting in the third row of the seats behind counsel.

‘Is that the young lady who was in the reception desk and behind the bar?’ asked Mr Carstairs.

‘This one seems better-looking, if I may say so,’ said Mr Blandish.

‘But,’ I said, ‘do they look about the same?’

‘Well,’ said Mr Blandish, ‘this young lady is really very attractive, I don’t think the other was.’

‘Perhaps it’s what she did that made her look less attractive?’ I said. ‘In the course of many years I’ve noticed that a woman who looks quite plain when you first look at her, begins to look extremely attractive when she says nice things about you. And to a lesser extent, vice versa.’

‘Well, Mr Blandish,’ said Mr Carstairs, ‘is it the same girl, or is it not?’

‘I can’t swear one way or the other.’

‘Have you more or less doubt about her than you have about Mr Cutworthy?’ I asked.

‘More doubt, your honour.’

‘Let us be clear,’ said Mr Carstairs, ‘that we are speaking about the same place? Mr Blandish, will you be kind enough to look at the menu which Mr Cutworthy has produced?’

The menu was taken by the usher over to Mr Blandish. ‘Do you dispute,’ said Mr Carstairs, ‘that that was the menu which was placed in front of you?’

‘I’ve already told you,’ said Mr Blandish, ‘that no menu was placed in front of me. But I did see a card in the waiter’s hand. This menu is six times as large as that. This menu is the kind you might expect to find in one of the most exclusive London restaurants.’

‘Then you would approve of a place,’ said Mr Carstairs, ‘which had a menu like this?’

‘Not necessarily, by any means,’ said Mr Blandish. ‘On the whole, the places in the country which have these huge menus are pretentious and bad. They don’t get a call for half the food which is shown there, and either they can’t supply it when asked, or it’s been frozen and kept in a deep-freeze for months.’

‘Do you say,’ persisted Mr Carstairs, ‘that this is not the menu of the hotel you’ve been talking about?’

‘All I say,’ said Mr Blandish, ‘is that such a menu was not produced to me, and I did not see it in the waiter’s hands.’

‘What about the wine list?’ asked Mr Carstairs.

‘In view of everything else,’ said Mr Blandish, ‘I didn’t bother to ask for one.’

‘Have a look at this then, please.’

A wine list was then handed to the witness. Mr Blandish looked at it.

‘Is this supposed to be the wine list of the hotel that I’ve been talking about?’

‘It certainly is,’ said counsel.

‘Well, all I can say,’ said Mr Blandish, ‘is this. I do not believe for one moment that the hotel which treated me in the way I was treated, which supplied the food with which I was supplied, and where the girl in the bar didn’t know what was meant by a dry Martini, I do not believe that such a hotel would have a wine list like this.’

‘How would you describe
this
wine list?’ I asked.

‘Very good indeed,’ said Mr Blandish. ‘Of course without trying the wine, I can’t say whether it comes up to the wine list, but from a casual glance, I should say it was one of the best wine lists that I’ve ever seen. And if you’ll give me a moment, your honour,’ he added, ‘I’ll say something about the prices.’ He paused. ‘They seem extremely reasonable. Of course anyone can print a wine list. Even in good places you sometimes find that the wine on the wine list is not available. In bad places this happens very frequently, particularly with regard to the vintages.’

Mr Blandish then left the witness box, and Mr Cutworthy went on with his evidence. He was asked what he said about Mr Blandish’s further evidence.

‘I simply don’t understand it,’ he said. ‘I know the sort of place which Mr Blandish has described, and I sympathise with him on the treatment he received. But it simply cannot have been my place. Take only a tiny example. It’s quite true that one of my receptionists (and I have three) one of my receptionists does occasionally help behind the bar if the barman is off duty. But she knows her job extremely well. She makes as good a dry Martini as any barman that I know. We get a lot of Americans coming to our hotel, your honour, and they are delighted with our dry Martinis. Mr Blandish must have been talking about a different place.’

I was extremely puzzled. And, when counsel suggested that they should all visit Mr Cutworthy’s hotel, it seemed to me that it was the only practicable solution to the problem. Mr Cutworthy then suggested through his counsel that we should all lunch there at his expense. I was prepared to lunch there with both parties and their counsel, but I said that I insisted on paying a proper sum for myself.

