Further Arguments on Cameras in Courts

Last week history was made with the first television broadcast from the Court of Appeal. The next step, the Government says, is the broadcasting of remarks made by judges during the sentencing of convicted offenders. However, trials will not be broadcast. Meanwhile television companies ultimately seek to broadcast trials, and some senior members of the judiciary foresee that as the end result.

So is the broadcast of full trials desirable? I firmly believe it is not and shall seek to persuade you why.

An Argument Against Broadcasting Trials

It is almost inevitable that the broadcasting of trials would lead to short snippets of edited footage appearing on news programmes. This editing of raw footage into newsworthy sound bites is the first concerning prospect televised trials present. Edited material is peculiarly dangerous since it does not present the whole picture and, in its worst form, can positively misrepresent a situation. I recall an excellent example of this danger which, as it happens, concerned the print media, who has long been welcome along with the rest of the public to attend trials for the purposes of reporting. This particular case concerned serious allegations against a professional male of grooming a 15 year old male teenager. Although the defendant was not charged with the offence, rape was also alleged. A local newspaper reporter attended and listened to the entirety of the complainant’s evidence. Like much unchallenged evidence it sounded convincing. At the conclusion of the complainant’s evidence the reporter left and did not subsequently return. She missed one of the best displays of cross-examination I have ever seen, which exposed the teenager’s evidence as grossly inconsistent at best. Sure enough however, the newspaper’s report covered the salacious detail of the allegations yet failed entirely to report on the systematic explosion of the complainant’s evidence. Instead, a short article later appeared that said the defendant had been cleared. Overall, the reporting was inaccurate and highly damaging to a demonstrably innocent man. The inalienable stigma of being accused of a sexual offence was not countered at all by accurate reporting. Instead, I suggest it was exacerbated by incomplete reporting. I am not for a moment suggesting that was the reporter’s intention, but it was the inevitable consequence of ‘edited’ reporting, reporting that did not present the full picture but instead presented an incomplete one.

Complex fact scenarios do not lend themselves to being edited into a short segment. When they are reduced to this, a misleading picture is almost certain to follow. This is extremely dangerous. Returning to the unfortunate defendant I mentioned above, had that trial been edited into a news segment it might very well have misled in exactly the same way as the newspaper report. Now however, instead of a local readership gaining an inaccurate impression the whole nation can gain one. The defendant would be indelibly marked in the national consciousness with the stigma of having been accused of a sexual offence. To my mind that is not justice, that is rank injustice.

We are of course familiar with edited material. We are often subjected to recordings of Parliament than have been edited. Shortened edited portions present one picture, while anyone who watched the proceedings in full on BBC Parliament has often seen another. The distortion that edited material creates is intensified by the on-demand media consumption culture we now live in. We do not receive this edited information on sporadic news broadcasts. Instead news is broadcast all day, every day, and modern technology allows us to consume news on the move. Edited, inaccurate material has the ability to be all pervasive and it is positively dangerous. So if it is the editing of material that is problematic can we not safely broadcast uninterrupted trials? This requires a more general examination of the arguments against broadcasting trials.

Firstly, it takes a great deal of courage for the victims and witnesses of crime to attend court and give evidence. It is often difficult to secure their attendance; most people understandably fear giving evidence. It seems to me to be highly probable that broadcasting proceedings would make it even more difficult to secure the attendance of victims and witnesses (although I do not have statistical evidence to support this). Victims and witnesses are often required to recall extremely disturbing events in their life, events which they rarely wish to recall; especially to the unknown individuals they face in a courtroom. Requiring them to recall events in the knowledge that they are being broadcast nationally is, I suggest, likely to deter victims and witnesses from coming forward so that they can avoid that level of publicity. You might respond that everything a witness says can be reported in the print press, so does television broadcasting make a difference. I argue that it does: reading words is not the same as seeing the actual individual presenting the evidence in their own voice. Words are dissociated from the person, but audio images are not; the spotlight is squarely on an identifiable and vulnerable individual. Even if the individual were not shown on screen their voice identifies them far more than reading their spoken words in a newspaper. Perhaps the only way to avoid this is to obscure witnesses’ voices too. So far as I know, this has not been suggested as a realistic or desirable option.

