The Judge and the Decision and Reflections on The Baccarat Case

Lord Coleridge

In my previous posts I have discussed the trial evidence and arguments in The Baccarat Case. This post will move on to the judge’s charge to the jury, the verdict and my thoughts.

The trial judge, Lord Coleridge, was far from neutral in his charge. Indeed, he gave a better argument for the accusers than Sir Charles.

The Justice spoke of the jury needing to make their decision upon what is on the surface (the evidence) not what is in the public mind about the case (the role of the Prince of Wales).

He dismissed the discrepancy between the précis and the evidence over the question of subtracting stakes as a matter on what “so very little turns”.

He asked rhetorically if the evidence of the young officer, Mr. Levett, from Sir William’s regiment, was so unlikely?

He clearly indicated his belief in the evidence of other accusers.

He disliked the mockery of Mr. Lycett Green by Sir Edward and goes so far as to make the argument for the defendants that Mr. Lycett Green was the man who, from the start, stood resolutely by his word and was strongly ready to have it out with Sir William on the night of the accusations.

He doubted the monarchy would suffer much harm if it was known the Prince of Wales occasionally participated in gambling. He questioned anyone giving up his honour over what could be in the court’s opinion but a minor issue for a scandal. He suggested a man might prefer death to dishonour.

In the end he adopted the language of generations of judges who want the jury to know and follow what the judge thinks about the evidence but seek to avoid being overturned on appeal for interfering with the duty of the jury to decide the facts by larding his charge with repeated comments of “it is for you to say”.

I do not believe the lengthy arguments of counsel and the biased summing up of the case by the trial judge had an impact upon the jury for there was barely time to clear the courtroom before there was a verdict. The jury took but 13 minutes to reach its decision in favour of the accusers. The swift decision meant they considered the evidence overwhelming.  

I have had a jury trial in which the jury took 15 minutes to acquit my client. It was a striking vindication for my client.

In the baccarat case it was always going to be very difficult to convince a jury that a man of honour, especially one who has faced death in battle, would succumb to pressure, even be it from the highest of the realm, to sign an incriminating document when he had never cheated.  

In a criminal proceeding the admissibility of such a written form of confession would be challenged as signed under duress and with an inducement to sign. In a civil case it was going to be admitted. While Sir Edward had a sound argument on the pressure applied a jury was bound to give the signature significant weight.

Going to trial meant 5 accusers would testify against Sir William. While not impossible, the combination of so many opposing witnesses and the signed document made an action daunting. I would have strongly advised Sir William against commencing the action. The moment of “folly” when he signed the document was compounded by going to trial.

In many cases of defamation it is pride, as much or more than honour, which is at stake. It is dangerous to go to court upon an issue of pride. A defamation action is better justified when there is financial consequence. When an accusation is limited to damage to character it is often best to let time obscure the personal sting and the memories of others with regard to the purported misconduct rather than have the accusations reinforced in court.

Under cross examination in the baccarat case it was clear that Sir William, had “silence” prevailed, never would have sought to clear his name. It was the knowledge of the event by “society” - his class - that drove him to sue his accusers.

In this century there are attempts to shield disgraceful actions through non-disclosure agreements. They are often no more successful than the private agreement in the late 19th Century

The baccarat case was the sensation of the time, not so much because of the accusations of cheating at cards in high society, but from the involvement of the Prince of Wales. The scandal for the Prince was not his involvement in card games where there was cheating but that he took part in gambling. The public was unimpressed that he could casually participate in gambling, even bringing the counters, with no consequences when it was a crime to play cards for money for the average Englishman.

I cannot know if Sir William cheated but the evidence was overwhelming. It was a desperate gamble for him to insist on a trial. His counsel had to know the odds were much against Sir William. As inevitable his gamble was lost in a very public, very painful and very expensive way. Many in the public saw Sir William as wronged. Reading the transcript I disagree. I would have been shocked by a verdict in favour of Sir William.

Yet it is striking how a reputation was risked and lost over what were modest sums to the participants. 

The editor of The Baccarat Case suggested that had the accusers and accused been able to meet they could have thrashed out the question between themselves.

Sir Patrick Hastings in his book, Cases in Court, while discussing libel suits where the issues were less than monumental said:

If there is any moral to be derived from actions such as these, it may perhaps be found in the suggestion that a little common-senses is the best andidote for tactless speech; but it is a lesson which seems never to be learned and perhaps it never will.

Was it much ado about nothing? Integrity is always important. In 2007 the Law Society of Saskatchewan celebrated its Centennial. I was a member of the committee that organized Centennial events. The committee thought about the word that we thought best characterized the goals and conduct of the lawyers of our province over the 100 years. We chose the word “integrity”.

Should what is minor, a cheating of insubstantial amounts to the participants at a private party, have escalated to a major court action that preoccupied the nation? In the world of the 21st Century I could not see such an allegation of cheating becoming a cause célèbre.

That conclusion does not mean our culture does not have its own taboos. Victorian hyper-sensitivity to questions of honour has shifted in the 21st Century to social issues. Now there is public shaming on the platforms of social media for those who breach or even only appear to break the expectations of society.

And if cheating at baccarat seems an issue only for the 19th Century my next post will be about a 21st Century case of alleged cheating at a form of baccarat that involved millions of dollars.

****

Shore, W. Teignmouth (editor) - (2020) - The Baccarat Case and Cross-Examination and Argument in the Baccarat Case