The Price of Safety

For​ several years, I have been following the case of Constance Marten and Mark Gordon, the couple who went on the run from social services and the police in January 2023, in order to prevent their baby girl being taken into care. Marten was raised in wealth and privilege: a large landed estate, acquaintance with royalty, private schools, trust funds. She had fallen out with her family, mainly because of her relationship with Gordon, a convicted sex offender who had spent much of his life in prison for assault and rape. In the years after they met, they had four children, all of whom were taken into care after a protracted battle in the family courts. They decided to try to keep the birth of their fifth baby, Victoria, secret. But after the police learned of her existence and issued a national missing persons alert, Marten and Gordon went on the run. Victoria died while they were attempting to hide off-grid in a tent on the South Downs. They were arrested seven weeks later and have been held on remand ever since. On 14 July, the second jury to consider the charges against them convicted Marten and Gordon of gross negligence manslaughter. They will be sentenced in September.

During the two trials for gross negligence manslaughter at the Old Bailey, the central criminal court in London, the prosecution argued that the couple had ‘wilfully’ and ‘recklessly’ endangered their daughter. But Marten and Gordon repeatedly asserted that the police were primarily responsible for the death of their baby, who would still be alive if there hadn’t been a nationwide manhunt. It is certainly true that the missing family provided sensational copy, both before and after they were found, with multiple police forces issuing calls for information and details of their vastly different backgrounds splashed over the papers and discussed on TV, alongside emotional pleas from Marten’s parents. Press releases, news bulletins, a whole country put on alert to find the couple and their newborn baby. During the trials, both Marten and Gordon said that they had panicked, for fear Victoria would be taken from them, and had taken a series of increasingly desperate decisions that led in the end to catastrophe.

Were the frantic measures taken by the couple to keep their child acts of selfishness, as the prosecution argued, or, as Marten insisted, acts of love? The accusation of selfishness turns on the fact that Marten had options: she had money, education, family connections. She was in control of her own destiny, and that of her child. The prosecuting barristers insisted that she could have asked for help from her family and from healthcare professionals, social services and the police. The risks she took were not reasonable in the circumstances but self-interested. If she had really cared about her baby, they argued, she would have handed her in.

But Marten felt she had no choice. She wanted to have a family with Gordon: meeting him was ‘fate’, she said. She knew that any child she had with him would be removed by the state, so for her the risks she took were not merely reasonable but necessary – it was her duty to save her daughter from being put into the care system.

Marten has spoken of her feelings of guilt over the death of her daughter. She has admitted that Victoria was in her care when she died, even that she was holding her, and that by falling asleep over her she was the immediate cause of her death. But she has refused to accept that she was to blame for the situation in which the couple found themselves. She wants the state to be held accountable for what happened, and throughout both trials she tried to shift attention onto broader issues such as the right to family privacy and the rights of mothers and children.

But the trials were held to determine the couple’s criminal responsibility for Victoria’s death, not larger moral questions. And since the precise cause of death was impossible to determine, the focus inside the courtroom turned to their fitness as parents, and even as human beings. They were in the dock for gross negligence, and their characters were dissected for any evidence of neglectful behaviour and disregard for convention. They were judged for being entitled, or reckless, or slovenly, for being posh, for having a history of violence, for being posh and choosing to stay with a man with a history of violence, for eating fast food, for handling their baby clumsily, for co-sleeping, for shopping in Primark. As we watched CCTV footage of Marten and Gordon shopping in East London, it appeared they were on trial for the way they walked down the street. In the end, the two trials unfolded over ten months of court sessions, exposing to view not only the behaviour of the couple who had become outlaws to society, but the attitudes towards them of the state, the law, the media and the public.

When the first trial opened at the Old Bailey in January 2024, the court provided an overflow room for the press, and the usher fitted extra seats into the well of the court. We packed ourselves in and fought over printed copies of court papers. Several newspapers ran live blogs of the trial; there were protests outside the court organised by groups supporting women whose children had been taken into care; and the Daily Mail produced a dramatised podcast, with actors playing the parts of lawyers and defendants. Much of the popular interest was driven by morbid curiosity: who was in charge, the entitled aristocrat or her rough-edged lover? What did they see in each other? Was this a case of coercive control? Were the couple simply selfish and reckless as the prosecution alleged? Who caused Victoria’s death? But many people, including, apparently, some of the jurors in the first trial, who were unable to agree on the charge of gross negligence manslaughter, felt these parents also deserved sympathy and understanding. Marten may have loved the wrong man, and expressed maternal devotion in socially unacceptable ways; the couple may have failed their children at times and tried to escape a system they saw as pernicious and cruel. But did they deserve to be on trial for manslaughter?

Ayear earlier​ , in January 2023, the public had been gripped by a story that began when a car caught fire on the M61 motorway near Bolton. The occupants of the car disappeared from the scene before the emergency services arrived; inside the vehicle the police found a placenta wrapped in a towel as well as a woman’s passport. Greater Manchester Police put out a nationwide alert for a couple on the run with their baby: Constance Marten, a white woman aged 35, and her partner, Mark Gordon, a 48-year-old black man. The story became headline news. Photographs of the couple and appeals for information were broadcast on the BBC, Sky and ITV, and published in all the national papers. As Gordon’s defence barrister later put it, the story ‘captivated the public’: ‘the whole nation was put on notice’ for more than seven weeks, as citizens were encouraged to look out for the family and report any possible sightings. Social media was awash with speculation and the couple were apparently seen at hundreds of locations. In daily media bulletins, the police explained that they had traced them from Bolton to Liverpool, and from there (travelling long distances by taxi) to Harwich, Colchester and East London, where CCTV footage showed them walking down a street in Whitechapel pushing a buggy, their faces obscured by hoods and scarves.

Then for several weeks the trail went cold until, at the end of February, a tip-off from a man who had spotted the couple at a cashpoint in Brighton led to their arrest. But Victoria wasn’t with them, and both Marten and Gordon refused to answer questions. Two days later, following an anxious search, her body was found in a supermarket bag, hidden in a shed on an allotment. Marten and Gordon were remanded in custody and charged on five counts: concealing the birth of a child, child cruelty, gross negligence manslaughter, causing or allowing the death of a child, and perverting the course of justice.

Like everyone else, I followed the manhunt, the capture of the two fugitives, the gruesome discovery of the baby’s decomposed body and the periodic announcements regarding the upcoming trial. I was puzzled by what could have given rise to such a tragedy. Something was missing from the accounts in the newspapers. Why were they on the run? What had led them to take such risks? During the trial it emerged that the police had issued a high-risk missing persons alert because the family courts had previously determined that the couple’s children should be removed from them. But this wasn’t widely known at the time and journalists were legally prevented from writing about it. In the absence of reliable information, social media conspiracists pumped out theories, and the newspapers printed anything they could find: interviews with Marten’s former friends, pictures of the stately home where she grew up, details about her ancestry, her schooling, her rift with her family. Marten’s paternal grandmother, Mary Anna Sturt Marten, was a goddaughter of the Queen Mother; George VI attended her wedding. Marten’s father had been a page to Queen Elizabeth II. The papers ran stories about the once carefree aristocrat who had grown up on the £34 million Crichel Estate in Dorset but had suddenly cut off all contact with her family and friends, and dropped out of her course at East 15 Acting School, completely disappearing from her former social world, when she got together with Mark Gordon in 2016.

Gordon’s background was also newsworthy. He was born in Birmingham in 1974, but moved to New York with his mother and half-sister when he was twelve. Two years later, they relocated to Miami. Just a few months after the move, in spring 1989, while his mother was working in New York, Gordon confessed to the rape of his neighbour and to a second violent attack on another neighbour. He was sentenced to life in prison. After serving more than twenty years, he was released and deported to the UK, where he was put on the Sex Offender Register. Some British newspapers got access to the Florida court documents and printed details of the four and a half hour attack by Gordon, who wore a stocking mask and was armed with a knife and garden shears. An article in the Sun quoted the victim under the headline: ‘Ordeal from Hell: I was raped by sick Mark Gordon who told me, “Don’t scream or I’ll kill your kids.” We MUST find Constance Marten now.’

And although no one said so explicitly, it was implied that the six months Marten had spent, aged nineteen, at the Synagogue Church of All Nations, Lagos, under the sway of the cult leader T.B. Joshua, had left her susceptible to abuse, by black men in particular. The trip seems to have been part of a gap year experience, between finishing school and going to Leeds University for a degree in Middle Eastern Studies. Marten’s mother, Virginie de Selliers, an evangelical Christian, had arranged the visit, taking her daughter to Lagos and returning without her. The papers quoted disturbing tales of sexual violence and coercion, ‘grooming’ and ‘brainwashing’, relayed by former members of the church, some of whom Marten had spoken to while researching a planned documentary on the group’s ‘illegal activities’. She pitched the idea to Al-Jazeera after winning its photography competition with images of Tahrir Square during the Arab Spring, taken while she was living in Cairo in 2011.

Marten had left the church in Lagos after six months, and had researched a critical account of the group, so the argument could have gone the other way: that far from being vulnerable to coercion, she knew it when she saw it. But that was not the way the media reported it. Several journalists repeated a quote from a former member of the church, who said that Marten had told him Joshua singled out white people for ritual humiliation. In mid-February 2023, Marten’s estranged father, who had long since separated from her mother and seemed to have got most of his information from an article in the Independent, made a public statement calling for police to investigate ‘links’ between the couple’s disappearance and what happened in Nigeria: ‘These experiences appear to have been a trigger in so much of what has happened to harm Constance in recent years, setting up a pattern of behaviour exposing her to easy manipulation.’

The idea that Marten had been ‘brainwashed’ in Nigeria, and that she and her baby were in danger from Gordon, was given credence by de Selliers’s open letter to her daughter, which extended an offer of help to mother and child, but pointedly not to the child’s father:

I want to help you and my grandchild. You deserve the opportunity to build a new life, establish a stable family and enjoy the same freedoms that most of us have. Constance, I will do what I can to stand alongside you and my grandchild. You are not alone in this situation. We will support you in whatever way we can.

The police knew that Gordon was a convicted sex offender, and had they been concerned for Marten’s safety this might have explained the national alert and pleas for information. But their statements suggested it was the couple’s baby who was in danger. ‘There is nothing to suggest that any of them have come to any sort of intentional harm,’ said Detective Superintendent Lewis Basford, who was leading the search. ‘We just need to ensure they are okay, especially the baby.’

Here I should declare an interest. Since the death of my own baby many years ago, in hospital, shortly after birth, I often follow neonatal deaths that make the headlines. I’m interested in the way these difficult stories get reported, whether it’s the discovery of the remains of nearly eight hundred babies in a septic tank in a former mother and baby home in County Galway, or the Lucy Letby trials, or debates about late-term abortion. I went to the Old Bailey in January last year because I wanted to find out what had happened to cause the death of this baby and what was being said about it.*

In the end, I followed the trial from January to June 2024, when the jury was discharged because they couldn’t agree on the major charges, and returned for the retrial, which began in March 2025 and lasted more than four months. I spent nearly a year in the company of the judge, the barristers for the prosecution and for the defence, the police assigned to the case, two juries, newspaper and TV journalists, podcasters, producers and protesters, as well as Constance Marten and Mark Gordon themselves. I began by feeling perplexed that the case had been brought to trial at all. I couldn’t see the point of punishing parents who had already lost everything, and I didn’t change my mind about that. But I did learn a great deal about blame – blame directed at the police, at social workers, at the family courts, at selfish people, at people who don’t respect authority, at parents and above all at mothers. Behind the accusations and counteraccusations over who was responsible for Victoria’s death lay moral arguments about the dangers of risk-taking, though these were rarely spelled out: when can we reasonably impose risks on others? Should we put limits on the regulation of safety? When does risky action, or inaction, become culpable? There is a price to safety: what happens when people are unwilling to pay it?

