Poor old Recorder Philip Cattan. Imagine waking from a refreshing doze, taken during the trial over which one is presiding, only to be greeted with applications to dismiss the jury and relist the trial by defence counsel. Not very edifying, but what people don’t realise is that it is much easier to fall asleep in court than you might think.
Probably the highest-profile example of a judge nodding off during a trial is that of His Honour Judge Coombe in 2002. Perhaps you remember the ‘Millennium Dome Diamond Heist’ case? A criminal gang planned to ram-raid the De Beers diamond exhibition and steal the flawless 203 carat Millennium Star, worth around £200m. The plan, to escape up the Thames in a speedboat, was foiled by the Flying Squad. On the day of the raid the gang were within inches of the diamond display when they were pounced upon by 100 armed police disguised as maintenance men and cleaners. Basically everyone within a half-mile radius pulled a gun.
None of that, however, prevented the trial judge, HHJ Coombe, catching 40 winks during counsel’s closing speeches. That, by the way, is not my surmise: HHJ Coombe admitted as much to the Court of Appeal for the purpose of the Appeals against Conviction. Moreover, according to one witness, whose evidence was not challenged by the Crown, HHJ Coombe was ‘asleep on about half a dozen occasions, sometimes with head lolling forwards and on occasions there were snoring noises. On some occasions the judge woke with a start’. Another witness described a few instances when ‘the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring’. A third witness said that once ‘because the judge was asleep, he failed to notice that one of the jurors had also dozed off.’
Despite this picture of Dickensian semi-somnolent tribunals of law and fact, the Court of Appeal dismissed the appeals: the judge’s summing up had been impeccable and no-one had complained about his sleeping at the time. You may wonder why not. The difficulty is that as trial counsel one is always trying to keep the judge on-side, and, there is just no way of politely saying ‘Your Honour appears to have just been asleep’.
Through my own experience I can vouch that the atmosphere during a trial is surprisingly conducive to snoozing. Most court-rooms are windowless on grounds of security. The air-conditioning in modern buildings is of the municipal bargain-basement variety. In older court-rooms it is a few fans. Barristers are obliged to wear suits, heavy gowns, tight collars and wigs – the latter imparting a sensation a bit like going through one’s office day in a nice warm beanie. Many of the participants in a criminal trial travel long distances each day, and understandably do not always sleep well at night.
For every witness whose evidence is electric, edge-of-your-seat drama, probably half a dozen are called to deal with some minor point in contention but of utterly no consequence overall. Furthermore it must be owned that a typical criminal trial involves a great deal of repetition. It might be said that a barrister’s craft is his questions, unfortunately therefore in a case involving several defendants and barristers one hears the same question crafted a half-dozen different ways.
I was involved in a murder trial recently where, during the evidence of the principal defendant, I and the person next to me became aware of a low rhythmic noise emanating from the public gallery. Our surreptitious looks revealed the progenitor to be one of the teenage children of another defendant, snoring gently at the back of the court. The fact that one of their parents was on trial for murder had not put them off taking a little shut-eye.
What about myself? I’m sure you would love to know. I remember being junior counsel in a large drugs case a few years back. At the start of the trial my leader opened the case to the jury. I was sitting behind him, hidden by a large stack of files. I had a copy of his speech in front of me and, since I was already familiar with the case, was aware of what was coming. I started sprightly, keenly noting on my laptop any slight variations between the prepared speech and my leader’s comments in court.
As the morning wore on, however, my eyelids began to droop. The power, oft taken for granted, to maintain the position of my head in contradistinction to that of the top of my desk, seemed to be failing. I felt, tangibly, chemical waves wash across my mind, intended to switch it into its unconscious state and which undoubtedly would have so done had I been lying down. I do not exaggerate when I say I determinedly gathered a corner of my lower lip between my teeth and savagely bit down on it.
At the adjournment I gulped in the fresh air of the corridor and congratulated myself on not having succumbed – until I saw the wide grins on the faces of our police team at the lunchtime conference. I still maintain that I did not actually drop off, but I was glad that my leader did not ask for the part of my notes of his speech that related to the latter part of the morning.
So spare a thought for Recorder Cattan, and beware, next time it’s a warm September day but the winter heating has already been turned on – it’s much easier to fall asleep in court than you think.
By David Allan, barrister and HLE contributor