Хилари Боннер - A Kind Of Wild Justice

He hadn’t said his name. He would have known he didn’t need to. Not to her. Not even after almost two decades.

‘Hello, Mike.’

It seemed a long time before he spoke again. Perhaps he was hoping she would continue. But he had phoned her. He could take the lead.

‘How are you?’ he asked eventually.

‘Fine. How are you?’

‘Oh. I’m fine too.’

Awkwardly polite, what a way for them to be after all that had happened between them, she thought. But then, eighteen years or so was a big chunk out of your life.

‘Something’s happened, though, something I thought you might want to know about, maybe help with...’

‘So you phone after all this time because you want my help, do you? Bloody typical!’ She wasn’t sure if she was angry or amused, or maybe just exasperated. He didn’t seem to have changed much, that was for certain.

He didn’t respond to her remark, but continued as if she had not spoken. ‘The Beast of Dartmoor — we’ve got a DNA match,’ he told her flatly. ‘And it’s O’Donnell.’

‘Ah!’ Again she wasn’t surprised. Like Mike she’d always believed in O’Donnell’s guilt and had never been able quite to forget the case, however much she pretended to herself that she had. She had been almost as involved in it as Mike had, perhaps always believed it would one day come back into her life again.

He told her all he knew, about the drink-driving arrest, the routine DNA swab, the computer picking it up.

‘Bang to rights, but I can do bugger all about it,’ he finished. ‘I don’t need to tell you about double jeopardy. The bastard can’t be tried again.’

‘No, but why don’t you guys do what you usually do in these situations?’

‘What do you mean?’ he asked sharply, instinctively on the defensive, even with her, perhaps particularly with her.

She gave a small tut of irritation. ‘Get him for something else, of course. He can’t stand trial for murder again, but what about rape and kidnap? If O’Donnell’s guilty of murder he’s certainly guilty of both of those, and he’s never actually been charged with either.’

‘Doesn’t work, Jo,’ he said. ‘We tried. Put just that to the CPS and they threw it out. Still part of the original circumstances. Abuse of process. Not in the public interest after twenty years. Prospect of a conviction unlikely. Usual crap.

‘You’ve no idea how tough it is to get the Crown Prosecution Service to accept that kind of sidestepping nowadays. And the mess the law’s in over DNA doesn’t help. If they don’t have a precedent to look up in some dusty old book, lawyers don’t have a clue.

‘Apart from double jeopardy the biggest snag with O’Donnell is that you can’t use DNA obtained during one case, a drink-driving offence or anything else, come to that, as evidence in any other unrelated investigation. Section 64 of PACE. Bloody daft, if you ask me and high time it was changed — but there it is.’

Joanna leaned back in her chair. PACE. The Police and Criminal Evidence Act. Of course. She’d kind of known that part of what he had told her. But he was right. It was complex. ‘Presumably you haven’t still got the blood and urine samples taken when he was originally arrested for murder?’ she asked.

‘Destroyed on his lawyers’ instructions right after the case. Acquitted man’s right, as you know. And, God knows, he had the kind of legal team who weren’t going to miss that.’

‘You’ve checked, I suppose? It’s not unknown for those forensic boys to keep samples they should have destroyed, is it?’

‘No, it’s not. It’s a lottery, though. In fact it’s always a lottery whether or not samples from a twenty-year-old case are still in store. But if they had been we would have had a match come up before the drink-driving thing, because we went through every outstanding murder and rape on our books about three years ago and did DNA checks on all the suspects whenever there were samples still available — I think every force in the country has done it now. That’s why O’Donnell’s DNA, taken from Angela Phillips’s body, was already logged.’

‘And you can’t make him give a new DNA sample because the CPS won’t let you charge him with anything?’ She was beginning to remember now. PACE again. The police had the power to take non intimate-samples — like head hair or a buccal swab — without a suspect’s permission only under quite precise conditions, basically if he is charged with a recordable offence or is being held in police custody on the authority of a court.

‘Exactly.’

‘Of course, you could pop round and ask the wanker if he’d like to give a voluntary sample, to clear the matter up once and for all, as it were,’ continued Joanna.

Fielding’s laugh was mirthless.

‘You mean you don’t think there’s much chance of him co-operating?’ she queried ironically.

‘I’ve been round, actually... well, I just happened to be in his neighbourhood.’ Fielding paused. ‘Only it was unofficial, if you see what I mean...’

She saw. And she wasn’t surprised. He’d been told it was over, that there would be no further police action, but he couldn’t resist jumping straight in. ‘Brilliant,’ she said. ‘And how far did it get you?’

‘Not very. I just wanted him to know that I knew. That’s all.’

She could imagine it all too well. ‘Did he say anything?’

‘Smug as ever. Even if we could prove he’d had sex with the dead girl, so what, he said. Maybe she’d been a willing partner, maybe she’d begged him for it. Didn’t mean he’d killed her. I tell you, Jo, I nearly smashed his face in.’

‘You didn’t, though, I hope.’

‘Let’s just say it was a very close thing.’ He chuckled.

‘Mike, not even a jury would swallow that “willing partner” crap, surely. Not with what happened to that poor kid?’

‘I don’t think so either, but it’s irrelevant, like I’ve told you, certainly as far as police action is concerned.’ His voice suddenly became very earnest. ‘Look, Jo, I’ve gone over and over in my mind what we could do to get the bastard. I reckon there’s only one thing left. A private prosecution.’

‘But double jeopardy still applies. And the burden of proof is the same.’

‘Yes. I reckon he could be done for rape and kidnap in a private action, though. The CPS wouldn’t have to be involved and I believe a really good barrister could swing it. I really do. Particularly if we made sure that the committal proceedings were after October.’

‘What happens in October?’

‘The Human Rights Act finally comes into force in the UK,’ he said.

Of course. She should have remembered that. ‘But it won’t change double jeopardy, will it?’ she asked. ‘It’s supposed to be about protecting people’s rights, after all.’

‘Yes. But the rights of victims as well as suspected criminals, Jo. I’ve just been on a course. It’s mandatory for coppers now, it’s got to be, or the whole damned lot of us will end up being locked up instead of the fucking villains. You can start forgetting Westminster and the Law Lords. Think Strasbourg and Brussels. Mostly it’s a nightmare, but hard to believe as it may be, Europe’s actually come up with one thing that might help those of us who are at least supposed to be on the side of the good guys. Look it up. The Seventh Protocol of the European Convention on Human Rights, Article Four. Oh — and then go to Section Six of the Human Rights Act.’

‘OK,’ she said casually. ‘I’ll look it up. I don’t quite get where this conversation is leading, though. Why are you telling me all this?’

‘Because I want you to go to that poor kid’s family and persuade them to take out a private prosecution,’ he said.