The courtroom often descended into chaos, with yelling from the dock, sackings, interruptions and irruptions of temper – and not only from the defendants. I was repeatedly told, by both barristers and journalists, that they had never seen anything like it. During the first trial the court clerk kept a tally of the number of questions asked by the jury – at more than two hundred he thought it might be a record. Although no crime is ‘straightforward’, this case was particularly messy. I had a nagging sense through both trials that what the jury was really being asked to judge was Constance Marten’s choice to be with Mark Gordon. What was on trial was their decision to stay together, and in effect to become outlaws rather than submit to the state’s intervention in their family.

The first task​ for the prosecution was to establish that Victoria’s death merited the charge of gross negligence manslaughter. She had died, the prosecutors told the jury, as a consequence of the couple’s ‘reckless, utterly selfish, callous, cruel, arrogant and ultimately grossly negligent conduct’. Their ‘deliberate and dangerous obstinacy’ had led them to dismiss their daughter’s health and wellbeing, resulting in her death from hypothermia in February 2023. But the prosecution added a rider: if it wasn’t hypothermia that had killed her, then it was co-sleeping, against which Marten had been warned some years before. Either way, the couple were guilty of gross negligence. The rider was necessary because the postmortem on Victoria’s body was inconclusive: too much time had passed between her death and the discovery of her body. One of the doctors involved in the post-mortem, called as an expert witness by the prosecution, treated the jury to a series of colourful food metaphors (the baby’s skin was like a pizza on which the tomato sauce had got mixed with the pepperoni). Certain hypotheses could be ruled out. There were no signs of injury to her body, and no evidence of deliberate harm. Beyond that we were in the realm of conjecture. There was no scientific means of establishing a cause of death. The prosecution had to construct their case from CCTV and eyewitness evidence of the couple’s long journeys across the country and their eventual arrival in Newhaven on the South Coast (where all sightings ceased), and from Marten’s account of events after they had pitched their tent on the South Downs.

Two days after Victoria’s body was found, Marten told a sympathetic police officer what had happened. In her recorded interviews, and later in the evidence she gave in court, she went into detail about what she and Gordon had done, why they had done it and what had gone wrong. She didn’t change her story over two years of being questioned. In his opening statement to the jury, the lead counsel for the prosecution, Tom Little KC, quoted extensively from Marten’s interviews as he laid out the case against the couple.

Both sides agreed that the sequence of events before the couple arrived on the South Coast was not really in dispute. Marten had discovered she was pregnant in the spring of 2022, and the couple had made plans to keep both the pregnancy and the birth of their daughter secret, in order, as Marten put it, to ‘save her from the services’. Tom Little explained to the jury that the couple had by this point had four previous children taken into care. Following an incident in November 2019 when Marten was pregnant with her third child (an accident according to Marten, domestic violence according to social services), she had attempted to hide from the authorities and from her own family. We later found out she had gone to Ireland with her two older children. And we would learn that over the course of her relationship with Gordon, Marten’s family had employed two sets of private detectives, on three separate occasions, to track her down. Absconding did her no good but rather increased the determination of social services to intervene. As Little told the jury, ‘on 28 January 2022 care and placement orders were made in respect of all four children. The prosecution suggest that it would have been apparent to both defendants that any further children would be taken into care.’ Marten herself made no secret of the fact that she was determined to outwit the authorities. She was going to find a way to have the family she wanted with Gordon.

Marten told the police officer that they had rented a cottage in Northumberland where their fifth child was born – in secret – on Christmas Eve 2022. Gordon delivered the baby. They planned to stay hidden with Victoria for long enough that Marten ‘could give her a mother’s love’. Giving evidence in court, she spoke of the importance of the maternal bond: ‘I don’t think it’s fair on a young baby not to experience that … she needed to be with her family as long as possible.’ She explained that they were convinced they needed to keep moving in order to avoid local authority jurisdiction over their daughter. This was the reason they were on a motorway near Bolton when their car ‘exploded’ on 5 January 2023 (this was the second car malfunction in a few days, which did nothing to dampen the couple’s paranoia). As Little summarised it for the jury, ‘she assumed that police would attend the scene and take her daughter away so they ran away. She said that the other children had been taken away and she did not want the police to find her and take her baby away.’ They left behind them not only the placenta, which they intended to bury, but also 34 ‘burner’ phones they were using to avoid being traced, £2000 in cash and most of their belongings.

Their options were narrowing, and they knew it. Believing they were being tracked by private investigators, as well as the police, they took a series of increasingly desperate decisions. They asked a passing motorist to take them to a service station, from where they got a taxi to Liverpool and then to Harwich in Essex. The choice of destination was apparently driven by the notion that they might be able to find a way out of the country from a port town. Marten had a scheme, it later transpired, foolhardy at best and at worst unhinged, to find people smugglers who would take them across the Channel in the opposite direction from the usual migrant journey. She hoped to make it to North Cyprus, which has no extradition treaty with the UK, and to continue her legal battle for the return of her other children from there.

In Harwich they stayed for two nights in different hotels, paying in cash and giving false names. But on the morning of 7 January, a man out walking his dog approached them and asked if they were the people on the news. This was the first they knew of the national alert. ‘Things kind of went downhill from there,’ Marten said. This is her account of what happened, told to the investigating police officers shortly after her arrest:

Obviously when the gentleman said we were on national television, we then got a taxi to Colchester and then from there we planned on finding a flat in East Ham … You know it’s quite easy to find flats so, er, then when we got there everyone seemed to recognise us, jeering and pointing and taking pictures of us, so that’s when we decided we were not going to find a flat, because anyone could hand us in to the police, um, so Mark went to the Argos in East Ham and bought a pram … But it was difficult because obviously everyone was recognising us in London so we decided, okay, we were not going to be able to get a flat, we were going to have to, that’s when we decided to get a tent at that point. So that was like two, three days after the car. Um, yeah, I think we were quite shocked we were on television and to realise that we might not get anywhere with the baby cos everyone was recognising us so, in order to save her from the services, then we would have to probably remove ourselves from society till we could find a house … So she was always cared for but we remained in hotels until that point. We didn’t plan on sleeping outside at all.

In East Ham, the couple bought a buggy, which they quickly discarded, and in Whitechapel a tent, duvet and pillows. On the night of 7 January they took a taxi to Newhaven in Sussex, arriving early in the morning of 8 January. They walked to the South Downs National Park, where they pitched the tent. According to Marten’s account, their daughter died the following day:

We were staying outside in the countryside. She was in my jacket and I was keeping her warm. I was holding her and hugging her and I was extremely tired. I hadn’t slept in probably two days. We’d just arrived there. I fell asleep with her in my jacket. When I woke up I was like crouched over her, like that, holding her and she wasn’t moving when I woke up. I don’t know how long I’d been asleep. I saw she wasn’t moving and her lips had gone blue. And, yeah, I don’t know how long we slept. I don’t know why she didn’t make any noise, and I was just so tired, I don’t know. That’s all I can say. Erm, I tried to resuscitate her, er, for like, well I tried to breathe in her mouth and pump her chest, erm, and there was no response. So I wrapped her in a scarf and cradled her for a few minutes. I didn’t know what to do.

She described going to buy petrol at the local Texaco garage three days later, on 12 January (CCTV of Marten filling a glass bottle at the petrol pump was shown to the jury). She explained that her plan was to cremate her daughter’s body, but that she changed her mind since she knew she would eventually have to give an account of what had happened, and so should preserve the body for an autopsy. She considered burial: ‘I did get a spade at one point from the allotment. I was going to bury her there but then I didn’t have the strength to bury that far deep because I hadn’t eaten for so long … I was worried that if I was to bury her in the woods, potentially an animal could, you know, find her and potentially do something to her limbs so I didn’t want that to happen.’ She described how they covered Victoria’s body with earth inside the bag, and she spoke in halting detail of the burden she had been carrying:

I wanted to give her a proper burial so we carried her with us, not knowing what to do. I mean she’s got soil on top of her, like in the bag, and obviously the bag got extremely heavy. I don’t know why her body did that because I think she’s quite light but it’s been quite difficult to carry around. It’s extremely heavy to carry … It got to the point where she became really heavy, the bag became too heavy to carry. I don’t know why. I haven’t looked at the body or neither has Mark, but it just became excessively heavy. Um, and also Mark and I hadn’t eaten in a long time. It just became impossible to carry it, so sometimes we actually had to leave it in the tent or, erm, in the allotment. We left it in there because it was just too, too heavy.

We heard the same account from Marten over the course of her trials (when giving evidence to the jury she said the bag got so heavy they sometimes had to drag it). A couple of months into the first trial we spent a day and a half watching the videos of the three interviews she gave to the police shortly after Victoria’s body had been found. Marten answered the questions posed by the investigating officer hesitantly, and sometimes her voice became very quiet, but her responses were mostly straightforward. She got muddled between Harwich and Newhaven, and she wasn’t sure about dates, but she seemed to be doing her best. At points she was in tears, but she had no option but to keep going. In response to the officer’s questions, she tried to remember the items they had lost in the car fire, the journeys to Liverpool and to Harwich, the names of the hotels they had stayed in, and the moment she realised her baby had died. Some details were hazy. She couldn’t remember whether Victoria was lying to the right or to the left when she woke up (whether she had been feeding from her right or left breast before she fell asleep). Some things she wasn’t asked about and didn’t describe. She wasn’t asked about the way her body responded to the loss of her baby, so we didn’t hear about her breasts becoming hardened with unused milk. There were several moments during the screening of the videos in court when Marten, head down, wept in the dock. Jurors, journalists, me – we all craned our necks to watch.

Listening to​ her interviews was painful. Marten was describing an almost phantasmagorical experience. Not only was she acknowledging the gravity of her daughter’s death and what she and Gordon had lived through in the aftermath, but it was still happening for her (‘she’s quite light’, ‘it’s extremely heavy’). Yet when Marten’s account was read aloud to the jury by Tom Little, at the start of the first trial, the tone he adopted was one of disdain. Little is a large man, tall and broad, with a fondness for eating sweets between court sittings that sits oddly with his overbearing presence. He has probably heard the joke about him – ‘Tom Little, never knowingly under-prosecutes’ – and he’s probably proud of it. His voice in court was always a little bit raised. In his opening, he delivered Marten’s sentences in an ironic, disbelieving tone. The contradiction between the unbearable experience Marten was describing and the sardonic manner in which Little relayed it was utterly disorientating. I’ve attended other trials. I know the adversarial system encourages attack, but I was taken aback by this display of contempt and I wasn’t alone. During the second trial, Little skipped over these passages quickly and refused to play the full set of Marten’s interviews to the jury. The prosecution must have been worried that the interviews were too dangerous – they encouraged sympathy. Little stated that he had been ‘too generous’ the first time round.

