A Smash in the Mouth for the Law

Independent on Sunday: Talk of the Town, 9 March 2003

Pity the poor Marquesa de Varela, Hello!’s celebrated fixer. You spend your life building up a network of prime contacts, bringing your employer everyone from Diana, Princess of Wales to Gazza and Paula Yates. You acquire homes in Spain, Montevideo and a 1,000 acre farm on Uruguay’s Atlantic coast, where your livestock are used to feed your 200 stray dogs. Your contacts book is so envied by the opposition that it’s rumoured they tried to poach you. And then, bang. You have to give evidence. Worse, you are cross-examined by Michael Tugenhat Q.C., one of the hottest silks around. Suddenly, in a court of law, a lifetime of knowing all the right people counts for nothing.

Hello!, of which the Marquesa is international editor, is being sued for £1.75m by bitter rivals OK! after paparazzo Rupert Thorpe gatecrashed the wedding of Catherine Zeta-Jones and Michael Douglas in New York in November 2000. Thorpe, whose illustrious father Jeremy was no stranger to the witness box, sold the pictures to Hello!. So far, so ingenious. The problem was that OK! had an exclusive deal for the wedding.

For the Marquesa de Varela, the problem was that she signed a false witness statement. She told the High Court that Hello!’s managing director, Javier Riera, had asked her to sign an untrue statement later deployed to lift injunctions barring the sale of Hello!. Choking back the tears, the Marquesa insisted to Mr Tugenhat that “I never wanted to get into this. After my divorce I wanted a quiet life.”

Regardless of the rights and wrongs, I can sympathise with the Marquesa. Giving evidence is worse than going to the dentist. The difference is that however unpleasant having a filling might be, at least a dentist is trying to help. He’s inflicting pain for the greater good. Not so, lawyers in a courtroom. Which is why no smart lawyer ever takes the stand unless absolutely necessary.

I wasn’t so smart. A few years ago an innocuous tackle in a Sunday football game led to me getting a smack on the jaw from my opponent. He was a big lad, as Ron Atkinson would say, and his muscular arm and iron fist left me with a clean fracture of the jaw. I couldn’t eat anything but yoghurt and soup for six weeks.

Football’s a man’s game, apparently. But I felt that deliberately punching people and leaving them with broken bones was beyond the boundaries of both masculinity and volenti non fit injuria (‘that to which a man consents, he cannot complain about’). So I reported my assailant to the police.

About a year later, with a queue of witnesses all ready to confirm what had happened, the case came on for crown court trial. The police were confident – apparently, the accused confessed he had hit me when they first interviewed him. Under our quaint adversarial system I would not meet my barrister until I appeared in court. In contrast, the defendant would have months to go through the evidence with his barrister and prepare his case. Still, I couldn’t see how anything other than a conviction for assault, maybe grievous bodily harm, would follow.

But like the Marquesa, I had a problem. Two nights before the case was due to start, I had gone out for a night with my new boss. I’d only recently changed jobs but hadn’t got round to an after work bonding session, chez pub. My boss was a barrister, I was a solicitor. I don’t think the difference in our job descriptions contributed to the kicking I got from him, but something set him off and I ended the evening in hospital.

Next day, I woke up with my left eye black and blue. I couldn’t even open it. I had a choice – to adjourn the criminal case, or carry on and appear in court. Like a very unsmart lawyer, I believed that the truth would out, even if I looked like a professional bruiser.

The defendant’s barrister must have taken one look at me and rubbed his fleshy hands with glee. What a cue for the kind of cross-examination he could only ever have fantasised about. “No one disputes that you broke your jaw that day, and we’re all very sympathetic about that.” Thank you, that was kind. “But today you appear to have a mark on your left eye, has someone hit you?” An innocent question, surely. “Unfortunately, yes.” He looked at his notes. “You’re a solicitor, aren’t you?” Indeed I was. “Was it a fellow solicitor who hit you?”

The truth must out. “No.” Would I care to tell the court who it was? “It was a barrister.” He, judge and jury collapsed with laughter. Even the poor defendant smiled. Later, the witnesses filed in one by one and said they’d seen the punch that broke my jaw. The defendant’s barrister was very concerned about my jaw, truly he was, but of course the cause of its damage was an accidental elbow and, indeed, I was lying to the court in suggesting it could ever have been anything else. “Isn’t that the case, that you’re lying?”

Of course, unlike the Marquesa, I wasn’t. I had no need to choke back any tears but was riled by the suggestion that I was lying to the court. I huffed and puffed and make everyone aware that this was something I would never do. All those years of telling witnesses to remain calm and unruffled, to answer with a straightforward “yes” or “no” whenever possible, went out of the window.

Result: defendant acquitted, a sympathetic glance from the judge, and one happy barrister. The truth did out, after a fashion, but like the Marquesa and all the smart lawyers who know better, I will never give evidence again. Give me route canal treatment instead any time.