Grillo barristers were right to give Nigella a grilling

Nigella Lawson’s suggestion that she was the real victim in the trial of the Grillo sisters is, unlike most of her carefully crafted recipes, a little hard to swallow. Her central allegation is that having – somewhat reluctantly – performed her civic duty of giving evidence in court, allegations that she was a heavy cocaine user were made against her which were irrelevant, and which the court process did not allow her to rebut:

“I did my civic duty, only to be maliciously vilified without the right to respond. I can only hope that my experience will highlight the need for a reform that will give witnesses some rights to rebut false claims made against them.”

Does she have a point?

One needs to be alert to the danger of complacently assuming that the law one has practised for years is faultless. It is not. But problems such as those identified by Miss Lawson are neither new nor easily solved. Over hundreds of years, difficult case by difficult case, the common law has developed its own solutions. There is always going to be a tension between doing justice to individual defendants, to “the people” (as represented by the Crown) and to witnesses called to give evidence. Until someone can show that a particular reform would amount to a demonstrable improvement we should be wary of those advocating them in the abstract. Those who think otherwise should first read David Allen Green’s magnificent Something Must Be Done Act 2014, coincidentally published just hours before Miss Lawson called for “something to be done”.

Most participants, whether witnesses or defendants, find that enduring a Crown Court trial is amongst the more miserable experiences that life has to offer. That does not, in itself, mean that there is anything wrong with the process. In Miss Lawson’s case there was a stark issue to be decided: either the Grillos had stolen her money, or she implicitly allowed them to run up huge bills in return for their silence over her cocaine habit. Someone was lying, and if the Grillos were to be condemned and slung into gaol the jury needed to be sure that it was them rather than Nigella. Thrashing it out was always going to be profoundly unpleasant. And of course the verdict has actually done no more than raise a doubt over the Grillos guilt. It cannot and should not be seen as a finding that Nigella was lying, because that was not the issue that the jury decided.

Her central complaint is that the court system gave her no chance to rebut the allegations against her. She has a bit of a point, but less than might first appear. Although the extent of her cocaine taking was an important part of the trial it was not the ultimate issue that the jury had to decide. Guilty verdicts would no more have settled the question of whether she was a heavy cocaine user than the acquittal has done. There was in fact no verdict available that would have amounted to a clear rebuttal because the jury were concerned with a different question. It would have been at least theoretically possible for the jury to have found the sisters guilty while still believing that Nigella was an unreformed coke-head, just as it is perfectly possible that they acquitted whilst thinking that she is nothing of the sort.

So although Miss Lawson is right that the court did not give her the opportunity conclusively to rebut the allegations against her, she is wrong to imply that it should have done so. The difficulty is that during a criminal trial all sorts of issues invariably arise which may have a bearing on the verdict but which the trial process cannot conclusively resolve. And quite right too: it is difficult enough to decide on the defendant’s guilt or innocence without complicating the process by requiring the jury to give a verdict on the various imputations on witnesses that the trial may throw up.

Moreover, Miss Lawson was by no means as defenceless as she claims. If a defendant in a criminal trial is going to make allegations against a prosecution witness the rules demand three things.

First, the defence must give written notice of the nature of the defence in a written statement. That was done in this case (albeit the cocaine allegations were raised later than would normally have been the case) and the Crown had the opportunity to find evidence that rebutted it. In truth it is difficult to imagine what other evidence could have proved that Miss Lawson was merely a “light” user other than her own word and perhaps that of Mr Saatchi.

Secondly, the defence must satisfy the judge that the allegations are relevant to the issue of the defendant’s guilt. In this case the judge ruled that they were.

Thirdly, the defence advocates must put the allegations to the witness in question. Counsel for each sister quite properly put their case to the domestic goddess, giving her a chance if not to rebut, at least to deny them. It was an opportunity she accepted (although she would have been within her rights to exercise her privilege against self-incrimination by refusing to answer any questions about her cocaine use). So it is wrong to say she did not have the right to respond.

Furthermore, it is not as if the judge simply sat back and enjoyed the show. At one point during her cross-examination Miss Lawson was asked about having received a Mother’s Day card with a spliff taped to it. Judge Johnson curtly interrupted, saying: “that’s enough, you have exhausted my patience,” telling her not to answer the question.

Many of the watching journalists seemed to think that she had in fact delivered a master-class in giving evidence, citing for example (and perhaps unfairly) her immaculate dress sense and her icy response when one of the barristers mistakenly addressed her as “Mrs Saatchi”. Grim though she no doubt found the whole business, not only did she exercise her right to respond she did so with skill and panache. Her problem is that despite that, the jury did not altogether buy it.

It is hard to know exactly what “reform” of the criminal justice system Miss Lawson would like to institute. She does not say.

So what are the alternatives?

  • A barrister in court to speak up for a witness’s interests, perhaps?