So the case was adjourned and we all went down to the Excelsior Hotel. It was a very different place from that described by Mr Blandish. And he agreed that everything, service, food and wine was superb, and that the price, though high, was not at all unreasonable for what was provided. He further agreed that the place came fully up to the statements made in the letters written to him before he went there. After lunch, we returned to the court. Mr Blandish was invited to go into the witness box again. He stood in the witness box for a full half minute without saying anything at all. Eventually I said: ‘You seem at a loss for words.’

‘I am, your honour.’

‘You agree, then,’ I said, ‘that, what must have been obvious to all of us, this was one of the most splendid lunches you’ve ever attended.’

‘Absolutely.’

‘Then,’ I said, ‘you must answer this question. Is the hotel we went to the same place that you described to me this morning?’

‘I just don’t know what to say, your honour. I could have sworn it was, and yet it can’t be. And yet again, I registered there, and they still have my registration. And if it’s not the place I gave evidence about this morning, where is that place? I can’t have imagined it. I can only suggest that either as a result of my visit, or for some other reason, the proprietors or manager of this hotel suddenly had a change of heart, and completely altered the nature of the hotel. But I must admit, I shouldn’t have thought it possible for the man whom I saw to perform such a miracle of change.’

‘What about the young lady?’ I asked.

‘As to that,’ said Mr Blandish, ‘I can only say that her Martinis are excellent, and that her behaviour to us was the very reverse of what I experienced from the girl who attended to me. But undoubtedly they do look rather alike. On the other hand, I find it very difficult to think that such a metamorphosis can have taken place in her case either. It was the attitude of mind, your honour. Both the manager and the girl were surly-minded, and behaved accordingly. This gentleman and this girl are completely different people. Actors on the stage can play all sorts of different parts, but I can’t conceive it being done to such an extent in real life.’

After all the evidence had been given, I invited counsel on both sides to my private room.

‘This is one of the most puzzling cases I’ve ever tried,’ I said. ‘As at present advised, I believe both your clients, yet they can’t both be right. I don’t think the explanation can be that there was a change of heart on the part of Mr Cutworthy and his staff. I think Mr Blandish is right when he says it’s an attitude of mind. To be quite frank with you, I have no idea what the explanation is.’

Counsel admitted to me that they too were equally in the dark. I then suggested that, in view of the excellent lunch which they’d had at the expense of Mr Cutworthy, it might be possible for them to come to a solution of the case which would not involve a slur upon anyone. And eventually, after some little bargaining between counsel, a settlement was reached. The action was withdrawn, and each party paid its own costs. Which meant that both Mr Blandish and the Excelsior Hotel Company were each liable to their own solicitors for about £100. So in effect each party had lost. Only the lawyers had gained. Nevertheless it seemed to me the only practicable solution to the matter and I was glad that I did not have to give a decision myself.

But for some time I remained extremely puzzled about it. I was used to cases where one party swore it was black, and the other party swore it was white, and the answer was grey. I was used to cases where one party swore it was black, and the other swore it was white, and the answer was black or white, or even orange, but this case didn’t fit into any category. I wondered about it for days, and, although after some time other problems and events drove thoughts of it out of my mind, my brain still went back to it from time to time and I tried to solve the mystery. But always without success.

Then, one day, during a weekend when I was passing near the hotel in question, I decided to pay it a visit. The place was crowded. There is no doubt that in consequence of the excellent way in which it was run, coupled with the very great publicity which the case had attracted – ‘The Phantom Hotel Case’ it was called by some newspapers – the hotel had attracted a huge clientele. I managed to get a table for dinner but only because one had been cancelled. I found that everything was as perfect as it could be. When I had finished, I asked the waiter if I could see the manager. I wanted to congratulate him.

‘The manager, sir?’ said the waiter. ‘I hope there’s nothing wrong.’

‘Oh no,’ I said, ‘on the contrary.’

‘Very good, sir,’ said the waiter. ‘He’ll be with you in a moment.’

A few minutes later the manager arrived. But it was not Mr Cutworthy, it was Mr Blandish. The case was a mystery to me no longer.