As far as the prosecution were concerned, Marten’s account was a lie. She and Gordon had had time to cook it up between them. Nothing they said could be believed. Marten was, Little explained to the jury, ‘telling a lie to her own benefit. Telling a lie in an attempt to minimise the amount of time which she and the first defendant were caring for a newborn baby in a tent, in midwinter.’ He made a point of distinguishing between different kinds of lie. There was, for example, ‘a demonstrable lie’ and ‘a contrived lie’, which each appeared to operate differently from ‘a pack of lies’. During his closing statement he described ‘lies falling from [Marten’s] mouth like confetti’, a ‘tissue’ of lies, and again he differentiated between ‘little lies’ and ‘big fat lies’. As Marten’s defence barrister, Francis FitzGibbon KC, pointed out to the jury, Little was speaking to them in ‘nursery language’.

It became clear during the first trial that the prosecution needed to claim the defendants were lying because if they were telling the truth it would be harder to secure a conviction of gross negligence manslaughter. Victoria had not died after Marten fell asleep through exhaustion on the first night in the tent, Little argued, but some weeks later, following prolonged exposure to freezing temperatures. The couple had subjected their baby to conditions of extreme cold for several weeks, failing to provide appropriate clothing and warm coverings. In cross-examination much was made of the fact that most of their provisions had been lost when they fled their car on 5 January, and that although Gordon bought a tent and bedding while in East London, they had bought no nappies, warm clothes or other items for their daughter. The prosecution maintained that the couple had chosen to live in the tent (they ‘went into the cold and camped for weeks’) and did so regardless of the danger to their daughter.

But the most shocking charge levelled at the couple was that they had kept their baby in a shopping bag while she was alive. Marten said they took turns to carry Victoria under their coats, usually in a scarf fashioned into a sling, sometimes held in their arms. But Little claimed that on 7 January, after they had first bought and then quickly disposed of a buggy, they placed her in the bag where she was found after her death:

It would appear that, at this time, the child was transferred to a red reinforced Lidl ‘bag for life’ where it would appear it spent much of its life before it died. It would have been plain to the defendants, you must have thought, that this was an utterly inappropriate way to care for any child, let alone their child and remember at all times in this case the time of year and the weather conditions.

Despite the extreme weather, and being carried in a shopping bag, Little argued, ‘the child was alive … over a month after the couple decided to live off-grid, without regular access to food and fresh water, or any access to heating.’ But eventually her parents’ negligent care caused her death from hypothermia.

The prosecution were taking a risk with the baby-living-in-a-bag thesis. None of the journalists I spoke to over many months believed it, and it seems at least some of the jurors in the first trial weren’t having it. Yet when the retrial started in March, the prosecution repeated the accusation, even though it made little sense. As the professor of infant health called as an expert witness by Marten’s defence team pointed out, in freezing conditions a newborn would not survive for any length of time in a shopping bag, and certainly not for several weeks. It was hard to resist the suspicion that the prosecution were reluctant to abandon the idea because it made Gordon and Marten look wicked rather than desperate. Only monsters would treat a child like that.

To be fair to the prosecution, they were trying to square a circle. They had access to the family court papers, which apparently contained evidence that the couple had acted negligently towards their previous children. Journalists couldn’t access the papers at this point, but it was clear that both Marten and Gordon had lied to the authorities on numerous occasions. One of these occasions formed part of the case against them, and it concerned the birth of their first child in 2017. At that time, they were living in a tent in Wales, hiding from Marten’s family and the private detectives they believed were searching for them. Marten went to the local hospital to give birth as an unregistered case, telling the midwives that she came from an Irish Traveller background (she gave her name as Isabella O’Brien), that she had never been to school, had never registered with a GP and did not have an NHS number. She said that Gordon was a friend rather than the father of her baby. She spoke in an Irish accent throughout labour, a feat that amazed the mothers on the press bench in particular. How on earth did she keep it up?

For Little, the episode was proof that Marten had ‘perfected lying to an art form’. It was clear from the story that Marten was determined, that she harboured an intense grievance against her family and that she was a good actor, but also that she was hopelessly naive. She seems to have believed that if she presented as homeless and without support she would be provided with housing. Instead, social services were alerted to the conditions in which the couple were living. An interim care order, which assigns responsibility for a child to the local authority, was issued, compelling Marten to live with her baby in a series of temporary mother and baby homes. After six months, the order was rescinded. Marten and her child were free to rejoin Gordon, which they did.

In order to make the case that Victoria was alive in the weeks when her parents were living in a tent, the prosecution submitted the evidence of a number of eye-witnesses who claimed to have seen the couple after 9 January, the date on which Marten said her baby died. One woman had seen a couple walking on a coastal path near Seaford in the South Downs in mid-January, and two or three nights earlier had heard a baby crying at night through her open window during a thunderstorm. A man had seen a interracial couple pushing a buggy in mid-February (although as FitzGibbon pointed out, the buggy had been abandoned in London). A woman claimed to have seen the couple in Stanmer Park near Brighton on 19 February, a sunny Sunday afternoon when there were lots of people out and about. In her statement to the police she said she had noticed a woman carrying a baby with a wobbly head, and behind her a man whose ethnicity she could not determine because he was wearing a mask or hood. But in the witness box she changed her evidence and insisted that the baby she saw was dead. FitzGibbon invited the jury to consider how likely it was that a couple in hiding would choose to stroll in the park with their dead baby for all to see. He called it a classic example of confirmation bias – the tendency to interpret or remember information in a way that confirms existing belief.

Confirmation bias was affecting the prosecution, too, as they looked for evidence that supported their case and overlooked evidence that didn’t. The defence accused them of ‘fitting the evidence to the theory’. One afternoon during Marten’s cross-examination, the court spent what felt like hours looking at CCTV of the couple walking out of a bus station. ‘Where is the baby?’ the junior counsel for the prosecution, Joel Smith KC, repeatedly asked. He claimed that because Victoria wasn’t visible in the footage, it proved the couple were carrying her in the shopping bag. Eventually a visibly frustrated Marten said: ‘Can we zoom in?’ When the footage was enlarged, it became obvious that Victoria was zipped up inside Marten’s jacket. The most telling thing about this exchange was that the prosecution hadn’t thought to check properly before.

Despite the CCTV evidence of Marten buying petrol, and the fact that the explanations both defendants gave in their police interviews added up, the prosecution chose to disbelieve them. My question was, why? Why were they trying to make the case that the baby was still alive after Marten said she had died? Why were they sticking to the theory that Victoria had been carried in a shopping bag while alive? Since they claimed that Marten’s account of falling asleep over her baby anyhow proved the couple were guilty of gross negligence manslaughter, why the elaborate attempt to pin the exposure charge on them, on such flimsy evidence?

There was no doubt that Marten and Gordon had made a series of catastrophic errors and misjudgments that had cost them and their children very dear. They were certainly guilty of paranoia, of believing in conspiracy theories about all forms of authority, of suspicious and bungled dealings with social services. Gordon may also have been guilty of coercive and violent control over Marten, although it was difficult to square this with the couple’s evident care for each other in the courtroom. They were, as they acknowledged themselves, responsible for the death of their daughter (‘I do feel responsible for falling asleep on her,’ Marten told her barrister from the witness box), but as the defence teams at both trials argued, that didn’t make them guilty of manslaughter. FitzGibbon was unequivocal: ‘What happened was no crime.’ Victoria’s death was a tragic accident. Rather than ‘monstrous murderers’, this was a couple ‘semi-deranged with grief’ over the loss of their four children and the death of their baby daughter. But if that was right – and at least some jurors in the first trial seemed to think so – there were serious questions to be asked. Why had the case been brought? What example was being made? Who, or what, was really on trial?

If Victoria’s​ death was a tragic accident, then arguably Marten and Gordon were on trial for being unlucky. Their plan to outwit social services was fatally compromised when their car caught fire on the motorway. It was important for the prosecution to disallow bad luck. During both trials, they repeatedly insisted that the couple were to blame because of the unreasonable risks they had taken, basing their case on the negligent character of the parents, whose behaviour was (these words were often repeated) ‘selfish’, ‘reckless’, ‘callous’, ‘cruel’ and ‘arrogant’. This vocabulary was, frankly, odd given the circumstances (a weeping mother in the witness box, reliving the terrible moment she realised her baby had died) and one sign of the difficulty the prosecution were having proving the couple were straightforwardly to blame.

Listening to the prosecution’s language, freighted with accusations of moral failure and generalised wickedness, I was reminded of an essay about risk by the anthropologist Mary Douglas. Douglas argued that in traditional (‘primitive’) societies misfortune was explained as an effect of sorcery and witchcraft; under Christianity it was understood as sin, though sin functioned in much the same way as witchcraft, as a means of allocating blame and protecting society from pollution. Now, according to Douglas, writing in the 1990s, risk-taking was replacing sin as the primary means by which modern societies apportioned blame. She was pointing out that despite the secular, rational and scientific aura that surrounds the concept of risk (think of all the effort put into measurement and management), it’s still a way of reckoning individual culpability. The idea of risk does moral work in regulating the relationships between people and holding them accountable. This was one explanation of the language of iniquity the prosecution employed in the courtroom. FitzGibbon pointed out that the prosecutors weren’t simply making an argument about what Marten and Gordon had done, they were trying to get the jury to ‘hate’ them and to regard them as ‘monstrous’. They were guilty because they were monstrous. Behind all Little’s talk of arrogant risk-taking lay the ghost of sin.

There were certainly moments when a fear of pollution seemed to seize the courtroom. This was the gamble Marten took by giving evidence (and that Gordon avoided during the first trial by choosing not to): would she be able to persuade the jury that she was not, as the prosecution implied, an unnatural mother, who had prioritised herself and her relationship with Gordon over her child? She didn’t do badly: it was clear that she had wanted to care for her daughter, and she seemed successfully to ridicule the accusation that she had carried her around in a shopping bag while still alive. There were several people in the press pack, and I assume also in the jury, who baulked at the fact that Marten had not changed her daughter’s nappy and cleaned her after she died. The bag where they kept Victoria’s body held not only earth but sandwich wrappers. Could she not have given her dignity in death, we wondered?

But we felt differently when it came to judging the care of living babies. In the breaks from proceedings, we shared stories of losing our children in supermarkets, dropping our babies, shutting their fingers in car doors. As for co-sleeping, we’d all done it, men as well as women. We had all fallen asleep on armchairs and sofas and beds with a baby lying on top of us, or beside us, waiting to be rolled on, and we all knew it was risky but we had done it anyway. One mother recalled waking to find her week-old baby at the foot of the bed completely smothered by the duvet. None of us had slept in a tent with a newborn, but if co-sleeping was tantamount to gross negligence manslaughter then we were all technically guilty. We were lucky though: our children had survived.

