Chapter Ten

The morning sun streaked into the room once again, the dust glinting in its wake. Tom was sitting alone in court, waiting for the trial to resume, when Anna rushed in.

‘Thank God,’ she said as she collapsed into her seat. ‘I thought we might’ve started.’ She leaned back, closed her eyes, and steadied her breath. ‘There’s a protest up at London Bridge, they’re tearing the place to pieces. I couldn’t get through, so I had to go all the way round,’ she drew a circle in the air with her finger. ‘Ended up sprinting most of the way.’

‘All rise!’ called Denham, from behind his door. 

They stood, bowed, then sat. Denham brought Blake up on the screen, whose sweater was now speckled with something brown or red just beneath the neck. Tom wondered whether he’d been in a fight, when Denham raised his eyebrows expectantly.

‘Your Honour,’ Tom rose to deliver his speech. When writing it the night before, he’d wanted to ensure that Denham wouldn’t interrupt him, so he’d tried to keep it short, omitting much of the rhetoric he so loved. The result, he hoped, was prosaic without being pedestrian.

‘There are five issues for you to determine in this case. First, whether Mr Blake left his home at all. Second, if he did, whether he had a reasonable excuse for doing so. Third, whether he transmitted the virus to officers Copley, Shah, and Scott. Fourth, if he did, whether the transmission was the result of his acting recklessly—which is to say, his knowingly exposing others to risk. And fifth, whether PC Shah’s death was caused by his transmitting the virus to her.’

Tom argued there was ‘no question’ that Blake left his home; ‘sensibly,’ he said, ‘My Learned Friend doesn’t dispute that.’ He added that the Crown ‘do not accept that he had a reasonable excuse.’ He referred Denham to the Attorney General’s Guidance on the offence of leaving home without reasonable excuse, which contained a non-exhaustive list of reasonable excuses. ‘The Guidance makes it clear,’ he said, ‘that you may leave home to save your life, or to save the life of another—but Mr Blake wasn’t doing that.’

Tom’s gown slipped down so he tugged it up at the shoulders. ‘The key issue,’ he went on, ‘is timing: When Mr Blake left his home, his mother was able to explain what had happened and to use her phone. At—that—stage,’ he broke up the clause for emphasis, ‘he didn’t know that her life was in danger, so he couldn’t have been leaving to save it. The truth is, he was leaving to see her, and in my submission, Your Honour, that does not constitute a reasonable excuse.’

He took a deep breath before concluding the point: ‘The reasonable course of action in that moment would’ve been to wait for her to call the ambulance again, and—if necessary—again, until she’d obtained the help she needed. It was not reasonable for him to take matters into his own hands.’

Tom then summarised the evidence of Professor Rowe, stating that it was ‘beyond doubt’ that Blake had transmitted the virus to Sergeant Copley, PC Shah, and PC Scott. Blake, he said (borrowing Rowe’s phrase), was the ‘nexus of infection,’ the root of all three cases. And Blake’s own illness, of course, had been ‘conclusively’ traced to that of his neighbour, Jean. 

‘It is equally clear,’ Tom claimed, ‘that PC Shah’s tragic death was caused by the virus. And I note, Your Honour, that the defence, wisely, do not dispute that. The critical issue, then, is whether the transmission of the virus was the result of Mr Blake’s own recklessness. The question is: did he knowingly put others at risk of infection? In my submission, Your Honour, he did, and there are two reasons for that.’

‘First, given the notices put up in his building on Tuesday afternoon, he must have known about his neighbour’s infection and his exposure to it. He must have known that he posed a risk to the public, and to leave his home in those circumstances was undeniably reckless.’

‘But the second reason that the Crown say he acted recklessly, Your Honour, is that leaving one’s home in almost any circumstance during a lockdown as intensive as this is inherently reckless. The very fact that we are locked down tells us that we are a risk to one another, so to act in defiance of that is, knowingly, to put others at risk.’

Tom ended with a flourish that he felt he’d earned, invoking the government’s messaging: ‘Today, Your Honour, we are fighting for our future. We will only save it if we act together. But Mr Blake, and others like him, jeopardise this historic effort. The Crown has proved, Your Honour, that he acted as alleged, and I’d invite you—accordingly—to convict him on all counts.’

Anna began speaking before Tom had sat down. 

‘Your Honour,’ she said, ‘in a short space of time, a vast amount has changed. Our laws and our courts have endured a flood of new legislation, a torrent of rapid reform. But despite all of that, the three principles that undergird our system remain in place.’