As a County Court judge I did not try criminal cases. But, oddly enough, in the story which I am going to tell you, that’s in effect what I had to do. As a barrister I should not have liked to have had a criminal practice. Of course there are interesting cases from time to time, but most of them have a certain sameness. You would soon get used to the following dialogue:

Counsel: Did you steal it?

Old Lag: What should I want to steal it for?

It’s very odd the way even the most hardened criminal often tries to avoid giving the direct negative answer when it would be a lie. He prefers to parry the question by saying, ‘what should I want to steal it for?’ He funks the lie direct. ‘What should I want to steal it for?’ he says. And of course it isn’t only old lags who do this. Quite respectable people sometimes try to avoid telling a lie by this subterfuge.

I must now explain how it came about that in a County Court I had to try what was in effect a criminal case. Or rather I had to retry it. There is a principle of the English Law that it is in the interests of the State that there should be an end of litigation. But, curiously enough, there is one branch of law in this country where that principle has not been applied.

If Henry Brown commits a crime, or rather is convicted of committing a crime, and subsequently someone states that Brown has committed the crime, it is open to Brown to bring an action in the Civil Courts for libel on the ground that in fact he was innocent. And in that case, if the person who is sued seeks to justify the statement that the plaintiff has committed the crime, the whole matter will have to be gone into again. And not only that. It will not be evidence against the defendant that he has been convicted of the crime which is alleged against him. So a person who has been convicted can in fact use the Civil Courts to try and establish his innocence, even though he has failed on appeal, even to the House of Lords. Not so very long ago this was done successfully by Mr Alfred Hinds. Although he had been convicted and failed in his appeals to the Court of Criminal Appeal, none the less he came before a Civil jury and they found that he was innocent.

It was a similar case to that which came in front of me. Mr Elgar, the plaintiff, was a schoolmaster, and he’d been dismissed by the Crockston Borough Council from his employment by them on the ground that it was a term in his contract that, if he did anything discreditable that brought him into disrepute, he might be dismissed without notice.

Now Mr Elgar had been convicted of shoplifting, and the magistrate who convicted him, in spite of his protestations of innocence, said that it was a mean little theft, and fined him £2. Mr Elgar appealed, but his appeal was dismissed with costs. He then wrote to the Home Secretary, but with no satisfactory result from his point of view. In due course he received a letter to the effect that the Home Secretary had carefully considered all the material which Mr Elgar had put before him, but regretted that he could see no reason to advise Her Majesty to interfere with the conviction.

But Mr Elgar still had one card to play, and he played it in front of me. It is true that no one had libelled him, because a contemporaneous report of his conviction before the magistrate is privileged. No one said that he was guilty, they merely reported what had happened in the court, and, of course, it is so important in the public interest that cases should be allowed to be reported that you can do so with impunity, provided you don’t add anything to the facts which occurred in court. And, of course, provided you don’t make any unfair comment about them. But though no one had libelled Mr Elgar, the Borough Council had dismissed him without notice, relying upon the term in the contract to which I have referred. Accordingly it was open to Mr Elgar to bring an action against the Crockston Borough Council for wrongful dismissal. If they had wanted to dismiss him for no particular reason such as the one that was alleged against him, they would have had to have given him at least a term’s notice. I feel sure that, if they had realised the danger of dismissing him without notice, they would have given him the full notice to which he was entitled, so as to avoid the proceedings which in fact were brought against them. Whether he was entitled to such notice or whether he wasn’t, it was obviously in the interests of the ratepayers that litigation of this kind should be avoided, if possible.

But, as soon as Mr Elgar’s appeal from his conviction had been dismissed, the Council, acting as they thought in accordance with their duties, dismissed him peremptorily. This was a great advantage to Mr Elgar because it gave him the opportunity of having his whole case retried in front of me.

When the case came on, Mr Elgar appeared in person. He did this, he said, because he considered that it was the only way in which he could get justice.

‘The lawyers who’ve so far represented me,’ he said, ‘no doubt did their best, but they didn’t seem to realise how vital the case was for me. Indeed, one of them said to me that, as the magistrate only fined me £2, it showed that it wasn’t such a very serious offence. If he’d only fined me one shilling, your honour,’ went on Mr Elgar, ‘that fine would have been the ruin of my career and my life.’

