At the end of a long and distinguished career, Sir Travers Humphreys wrote A Book of Trials (1953). He had been involved in some of the most celebrated trials in English history – Oscar Wilde, Roger Casement, Crippen, Haigh etc. – so it is perhaps surprising that he chose to end the book with a chapter on Elvira.
Part of the reason for this was the widespread rumour that Humphreys had been surprised by, and not a little appalled, by the verdict. In this chapter he (partially) refutes this and offers, in the guise of a review of Patrick Hastings account of the trial, an analysis of the issues involved. It is a fascinating and cogently argued piece and sheds light not only the dynamics of the case but on the English judicial process as it then operated.
“I have been reading, not for the first time, the account of the trial of Mrs. Elvira Dolores Barney to be found in the book by the late Sir Patrick Hastings entitled Cases in Court. The trial took place in 1932 at the Central Criminal Court, and it happened that I was the judge. The chapter devoted to this case may be recommended to all young practitioners at the Criminal Bar, and to any other reader who may be interested in studying the method of approach by a master in the art of defending prisoners to a series of facts, most, if not all, of which would, each by itself, be insufficient to justify a conviction on the charge against the accused, namely murder, but which, taken together, clearly struck Sir Patrick as presenting a most difficult task to counsel for the defence.
I have not the least intention of re-telling the story of a trial in which the woman accused was acquitted upon the facts by a jury, and I should prefer not even to comment on the case if I thought that anything I wrote might seem to suggest that I disagreed with the verdict.The fact is that to me the most intriguing part of this chapter of the book was the difference between Sir Patrick and myself in the views which we formed of the strength of the case for the prosecution – as it appeared on the depositions taken at the Police Court, that is, the case as it reached me a few days before the trial.
I need scarcely say that we approached the matter from essentially different standpoints. Hastings was concerned to find answers to certain, undoubtedly awkward, pieces of evidence; my object was little more than to learn something of the nature and length of the case, since I made it a practice not to read newspaper or other unofficial reports of proceedings at Police Courts in cases likely to be committed for trial which might ultimately come to be tried by myself.I now know that Sir Patrick had been briefed at the Police Court, though he wisely refrained from cross-examining the witnesses. To that extent he had the advantage of me. The following short facts are taken from Sir Patrick’s book.
Mrs.Barney was a spoilt child of fortune. The daughter of wealthy parents, she had early drifted into an atmosphere of idle luxury. She was married but did not live with her husband, had no interests except those to be found in night clubs, drank far too much and occupied a flat in London where she lived with a young man named Michael Stephens. He had no money, no regular occupation and was content to live on the money provided by Mrs. Barney. There were repeated quarrels and noisy parties, so that the pair were a constant source of annoyance to the respectable inhabitants of the mews in which they lived.
On the night of May 31st a doctor in the neighbourhood was called on the telephone by Mrs. Barney. “Doctor, come at once/ There has been a terrible accident.” He went to the flat. Mrs. Barney was in a state of extreme hysteria. Stephens lay dead upon the stairs. On the floor was the revolver belonging to the woman, with which the man had been shot. To doctor and police Mrs. Barney, though too frenzied to give a coherent account, repeated again and again that there had been a quarrel, that she had threatened, as she had often done before, to commit suicide by shooting herself with a revolver which she always kept in a drawer beside her bed. Stephens had tried to prevent her carrying out her threat; in the struggle the pistol had gone off, shooting him through the body. She was taken to the police station, where she repeated the story once more, and there being no other information she was released and allowed to go home with her mother.
The police, of course, continued their inquiries, which led to them finding fresh witnesses, not indeed witnesses to the actual shooting, but, as Sir Patrick considered, witnesses whose evidence, if accepted, would make the theory of attempted suicide much more difficult to establish. The Director decided that Mrs. Barney must stand her trial, and she was arrested and later committed for trial.