‘The first is that the burden of proving the case rests upon the Crown. The defence are not required to prove anything. The second is that the Crown must prove its case so that you are sure. Nothing less will do. If you think that Mr Blake might have acted as charged, but you’d like to see more evidence, then you must acquit. If you think he probably did, then you must acquit. In short, it is for Mr Blake to enjoy the benefit of any doubts that you have.’

Why on Earth is she rehearsing these basic tenets? Tom thought. He looked at Denham to try and read his reaction, but he was typing away, his head bowed. 

‘And the third,’ she went on, ‘is that you do not begin your deliberations from a position of neutrality; on the contrary, you begin by presuming the truth of Mr Blake’s account. You presume his innocence, and you only abandon that position if you are satisfied that the Crown has presented you with an indubitable, watertight case.’ 

Anna then moved on to the issues. She started by stressing that the Attorney General’s Guidance was only guidance, and that its list of examples was non-exhaustive. Next, she argued that it was ‘entirely reasonable for Mr Blake to leave his home’ when he did. ‘It was reasonable,’ she said, ‘because the purpose of doing so was to care for his seriously injured mother, in a context where no other care was available. It was reasonable because of the severity of the harm she’d suffered, and the absence of any medical help. It was reasonable because he knew that her best hope of recovering was for him to tend to her—at least until an ambulance arrived.’ 

 ‘Now, My Learned Friend appears to be arguing that the reasonable response would’ve been for Mr Blake to stay away from his mother, leaving her to languish on the floor until the authorities had the capacity to treat her. Well, in the event that is precisely what happened—and the result was that she died. So is My Learned Friend seriously suggesting that the reasonable response would’ve been for Mr Blake to do nothing and allow his own mother to die?’

‘On the issue of transmission, Your Honour, we know that both PC Scott and PC Shah could have contracted the virus without knowing it: PC Scott, because he missed a test on Sunday; and PC Shah, because she had an altercation with an unidentified homeless man on Monday—and of course, Professor Rowe’s own research attests to the prevalence of the virus within the homeless community. In each case, we have an alternative route of transmission which the police have failed to investigate. And because these alternatives remain open, Your Honour cannot be sure that it was Mr Blake who transmitted the virus to the officers—rather than the officers transmitting it to him. In short, these alternatives provide Your Honour with a reason to doubt the Crown’s case at the most fundamental level.’

‘Finally, even if Your Honour were satisfied that Mr Blake transmitted the virus, you would also have to be satisfied that that transmission was the result of his own recklessness. My Learned Friend has argued that it was reckless for him to leave his home because in doing so he knowingly exposed others to the risk that he’d infect them. But there really can be no suggestion that he believed or suspected himself to be infectious. Why? Because if he had, he wouldn’t have gone to his mother’s. There is simply no way that he would’ve risked infecting her, of all people. Put differently, the very fact that he attempted to go to his mother’s proves that he didn’t believe himself to be a danger.’

‘In light of all of that, Your Honour, I’d invite you to acquit Mr Blake on all counts.’ 

Anna sat and crossed her arms.

Tom leaned over to whisper: ‘Nice work.’ 

The two of them closed their laptops, shut their files, and waited for Denham to retire and consider his verdicts. Tom wondered how long he’d take. An hour seemed to be standard in these juryless trials. Might this be even quicker? Since counts two to four were all connected, a verdict on two would entail the same verdicts on three and four. That would certainly speed things up. But count one stood alone, with that vexed question of the ‘reasonable excuse’. That, in Tom’s view, was the weakest charge, so he started to prepare himself for the possibility that he might lose it. He could cope with that, provided he won count four.

‘Right,’ Denham addressed them both, ‘I’ve emailed you the legal directions I shall be giving myself, as it were.’ He flashed them a grin, then continued: ‘So you should now have a copy of my interpretation of the law as it applies to this case; the interpretation I shall follow in reaching my verdicts.’

Tom rose an inch or two off his seat, saying, ‘I’m grateful, Your Honour,’ before returning to perch on its edge. He placed his laptop on his file and fastened his hands around both, ready to stand and bow the moment that Denham rose. But Denham didn’t rise.

Instead, he looked over to Blake and began speaking.

‘Mr Blake, you have been charged with four offences under the Emergency Protections Act.’

Jesus, Tom thought: is he just going to hand out verdicts, without even leaving to deliberate? He glanced to his left and saw Anna flipping open her laptop and scrambling to make notes. Her eyes were wide, her mouth agape. 

For a second, Tom imagined losing on every charge. How would he explain it to the CPS? Would they ever instruct him again? His shoulders stiffened, his knee jigged.