In my view, it is far more important that we secure justice (through a trial) by ensuring victims and witnesses are not deterred from giving evidence, rather than televising trials in the pursuit of open justice. After all, if justice is thwarted by victims and witnesses being deterred from giving evidence then what we are televising could hardly be described as justice. It would be a façade of justice while many crimes fail to reach trial where a just outcome can be secured. You might respond: ‘How do we know we have secured justice if we cannot see it? Is it not a vital principle that justice must not only be done but be seen to be done?’ Yes it is. But justice can be seen and can be checked; it is just limited to those in attendance at the court. I suggest that the number of people that a witness anticipates might see them giving evidence affects their willingness to give evidence. If that is the case, it is better that we secure justice and limit the number of people directly observing the witness giving evidence, rather than televising all proceedings in the pursuit of open justice.

A second argument against broadcasting trials appears to be that television companies are interested only because of the potential for salacious content, not to ensure that the course of justice is openly broadcast in its entirety. I am prepared to be corrected on that point, but I have not seen any television companies offering to fund the broadcast of complete trials to ensure they are not misleading. What instead appears to be desired is newsworthy snippets of sensational material. This leads us back to the dangers of edited material.

Meanwhile we must ask what broadcasting trials would achieve? Likely positive outcomes include a better understanding of the court system and perhaps greater for respect for it and its participants. But this is nothing that we cannot already achieve. Simply attending a court can result in these outcomes. You might respond that this is not practical for many people as they work or have other commitments. My response is simply that there is no established lobby by members of the public demanding the broadcasting of trials. The public appears to be perfectly content to read court news. Moreover, these outcomes do not outweigh the risk to justice identified above: there is little point televising trials if it is likely to damage justice.

Conclusion

The issue of televised trials is not simply matter of improving open justice. The aim of the justice system is to ensure just outcomes. Televised trials pose a risk to justhat is not outweighed by the benefits of open justice. We should not therefore allow justice to be compromised by televised trials.

What are your thoughts?

Veils, Jurors and Justice: The Law in Summer 2013

LawScape has now returned from its summer break. The summer months are traditionally quieter in the legal world as Parliament, many of the courts, and much of the Government have a well deserved break. Some of the higher courts continue to enjoy that deserved break. However, the legal world has been anything but quiet this summertime.

Whether it is the continuing fiasco concerning legal aid, decisions about human rights, or the trial of television celebrities for sexual offences, it has been a very busy legal summer. Two of the most interesting developments for me have been the announcement that individuals up to the age of 75 will in future be able to serve on juries, and the decision that a Muslim woman on trial for witness intimidation must remove her niqab (veil) if and when she gives evidence.

Older Jurors

The announcement that those aged up to 75 will now be able to sit on juries is a welcome one. The right to be tried by our peers is one that has its foundations in the 1215 Magna Carta (the ‘Great Charter’). We are very defensive of our right to be judged by a random selection of people that represent our society. In recent years however, juries have not be able to represent the oldest members of our society: the over 70s. In the past, this group did not make up a significant proportion of the population. But we are now all living a great deal longer, so the over 70s represent a significant proportion of the population. If our jury system is to continue to produce juries that represent our society, then it must be possible to have the over 70s selected. Not only will this ensure that juries reflect modern society, but it will make use of the very great and important life experience that the over 70s have acquired. The announced change is to be commended.

The change will be effected by an amendment to the Juries Act 1974. Currently this provides that only those aged 18 to 70 may sit on a jury.

Veils in Court

This week His Honour Judge Peter Murphy decided that a female Muslim defendant charged with witness intimidation must remove her veil if and when she gives evidence. At other times, however, she may continue to be veiled.