This is a serious suggestion made by no less an authority than Geoffery Robertson QC but even that does not stop it being a complete and utter dud.

For a start: who would pay for all these extra lawyers? Certainly not Legal Aid. So whilst the those who could afford them would no doubt be happy to brief legal superstars, like Mr Robertson, those without money would have to do without.

And would it be available to all witnesses whose characters were attacked? In many cases that would mean, in effect, double the representation for the prosecution. that does not seem entirely fair.

And another probllem: in this case, Mr Saatchi found his character under attack as well as Miss Lawson. She accused him of “intimate terrorism.” That was surely just as serious an attack on his character as the cocaine allegations were on Miss Lawson’s. Under Mr Robertson’s proposal why should he not have his own heavyweight QC to defend his character, both from the Grillos and from his ex-wife?

In practice, of course, (and certainly in this case) very often the best means of defending a witness’s reputation would be to attack that of other witnesses. There is every reason to think that a silk for Mr Saatchi would have enthusiastically tried to dig out the dirt on Miss Lawson, whilst one instructed by Miss Lawson might have been equally conscientious in throwing yet more mud at Mr Saatchi. It seems unlikely that this Schlammfest would be a very edifying specatacle.

Would defence witnesses who were attacked also have a right to their own barristers? He does not say, but presumably, under Mr Robertson’s proposal they would.

Already the number of potential barristers has started to mushroom alarmingly. And if anyone thinks that having a court-room full of top barristers metaphorically throwing mud at each other’s clients will lead to more reliable verdicts, then I would, well, disagree.

  • A right for the attacked witness to call evidence in rebuttal?

But then the defendant could call evidence to rebut the rebuttal, and pretty soon the jury would be hearing a dispute that had precious little to do with the defendant’s guilt or innocence. And would the jury then be expected to adjudicate on the witness’s guilt of whatever disreputable conduct he or she was accused of, as well as on the guilt of the defendant?

And what if the characters of lots of witnesses are attacked? In this case Mr Saatchi cannot have enjoyed the revelation that the Grillo sisters were sent round London bookshops to buy up unsold copies of his tedious scribblings on contemporary art. Should he have been able to rebut that wounding allegation?

The more one thinks about it the more a witness’s right to rebut would seem a recipe for confusion and injustice to everyone involved.

If the prosecution are ambushed by an unforeseeable defence it already has the right to call evidence in rebuttal. It is a right that is very rarely exercised these days, not least because the prosecution are very rarely ambushed.

  • Conduct the trial in secrecy, or without naming the Lawsons?

Absurd.

  • Admit evidence from lie detectors?

They don’t work.

  • Move to an inquisitorial system of justice such as that “enjoyed” under the Napoleonic Code?
  • We would need to have a much better argument than Miss Lawson’s public humiliation to take that momentous step.

Cross-examination is often a brutal and imperfect weapon. It is in some circumstances quite as capable of concealing the truth as of revealing it. But for an innocent defendant it remains the only real weapon that can be used to demonstrate the falsity of the indictment. Anyone who has worked in the courts for more than a year or two will be able to recall occasions when an apparently powerful prosecution case has collapsed under the onslaught of a savage cross-examination. It can be a process that is horrible to behold: unless you happen to be a defendant accused of something that you did not do. Given the huge imbalance in resources between the Crown and the defence, the right to cross-examine, and to do so as powerfully as possible, is a precious safeguard of our freedom, a right that is of even greater importance than Miss Lawson’s reputation.

It may well be that in the days to come the Grillos will be tempted to make money from selling lurid accounts of life in the Lawson household. If so, they may find that any public sympathy they now have quickly evaporates. It is one thing to reveal Nigella’s secret weaknesses in a desparate attempt to defend their liberty. It would be quite another to do so in order to make money. If they did that they would be breaching her confidentiality in an appalling and probably defamatory way.

The only possible consolation for Miss Lawson would be that a libel case would give her the opportunity that the criminal trial denied her: to ask a jury to decide that the Grillos’ more extreme allegations are simply not true.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

9 thoughts on “Grillo barristers were right to give Nigella a grilling”

  1. I think one of the more appalling aspects of the trial is that the police have now said that they will set up a specialist squad to investigate the cocaine allegations. They would be reading the trial transcripts carefully to see what could be gleaned from them. The problem here is that Lawson had a chance to watch what she was saying in order to avoid incriminating herself but she refused. Having said that, her references to taking cocaine were somewhat sketchy so I cannot quite see that the police can get as much leverage as they would like.

    I don’t think that this is the fundamental point of the case; in my view the whole thing is that the case should not have been brought on the basis that you don’t freely give out a Coutts credit card to your employee and then rescind it when money has been spent on it. This case should never have been a criminal matter. It is fundamentally about some appalling choices between two people who are no longer married and their hired help. I fear though that we have not heard the end of it as I understand Saatchi has organised the return of the monies through a civil suit.