The prosecution needed to show that Marten was determinedly, consistently negligent – a negligent character rather than someone who had fallen into negligent action ‘by mistake’. They showed footage of her walking down the street with her baby awkwardly bundled under her coat, to prove how little care she was taking. During the retrial, I heard one of the prosecuting barristers sharing a joke with a group of police officers. They were rewatching the footage of Marten inside a kebab shop in East London, placing Victoria in the buggy that Gordon had just bought in Argos. ‘Look at her,’ he said. ‘She’s got absolutely no idea!’ The officers giggled and sighed with a thrill of satisfaction.

It wasn’t just the feckless parents on the press bench who felt that manslaughter by co-sleeping was a charge too far. In his directions to the jury, Judge Lucraft advised that mistakes, ‘even very serious mistakes and errors of judgment’, are ‘nowhere near enough to amount to the commission of as serious a criminal offence as manslaughter’. In order for behaviour to pass the ‘very high bar’ set by the crime of gross negligence manslaughter it has to be ‘so exceptionally bad’ (the word was underlined by the judge) that it amounts to criminal behaviour, meriting punishment. This was the explanation for the hypothermia thesis advanced by the prosecution – they feared that the jury would conclude that making a mistake by co-sleeping was not so exceptionally bad that it deserved punishment by years in prison. But carrying a live baby around in a bag for weeks really was, on anyone’s judgment, exceptionally bad. Or to put it another way, as Little did, repeatedly, ‘the risks were obvious.’

One of the tricky aspects of using risk as a way of apportioning blame is that taking a risk depends on not knowing the future. If you know how your actions are going to turn out, then you aren’t taking a chance. Risk depends on uncertainty. For risk-taking behaviour to be criminally wrong (culpable rather than simply precarious or uncertain), it requires that a reasonably prudent person would understand the harm that might result. It was for this reason that the prosecution kept emphasising the fact that the couple should have foreseen what would happen:

The defendants were repeatedly warned about their approach to parenting and baby care … the parents had been warned that it was inappropriate to live in a tent, without access to proper warmth, accommodation and medical facilities. The risk to the child of serious physical harm was obvious, especially in the light of the vulnerability of the baby and previous warnings. The risk plainly existed, and the defendants must have been aware of it.

Perhaps concerned that the jury would reject the death-by-hypothermia thesis, the prosecution argued that, if Victoria did die of suffocation, the couple were still guilty because Marten had been told about the risks of co-sleeping. ‘Anybody who has had a baby knows of the risk of smothering. It is why you do not sleep with a baby and these defendants had been warned about that.’ The charge of gross negligence manslaughter needs this element of wilful risk-taking in order to prove a form of agency. In effect the temporality of risk-taking (which depends on an unforeseen future) is foreclosed by arguments that understand risk as morally culpable (because foreseeable) harm.

Throughout the long months of both trials, I found it hard to credit that this was really the basis of the prosecution’s case. It all seemed so crude, and so arbitrary! All the effort spent on proving not only that the couple had been told a tent was a bad idea, but that the tent itself was substandard, like the sleeping bags and their clothes. In advance of the retrial, the prosecution commissioned a professor of environmental physiology to conduct a series of experiments into tent conditions, first placing two PhD students inside a tent in a climate-controlled laboratory, and then subjecting a heated mannequin holding a dummy baby to a series of environmental stresses. The professor produced graphs and graphs of data, and multiple figures and tables, at what must have been enormous cost to the public. The court glazed over during his evidence, barring one moment when FitzGibbon pointed out that although he was tasked with discovering the temperature next to the skin inside the coat of a breast-feeding woman, he had used a male mannequin, with no simulated breast tissue. Heated female mannequins are hard to come by, the professor said, and heated dummy babies impossible.

The tent warnings and tent temperatures seemed to me to be beside the point, and not only because the prosecution couldn’t prove death by hypothermia. Marten and Gordon didn’t pitch their tent on the South Downs in January because they failed to conduct a proper risk assessment of what might happen in the future, but because they knew what had happened in the past. Of course they were taking a risk. Everything they had done since deciding to have a baby in secret was predicated on what they might gain from keeping going. One takes a risk because one seeks something more important than certainty – in this case the freedom to be a family. Marten weighed the certainty that her baby would be taken into care against her hope that they might somehow find a way to stay together. Once that decision had been made, rationality, the capacity to compare one set of possible outcomes to another, disappeared. They behaved like people in the grip of a desperate compulsion. This must have made it extremely hard to admit, after their car caught fire, that they were not going to succeed.

Risk was also central to the accounts given by both Marten and Gordon, though they conceived of it differently. Gordon’s explanation of what had happened – given in interviews after his arrest, before he knew the shape of the case against him – met the prosecution case head on. They couldn’t have foreseen what would happen, he said. ‘In retrospect,’ he acknowledged, they should have given themselves up when the car caught fire. But, he added, ‘nobody could have ever anticipated or looked into the glass and seen [Victoria’s death] happening.’ In Gordon’s account, one disastrous occurrence led to another. He appeared to date the sequence back to the removal of the children in 2020-21, and the effect it had on Marten: ‘She has actually experienced post-traumatic distress and she was in a situation where she was quite vulnerable and that led to, that led to things that were never predictable on either of our parts. And it’s an unfortunate, sad, very sad thing.’

Under cross-examination, Marten said something similar: their plans had been scuppered by ‘a series of unfortunate incidences’. But she did not see the car fire, or any of their subsequent difficulties, as the moment at which they should have stopped trying to outrun events. The prosecution’s repeated displays of incredulity were wearying but on this occasion Joel Smith’s performative astonishment seemed justified. ‘You didn’t think, maybe we need to look at the way we’re behaving?’ he asked. ‘Can you see now that the decision to take your newborn child [into a tent in winter] was a very bad decision?’ He wanted a yes or no answer, which Marten wasn’t prepared to give, so he asked again and again: ‘Can you see it was a very bad decision?’

Referring to the days after their car had caught fire, and the couple had lost their possessions, he asked: ‘Do you accept that at that point you are not in a proper state to care for your child? … Did none of this change your mind?’ ‘We weren’t intending to live in a tent,’ Marten said, which wasn’t really a reply to the question. Her responses suggested that she didn’t understand what was being put to her, or didn’t want to understand. It was obvious she felt they’d had no option but to try to keep going, to keep figuring out what to do next – taxis, buggies, tents and the rest. The tent didn’t feel like a choice, but their only chance.

Smith pressed on. ‘Do you regret taking her into the tent?’ he asked, but Marten responded only that she regretted falling asleep. By this point, Smith had become red in the face and was clearly angry. ‘Do you regret it?’ he asked again. He was determined to make her comply. Gordon’s police interviews made clear that although he wanted to support his partner, he dearly wished they had accepted defeat long before they pitched their tent near Newhaven. But Marten was unwilling to go that far. ‘I wish that she could have her life,’ she said. But that was not the same as regretting what they did. For someone repeatedly accused of lying, she seemed unable to fabricate on this point – she refused to pretend to a regret she couldn’t feel, even though it might have made her appear more sympathetic.

Gordon and Marten were on trial because they perceived different risks from those outlined by the prosecution, not because they perceived none. It was reasonable to inquire at what point their insistence on sticking to their plan became culpable. They could not have anticipated two transport breakdowns and the loss of their belongings. This put them at risk of arrest and of losing their child to social services, but arguably they had no reason at this stage to consider a risk to their baby’s life. Was the conversation in the kebab shop, when they decided to buy a tent and travel to Newhaven, the turning point? Witnesses who saw them in the days following the car fire (taxi drivers, hotel managers) described a man keeping a low profile and a stressed, tired-looking woman. She had just given birth; she hadn’t bargained for any of this. But it appears she never seriously contemplated giving up, and my guess is that she couldn’t. So long as the two of them kept going, despite the risks, the future was not foreclosed. It was because there were still risks to take that there was a future at all. It was in the risk-taking that they were free.

Marten functioned​ best, and perhaps only, in combat mode. This was obvious from her behaviour in the courtroom. She didn’t let up. She complained about the conditions in the prison transport van, the unreasonable morning alarm (5.30 a.m. on court days, apparently), the length of time it took to be processed each morning and evening, the behaviour of the Serco guards, the alleged dishonesty of the deputy governor of Bronzefield prison (at one point she asked for an independent review into the prison), the behaviour of people in the adjoining cells, the tone the prosecutor took with her, the judge’s decisions and, perhaps most of all, the conduct of her own defence team. She wrote furiously on a pad of lined paper, tearing off pages to send flurries of notes to her barrister; she raged, and occasionally shouted, when he didn’t do what she wanted. The gossip in the first trial was that she had already dismissed eleven defence counsels and was now on her twelfth. That number crept up in the retrial when she dramatically sacked FitzGibbon while the court was in session. She trusted no one. She was paranoid, and she must have been terribly lonely. People scoffed at her sense of entitlement and she certainly didn’t help herself by upbraiding absolutely everyone, but I think it is also true that she genuinely felt the system was weighted against her. She was convinced of the injustice done to her family, but she knew that other people, even if they were sometimes sympathetic, weren’t convinced. How could she trust them to represent her faithfully?

She called out objections to proceedings from the dock, and when she was told off she made exasperated noises (‘Huffing and puffing from the back of the court is not the way these proceedings are done,’ the judge said, when the jury had left for the day). She was at her best in the witness box, where she was determined to reveal the truth as she saw it: that she and Gordon were victims of her family’s refusal to accept their relationship and the injustices of the family courts. As she talked it became apparent that the harebrained schemes were all hers: it was Marten who came up with the idea of pretending to be ‘Isabella O’Brien’, who took the lead in the fight with social services, who made contact with support groups for people battling in the family courts, who planned to have the baby in secret, who dreamed up the escape to North Cyprus. She was powered by rage, and when it failed her, she was lost.

After Victoria’s death, Marten’s deliberating and planning abruptly stopped. She became, on her own account, incapable of making decisions, swamped by uncertainty: ‘I wrapped her in a scarf and cradled her … I didn’t know what to do’; ‘I’ve been carrying her around not knowing what to do really’; ‘I decided to keep her because I knew at some point in the future I was going to be asked about it, but I just didn’t know what to do.’ Gordon suggested that they could use the petrol to build a pyre for themselves too. There was nothing left to live for.

The sense of freedom that had come with planning for a possible, better, future was extinguished long before they lost their physical freedom. By the time the first trial began, the couple had been in separate prisons for ten months (when the retrial started it was two years). Some days one or both of them would fail to turn up in court, having refused to leave their cells. I assumed that this nothing-left feeling must have overcome them in those moments. They had lost their five children: Marten’s plan to bring up Victoria abroad while fighting for the return of her other children had backfired so disastrously that there was surely no hope of getting them back now. Why not just give up? Individually, the people I talked to in court spoke of the sadness of the story. It was a year since the final series of events that led to Victoria’s death had unfolded, and surely Marten was reliving the horror and grief of those weeks. Was it any wonder she was reluctant to relive them in court? But it seemed the idea of her sorrow was too hard for some people to bear. It was easier for them to distance themselves from it by implying that Marten’s problem was too much indulgence rather than too much misery.

