This is a sad time for the Northern Circuit for we now learn of the death of HHJ Burke QC. And whilst I do not want this blog to become the informal obituary pages for the Circuit, the passing of HHJ Burke QC presents me with the opportunity to tell a tale of one of my more unusual days in court. But more of that in a moment.
Before being HHJ Burke QC, John Burke was plain old John Burke QC. And in his role as John Burke QC I had the privilege to be the junior in a case in which he also defended. And I learnt a very valuable lesson from him in that case. It is a hallmark of my conduct of the longer case, it is something of a trade secret. And here it is….
Small, strong mints.
Yes, that is correct. Small, strong mints. Nero do a fine line in them. As do Marks and Spencer in a tin. Their fiery, strong nature are enough to keep you awake during the dullest of prosecution submissions. Their small size mean they can be popped discreetly into the mouth, often without any accompanying rustle of wrappers. And they are also small enough that they do not inhibit speech if suddenly you are called upon to advocate.
So, with that lesson passed from John Burke QC to me to you (and there is an unexpected Chuckle Brothers reference), John Burke QC became HHJ Burke QC and he took up residence in Court 7 at Minshull Street.
HHJ Burke QC would not be a model for the modern judiciary. He was not a man for the Guideline. He was not really a man for long prison sentences. He definitely was not a man for a short prison sentence. Which is why it is a shame he is not the model for the modern judiciary. It is a shame there are not more like him prepared to extend a second, third or even sixth chance.
He was a friend to the Bar. He was always polite and charming to appear before. He did not like to preside over the unseemly squabble between counsel attempting to fix a case when they were available. So, when presented with competing dates and interests, he would declare, “I am not going to preside over some sort of Dutch auction” and then rise to let counsel agree a date between them.
And so to my anecdote. I was being prosecuted by my mate Gary, as he then was, now HHJ Woodhall. The case was one of assault where the defendant was a woman who had been caused all sorts of problems by an ex. She had ended up assaulting him in circumstances which were either self defence, justified or wholly wrong. At the close of the Prosecution case I rose to make a submission on one count and one count alone. It was some technical point.
So I got to my feet and said, in the time honoured fashion, “Your Honour, there is a matter of law…..”
To which HHJ Burke QC said “Quite right, well members of the jury you have probably heard enough already, so why don’t you leave us for five minutes and have a think about your verdict.” And with that he was gone from the bench and the jury were being ushered out by the appropriately named usher.
Both Prosecution and Defence Counsel were relatively young. This was new. Very new. We anxiously discussed what had happened. We looked in Archbold. I grew pale at the thought I may be the first barrister ever to have their client potted on a half time submission.
So we asked for the Judge to come back in. Respectfully I referred the Judge to the law. I pointed out that the jury needed a clear direction that they were entitled to acquit at this stage and nothing else. Thankfully the Judge agreed and asked for the jury to be brought back.
Once again the usher ushed.
HHJ Burke QC turned to the jury and said, “Well members of the jury, have you heard enough?”
This was not the direction we had agreed. I think I let out a gasp. Or maybe a squeal. Possibly both.
“Yes we have,” said a bloke on the front row, “we don’t want the case to go any further.”
I could have kissed him. We had been spared explaining this in the Court of Appeal. My reputation for not losing defence cases before the defence case remained intact.
“Well at this stage I must remind you that the only verdict you can return is one of not guilty, and it must be the verdict of you all,” directed the Judge. Which was the direction I had hoped for moments earlier, but at least we now had it.
The bloke on the front row turned to the rest of his fellow jurors. There was some whispered chat. A few head shakes. The occasional nod. He turned back round to the Judge.
“In that case, Your Honour, we would like to hear what the defendant has to say for herself…..”
This time I gasped, squealed, gulped and probably swooned. I had now managed to lose a half time submission that I hadn’t even made, the jury having determined that there was a case which cried out for an answer. If anyone was crying, it was me.
In the next half hour or so, with the Jury once more being the subject of more ushing, I managed to persuade the Judge that he should really seize the nettle and withdraw the case from the jury. I quoted some very old law, undoubtedly in quite a high pitched voice. And HHJ Burke QC did what he often did. He applied some common sense and a real sense of fairness. My client walked free and I popped a mint into my mouth, content that I now had a real, bona fide anecdote for the robing room table.
So that is my tale of HHJ Burke QC. I have more. There is the time he told me in his chambers about his chasing of a rabbit in his pyjamas. Or the time he misheard the crucial piece of evidence. Or the time when my pupil master referred to him by his first name, when he should have been calling him “Your Honour”. Or the countless old fashioned indications that he subsequently forgot giving.
Sometimes a footballer becomes so synonymous with a particular shirt number that it is always “their” number. Think Ronaldo and number 7 (although United have had a few handy number 7s). And for me Court 7 is still John Burke’s court. A courtroom in which you would appear before a cordial Judge with a sympathetic streak. So again we mourn and celebrate a life in equal measure.