The judge had to balance the woman’s right to express her religious beliefs (under Article 9 of the European Convention on Human Rights) and the public interest that criminal trials are conducted in accordance with the rule of law, open justice and the adversarial nature of our trial system.

In essence, the judge held that the jury’s ability (and, to a lesser extent, the judge’s and lawyers’ abilities) to observe the defendant’s facial reactions to the questions they are asked is crucial and not to be compromised. The defendant’s evidence is crucial and when it is given the defendant must submit fully to the scrutiny of the jury. On the other hand, while a jury may observe the defendant’s reaction at other times (when they are in the dock not giving evidence) this is not sufficiently important to trump the defendant’s right to express their religion by wearing a veil. Accordingly, at other times the defendant may remain veiled.

Unsurprisingly, the decision has been controversial, with various individuals saying that the court went too far or did not go far enough. For my own part I remain undecided. In my opinion the court certainly did not go too far, it was right to order that a veil cannot be worn when a defendant gives evidence. The question is if it went far enough?

What are your thoughts?

Huhne and Pryce Released from Prison

Today Chris Huhne and Vicky Pryce have been released from prison following their convictions for perverting the course of justice.

They were released after serving eight weeks of an eight month prison sentence.

They were convicted after Ms Pryce accepted Mr Huhne’s speeding penalty points. He was in danger of losing his driving licence. For the full original story, see this article.

Huhne pleaded guilty on the first day of his trial. Pryce was convicted at her second trial. Her first trial collapsed following concerns about the jury. On both occasions she pleaded the defence of marital coercion.

The pair is awaiting a decision on how much of the prosecution’s cost they will have to pay. The Crown Prosecution Service (CPS) is claiming £108,541 from Huhne. It is claiming £48,695 from Pryce.

Home Detention Curfew

Huhne and Pryce only served one quarter of their sentences. Normally, prisoners are released on licence at the half way point of their sentence. However the Home Detention Curfew (found in section 246 of the Criminal Justice Act 2003) provides that prisoners can be released on licence earlier. Prisoners will be subject to a curfew and electronically monitored (known as ‘tagging’).

Some prisoners are exempt from the Home Detention Curfew scheme, but for those who are eligible, most prisoners will be released on Home Detention Curfew. The scheme is designed to help reintegrate prisoners back into society.

British Men Plead Guilty to Terrorism Offences

Today three British men have pleaded guilty at the Old Bailey to preparing for terrorism acts overseas.

Jahangir Alom (a former police community support officer), Imran Mahmood and Islamic convert Richard Dart all pleaded guilty ahead of their expected trial. They will be sentenced at a later date.

The three men were charged last year, following their arrest in London in the weeks before the Olympic Games, with engaging in preparation for acts of terrorism by travelling to Pakistan for training between July 2010 and July 2012 and by advising acts of terrorism by providing information about how to go to the country for the same purpose. Their precise activities have not yet been disclosed.

The Offence

Section 5 of the Terrorism Act 2006 (which can be read here) provides that a person commits an offence if he engages in any conduct in preparation of his intention to commit an act of terrorism or assist others to commit terrorist acts. The offence is indictable only, which means that it is so serious that it can only be tried in the Crown Court before a judge and jury.

Sentencing

The maximum penalty for the offence under section 5 is life imprisonment. As the defendants have pleaded guilty they can expect to receive a discount off their sentences. It is common practice to discount an offender’s sentence when they plead guilty. This is to reflect the fact that this prevents the need for witnesses to go through the stressful experience of giving evidence and prevents the need for a costly trial. When a defendant pleads guilty at the earliest opportunity they can be given one third off of their sentence. When a defendant pleads guilty after the trial date is set they can be given up to one quarter off of their sentence. If a defendant pleads guilty just before the start of a trial or after the trial has started they can be given up to a tenth off of their sentence. Here, the defendants have pleaded guilty after their trial date has been set and could therefore receive up to a one quarter discount off of their sentences.

