Televising Trials

The Pistorius case has reopened the discussion about the televising of trials in England & Wales. There are two interesting articles on the matter in the Times (paywall here and here).

Some of this has already happened.  You can watch live hearings of the Supreme Court on their website, and the Court of Appeal has delivered judgments to cameras.  A Scottish criminal trial has already been televised, in Channel 4’s The Murder Trial.

The real issue is more to do with the contemporary televising of cases involving contested evidence (appellate advocacy is a different beast.

It is hard to deny that televising has helped increase the public understanding of the legal system.  My feeling is that the televising of the Pistorius trial and verdict helped people understand how the case and system worked better than a written account could have.  And the recording of the Leveson Inquiry had a similar effect.  But there are, it seems to me, substantial concerns that need to be addressed before it gets rolled out any further.

The biggest concern is the effect that televising has on advocacy.  A common refrain is a desire to avoid the antics of the OJ Simpson trial.  There were numerous suggestions that Barry Roux and Gerrie Nel were playing up to the cameras in the Pistorius trial rather than engaging in effective advocacy.  Litigation and advocacy styles vary between jurisdictions, so I can’t say with any certainty whether that was the case, but it was the view of a number of legal commentators.

But even if it cannot be said for certain in the Pistorius trial, the wider point that televising could undermine the role of the advocate does make sense.  There is always a pressure on counsel to play to the gallery.  Although our job is to persaude the Judge, the commercial reality is that the Bar is a client and reputation-based profession.  We have to be seen to do a good job, irrespective of whether we are actually doing one.  Those sitting behind us may have more influence over our career than those before whom we appear.  That pressure may be exacerbated by televising.

It is a fair point that trials are meant to be held in public anyway, and that televising is simply updating that principle to the 21st century.  But the problem is that televising is a qualitatively different change.  It amplifies the level of publicity to a completely different order of magnitude.  It is quite different to have your name reported in a written account of a trial to having your evidence being recorded and broadcast.

Giving evidence is a daunting prospect even (perhaps especially) for the most honest of witnesses.  Many witnesses are vulnerable, and often witnesses have to give evidence against themselves or agree to damaging criticisms.  Frequently a witness’s credibilty turns on the fact that they are willing to accept criticisms made of them in cross examination.  Witnesses may feel either intimidated, or otherwise inhibited from being candid, because of the much greater level of scrutiny to which their evidence is being subjected.  In particular vulnerable witnesses, and relevant witnesses who want to avoid any of their dirty laundry being aired, may be intimidated from giving evidence.

This is a relatively common problem in litigation, and the amplifying effect of televising may exacerbate it such that valid claims and defences never get to see the light of day because witnesses feel unable, for a number of reasons, to tell the whole truth, especially when it goes against them.

This would be a particular problem in high-sensitivity cases such as sexual offences or those involving children.  Not all trials are going to be suitable for broadcast.

As I said above, the Pistorius trial helped the public understand it and the verdict better.  It was easier to explain to people how the Court came to a conclusion that suprised many.  But it is quite possible for a televised trial to obscure rather than clarify.

It’s inevitable that if recording of trials occurs, there is going to have to be editing.  The act of editing, though, is of a kind with the art of advocacy; both involve a substantial degree of selecting material to present and material to leave out.  If that is not done properly, or done purely to chase ratings, it risks being prejudicial.

The presented matters are likely to be the points of high drama, even if they are not necessarily the most important to the litigation.  Sometimes the most boring and technical parts of the evidence are where the case is won.  Particularly if that trial involves documents, and you are cross examining to show that the documents do not accord with a witness’s evidence.   And as the Pistorius trial shows, cases are not simply about who is lying, or who is lying worse.

The risk is that broadcasting trials could give a misleading impression of what goes on.  The Murder Trial is a case in point.  When I watched it it felt as though the producer had chosen the parts of the recordings that fit the verdict, and presented the trial as leading inexorably to that conclusion.  In my experience, trials rarely work that way.  It felt like it was simply amplifying the prosecution’s case.  

In South Africa, with judge-only trials and a consequently relaxed set of laws regarding contempt of court, that may not be a problem.  A judge will quite willingly disregard media reports.  But that is less likely with a juror.  The inherently selective presentation of the evidence may unduly influence the juror’s perception of events.

