The Oscar Pistorius case makes for fascinating reading, not only for the potential outcome but how different jurisdictions conduct their trials.
If I read things correctly, the denouement seems a long way off. A psychiatrist has now told the court that because of the various traumas he has suffered in his life, Pistorius (pictured), although sane in the legal sense, may not have the same quality of judgement as those who have not suffered these traumas. The prosecution appears to have seized on this and now wants him committed to a hospital for extensive reports.
This may take up to six months. Just as well there is no jury.
From a distance this seems to have some of the admirable qualities of the ‘rolled-up plea’: ‘I wasn’t there; if I was I didn’t do it; if I was there and did it, it was an accident; if I was there, did do it and it wasn’t an accident, I am mad’.
It was often used in defamation cases to great effect, as when Harold Loughans, acquitted of murdering a publican during a robbery in 1944, sued The People nearly 20 years later over an article entitled The Perfect Murder.
Neville Faulks, for the paper, told the judge: ‘The defendants boldly say that it does not mean that but, if it does, then, by Jove, he did murder her.’ The jury found the article did mean he had killed her – and he had done.
A silent version of the plea was useful when defending juveniles. Criminal clients as a body are treacherous. If the worst comes to the worst and their backs are so far against the wall their spines are about to cave in, they can always blame it on their lawyers. But ‘Mr Smith told me to say that’ doesn’t help one’s standing in the profession.
Textbooks may disagree but I always found that, even if parents had bothered or been able to coerce their little lamb into your office to give instructions in the first place, you could never rely on juveniles to come up to proof. It was therefore always best to try to leave as many options open as possible – alibi, accident, insanity etc.
Put the little beast in the box, just say: ‘You’ve heard what the lady and gentleman have said. What do you say?’ And sit down. Theory and practice are not always compatible.
James Morton is a writer and former criminal defence solicitor