Pryce Guilty of Perverting the Course of Justice

Today the ex-wife of former cabinet minister Chris Huhne has been found guilty of perverting the course of justice for accepting his speeding points.

Vicky Pryce, 60, was convicted at Southwark Crown Court in London. The jury accepted the prosecution’s case that Ms Pryce falsely accepted Mr Huhne’s speeding points back in 2003 so that he would avoid prosecution. Mr Huhne already had 9 penalty points on his licence and faced losing it if he accumulated 12 points. Mr Huhne previously pleaded guilty to the offence in February, after initially claiming he was innocent.

Ms Pryce had adopted the little used defence of marital coercion at her trial, claiming that Mr Huhne coerced her into accepting the points and was present at the time when she accepted them. The jury rejected this, however. The court had heard that Ms Pryce wanted to expose Mr Huhne after he admitted an affair. In an email to a Sunday Times journalist, Pryce had said she wanted to ‘nail him’. For more information on the facts of this case and the defence of marital coercion, see this original article: http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-and.html

The verdict came after 12 hours of deliberations. This was a retrial of the offence after the first trial was stopped when the jury failed to reach a decision. The judge, Mr Justice Sweeney, had expressed concern about the first jury’s ‘fundamental deficit in understanding’ of the trial process. For more information about the first trial and the concern about the jury, see this article: http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-again-can.html

The Crown Prosecution Service (CPS) has said that costs in the case amounted to £100,000. It said that Chris Huhne challenged the prosecution and then pleaded guilty at the last minute, which was expensive. The CPS has said it intends to apply for the costs of the case to be ordered to be paid by Huhne and Pryce.

The judge has told both Pryce and Huhne that they should be under ‘no illusions’ about the likely sentence they will receive. Perverting the course of justice is a serious offence and it is often punished with imprisonment. The pair will be sentenced at a later date. In the meantime they both remain on bail.

What sentence do you think Huhne and Pryce should be given? Do you think accepting speeding points for another person is a serious offence? Should the pair be given harsher sentences because of their high profile positions? 

Perverting the Course of Justice, Again. Can We Trust Juries?

Yesterday a fresh trial began in the case of Vicky Pryce, the former wife of Chris Huhne alleged to have accepted speeding points on his behalf. For the original article on the trial and the relevant law, see here:

http://lawscapeuk.blogspot.co.uk/2013/02/perverting-course-of-justice-and.html

Ms Pryce’s original trial was abandoned last Wednesday after the jury was discharged following their inability to reach a verdict. The judge, Mr Justice Sweeney, had received a note from the jury saying it was ‘highly unlikely’ they would be able to reach a verdict. The jury had earlier been directed that the judge would accept a majority verdict made by at least 10 of out of the 12 jurors.

Considerable concern was expressed at some of the questions asked by the jury. The jury asked a list of 10 questions, which included a request for further definition of what is meant by being convinced ‘beyond reasonable doubt’ of the defendant’s guilt and whether they could make their decision based on reasons not presented in court or supported by the evidence. The judge said that some of these questions showed a ‘fundamental deficit in understanding’ by the jury of its role and that he had never come across anything like it in 30 years of criminal trials.

Now it is not rare or exceptional for juries to ask questions. But it is rare for a judge to be critical of a jury. And it is completely exceptional for a jury to so fatally misunderstand its role. After all there can be few of us that think we can reach a verdict in a criminal trial based on reasons not presented in evidence. If we could what would be the point of having evidence?

In the wake of this story there has been much discussion about whether we can still trust the jury system. Some have suggested that jurors should meet have to meet a minimum educational standard. So should we be concerned about the jury system? Does it need to be modified extensively?