It could also be problematic with appeals.  A selective broadcasting of a case could give the impression that the evidence at trial was stronger than it actually was.  A successful appeal could be undermined by that impression – the public may take the view that they “know” the appellant was really guilty, based on the original broadcasts, irrespective of why the appeal was allowed.

In my view none of these are insurmountable problems, and much (if not all) is a difference of degree rather than kind to how trials already operate.  But they need to be taken into account before there is any furthe relaxation of the broadcasting regime.

Lib Dems on Human Rights: Form not Substance?

Head of Legal has a good explanation and discussion of the Conservatives’ proposals to reform the Human Rights Act 1998.  In short, they are much more modest than completely abandoning the Act, jettisoning the Convention and severing all links with Strasbourg.  It is evolution, albeit problematic evolution, rather than revolution.

An interesting little footnote has emerged though, in the comments of Simon Hughes to the LibDem Party Conference.  The Law Society Gazette reports:

Hughes told delegates the Liberal Democrats had blocked the Tories’ attempts to scrap the 1998 act during their time in government and this stance would remain in 2015.

‘I make this commitment to you: we will always be the party of reform, including in Europe,’ said Hughes. ‘But, whatever the outcome of the next election, if Liberal Democrats are in government: we will always stand up for human rights.

We will never agree to leave the UK without a Human Rights Act. And we will never undermine the European Convention on Human Rights.’

The interesting word there being “a”.  Assuming that the words are accurately reported, that is a small but substantial difference to “the Human Rights Act”.  Given that the Conservatives are not proposing to abandon Human Rights legislation, but simply replace it, this suggests that any Lib Dem opposition may be narrower than opposing the Conservatives’ current plans.

Photographic Abuse

I have inserted links to the relevant articles to source quotes, but I would suggest that people do not click on them.

The more I think about the Mirror/Sunday People’s decision to publish photos of Charles Saatchi gripping his wife by the throat, the more irked I become.

The paper, in its decision to publish, has done a disservice to victims of domestic violence.

It should go without saying that what Charles Saatchi did was wrong. But domestic abuse is a sensitive issue and there is a right way and a wrong way of dealing with it.

Much of what is the right and the wrong thing to do in the field of domestic violence is counter-intuitive.

One of the principal weapons in the armoury of professionals working in this field is secrecy. DV professionals undertake painstaking efforts to establish secret and secure channels of communication with victims. They use them to allow victims get help safely and, if the time comes, to leave the relationship in the safest possible way (I say “if” simply because many victims choose not to do so). These efforts are made both to provide the victim with a space in which they feel free to speak to professionals and get help, and for the victim’s own personal safety.

Abusers are, by nature, controlling people, and are often prone to jealousy and paranoia. They use perceived slights as ammunition against their victims. Something as trivial and innocent as smiling at a stranger can be enough to provide the pretext for abuse, humiliation and violence. If they find out that the victim is speaking to a DV professional, that can be enough to put them at risk of serious violence and scupper all the efforts made to help them.

Indeed, the most dangerous time for a victim of DV is, perhaps counter-intuitively, the moment she leaves the relationship. This is in part because the issue is brought to a head and the abuser has lost control of the situation.  DV professionals make significant efforts to lay the ground for the exit in advance and in secret, ensuring that the victim leaves on their own terms, with sufficient security in place to ensure that they are safe, in control of the situation and hidden from their partners. This is something that cannot afford to go off half-cocked.

Cases of domestic violence must be handled with sensitivity, discretion and confidentiality. The victim has to be made to feel safe and secure.

Now look at what the Mirror did.

First, look at how they obtained the story. The account given by the photographer contains some telling details.

But the photographer, who did not want to be named, said: “The pair did not know they were being photographed. I was completely hidden.

“It wasn’t a game, from what I saw, it was more… if that was a game it was a pretty rough game.

I couldn’t hear what they were saying. The ­conversation and action became so worrying for the couple sitting next to them that the woman put her hands over her mouth in shock.”

As does a line in this article:

Last December, there were concerns raised when she and Saatchi had a another bust-up at Scott’s.

He put his hand over her mouth in an apparent bid to shut her up.