  2. To Matthew Scott – very interesting website even for someone like myself (RTPI Member) who deals with planning law and knows only counsel in planning sets.

    Your date order of month/day/year is only used in the United States and is confusing. The valuable article on aggressive cross-examination looks as though it dates from March 2013 when it is actually an October post. I went to the March archive, to find the blogs only start in April 2013 !

    An internet press article not long ago tried to find out why the USA puts the numbers ‘the wrong way round’ – it seems to be historical. There doesn’t seem to be any possibility that the USA will come into line with the rest of the world. Programs created in the USA which give the dates in the American order are a problem in Britain.

    In fact your URLs use a further order: year first, then month, then day:
    http://barristerblogger.com/2013/10/03/seductive-appeal-aggressive-advocacy-avoid/
    but this still means more careful reading to work out the date than the simple 03/10/2013.

    I can’t imagine a Judge being happy if you were to use American date order in a document in an English court…. I hope you can find a way to reform date order to British standard practice..

    1. Thanks for your kind and helpful comment Mark. Unfortunately I’m so ungeeky that I’m not sure I can change the way dates appear. But I’ll have a look at it over the Christmas break!

  3. An excellent piece. In addition, since Ms. Lawson was not an uninvolved bystander at all and was a prime Prosecution Witness, the Prosecution would have had an extensive opportunity on cross examining the Grillos to deal with the drugs allegations if the Prosecution felt they were false. The Prosecution presumably also had every opportunity to ask Ms. Lawson about the drugs use during her evidence in chief or on re-examination.

    The problem is that the allegations were not false and were backed up by an e-mail from Mr. S. Whether they were exaggerated, I have no way of knowing.

    Simply put, the jury had to decide if the evidence from Ms. L was credible enough to put the Grillos in prison. Given that the card statements seem to have been overlooked at best for a long time and the Grillos apparently made no secret of their spending, the question of no reasonable doubt was a long shot for the prosecution and one wonders who at the CPS authorised these proceedings..

    Your point about defamation and confidentiality is a very important one.

    1. Thank you. That bit surprised me too. If I had a client (I am an accountant) who had such expenditure on their credit card statements, I should be wanting to question them very closely about the implications for both their tax affairs and those of the employees. No-one leaves anyone for months or years at a time to defraud a corporate credit card. The first thing you do is contact the police and/or the bank. You don’t leave it for years and then say “Oh my God, where has all my money gone”. I know this because I once had a Debit Card stolen. I reported it gone within the first twenty four hours. This case does not ring true.

  4. I completely disagree with your assertion that Nigella Lawson was not unfairly treated. She told the CPS from the start that the allegations were groundless, despite being told by her that the allegations were untrue when the second application to admit them was made the CPS prosecutor stood by and did nothing.

    Second, Nigella Lawson had a letter from her GP stating that she was not a habitual drug user. She was refused permission to admit it. That was quite simply unjust. The CPS knew about the letter and should have used it to prevent the bad character evidence being admitted but abjectly failed to do so. The judge should have permitted her evidence to be admitted in the interests of fairness – it is not only a defendant who has the right to a fair trial.

    She has been let down by the CPS and by the judge and has every right to feel aggrieved. It also does not help that the CPS clearly brought the wrong charge, fraud, when theft was what should have been alleged.

    if you read Dominic Lawson’s article in today’s Daily Mail the defence counsel appear to have engaged in open bullying and at one point deliberate discourtesy. I live in hope that Nigella Lawson makes a formal complaint to the BSB and the SRA about the defence counsel and their instructing solicitors, all of whom should be thoroughly ashamed of themselves not least because their shabby behaviour will have discouraged the civic-minded from coming forward in future.

  5. I think the prosecutor was absolutely right to agree that Miss Lawson’s character was relevant, given the Grillo’s defence. Had the judge been persuaded not to admit the evidence and had the Grillo’s been convicted there would have been an appeal, the conviction would probably have been quashed and there would probably have been a re-trial.

    Your point about the GP’s letter is interesting. Obviously we don’t know exactly what it said, but (unless the defence agreed, which they presumably would not have) it could only have been given in evidence if the GP was prepared to give evidence & herself faced cross-examination. We can only speculate about what would have happened. I suppose as a minimum the defence might have explored the fact that unless she had sought some treatment for the symptoms of cocaine abuse a GP wouldn’t really know one way or the other. But it’s speculation.

    I very much doubt whether theft would have been any easier to prove than fraud. The fundamental problem with the prosecution case is that the jury obviously thought it at least possible that the Grillos were telling the truth.

  6. Did Ms Lawson report the Grillo’s spending to the police in the first place? Is it known if she took advice at that stage? I suppose what I’m searching for is did she to some extent bring this on herself?

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