For me at least the answer is a resounding ‘no’. This was an extremely rare case. Juries often deal with considerably more complex cases without difficulty. No injustice was caused in this case; as soon as the issue with the jury was clear the trial was abandoned and a retrial ordered. Moreover if the jury had found Ms Pryce guilty and there was concern about the conviction then there could have been an appeal to the Court of Appeal, which would have overturned the conviction if it was satisfied that it was ‘unsafe’. The system provides protection from miscarriages of justice. Furthermore, if we did decide, for example, to impose an educational requirement on jurors what requirement would we choose? And who would we entrust to decide that requirement? Perhaps the only thing we need to be sure of is that jurors must have a good command of English because of the complexity of the language sometimes used in trials. Maybe, with our increasingly diverse society, this will have to be seriously considered in the future.

The jury system has worked for hundreds of years and we are rightly proud of our right to be tried fairly by a jury. I am sure we will be proud of it for many years to come. In the meantime, we can await the new jury’s verdict in Ms Pryce’s case.

Do you think we should retain the jury system? Does it need modifying? 

Jimmy Savile: Declaring Guilt

Today a report authored by the Metropolitan Police and the NSPCC has been released, detailing the years of abuse by Jimmy Savile. The report, ‘Giving Victims a Voice’, documents a pattern of offending that is likely to have spanned 50 years, possible because Savile ‘was hiding in plain sight’. It explains that 450 people came forward with information relating to Savile leading to, currently, 214 formally recorded crimes that were committed at locations including the BBC, hospitals and schools.

What is interesting about the report is its declaration that because the complainants' (who mostly are not known to one another) accounts ‘paint a compelling picture of widespread sexual abuse by a predatory sexual offender’ they are referred to as ‘victims’ and their evidence is not being treated as unproven allegations. Presumably, therefore, their evidence is being treated as proven. Essentially then, the authors of the report seem to be saying that although a criminal prosecution is impossible as the suspect is now deceased, we can nevertheless be sure that he was guilty of a number of crimes. I personally find this conclusion concerning. We only declare a person guilty of a crime following a trial of the evidence, when we are sure that the person is guilty. At such a trial the defendant is represented, evidence is challenged and various safeguards are in place, such as restrictions on the type of evidence which can be used. That is what makes the process of finding somebody guilty fair. As Savile is dead he cannot challenge the evidence against him. We cannot have a trial of the evidence and cannot therefore be sure of his guilt. That is not to say that I believe him to be innocent. It seems to me from all that has been reported that there is a very high probability that Savile was guilty of a number of appalling crimes. But there is a huge difference between declaring something highly probable and declaring something proven. In a democratic society we can only declare criminal conduct proven following a trial of evidence. As this has not been possible in this case I do not believe it is correct to treat the allegations as proven.

This raises the question of how we should deal with criminal allegations against a person who has died. One way of course is, as here, to have an investigation and then a report setting out its findings. But such a report should not declare guilt in the same way that a criminal trial can. The problem with this method is that supporters of the deceased may feel that there has been an injustice to the deceased as there has been no examination of the evidence that is available. An alternative way, therefore, could be to introduce law allowing for a new posthumous trial procedure. Such a procedure could involve the appointment of an advocate to represent the interests of the deceased and then an examination of the evidence. Of course, we could never be sure of guilt as there would often be much evidence that only the deceased could give. But we may be able to say that there is a high probability of guilt. Accordingly, such a procedure could allow us to find a person innocent or make a ‘declaration of probable guilt’ in relation to them. At least in this way we attempt to assess the evidence in the way that we do at a traditional trial and equally balance the interests of both any alleged victims and the deceased and their supporters.

I imagine that the type of procedure described above is unlikely to ever exist. But surely we need an alternative way of dealing with such cases; can it ever really be acceptable to declare criminal allegations proven without a trial? What are your thoughts?

The report is available here: http://www.nspcc.org.uk/news-and-views/our-news/child-protection-news/13-01-11-yewtree-report/yewtree-report-pdf_wdf93652.pdf