All commentators agree that if it were not for Patrick Hasting’s performance in court Elvira would have almost certainly have been found guilty of murder or at least manslaughter. The general consensus is that Hastings’ closing speech was a triumph of quiet reason over hearsay and speculation.
The closing speech was impressive and pitched perfectly. However I think Hastings had outwitted the Prosecution at every turn, right from the outset of the trial. An unwitting side-effect of delving into the Elvira Barney affair has, for me, been a growing sense of disquiet about the whole adversarial mode that then reigned (and still does) in the English judicial system. Hastings was not guilty of any malpractice, his job was to cast doubt on the Crown’s case. This he did superbly. However, “truth” appears to have played no part in the proceedings. Had Hastings been incompetent, or had any of his gambits backfired, the verdict would have been different.
Key to Hastings argument was the fact that nobody had actually visually witnessed the shooting. Yet this is nearly always the case with murders, especially those categorised as “domestic”. Hastings first job was to trash aural evidence from the witnesses. “I’ll Shoot you” became “I’ll shoot” and then, in Elvira’s evidence, “I’ll shoot myself”. Testimony that helped the prosecution was dismissed as hearsay but Hastings was happy to use that “hearsay” when it was useful to his client.
Sir Bernard Spilsbury
As mentioned previously, his treatment of the expert witnesses was a crucial factor in securing an acquittal. The ballistics expert, Robert Churchill, was confronted head on, as was to later happen in the Kenyan “White Mischief” trial of Sir Jock Broughton. The pathologist, Spilsbury, was a different matter.
Sydney Aylett, a celebrated Clerk of Court, wrote,
“The next case…illustrates another neat piece of strategy by Pat Hastings. It was used at the trial of Mrs.Barney, a cause celebre of 1932; a murder in the Smart Set. Mrs.Barney was accused of shooting her lover Stephens. The defence was that she had threatened suicide and in the struggle to take the pistol from her, Stephens had been killed. One of the witnesses for the prosecution was Sir Bernard Spillsbury, the eminent pathologist, and such was his standing and reputation in the courts that many prosecutors treated him almost as God, and his effect on juries was thought by some to be more telling than the judge’s summing-up. He was also allowed to sit in court during a trial, and prosecuting counsel would sometimes put the following question to him, “Sir Bernard, you have heard the defence put forward on behalf of the prisoner. In your opinion is it consistent with the results of your examination?” To which the only reply could be, “No.” So, at the beginning of the trial Pat asked that Sir Bernard should not be allowed to remain in court at the opening of the case, and the calling of the evidence. The judge, Mr. Justice Humphreys, agreed. When Sir Bernard was called to give evidence it was purely on medical grounds. He had not heard the theory of suicide, and no question could be put to him on that or any other theory. He was not cross-examined.”
A clever ruse, but a ruse nonetheless. What Hastings wanted to downplay was the horizontal trajectory of the bullet-wound, mathematically improbable had the gun gone off during a struggle.
Aylett repeats a post-case anecdote that I have always thought a little too good to be true.
“After the case was over, Sir Patrick Hastings took a holiday in France. When he returned he came round to our chambers and was congratulated on his conduct of the case. “The verdict was nearly the death of me,” he said. I was driving on the road from Boulogne to Paris, when a sports car, with a woman at the wheel, came round a corner, very fast, and on the wrong side. It missed me by a whisker. I got a glimpse of the driver. It was Mrs. Barney”