Imagined Trials

By James Brown

On Friday 18 May for Birkbeck’s Arts Week the Guilt Group invited the novelist Rachel Malik and Prof. Daniel Monk of the Law School to discuss the representation of trials in fiction with Sam Ashenden and James Brown.

The title of our event was Imagined Trials, although Reimagined Trials might have been more apt, since we devoted most of our time to the literary representation of two trials that have actually taken place.

Rachel Malik’s novel, Miss Boston and Miss Hargreaves (2017) concerns the lives of two women over a couple of decades. They meet during World War 2 when Rene Hargreaves comes to work on Elsie Boston’s farm. When the farm is taken from them, they spend some time as itinerant workers, and finally settle in Cornwall, where they carve out a life for themselves in austere circumstances. Austere figures here not as a mealy-mouthed euphemism for deprivation, but as an alternative to it. Though much about their relationship is left undefined, not least by the women themselves, there is no doubting their devotion to each other, and their commitment to their way of life, which represents a moral and practical achievement in the face of adversity. For the reader, one of the most disturbing features of the trial is the way it stages the lives of two intensely private women for public inspection.

The balance of their lives is disturbed when, in order to keep a promise made to a friend before she died, the women take in an elderly man, Ernest Massey. Massey proves impossible: alcoholic, infantile, and disruptive. He is capable of indulging absurd and exorbitant appetites: for alcohol, for sugar, for jam, and even, on one occasion, for sterilizing fluid. Having previously lived only in the city, he is out of place in rural Cornwall. His death comes as a relief to the reader. However, it turns out to have been caused by weedkiller, and Rene Hargreaves is tried for his murder. The trial dominates the last quarter or so of the book.

Elements of the trial, including the names of the key figures, correspond to a trial that actually took place in Winchester in 1962. However, the novel is emphatically a work of fiction. It is not merely imagined, but, for all the research involved in its writing, made up.

The situation is different with Adam Mars-Jones’ story ‘Bathpool Park’ (1981). It is based on the trial in 1976 of Donald Neilson, the so-called ‘Black Panther’, for several killings, including that of Lesley Whittle, whom he had kidnapped. The trial took place at Oxford Crown Court, with Mars-Jones’ father, Sir William Mars-Jones, presiding. Adam Mars-Jones served as his father’s marshal. This meant that he was ‘behind the scenes’, able to observe not just the trial itself, but many of the arrangements for it.

If the trial in Miss Boston and Miss Hargreaves is essentially fictional, the trial in ‘Bathpool Park’ corresponds so closely to reality that it becomes clear that one of Mars-Jones’ purposes in writing the story was to reassess Neilson’s character and the evidence against him in order to argue that, though he deserved life imprisonment for his other crimes, Neilson was not guilty of Lesley Whittle’s murder. This case invokes a literary approach to undermine the legal grounds for Neilson’s conviction for her murder: a re-imagining of Neilson as a character, not in order to re-invent him, but to get inside him.

The law, as Daniel Monk reminded us, readily evinces an interest in intentions and states of mind. Whenever the legal doctrine of mens rea is invoked, as it is for the vast majority of offences, it can scarcely fail to do so. Often one can only be found guilty of a crime if one committed it ‘with intent’ in the specifically legal sense of ‘intent’. The trials in both stories turn on the question of intent. In the novel, Rene eventually confesses to having secretly administered the weedkiller to Ernest Massey, but denies that she meant to kill him: “I wanted him to get sick. I wanted them to come and take him away”. The prosecutor in Neilson’s trial argued that he had inadvertently allowed Lesley Whittle to see his face and therefore needed to kill her so that she could not identify him later. The law seems drawn to premeditation and malice aforethought, and thus to a kind of perversely settled rationality of evil.

The snag with the form of literary representation as applied to these trials is that it explodes what Daniel Monk called the legal doctrine of ‘orthodox subjectivity’. Both texts raise the possibility that the law proceeds in such rigid terms that it cannot grasp certain kinds of truth. Daniel Monk spoke of the law imposing binary terms on reality, while Rachel Malik revealed that, in writing the chapters dealing with the trial, she sought to disrupt the formalities of the legal process, and to arouse an appetite for that disruption in the reader. That is one of the purposes of setting the trial in a Winchester afflicted by flooding. Firm ground is replaced by something literally and figuratively fluid. Those attending the trial arrive, sometimes by boat, toting umbrellas or clad in oilskins and rubber boots or waders, and struggle to reassert decorum and to observe the normal dress code.

The rearranging of costumes figures in both these trials, and in several others that we mentioned: Portia has to cross-dress and act a role in order to appear against Shylock; Mars-Jones notes details of his father’s attire and self-presentation (though the judge in the story is never identified as his father); in the trial in Miss Boston and Miss Hargreaves everyone else is so successful at resuming their normal appearances, notwithstanding the effects of flood and rain, that when Elsie arrives in court wearing a new but (for a woman) somewhat unconventional greatcoat, she immediately looks out of place – even though, ironically, in the flooded streets, contending with unruly forces of nature, she’d been surefooted.

The discussion turned to the theatricality of trials – a theatricality that pulls in at least two directions at once. A legal maxim has it that justice must not merely be done, but be seen to be done. Trials are in some degree shows, even if only some of them are show-trials. They are shows in which the principal performers are usually lawyers, though this used not to be the case: once upon a time, most people represented themselves, and cuts to legal aid have, as Daniel Monk observed, seen the number of litigants-in-person in civil trials rise, to the annoyance of the professionals. An element of show may be intrinsic to some of the functions of a trial, but it can sit uneasily with a concern to uncover the truth. Appearance and reality must maintain some relation with each other, but it isn’t necessarily one in which the former merely reflects the latter. An element of show and of public enactment may be necessary for trials ritually to affirm, in a Durkheimian way, the shared norms on which social solidarity depends, but there’s an implicit risk of that enactment being tainted by imposture. In both the trials at issue here, as it happens, the court is presented as erring in its verdict. Ironically, perhaps, few discourses seem better able to expose an element of fictiveness in legal procedure than fiction.

The Guilt Group is convened by
Sam Ashenden and James Brown.

Anyone who would like to be added
to the group’s email list should contact
James Brown at

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