The further evidence above referred to may be considered under four heads.
a) Evidence that two shots were heard on the fatal evening. These witnesses were not very satisfactory and their evidence as to the number of shots heard by them was even contradictory. It seemed not unlikely that they had learned that the police had found the mark of a second bullet in the bedroom. Mrs. Barney accepted the latter fact and explained it. She said that on previous occasions she had threatened suicide and had fired in the room to frighten Stephens, not at him nor, indeed, near him.
b) A witness who heard the fatal shot and who added that he heard Mrs. Barney shriek, “I will shoot you”, just before he heard the sound of the shot. The obvious answer to that was put forward by Sir Patrick in suggesting that the words were, “I will shoot”, referring to killing herself, not her lover.
c) The inhabitants of a flat lower down the mews spoke of having heard the sound of a violent quarrel at the flat some days earlier and saw Stephens leave the building and walk away; as he did so Mrs. Barney opened the upper window, screaming, “Laugh, baby, laugh for the last time” – she then produced a revolver and fired, as they alleged, at him from the window. Nothing more was heard of this occurrence, and no one apparently thought it necessary at the time to inform the police. In those circumstances no one would quarrel with the decision to arrest Mrs. Barney in order that the death of Stephens could be more fully investigated.
d) Sir Bernard Spilsbury, the eminent pathologist, and Mr.Churchill, the well-known expert gunsmith, had expressed opinions, sensible enough in themselves, as to the improbability of the deceased having, during the course of the struggle for the pistol, himself pulled the trigger, but improbabilities do not as a rule count for much in a murder trial – at least that is, and was, my experience in the matter. My view, after reading the deposition, was expressed to my clerk, at that time the late Mr. Winckworth, much as follows:
“This case should not last very long. The woman gave an account at the time when, according to the doctor, she was not in a condition to invent or concoct a defence. She has throughout stuck to that story. Unless she breaks down in cross-examination, or the prosecution can satisfy the jury that her story cannot be true, they will never convict her of murder. If the charge were manslaughter the case would be very different. Patrick Hastings is defending her and if anyone can get her off altogether he is the man to do it, but if Percy Clarke, leading for the prosecution, stresses the manslaughter I don’t think he will succeed.
At the trial Hastings defended her brilliantly and, what in this case was much more important, with consummate tact. There was no attack made on any witness for the prosecution but each incident was made to fall into its place in the picture of attempted suicide. As he himself has written: ” The whole scheme of the defence was to bring all the evidence into line with the possibility of attempted suicide. That would be sufficient to justify his defence to the charge of murder, since murder in such a case consists in unlawful killing with the intention of at least seriously injuring the deceased man.
Mrs. Barney made as good a witness as could be expected of any woman in her position. She was restrained and kept her emotions under control. It was not a case in which the jury were likely to feel much sympathy for either the dead or the living, but at least she said nothing to increase the prejudice against her caused by the story of her wasted life.
“Upon the whole,” writes Sir Patrick, “she was not much shaken by her cross-examination.” The defence had in their favour one unusual piece of luck, or, should I say, they took full advantage of an error on the part of the policeman first called to the scene of the tragedy. No attempt had been made to examine the revolver for finger-prints until it had been handled by several people, and the defence were entitled to say to the jury that had the precaution been taken the finger-prints of the deceased might have been found on, or near, the trigger. As it was, the examination when made showed many blurred and unidentifiable prints, the only one clearly defined, being that of one of the detectives in the case.
There remained the question of manslaughter. Sir Patrick states, and I assume he must be right, that nothing had been said by Sir Percival Clarke as to manslaughter in his summing-up to the jury of the case for the prosecution. If so, I am sure that theremust have been some good reason in his mind for the omission, though I do not profess to understand it. As a matter of law,the more the theory of attempted suicide was stressed the more clearly would it appear that the deceased man was killed as the direct result of the unlawful act of the accused.
In such a case the onlyaccident in the matter would be that she killed, not the person whom she attempted to kill, but an innocent person who was trying to prevent her carrying into effect her unlawful design. If Clarke did not refer to the matter, naturally the defence would not do so. I directed the jury as I was bound to, upon the law, but if neither counsel had argued the question it is not surprising that the jury should have concentrated their attention upon the one charge mentioned in the indictment, viz. murder, and having found as I think rightly, that the charge was not proved, have returned as they did a simple verdict of Not Guilty. I have known such a thing to happen on at least one other occasion.”
Thanks to the comedic tradition exemplified by A.P.Herbert and others we tend to have a view of judges as well-meaning but hapless old buffers. The above gives the lie to that stereotype. There is a wealth of insight here, into the case, into Establishment thinking and into the legal process. There is also a considerable amount of carefully concealed self-justification. A couple of things seem apparent to me – firstly, the prosecution case was marked by complacency and ineptitude, and secondly there is no justification, under English law, for Elvira to be termed a Murderer, as she still, routinely, is. As to the truth of what really happened that night – well, that is still, and likely to remain, a mystery.