I told Mr Elgar that I was not in the least concerned with the magistrate’s decision.

‘It would be idle to pretend,’ I said, ‘that I am not aware of it, and of the fact that your appeal was dismissed. But other people gave those decisions, and they’re nothing to do with me. I shall approach the facts completely afresh, and shall decide which way I think proper. If it’s any help to you,’ I added, ‘I should tell you that I’ve before now decided quite differently from a magistrate in a motoring case. For example, I’ve found that a person who was convicted of careless driving was not negligent at all.’

Mr Elgar said that he was very glad to hear that.

‘On the other hand,’ I went on, ‘it’s only fair to tell you, Mr Elgar, that I’ve also decided that a man who was acquitted by the magistrate was guilty of negligent driving. I should also tell you,’ I said, ‘that I didn’t read your case carefully, and the details, as far as I can remember, are not known to me. I suggest that you go into the witness box and tell me your case in full.’

So Mr Elgar went into the witness box and took the oath. He took it very solemnly and with some feeling, and at the end of it he said: ‘I hope that this time I’ll be believed. It’s a terrible thing to tell the truth and not to be believed.’

‘Tell me what happened,’ I said.

‘Well,’ said Mr Elgar, ‘it was in the holidays and I’d gone for a walk, and I passed the shop where they said I stole the things. Then I suddenly remembered that there was something I wanted that I’d seen in the window. I went back and into the shop. It was rather warm there so I took off my overcoat and put it over my arm.’

‘How long did you stay in the shop?’ I asked.

‘About half an hour, your honour. Is it likely that I would have done that, your honour, if I were going to steal things there, or if I’d already stolen them? I walked round the shop and there were quite a number of things which interested me. One or two I decided to buy. I bought a cheap fountain pen for seven and sixpence, and two memo blocks, and I paid for them and got a receipt. I put the pen and the memo pads in my jacket pocket. I ought to have told your honour that a few days previously I’d bought a couple of pencils elsewhere.’

‘Where did you buy them?’ I asked.

‘I’m not sure. It might have been one of two shops. They were small pencils with india rubber attached to them, and they were a well-known brand. When I’d finished looking round, I went out of the shop. I’d walked about twenty yards when a man touched me on the shoulder. He told me that he was the store detective. I asked him what he wanted. “I believe you’ve taken certain articles from that shop which you’ve not paid for,” he said, “and I shall be obliged if you’ll come back with me to the shop.” I said I’d never heard anything so absurd in all my life. He repeated his request for me to come back to the shop, and asked me if I objected. “I certainly do,” I said, “it’s a ridiculous suggestion to make.” “I’m afraid I must ask you to accompany me,” he said. “And if I refuse?” “I’m afraid I shall call a policeman.” “This may do me a tremendous amount of harm,” I said, “I’m a schoolmaster.” “I’m very sorry, sir,” he said, “but, if what you say is correct, it won’t do you any harm at all. Only the manager and I and a couple of assistants know anything about it. If we’re satisfied that you’re innocent, we’ll let you go and apologise.”

‘I could see there was no point in arguing about the matter, so I went back to the shop and into the manager’s office. Then they started questioning me. First of all they asked me if I’d mind emptying my pockets. I asked why on earth I should. “I should have thought,” said the store detective, “you’d have wanted to, sir. If you’ve nothing incriminating on you, it will help to clear you.” “Do you ask every member of the public to empty his pockets,” I said, “to see if he’s got anything incriminating on him?” “Of course not, sir. But I have some evidence that you’ve taken things without paying for them. What did you buy here, sir?” “A pen and a couple of memo pads, and I’ve got receipts for them.” “Nothing else?” “No.” “You’re quite sure you bought nothing else?” “Yes, I’m quite sure.” “Then if you’ve bought nothing else, you’ve paid for nothing else?” “Of course I haven’t,” I said. “I’ve paid for what I’ve bought.”