Her combative behaviour in the courtroom probably did her no favours with the jury, who might have preferred a tearful defendant expressing regret and repentance. And it certainly annoyed the prosecuting barristers, who increasingly spoke of her with derision when the jury (and the judge) were out of the room. She was too posh for her own good, too used to having her own way. I often thought it could have gone differently. The higher courts in England are constructed around privilege, and Marten came from the right background. She knew these public-school types from childhood and should have been able to fit in, to make her privilege work for her. But she seemed determined to sabotage her social advantage. She treated the barristers with disdain (including her own barristers). She refused to acknowledge that anyone had the right to judge her, which is a tricky position to take in a courtroom. The court fought back.

One morning she refused to get in the prison van because it was ‘too cold’ – the heating system was broken – and scornful jokes about silver spoons came thick and fast, until we heard that she wasn’t the only prisoner to have refused. Either Bronzefield prison was home to several aristocrats, or the van really was too cold. And it was hard to see how this portrait of Marten as a pampered aristo, manipulating the system, could be reconciled with the image of her as a victim of coercive control, under the sway of a dangerous partner. It seemed to me that the only way she could get in the prison van at all was by persuading herself there was still something to fight for, some sliver of a future. She had substituted hope for rage, and only rage was keeping her alive.

Marten carried her rage around with her in a blue ring-binder, bulging with papers. Whenever she was brought up into the dock or went down to the cell for a ten-minute break the file went with her, clutched to her stomach for all the world, as the mothers on the press bench said, as though it were a baby. On first entering the witness box she crossed the courtroom holding the file and began nervously to shuffle the papers. When the judge told her she could lay it aside, she wouldn’t be needing it, a look of panic crossed her face. These papers proved the monstrous behaviour of the state towards her and her partner, proved that their only option had been to hold out on their own.

There was no question in Marten’s mind that the ‘services’ were to blame for the death of her daughter: the social workers and lawyers at the family court who had removed her children from her and who had in effect forced her and Gordon to take such desperate measures. But it wasn’t only that she wanted people to know about it, she wanted something to be done about it. She described the removal of children from their parents as a money-making racket on a par with the Post Office scandal. She looked across from the witness box at the journalists on the press benches and asked whether there were any ‘worth their salt’ prepared to investigate the private companies profiting from children in care. She was still fighting the family court battle, and the dreadful suspicion in the courtroom was that she had not yet realised it was too late.

Only​ certain facts from the family court judgment that led to the permanent removal of the couple’s first four children could be discussed before the jury. In laying out the case, Tom Little argued that Marten and Gordon’s behaviour had precedent. As the family court judgment would show, ‘they acted in exactly the same dangerous and selfish way [when Victoria was born] as they had done before – except this time with fatal consequences.’ The children had been removed, according to the judgment quoted by Little, not because they had suffered harm, but because of the ‘risk of harm’. Judge Reardon’s ruling followed a series of investigations and hearings that took place between November 2019 and January 2022. She found that the children were at risk on five points: their parents refused to access antenatal and perinatal healthcare; there had been an incident of domestic violence in November 2019, during which Marten had suffered serious injuries; the couple had evaded local authority investigations (and Marten had absconded to Ireland with the children in late 2019); Gordon’s ‘propensity to violence continued to pose an ongoing risk of harm to the children’; and they had put their own relationship above the interests of their children.

Judge Lucraft insisted that the Old Bailey was not a forum for relitigating the decision of the family court, and this was clearly a relief to both defence teams, who were worried about the way the couple would appear if more details of their previous behaviour were revealed to the jury. But this put Marten in a difficult position in the witness box. The jury had been told about an incident of domestic violence, which she denied, and the prosecution were taking every opportunity to suggest that the decision to remove the couple’s other children was proof they couldn’t be trusted. But for Marten the family court judgment was mitigation – it explained everything. All the actions she had taken since deciding to have a baby in secret in the spring of 2022 were driven by her conviction that the family court was corrupt and that her other children had been sacrificed to a punitive and deeply unfair system.

The incident mentioned in the family court judgment, which had involved social services in the family’s life for the second time, was this: in November 2019, when Marten was three months pregnant with her third child, she fell from a first-floor window in the early hours of the morning, suffering a ruptured spleen and injured kidney. Marten claimed she had been trying to fix the TV aerial (there was a loose aerial at the window), but the neighbour who called the ambulance said he had been woken by screaming and on going to his window had seen Marten fall. When paramedics arrived, Gordon at first refused to allow them to attend her and then made the situation worse by barring the door to police or social workers in the days following the incident, rather than allowing them to see that the children were being looked after properly. This was particularly odd because if they had been allowed in then some of their fears might have been allayed. The same month, Gordon’s ‘offender manager’ (his contact for the Sex Offender Register) paid a call and reported that ‘he had seen the children in the home environment, and had no concerns. The home was warm and tidy.’

Over the course of the two-year investigation that followed, both Marten and Gordon declined to engage with assessments and refused the appointment of experts, on the grounds that the ‘threshold criteria’ required by the 1989 Children Act had not been met. The court had no right to intervene in the family, they said. Social workers characterised some of their decisions as harmful (such as their refusal to immunise their children or to take them for regular NHS health checks) while Marten insisted these were their decisions to make. The family court judgment records Marten and Gordon’s repeated requests for adjournments and their failure to turn up to meetings. They sacked their lawyers, gave false information, came up with a variety of excuses (from toothache to car accidents to Covid) to explain their absences; they declined to give evidence and accused social workers of keeping inaccurate records. This was the same behaviour they exhibited in their manslaughter trials, and one has to wonder: hadn’t they learned where this would lead? They lost every time, yet they kept on resisting and obstructing.

During Marten’s cross-examination in the first trial, she explained that in their dealings with social services they were following the recommendations of a man called Ian Josephs, who is based in Monaco and who offers ‘free legal advice [on] forced adoption, secret family courts, British social services or social workers’. Josephs propounds a number of Golden Rules, including the recommendation that parents should refuse to engage with child protection services and should not let social workers into their home. (He also recommends fleeing to Ireland in emergencies and to North Cyprus). This advice was entirely counterproductive. In the judge’s opinion,

the parents were deliberately evading putting themselves in a position where they would be required to challenge the local authority’s evidence, and … they were also desperately anxious to avoid giving evidence themselves. In the end the mother did give evidence but refused to answer many of the questions put to her, including all questions relating to the more serious allegations made by the local authority. The father declined to give evidence at all.

Some aspects of their evasive behaviour were explicable, if ultimately self-defeating. They couldn’t attend in-person hearings when Marten was pregnant because they wanted to keep the fact secret, hence the elaborate excuses and repeated requests for delays. Some of their decisions were more baffling. When their third child was born, Marten was offered a residential placement so that she could stay with her baby, but she refused on the grounds that ‘she did not think that the various providers suggested were suitable,’ a rationale the judge deemed not credible. Her baby was taken from her and placed in foster care. On the birth of her fourth child, she again declined a residential placement, and the child was fostered until a final ruling determined all four children should be adopted. Although I didn’t understand her reasoning – wouldn’t you do anything to stay with your child? – I have spoken to women with experience of residential placements who sympathised with Marten’s decision. They described the placements as ‘worse than prison’, and ‘factories for making judgments’. Marten had complied with residential placements in Wales, in 2017, after the birth of her first child. Perhaps she felt she couldn’t go through that again.

One of the claims made by the local authority was that the couple’s relationship was shaped by Gordon’s coercive control over Marten. Judge Reardon wasn’t convinced. The parents presented a ‘united front’, she said, and indeed it could be argued that Marten was the one in charge:

My impression during this hearing has been that it is the mother and not the father who has been the dominant personality within this couple, and certainly it is she who has taken the leading role in presenting their joint case. Repeatedly during the hearing, when trying to hear from the father, I would have to ask the mother to refrain from whispering instructions to him. When prevented from whispering, she would mouth the words to him to repeat. On one striking occasion I happened to ask the father rather than the mother about a car accident the parents alleged they had just been involved in. The father looked towards the mother for help, but she was a few feet away. I could hear her whispering but could not hear what she was saying and nor, it appeared, could the father. He froze and appeared unable to speak at all. In the end he simply said, in answer to my questions: ‘I can’t explain, I can’t tell you.’

Marten’s evidence in the first manslaughter trial shed some light on the couple’s deep distrust of authority and their misguided attempts to outwit the system. After the older two children were placed in foster care, Marten and Gordon were granted regular visits. According to Marten, she noticed in late 2020 that the social worker’s reports of these visits were inaccurate: she believed it wasn’t being noted that one of the children was distressed and clung to her leg when it was time to leave. To fight the care order, Marten requested that the contact visits should happen in a centre with CCTV, so she could prove the children were unhappy at the foster home and wanted to be reunited with their parents. Her request was denied – no centres with CCTV were available, she was told. The couple responded by refusing to attend visits until a centre with CCTV was found. For three months at the end of 2020 and early 2021, they stood their ground. This refusal was later used against them in the family court as evidence that they were unreliable parents. Again, Marten was in combat mode, fighting a battle and losing the war. And her account wasn’t the whole truth. There were many other occasions when they failed to turn up for visits. This ‘lack of commitment and inconsistency’ was causing their children emotional distress, Judge Reardon ruled. When they did spend time with their children, ‘the quality of contact on the whole is excellent,’ social workers reported, with ‘abundant’ evidence of ‘both parents’ ability to create a warm and comfortable environment for their children’. But too often they just didn’t show up.

Behind the anger directed at social services was Marten’s rage towards her family. When giving evidence she accused them of being ‘bigoted’ in their disapproval of her relationship with Gordon (they wanted, she said, to ‘erase’ his children from the family). She made what at first appeared to be outlandish claims, all of which were subsequently upheld: that both sides of her family had employed private detectives to follow her; that it was her father, rather than social services, who had initiated proceedings to make the children wards of court in 2019; that her family had stated they would look after the children but then changed their minds, leaving them to be adopted by strangers. (‘That’s one of the reasons I no longer speak to my parents,’ she said in the retrial, ‘because they were the ones who instigated them being removed from me. I begged them to come forward but they refused, they didn’t want them in the “family line”.’) As the family court documents show, Marten’s mother, Virginie de Selliers, did offer to take the older two children shortly before the final hearing, but over the weekend changed her mind and proposed instead that ‘if the parents were to separate, the maternal family would be available to support the mother practically, emotionally and financially.’ Marten also claimed that one of the children was physically abused by a foster carer, an accusation that was confirmed by the prosecution during the course of the first trial.

I was initially puzzled to see that on most mornings during the first trial, de Selliers sat not in the public gallery, where the relatives of defendants usually follow proceedings, but in the well of the court where the victim’s relatives sit. Occasionally she was accompanied by one of her sons. The triangulation of relationships was tricky to work out. De Selliers was there as the family of her deceased granddaughter – the victim. But her daughter was on trial alongside the man de Selliers blamed for everything that had happened, and her daughter refused to look at her. Not once did Marten turn her head in her mother’s direction. Given everything else she had to think about during the trial, this was a determined feat. She was letting her mother know, in public, that she wasn’t going to forgive her, that she would never acknowledge her. In an odd twist of courtroom dynamics, both Marten and her mother were classified as bad mothers who did not care sufficiently for their children. They were both in the dock for their failures, but only Marten was on trial.