‘I remind myself of the facts of the case, and of the relevant law,’ Denham spoke quickly, his tone plain, as if reciting a set of familiar instructions. ‘I note that all of the relevant offences are contained within the EmergencyProtectionsAct,’ those last three words elided into one. 

‘I have given due consideration to the arguments advanced very capably on your behalf by your counsel, Ms Hart. I accept that on the night in question you were traveling to see your mother, who subsequently—and tragically—died.’

Oh God, Tom thought. If she wins she’ll be insufferable.

‘Now, turning to count one,’ Denham paused, ‘you admit that you left your home to visit your mother, but you argue that you had a reasonable excuse to do so. I note that when you made the decision to leave, your mother had only called for an ambulance once. She was conscious, able to communicate, and able to use her phone. The Attorney General’s Guidance allows for an individual to leave home in order to save his life, or that of another. But you did not know that your mother’s life was in peril, and so could not have left with the intention of saving it. The reasonable course of action at that point would have been to wait for her to call for an ambulance again. I therefore do not accept that you had a reasonable excuse for leaving your home, and find you guilty of that offence.’

Tom exhaled. One down, three to go. 

‘In respect of counts two and three,’ Denham continued, ‘the evidence of Professor Rowe is sufficient for me to be sure that you transmitted the virus to PC Scott and Sergeant Copley. I am also satisfied that the transmission was the result of your recklessness. I accept the Crown’s argument, ably advanced by Mr Wells, that you must have known that you’d be infectious after your neighbour’s death, and that, therefore, you ventured outside fully aware of the danger you posed. I also accept that leaving home in the midst of a lockdown such as this is inherently reckless. For those reasons I find you guilty of counts two and three: transmission by recklessness.’

Tom’s knee fell still as he realised he was heading for a clean sweep.

‘Returning to count one for a moment,’ Denham looked to Anna, then Blake, ‘I should add that when one considers your awareness of the risk that you posed, the notion that it was reasonable for you to leave your house is utterly unarguable.’  

‘And count four,’ he sighed, his eyes returning to his screen. ‘I am sure that you transmitted the virus to PC Shah, and that it caused her death. I therefore find you guilty of causing death by reckless transmission.’ 

Tom looked over to see Blake crying and mouthing into the camera, his face scrunched in despair. Only then did Tom realise Blake had been muted the whole time.

‘Now, Ms Hart,’ Denham said, ‘is there anything you wish to say regarding sentence?’

‘Your Honour,’ she jumped up. She asked for Blake’s sentencing to be adjourned so that she could obtain a report from the probation service, assessing his suitability for a community sentence. ‘I’ll be inviting Your Honour to suspend any custodial sentence, so that Mr Blake can return home and be supervised within the community. I’d remind Your Honour that he missed the death of his mother, that he’s already spent a considerable amount of time on remand, and that prisons are—at present—one of the worst-hit sectors of society, with a frighteningly high mortality rate.’

‘Does he have any underlying health issues?’ Denham asked.

‘No,’ Anna replied.

‘Any addiction or mental health problems?’

‘No, Your Hon—’

‘So is a Pre-Sentence Report really necessary, Ms Hart? What is it going to tell me that I don’t already know? I’m aware he lives alone, is single, and is unemployed. What else is there?’

‘Well, Your Hon—’

‘Resources are scarce, Ms Hart. What kind of community support do you suppose he’d receive, assuming he were eligible? I rather doubt he’ll be attending any group therapy in the foreseeable future,’ his mouth stretched into a thin smile.

‘Uh, well,’ Anna floundered. ‘A number of measures are available, Your Honour. He could meet with a probation worker digitally, remotely. He could be issued with a curfew—’

‘Ms Hart,’ Denham laughed, ‘we’re on lockdown! There’s a permanent curfew in place! And he’s demonstrated—twice, now—that he’s unable to comply with it.’

‘Respectfully, Your Honour,’ Anna pressed out the words, ‘that is not fair.’

The humour vanished from Denham’s face and he began to look upon Anna—Tom thought—with something approaching pity. He tilted his head forward and spoke gently, like a father who’d euthanized the family pet and was attempting to justify his actions to his children: ‘A locked cell may be his best hope of surviving this scourge.’ 

‘Your Honour, I would ask …,’ Anna’s voice cracked. She clutched the sides of her lectern and rocked forwards. 

She’s too involved, Tom frowned. She needs to let it go. 

‘Ms Hart,’ suddenly Denham’s voice was sharp and cutting. ‘I refuse your application to adjourn sentencing and will proceed to dispose of this matter now. Is there anything you wish me to consider when calculating the appropriate custodial term—other than the information I already have?’

Anna fell back into her seat, her response barely audible: ‘No.’

Go to Chapter Eleven

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