‘They then asked me to turn out my pockets, and with some reluctance I agreed. It was a great indignity, but I didn’t see any alternative. The manager and the store detective were both present. There was nothing in my pockets which interested them. Then the store detective asked me about my overcoat, and whether there was anything in that. I said I’d see. I put my hand in the pockets and brought out two pencils and two more memo pads. The store detective then pointed out that the two pencils were exactly similar to pencils in a tray in the shop, and he also pointed out that I’d only paid for two memo pads, and not for four. “Where did these two memo pads, and these pencils come from?” he asked. “I don’t know where the memo pads came from,” I said. “The pencils I bought at another shop, and I paid for them.” I was asked if I had a receipt, and I said I hadn’t, and that I’d bought them some days ago. The store detective then said that both the memo pads and the pencils were exactly the same as the memo pads and pencils on sale in the shop in which we were. I in turn pointed out that they were exactly the same as pencils and memo pads in hundreds of other shops. I was then asked for the name of the shop where I’d bought the pencils, and I repeated that I couldn’t say exactly which it was, and that it was one of two shops. The detective then again asked me how I accounted for the memo pads, and I said that I couldn’t. “I ought to tell you,” said the store detective, “that there are memo pads and pencils missing from the trays in this shop and they have not been paid for. You have two of the memo pads, and two of the pencils, and you haven’t paid for them, and you agree that you weren’t going to pay for them. I’m afraid I shall have to send for the police.”

‘So the police were sent for, and I was charged with stealing, and released on bail. And that’s all there is to it, your honour. It’s a gross miscarriage of justice. The defendants dismissed me, and I went to see the chairman of the governors. He told me that there was nothing more he could do about it.’

‘Tell me what took place between you,’ I said.

‘I pointed out that mistakes are made from time to time, and the chairman said he was aware of that. “But the Home Secretary’s considered your case too, and refused to interfere,” he said. “How can we?” “Because I ask you to,” I said. “Look at me, don’t I look as though I were telling the truth?” “I’m afraid,” said the chairman, “that I’m not a judge of that, we have to rely on the courts.” I said to him: “What about Adolph Beck who spent years in prison as a result of an unjust conviction? Why have you got to follow the courts’ decision? If you believe me, you can say that they’re wrong. After all, the courts are only men.” But the chairman repeated that there was nothing more that he could do about it. In consequence every decent school is now barred to me. I’m bringing this claim not for the money, but to re-establish my character. All I want is for you to say that I didn’t steal anything. I’m told you have the power to do that, and I ask you to do it.’

I then asked counsel for the Borough Council, Mr Benton, if he would like to cross-examine, and he rose to do so.

‘Mr Elgar,’ he asked, ‘this episode took place in June. D’you usually wear an overcoat in the summer?’

‘Like everyone else,’ said Mr Elgar, ‘sometimes I do and sometimes I don’t.’

‘You give the impression of being a neat and tidy person, if I may say so,’ went on Mr Benton. ‘Was your overcoat also neat and tidy?’

‘It looked respectable, I suppose.’

‘What about the pockets. Were they neat and tidy?’

‘They were just pockets.’

‘Yes, I know,’ said Mr Benton, ‘but there are pockets and pockets. For example, some people stuff newspapers and all sorts of things into their pockets, and they bulge. Other people keep them much more like they were when they were new. Which do you do, Mr Elgar?’

‘I didn’t stuff newspapers into them.’

‘Or apples or oranges?’ asked Mr Benton.

‘No,’ said Mr Elgar, ‘nor bananas.’

‘How do you account for the two memo pads being in one of your overcoat pockets?’

‘Someone must have put them there,’ said Mr Elgar.

‘Before you were detained by the store detective, or after?’

‘Oh, I don’t suggest they were planted on me.’

‘Then you say they must have been put into your pocket by someone else before you left the shop?’

‘I suppose so.’

‘What alternative is there?’

‘I can’t think of any.’

‘If your pockets were well pressed, not bulgy I mean, and you were holding the overcoat over your arm all the time, how could anyone else have put the memo pads in?’

‘Well, if I could put them in, someone else could put them in.’

‘Mr Elgar,’ said Mr Benton, ‘it’s quite a different thing for the owner of a coat who was carrying it to slip two memo pads into his pocket.’