If Marten had seen her mother’s appeal in February 2023 – ‘I want to help you and my grandchild’ – the phrase ‘my grandchild’ must have rankled. It struck me as an oddly possessive choice of words to use, especially if you knew that your daughter was aware you hadn’t taken in her other children. Did de Selliers not consider the four older children her grandchildren? But it’s unlikely Marten saw or heard her mother’s appeal. In the weeks after Victoria’s death, as she told the court, she and Gordon were ‘living like rats’, hiding in the woods and rifling through bins for food.

What wasn’t alluded to in the first trial, by Marten or anyone else, was Gordon’s rape conviction. The judge had banned any mention of his past in front of the jury and in all reports of the trial. But if one knew about it, one couldn’t help feeling some sympathy for Marten’s mother. And it was hard not to imagine that at least some members of the jury remembered the sensational news coverage of it when the couple were on the run. In January 2024, Gordon’s defence barristers applied to have the case dismissed on the grounds that a fair trial would be impossible given ‘the extent and the adverse nature of the publicity’ a year earlier. The judge refused the application, stating that people who knew about the story in any detail had been excluded from the juror pool and that the jury comprised twelve suitably uninformed members of the public. But Gordon’s criminal convictions hovered just out of sight throughout the first trial, and they seriously undermined the second.

The story​ of these convictions is shocking, and not only for the crimes themselves. Gordon was fourteen at the time and in the care of his 24-year-old brother in Broward County, Florida, while his mother was in New York. Sylvia Satchell was Jamaican but had lived most of her working life in England. Mark was her fifth and youngest child, conceived with a man who had another family while she was going through a divorce. Mark met his father only once, when he was seven, Satchell explained to a state defence attorney in January 1990. She also told the attorney that when Mark was four years old, he had been sexually abused by a male employee at his nursery in Birmingham. She was advised not to talk to him about the abuse, in the hope that he would forget about it. They lived for two years in New York, and had moved to Florida, where they had relatives, shortly before the crimes took place. Mark hadn’t settled in school, Satchell said. He started skipping lessons; his room was a mess; he had no friends. She had asked for the school to arrange for him to see a counsellor, but nothing happened. Glenn Caddy, the forensic psychologist appointed by the Broward County public defender to evaluate Gordon at his sentencing hearing, reported that he spent all his time reading porn and watching the Playboy channel at home, while his brother – with whom he did not get on – was out at work.

At around 5.30 a.m. on 29 April 1989, Gordon broke into the house of a neighbour who lived alone with her two young children. He detained her for more than four hours, forcing her at knifepoint to have oral sex with him (he was a virgin and couldn’t have the penetrative sex that was his apparent goal). Three weeks later, he broke into the house of another neighbour, armed with knives as well as a garden shovel, and entered the bedroom, waking a sleeping woman. She screamed and woke her husband, who fought with Gordon before he escaped out of a window. None of the neighbours identified Gordon, but following an anonymous phone call, detectives started visiting the house he shared with his brother. On the third visit, Gordon told them: ‘I was in her house.’ He was taken to the police station, where he made a taped confession. Many of the details in his confession didn’t tally with the rape victim’s account; he did not see a lawyer and he gave his statement without an adult present. He later said he believed he would be released if he confessed. A court-appointed psychologist reported his account of learning he was to be taken to a detention centre: ‘I thought I was going home. And the guy at the desk said, not with these charges you aren’t.’

In June 1989, Judge John Miller presided over a ‘waiver’ hearing to decide whether, given the seriousness of the charges, Gordon’s case should be transferred (‘waived’) from the juvenile court to an adult court. A psychologist who interviewed Gordon recommended a residential programme in the juvenile system; he assessed him, the defence attorney reported, as ‘not as mature as a normal 14-year-old’. The state attorney disagreed, attributing Gordon’s dangerous maturity, in part, to his having lived in the Bronx and abroad: ‘We have a child that is very difficult to call a child. This is someone that has lived in New York City, in the Bronx, for a couple of years, someone that’s lived overseas, somebody that, although his mother describes him as not socialising much with people his own age – as being more of a loner – somehow he gets out of that house … the community needs to be protected from this child.’

Miller ruled he was to be tried as an adult. Gordon was advised to plead guilty, although it is unclear how his defence thought this would benefit him. As his new attorney explained to the judge, ‘the prosecutor and I have been unable to come up with what I feel is a reasonable plea offer so I’m just going to present what evidence I have at the sentencing hearing and let you make the decision.’ Gordon was asked whether he understood the proceedings. Did he know that he did not have to plead guilty, that he could have a jury trial? Did he understand what a jury trial was? He answered yes. But he was also asked whether he had ever been treated for a mental illness, to which he answered seriously: ‘Yeah, for like a cold.’

By the time of the sentencing hearing in March 1990, Gordon was fifteen and had spent ten months in detention. The defence psychologist described him at the hearing as a boy with a ‘tunnel focus around his sexuality’. He was, he argued, not ‘an immoral kid, or a sociopath’, but a naive and embarrassed child who needed strong supervision. He was ‘not a usual sexual offender’ and ‘at his age, most definitely he’s salvageable.’ He suggested a foster placement, but thought it possible he could be treated at home: ‘If his family can in fact provide the sort of supervision that’s necessary, then Mark is going to need some competent professional care surrounding the entire matter of his specific abhorrent approach to sexuality.’ He was against incarceration: ‘What we will be doing is creating a system wherein the chances of him being well integrated into society as an adult may not be terribly good.’ This sanguine assessment was based on Gordon’s account of the rape, which he seemed to understand as partly consensual. He had put down the weapons, he said, then he and the victim had lain on the bed talking; there was even a suggestion that he had invited her to stab him in a kind of game. Some hours into the ordeal she heard her children moving in the next-door room and asked to be allowed to go to them. According to her own account, she dressed and Gordon nodded in assent when she went to the door. He was apparently surprised that when she got outside the room she started screaming.

What the defence psychologist interpreted as the behaviour of a misguided and immature boy who ‘simply misread the cues’, the victim experienced as four hours of torment at the point of a knife. Because Gordon pleaded guilty, there was no trial and neither account was tested in court. The psychologist for the prosecution based his evidence on the testimony of the victim, whose account, he said, had all the marks of a ‘sociopathic sadistic rape where the victim is subjected to torture and fear’. He insisted on describing Gordon as a sociopath, even though his role was only to describe the psychological effects on the victim: ‘If we listen to some of the fear, we just see all that fits the definition of a sociopath.’ And he argued that Gordon’s ‘sadistic manipulation of a victim’ put him in a select category of violent sexual offenders: ‘That’s your Ted Bundys, your Wilders, that obviously enjoy it. So it’s something that actually fuels them. They are a progressive kind of rapist that would go, I expect, from just raping to raping and murdering.’

Ted Bundy was responsible for more than thirty murders; Christopher Wilder abducted twelve women and girls in 1984 and killed eight of them. The prosecution psychologist suggested not only that Gordon would do it again, but that there was no proof he hadn’t done it before. In her statement, the victim asked the judge to ‘show him no mercy’, and he didn’t. The ‘predisposition report’ recommended sentencing Gordon as a youthful offender, but the judge said he couldn’t ‘agree with that at all’: ‘The likelihood of reasonable rehabilitation if he is assigned to juvenile services and facilities in my opinion is nil.’ He sentenced him to four terms of life imprisonment, to run concurrently, and a fifteen-year tariff for aggravated battery. Gordon’s mother couldn’t comprehend it: ‘What … you are sending a 15-year-old for life? Is that what you are saying?’

One of the​ striking things about all this gathered material is that Gordon almost never speaks. He is spoken for by the police, his mother, the psychologists and the lawyers, and he occasionally answers a direct question from a judge. But he is so silent that it is easy to forget he was in the courtroom during the hearings. Two years after his sentencing, a defence attorney brought a ‘motion to suppress confessions, admissions and statements’. Gordon argued that he had been intimidated and had confessed out of fear; he had signed the form waiving his juvenile rights because he felt he had no option. It seems that 1989 was the last time he said ‘yes’ to someone in a position of authority. His demeanour during the two Old Bailey trials was one of refusal. He had two methods of signalling his resistance. The first was to say nothing, and stare at the ceiling, as he did during the first trial. The second was to talk over people, repeating himself and rambling for what could seem like hours, as though he were trying to bore the opposition into submission. Neither strategy got him anywhere, and maybe that was the point. Barring about eleven years following his release and deportation, Gordon has spent nearly the whole of his adult life in prison. Neither silence nor talking can have been an effective method of resistance against a regime that required inmates to conform or be punished. In the courtroom, they were empty gestures of defiance.

Gordon was sentenced to life in an adult prison because two judges (at the waiver and the sentencing hearings) rejected the risk assessments of the psychologists who had met him and who argued he should be sentenced as a youthful offender to a residential rehabilitation centre. He was sentenced instead as ‘a child that is very difficult to call a child’, someone ‘that fits the definition of a sociopath’ and ‘a progressive kind of rapist’. I don’t have the figures that would allow me to state definitively that had he been a white 14-year-old things might have gone differently. But it is clear that the psychologist who feared he would struggle to reintegrate into society if he was incarcerated in an adult prison was right to worry. During the first trial, John Femi-Ola KC, Gordon’s defence barrister, made a short but impassioned speech (in the absence of the jury) about the imperative to keep Gordon’s history away from the court. For many people, and for the state, the offence of rape puts someone beyond the possibility of rehabilitation. The ongoing risk associated with sexual offences is codified in the Sexual Offences Act 2003, which required that Gordon give his details to the police whenever he stayed longer than seven days in an area. As the legal scholar Lucia Zedner has argued, this method of control creates ‘shadow’ forms of punishment for those judged to have a propensity towards crime. What, Femi-Ola asked the court, did this mean in practice? If you made a series of terrible errors at the age of fourteen, and paid for them with twenty years in jail, could you never have a child? Could you never be considered sufficiently responsible to be allowed a relationship?

For Marten, Gordon’s history was one of victimisation. ‘I am very protective over [him],’ she said. ‘I feel he gets blamed for everything.’ Here class was relevant. Marten was not prepared to be treated as someone who could be told what she could and could not do. Little accused her of an ‘upstairs-downstairs mentality’. The press gossip about her at the beginning of the trial, mean as it was, did get at something. Marten behaved as though she couldn’t believe this was the way ordinary people were treated. She clutched her file of papers because she was convinced – and maybe still is – that explaining the situation would make people see things her way.

As Marten knew, women the world over have got into fights with their partners, have been hurt, have been enraged, and afterwards have forgiven them (or tolerated it) because life is complicated. I’ve done it, and though I might regret it for other reasons, I was not at risk of having my children removed because of it. Marten was in court because she could not accept the way the authorities treated people without status. Most people in her position – including the majority of those who come before the family courts – would not have the resources, or the self-belief, to fight.

The loss of Marten’s five children stemmed, as she saw it, from structural injustice. Her husband was black and a convicted sex offender; he was always going to be in the wrong. Since nothing could redeem him in the eyes of the law, or her family, it was up to her to believe in him. ‘Why won’t she say the thing that will get her off?’ a barrister unconnected with the trial asked me one day in the lunch queue at the Old Bailey. What he meant was, why doesn’t she say she was forced into it? If she blamed Gordon, she might get off. But he was her cause as well as her partner. She was not going to betray him.

