Silk (Series 3, Episode 3)



Last week saw Martha tackle a case on the football pitch. This week the most important think that Martha did of course was to turn up at the legal aid protests last Friday. This didn’t feature in tonight’s episode sadly, instead it was mainly mercy killings and office politics.



The main storyline involves a mercy killing. Sarah Stephens daughter is a tetraplegic and, in an attempt to ease her suffering, gives her a fatal overdose. She therefore finds herself on the wrong end of a murder charge. Who does she get to defend her? Who do you think? But who is going to be prosecuting it? With the near retirement of Alan Cowdrey QC and Caroline Warwick QC going off to do a nine-handed (meaning nine defendants) pub fight, there is only one criminal silk left in London it seems – Clive Reader, who had been given the case at the start .

Ms Stephens has a conference where she fesses everything to Martha and says that Jo, her daughter, wanted to die. Cuts at the CPS mean that Clive is having a conference with one of the prosecution witnesses, Patrick Stephens (Sarah’s ex-husband) trying to get him to give evidence.

Martha gets to the point – there isn’t a defence to the charge of murder. After a cheeky ‘counsel to counsel’ conversation in the pub between our two favourite barristers, Clive decides to go ahead with the murder charge, despite the offer to plead guilty to Assisted Suicide. Fortunately to us of course, or else we’d see an emotive, but less satisfying, plea in mitigation and would be in bed by half nine.

So the trial begins in front of the quietest Judge I’ve ever been in front of. None of the dodgy questioning gets his interest, but he finally speaks to let Martha carry on when she gets into some catholic dogma. The questioning gets pretty tense, so tense in fact that Martha gets a slap from her client.

It gets worse as we find out that Jo (the daughter) had been dumped by her boyfriend a week before her death). Worse, Martha smells a rat as the prosecution case unfolds. She ends by cross-examining Sarah and working out that it was Fraser (the youngest son) wot done it. It was even recorded on his phone, proving beyond doubt that Clive was about to lose yet another case to Martha. After some remarkably quick instruction-taking, that’s it. Sarah leaves Court a free woman and the CPS decide not to prosecute Fraser.

Meanwhile, Alan Cowdrey’s retirement leaves a vacancy as head of Chambers. The two frontrunners are the two protagonists in R v Stephens (although there’s no indication that Martha is interested). Caroline throws her wig into the ring as well (am I the only one who thinks that she should definitely have got it?).

There’s more office politics with the conflict between the ‘traditional’ clerking model of Billy, and the new Chambers Practice Manager. There’s about to be more as he appears to be sexually harassing Amy the pupil. He finally reveals his medical condition to Martha.



The start of the Radio Times review reads “Silk is like a big, luxury car. Even when it’s not barrelling along, it cossets us nicely, purring away like a well-oiled machine, every surface polished and smooth. That makes for a civilised journey, regardless of the terrain; it’s not always a thrill ride, but it’s a classy place to be.

That pretty well sums up this episode. The main plotline felt, frankly, formulaic and you knew what was going to happen. Despite that, it is well acted and written and hopefully will pick up the originality now we’re half way through.

Legal inconsistencies :

  • Balham Youth Court has now shut (h/t forthedefence) – although it wouldn’t be the first time some poor pupil has been sent of on a wild goose chase
  • The law on mercy killing is not right – see below
  • Clive woudn’t be having a conference with the father, a civilian witness of fact.
  • Unless someone died, a silk would not be doing a violent disorder, even if there are nine defendants
  • Discussions about pleading guilty to Assisted Suicide as an alternative to Murder would not be happening in a pub like that
  • It’s not clear if Amy Lang (Martha’s pupil) was behind her as a pupil (unlikely as in her second six she would be doing her own cases in the Magistrates’ Court) or as a junior – which would be negligent given her lack of experience (even allowing for the fact that this case would have taken six months or so to get to trial).
  • The video of Harry’s account (ABE) would not have been done by Clive, but by police officers (the equipment was a bit dodgy as well). There is provision for video recorded evidence in chief (but this is not done by the prosecuting lawyer) and cross-examination (but this is not in force yet, but a pilot is occuring). Similarly with Fraser.
  • Martha would not have been allowed to have cross-examined her own client in the way she did
  • Once a jury has been sworn, they are the only people that can acquit someone. After Clive had ‘offered no further evidence’ it would have had to be the jury that entered the not guilty verdict.


Please email/comment with ones that we’ve missed, and ones that we’ve got wrong …

Mercy Killings – the law

The law is clear – a mercy killing is murder, just like any other intentional killing (unless there is something about the defendant’s mental state – and it is not unusual for the prosecution to stretch the rules on this, at least in the sense of taking a plea to manslaughter in a sympathetic case). The fact that the ‘victim’ wanted to die is not relevant to whether the charge of murder is appropriate or not. Consent is not a defence to murder.

It is a matter of strong mitigation however, and so the tariff will often on the shorter end of the spectrum. See the case of Frances Inglis for a famous example where the tariff was reduced to 5 years.





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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

9 thoughts on “Silk (Series 3, Episode 3)

  1. Jimbob

    Martha and Clive kept referring to the judge as ‘My lord’, but he was dressed as a recorder…

      1. Jimbob

        Perhaps, but then the seats would have had the Coat of Arms of the City of London on them. They had the Royal Coat of Arms.

  2. Matt

    The Judge appeared to be a Lord Justice (unspecified black gown & bench wig).

    Since we’re in the realms of specious defences I wondered what you all thought of these two for ‘hail mary’ defences.

    1) Simply hold your hands up and trust to jury nullification. Seemed the only option that wouldn’t end Martha (back) in front of the BSB?

    2) Running a version of loss of control?

  3. John Allman

    The actual killer was young, but was he actually young enough to be doli incapax automatically, which used to be under ten years old? Or was he between ten and fourteen, and therefore was there merely a rebuttable presumption of doli incapax? Or has all that changed?

    Secondly, how can anyone (even, in this case, a minor) assist the suicide of somebody who isn’t physically capable of suicide? without setting up a weapon that kills them if they blink a certain way, for example? Or putting a cyanide tablet in the victim’s mouth, and letting the victim decide whether to chew and to swallow it, fatally, or to spit it out, unharmed? The CPS decision not to charge the minor who confessed to killing his sister deliberately would be controversial, surely? Some of us would detect, in this latest plot, more BBC propaganda for a change in the law, to decriminalise “euthanasia”.

  4. Pingback: Law & Order UK – s7, ep1 – Flaw | UK Criminal Law Blog

  5. Pingback: Silk (Series 3, Episode 4) | UK Criminal Law Blog

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