Gordon’s failure to comply with child protection services (barring the door to social workers, refusing to answer questions, failing to turn up to meetings) required the officers assigned to the family to take further action. All their red lights were flashing, and he did nothing to reassure them. Their duty was to measure ‘risk of harm’ to the children, and Gordon’s previous convictions meant the risk was already considered high. He was branded a character with ‘a propensity to violence’ and his failure to complete annual risk assessments didn’t help. As a result, by default, he remained classified as high risk.

As the criminal justice theorist Nicola Lacey has argued, assumptions about bad character (once central to attributions of guilt) are ‘enjoying a revival’ in English and American ideas of criminal responsibility. We like to think that defendants are punished for what they have done, or attempted to do, not for who or what they are. Doubts about character have long formed part of predictive policing and offender profiling (Stop and Search, for example) – all covert and morally questionable forms of what the police call ‘riskwork’. But recently, according to Lacey, ideas about character have crept back into the courts. They are at the heart of civil orders aimed at preventing harm, which, once breached, can result in a criminal conviction. She points to sex offender notification requirements, control orders ‘on those suspected’ of being terrorists, Asbos, travel restriction orders, Imprisonment for Public Protection orders, detention rules and the expanded admissibility of evidence of bad character (under the Criminal Justice Act 2003). In all these cases, defendants are liable to be punished on the basis of assumptions about character, rather than conduct (or intention).

Lacey attributes this shift in part to public pressure. She describes an electorate ‘informed by a scientific culture which has made it optimistic about the power to control risk … it is, hence, rather intolerant of it, and rather insistent on government efforts to control it.’ One way to satisfy this insistence is to control ‘risky’ characters. But what was striking, particularly during the first trial, was the jury’s reluctance to abandon notions of conduct and intention in their deliberations. Everyone attending the first trial agreed the jury was unusual, not least because of the number of questions they asked. The kinds of question, especially after they had retired, were notable too. These sometimes concerned matters of fact but more often they were about states of mind: ‘What is the meaning of “intention”?’ ‘Can you define “wilfully”?’ This was a jury that seemed to understand very well that the battle in the courtroom was between character and conduct, and they were trying to separate the two.

Relatively early in their deliberations the jury gave guilty verdicts on the two more minor charges facing the defendants: concealing the birth of a child and perverting the course of justice. But when it came to deciding on the charge of child cruelty, they ran into difficulties. From the questions they asked, it appeared they were trying to distinguish sustained and deliberate cruelty from haphazard, one-off behaviour. They weren’t arguing about the facts but about what the facts relayed about human behaviour and the role of contingency. Does the behaviour need to be persistent, they asked? The judge told them it did not, that a single instance of neglectful behaviour was enough to warrant a guilty verdict on child cruelty. In effect, he took the question of intention out of it. If they were convinced that the couple had neglected their child on a single occasion, either by exposing her to the cold or falling asleep in a dangerous manner, that was enough to find them guilty of cruelty. When the jury came in to deliver their guilty verdict on that charge, it was clear that several of them had been crying. One juror mouthed ‘sorry’ to Marten in the dock.

They could get no further. In June 2024, the jury foreman announced to the judge that they were at an impasse. They could not agree on the charge of gross negligence manslaughter, and so the judge thanked them for their six months of hard work and discharged them back to their lives. A retrial, with a new jury, was scheduled for March this year, to decide on the final two charges: were Marten and Gordon guilty of manslaughter, or, failing that, of causing or allowing the death of a child? Or was Victoria’s death an accident?

The tenor​ of the second trial was wilder, less disciplined. For seasoned court observers this was remarkable in itself: the first trial had been mayhem; it was hard to imagine more chaos. But everyone was angrier. No one wanted to be back there again. The failure of the prosecution to convince a jury of the manslaughter charge might have given the Crown Prosecution Service pause. Was it in the public interest to attempt a retrial on the same charges? But rather than rethinking the charges, the prosecution came back with a slimmed-down case. They kept the two alternatives of death from hypothermia and death from co-sleeping, but this time placed much more emphasis on co-sleeping, arguing that Marten’s exhaustion was in itself a form of negligence.

The defendants had spent another eight months in prison awaiting the retrial and it was clear their mental stamina had suffered. Marten in particular seemed unwilling to go through it all again. She complained of toothache so severe she couldn’t attend court but refused treatment when it was offered. She yawned theatrically when being taken through her evidence by FitzGibbon, who she seemed now to believe was against her. She refused to continue giving evidence after one especially tetchy exchange under cross-examination, but not before an intervention that seems to have been designed to scupper the trial altogether, when she announced from the witness box that Gordon had a conviction for violent rape. No one reacted while the jury was present. Judge, barristers, journalists – everyone held their breath. FitzGibbon attempted to carry on as though nothing had been said. So she said it again: ‘violent rape’.

Once the jury had been sent out, the courtroom erupted. Joel Smith accused Marten of ‘a deliberate attempt to take a wrecking ball to this trial’. If so, she had miscalculated. The next day, the judge acceded to an application from Gordon’s counsel to discharge the jury in his case, since a fair trial would now be impossible. Marten, who seemed to have been looking for an opportunity to show her displeasure, sacked her barristers (she later reappointed her junior counsel, Tom Godfrey, who became the lead barrister in her defence). Gordon, realising that he would have to wait another year to be tried on his own, called out from the dock that he couldn’t cope: ‘I can’t handle it!’ He begged for the trial to continue. ‘Don’t worry about the prejudice! … You are a fair judge, I believe you will make this a fair trial!’ Judge Lucraft, who had just decided Gordon could not get a fair trial, changed his mind and said he could. It was total chaos, but the situation was to grow even worse when Gordon sacked his barristers and chose to represent himself.

The judge had his head in his hands. He was barely able to control proceedings. Gordon was given a microphone so that he could be heard from behind the glass wall of the dock. He stood to speak and held the microphone up close, his delivery somewhere between that of a Southern preacher and a nervous person stumbling through a question at an academic conference. He complained about the lack of support he was given as a person conducting his own defence. He repeatedly asked for a copy of ‘Archibald’, though the judge pointed out that the latest edition of Archbold’s guide to criminal law, which runs to three thousand pages, would not be much help to him. (Gordon was given print-outs of relevant pages, which he carefully folded and put in his trouser pockets.) He kept on asking for more time to study the law. When he was given another day, or a weekend, he asked again for more. At one point, the judge inquired whether he wanted three years to take a law degree, which expressed the frustration everyone in the courtroom felt. Would this ever end? Gordon spoke a lot about fairness and justice, and alternated between complaining (mainly when the jury was absent) that the process was ‘unfair’ or ‘not fair’ and offering rhetorical flourishes on the nature of truth and the laws of England. It was difficult to gauge whether his aim was to frustrate the legal process, or whether he had any aim at all:

This is not the correct format from Parliament [of a document prepared by the judge] . . . This language is not lawful … It’s not fair … It’s unfair … I stand in truth and this is not lawful … I’m in this courtroom and I’ll say I came here for justice from our great king in his justice and compassion … I plan to challenge this case. I ask the king in his mercy, and those who work for, him to help me.

I don’t know what kind of education would have been available to Gordon as a 15-year-old in the US prison system. While Marten scribbled notes and consulted documents throughout both trials, Gordon never looked at the papers he carried in a bulging plastic bag. When he was given court documents, he folded them over and over and stashed them in his pockets or bag, but he clearly had no system. Now, as a litigant-in-person, the judge required him to write out his questions to witnesses and to his co-defendant in advance, so that he could check they were admissible; to provide a copy of the evidence he wanted to give in his own defence; and to submit for approval his closing statement to the jury. These were tasks of which he was barely capable. Initially he had the help of a solicitor, who typed the questions he dictated. But after some days she recused herself (we weren’t told why) and he was on his own. He read slowly and found his own handwriting difficult to decipher – a task made no easier by the fact that he plainly needed reading glasses.

He peered closely at his pages of notes and kept getting lost. He continually harped on the culpability of the police for instigating the manhunt (‘those are the ones we should be looking at’), even calling for a public inquiry. He rehashed in agonising detail the arguments about tents and temperatures and insisted that going onto the South Downs was not ‘something that we chose to do out of our volition, it was more of a force situation … For us it was a crisis of our baby being taken away from us … The crisis happened upon us, we tried to mitigate the circumstances as much as we could.’ Of the period after Victoria’s death, he said:

We were in great distress … I couldn’t have anticipated that … We’ve had four children, and she’d never have caused the death … I didn’t know how to manage the situation. I didn’t feel like she was responsible in that it wasn’t intended, and it wasn’t predicted … I think things happen sometimes … If I could have predicted it, I would have done something … How could I have foreseen that?

Whatever else, he didn’t appear to be lying. And there were moments of real affection in his cross-examination of Marten – surely one of the most unusual scenes in the history of the Old Bailey – as they swapped between first and third person. ‘Did your husband play with the children?’ he asked. Marten laughed and replied: ‘Yes, you did.’

Had Gordon limited his evidence to making the same points made by Marten a bit less skilfully, it might not have done him much good, but it would probably not have done him any harm either. But he began his address with a series of statements that were to cause a great deal of damage. He chose to begin his account by claiming that he had not had a deprived upbringing, which was odd since it hadn’t been suggested he had. He said his mother was a nurse who had taught him empathy and compassion. On the press bench we scratched our heads over why he was offering this little titbit from his childhood. Marten’s counsel had invited her to talk about her childhood, which she had described as rich in money and poor in affection (‘There wasn’t a lot of love’). Perhaps Gordon thought this was the way it was done. Perhaps it was a defensive, rhetorical claim of personal pride, his way of saying: ‘Don’t pity me.’ It may have been a pre-emptive gesture: he had been sentenced to life as a 15-year-old in part because a psychologist had argued that he was a sociopath who must be locked up for the safety of others. Perhaps he was trying to show he wasn’t a sociopath. But whatever the reason for the claim, it was a mistake (one that a barrister would have warned him against). When Gordon finished his evidence and the jury went out for a break, Tom Little immediately jumped up to argue that Gordon was misrepresenting his background, and therefore the details of his violent crimes could be placed before the jury as a corrective.

Gordon was dumbfounded. He called out from the dock in evident confusion that he did have empathy, he wasn’t trying to big himself up, he never said he was perfect, he didn’t say he didn’t have any convictions, he was just trying to talk about his early childhood. He offered to get on the stand and tell the jury he took it all back, to say he didn’t have empathy if they wanted him to. He didn’t think the jury was really listening to him anyway, and he hadn’t meant to suggest he was other than he was. Had he had access to the guidelines on bad character, he said: ‘I would have informed myself, don’t even go there Mark. I would have set parameters for myself.’ And then he asked: ‘How can you determine whether I have empathy or not? … Every human being has empathy.’ Gordon seemed to be implying that Little saw him as not fully human. Even though Gordon’s mother wasn’t in the courtroom, she too was in the dock. She couldn’t have been a good mother (who taught her son empathy) because to have had a good mother and commit a violent crime throws into question everything we know about criminal behaviour.

As Gordon tried to reverse what he had said in the witness box, Little retaliated: ‘That ship has sailed.’ Later, it was: ‘We have crossed the Rubicon.’ Gordon had handed the prosecution an opportunity, and Little was going to take it. The judge ruled that the two American convictions, and a more recent conviction for assaulting police officers in Wales, could be adduced in ‘limited’ fashion. When Gordon returned to the witness box, he was defeated. ‘I’m done,’ he said. ‘I’m not answering questions.’ And the courtroom reached a new level of anarchy.

Gordon was completely out of his depth. While Marten refused to be spoken for by her counsel, Gordon was lost without someone to represent him. The prosecution argued that since there was going to be no cross-examination, they would bring oral (hearsay) evidence of the previous convictions, which they could do if Gordon agreed that he had been convicted. Gordon kept calling from the dock: ‘I oppose, I oppose.’ It was unclear if he was saying he didn’t agree to having the convictions mentioned, or he didn’t agree there were any. The judge accused him of ‘antics’ and spoke to him like a headmaster: ‘This is not a game.’ Through the whole of the ensuing discussion of legal rules and arguments, Gordon sat blankly. It was a game, but only if you knew how to play according to the rules. When asked by the judge if he had anything to say, he said simply: ‘I don’t understand.’ Here’s a flavour of a typical exchange:

Judge: Mr Gordon?

Gordon: Yes? … I don’t know what you mean … I just received this [document] fifteen minutes ago. My solicitor has left me. I need more time.

Judge: You don’t accept you were convicted in America?

Gordon: I oppose this application. I don’t have a solicitor …

Judge: At no time in these proceedings has there been any challenge to your conviction. This isn’t law; this is fact.

Gordon: I can’t talk about facts, I can only talk about now … I’m opposing all of this stuff … I need an opportunity to consult the law.

At this point, Marten’s junior counsel attempted to cut through the disorder by suggesting that Gordon disputed not the fact of his rape conviction but the facts of the case. He quoted a statement by Gordon’s offender manager, from August 2016, in which Gordon disputed that he was an active risk: ‘He says he didn’t commit the offences … [he was] let down by legal reps [representatives].’ But Gordon had lost the opportunity to challenge his history by declining to be cross-examined. Eventually the court moved on to his convictions for assaulting two police officers, offences to which Gordon had pleaded guilty:

Judge: Mr Gordon?

Gordon: What is it that you want from me? What do you want me to do?

Judge: Do you accept that you were convicted in the magistrate’s court in Wales?

Gordon: I don’t accept this … I really need a break … This is a bit much for me … My solicitor walked out on me … It’s been a long day.

Judge: It’s going to be even longer.

Gordon: I need a bit of assistance here. It’s not an easy thing. It’s … I can’t actually talk about these matters. I need a rest. I would like to come to back to this.

Judge: Do you accept that you pleaded guilty to various offences in Carmarthenshire?

Gordon: No.

These exchanges did not take place in front of the jury, but they were nonetheless a disaster for the defendants. First, the details of the two Florida convictions were read out to the jury. Then the prosecution called as a witness one of the police officers who had attended the hospital in Wales. Marten had been posing as ‘Isabella O’Brien’ and everyone in court had marvelled at her ability to maintain an Irish accent throughout labour. But Gordon had not gone to drama school. When he was taken into a side room in the hospital and asked for his name and date of birth, he wrote down ‘James Amer, 31 April 1987’ – whereupon the police officer pointed out that there were only thirty days in April. She told the jury that he began rocking back and forth on his chair and muttering to himself. Marten must have drilled him in what to say, and he knew he’d blown it. He made a dash for the door and as the officers grabbed him, he forced his way out and ran down the corridor towards the ward where Marten had given birth that day. He was overpowered in the corridor with the help of a new father who ran out of a ward to help. He was charged with two counts of assaulting a police officer, and in the family court papers this went down as proof of his propensity to violence under stress.

The jury​ in the retrial did not take long to reach its verdicts, unanimously finding both defendants guilty of gross negligence manslaughter. The offence carries a maximum sentence of life imprisonment. Marten and Gordon will be sentenced in September. The jury had been a dutiful group, turning up on time each day for a trial that was scheduled to last eight weeks but went on for more than twice that. The first jury had deliberated for 72 hours and failed to agree, but I was not surprised by the speed and clarity of the second jury’s verdict. The prosecution’s case was tighter in the retrial, and the defendants were totally out of control. In effect, they refused the jurisdiction of the court, and the jury had no sympathy with that.

But I am still left feeling puzzled as to why the case was brought, and how it could possibly have been in the public interest. Was there an element of revenge on the part of the Crown Prosecution Service, a determination to put them in the stocks for all that run-around? In the end, the CPS got the result it wanted, at enormous cost, but it failed to get Marten and Gordon to accept the legitimacy of the court, or to acknowledge responsibility for what happened. Nobody learned anything. The case will not serve as a warning to others. Instead, the courtroom functioned as an arena in which the public (by which I mean not only the jury but the police, prosecution and other members of the panoply of justice for which the public has voted) could perform its horror at the behaviour of a deviant couple who had risked the life of their innocent child. The righteousness of the media coverage in the wake of the verdicts is testament to a wave of public revulsion against negligent, selfish parents. The verdicts allow us to feel virtuous about our attempts to keep everyone safe in a society that is, as Mary Douglas put it, ‘almost ready to treat every death as chargeable to someone’s account’. We feel shame about the ruthlessness of life for blameless children, and we want to know something is being done about it. But there is more than irony in the fact that it was in a public nursery that Gordon was abused as a child, and that one of the couple’s children was physically abused in foster care. Victoria’s death needed to become a crime for the public to feel safe in a vertiginously unsafe world. It took two trials, and a juggernaut of over-prosecution, to get that result.

In order to prove responsibility for the death of a baby on the South Downs in January 2023, each side unspooled a protracted history, though the prosecution case worked backwards from Victoria’s death, while for Marten at least, events progressed forwards. Where the prosecution worked retroactively to determine blame, Marten saw her history, beginning with her parents’ refusal to accept Gordon, as progressively exonerating her from responsibility. Perhaps she starts even further back, with Gordon’s Florida convictions, or in her own childhood. She believes her hand was forced by illegal interventions and a long-drawn-out process of risk assessment whose validity she rejects. Nor does she accept the courts’ right to judge her. She refuses any jurisdiction over her moral life, or what she calls her family’s right to privacy, and it was this attitude the courtroom could not countenance.

Marten’s analysis was structural, based on systemic factors rather than individual agency. She acknowledged she may have been the immediate cause of her daughter’s death through falling asleep on her, but denied that she was the morally responsible agent. For the prosecution, the couple’s responsibility for their daughter’s death hinged on the fact that the risks were obvious. They should have known better, and they should have acted differently. It was as though the prosecution were functioning in a 19th-century novel, where the emphasis is on character, foresight and the value of learning from experience. Little was playing a role straight out of Dickens. Marten was supposed to take on a role like that of Hetty Sorrel in Adam Bede, who returns to the place where she has left her newborn baby hidden under leaves in the forest, is apprehended and learns to repent in prison. Or she could have chosen Tess of the d’Urbervilles. Blown about by fate, prevented from burying her illegitimate child in consecrated ground, Tess performs her baby’s baptism herself and assembles a makeshift cross for her grave.

But Marten was in a Greek tragedy, where the outcome is determined by action, not character. By framing events in terms of compulsion, rather than rational choice, she was challenging the claim that risk-taking can be understood primarily in terms of moral responsibility and moral character. The jury was – implicitly – being asked to decide between incompatible narrative modes.

I don’t mean to diminish the seriousness of the contest in the courtroom by likening it to a drama. The stakes were very high. And although the prosecution described Marten as a consummate actor, she was not good in every role. She would have played better with her audience had she made more of a display of her regret and her despair. It is tempting to think of her as a kind of Antigone. She was determined to defy the laws of the state in the name of kinship, though in her case defiance was embodied in her unburied child. She was using the power she had as a member of an elite to make a claim for belonging on behalf of those who could not: her partner and her children, but also – in her call for journalists to investigate what she called the scandal of forced adoptions – others who may have suffered at the hands of state power. Like many civic warriors (including Antigone), she didn’t seem easy to get on with. She was arrogant and, like Gordon, ‘difficult’. She put people’s backs up, never more so than when she attempted to school the prosecution in cultural relativism: babies have been carried in slings for thousands of years, she told them; mothers everywhere sleep with their babies. As ‘naturalists’, she and Gordon were against medical intervention – a perspective that shaded into Covid scepticism, anti-vax beliefs and conspiracy theories of different kinds. There was an old-fashioned English Toryism about her stance, championing an alliance between the top and bottom strata of society against the bureaucratic mediocrity of the middle.

Her background was used against her by the prosecution (she ‘has not had a deprived upbringing’ – a portrait Gordon tried, disastrously, to match). Not only should she have known better but ‘she could have turned to her family for help.’ The Irish Traveller antics, the periods they spent living alongside unhoused communities in Wales and the plan to contact people smugglers were all evidence that Marten was merely playing with deprivation. But this was plainly untrue. By choosing to be with Gordon, she had thrown in her lot with people who were not counted full citizens.

Following his deportation to the UK, as a registered sex offender with a rape conviction, Gordon became politically illegible. He lived in the interstices of the state. The prosecution let slip that he had never paid tax in the UK and had never received benefits. In allying herself with Gordon, Marten lost her place in society. She was in flight from her natal family and was refused licence for her own. The state, in effect, insisted she remain childless so long as she stayed with Gordon, as did her family. The precarity and displacement the couple experienced began as a result of her disobedience to her family, but escalated to civil disobedience.

Marten was rich, clever, well educated, yet her liberty was circumscribed, first by private investigators, then by social services, and finally by the police. The couple’s irregular status allied them with antisocial youth, persistent offenders, sexual offenders and suspected terrorists, all of whom occupy spaces at the margins of civil society. Indeed, their probationary status resembled that imposed on immigrants and asylum seekers. There was a certain logic, then, to the idea of seeking asylum in North Cyprus.

We don’t need​ to agree with Marten and Gordon’s account of social services to question whether the CPS should have brought criminal charges against them. That question remains salient even if they did have their children rightfully removed by the family court. There’s a case to be made that a mother who kills her child, whether intentionally or not, deserves compassion not punishment. But the way that Marten behaved was guaranteed to disallow sympathy. As for Gordon, there’s a telling moment in the family court papers when Judge Reardon describes her regret that he couldn’t learn from the past and move on. She’s quoting a psychologist’s assessment: ‘Dr Redding’s suggestion was that the father experiences strong feelings of shame which may obstruct his engagement. If that is right, then the father has missed a real opportunity within these proceedings, because shame is a powerful emotion that can act as a driver for change.’

We saw evidence of this in the manslaughter trials, during which Gordon became incapable of articulating his reasons for opposing discussion of his past. (‘It’s not an easy thing … I can’t actually talk about these matters.’) Reardon’s statement is annoyingly pious. Gordon was never 0ffered the possibility of rehabilitation in the juvenile system. It would have been better for everyone, of course, if he had been able to come to terms with his past and worked through his shame. He was disabled by disgrace and embarrassment and fear, and by the devastating burden of racialisation, and none of that did him any good in his interactions with authority. By contrast, what people couldn’t stand about Marten was that she was so brazen. She gave a shameless performance. She was willing to acknowledge guilt, but not shame. I did it, but it wasn’t my fault. There was no room for Antigone in the courtroom.