Putting those together, the shot was obtained by having a concealed paparazzo lie in wait with a telephoto lens (the fuzzy nature of the photographs is also a giveaway). The reference to this not being the first such occasion suggests that the photographer may have been stationed there specifically to capture such an incident.

Second, think about what has to happen to make the story libel-proof. To ensure that the paper can fall back on the Reynolds defence, they have to put the allegation to Charles Saatchi and get him to comment on it. In other words, they had to tip off the abuser in advance of publication. It is not particularly far-fetched to think that they might accuse the victim of setting him up, or just generally use it as another pretext for violence.

Third, no suggestion has been made that Nigella Lawson consented to these photographs being published.

Tasteless
A tasteless pun.

Put simply, the Mirror, likely acting on knowledge that Charles Saatchi had form, stationed a paparazzo in his usual haunt in the hope of catching him in the act (or took advantage of an enterprising paparazzo who decided to do this of his own accord). Once they got the photos they tipped off a potential abuser and then splashed the pictures all over the front page. Not one or two photos to confirm that it was what it looked like, but complemented by a full online gallery, complete with a tasteless reference to an olive branch (the foliage in the photos).

If they knew that she was, or might be, the victim of domestic violence, they took the decision that the best course of action was to get them papped.

They took pictures of a woman who, in the words of one onlooker “had been abused and humiliated in public”, and decided to magnify the publicity of the abuse and humiliation she received. They decided to tip off an abusive husband, with no evidence of any regard for the wife’s safety.

Now consider the likely consequences: an enraged abuser, a humiliated victim at an elevated risk. Rather than going to Nigella Lawson in confidence, offering her support, asking whether she wanted the photos published, or going directly to the police, they picked a fight with a Saatchi on his home turf: PR. So far, he has played the PR game pretty well considering his hand. If the relationship is indeed one of control, the ratchet may well have tightened. If she wants to leave the relationship, the publication may have actually made it more difficult to do so.

The decision to publish does not appear to have been taken out of concern for a victim of domestic violence, but out of a desire to sell newspapers masked in sanctimony.

Although the original story was published in the Sunday People, the Mirror’s sister Sunday paper, I have referred to both papers as “the Mirror”. They use the same website, are owned by the same company, and are treating this story as a joint effort. There seems to be little point distinguishing between the two titles.

Leveson: Off the Record

According to pundits, Leveson LJ’s report proposes the banning of off-the-record discussions.  This would obviously be a major curtailment of the effectiveness of the press, and unworkable in theory as well as in practice (how do you enforce a ban on something that is done on the basis of there being no evidence of it?).

In particular, it has been suggested that this would amount to a ban of briefings on Lobby terms, and remove one of the institutions that oils the Westminster machine.

This is getting repeated with a certain amount of indignation to suggest that Leveson LJ fundamentally doesn’t understand how the press works, and so the report should be ignored as some sort of overbearing attempt at censorship.  Various journalists are hopping up and down about this.

Except that neither Leveson LJ, nor his report, suggest any such thing.  Here is the closest thing to approach the matter:

The first thing to note is that this does not relate to off-the-record briefing generally.  The remarks are specifically confined to press-police briefings.  The report simply doesn’t deal with such briefings more generally.

Second, in the same section (but not in the image here) the Report accepts the necessity and value of off-the-record briefing.  As you will see from the image, there is no suggestion that the practice should stop.  Indeed they are considered ‘legitimate police and media interactions’!

What is proposes is much more modest.  It is that the term ‘off-the-record’ should be discontinued in favour of the terms mentioned in the shaded box above.  This is because as it stands the existing term has multiple meanings and it’s not always clear which is meant.  It’s a simple matter of a practical recommendation, and there’s no suggestion that this should be enforced by any regulator, statutory or otherwise.  It’s just a simple recommendation that the press are free to take up or reject as they like.

There is no proposal to ban off the record briefings, and those members of the press jumping on this bandwagon are damaging their credibility in saying so.  It’s hardly the most sensible approach to defend ‘freedom of the press’ when, as a member of that same press, you fail to check basic facts.

Interviews in an Embassy

In the furore over the Julian Assange case, much has been made of a purported offer made by Mr Assange to be interviewed by the Swedish Prosecution Authority in the Ecuadorean Embassy.

This post has been picked up on by @loveandgarbage, a Scottish Lawyer, who claims that the well-known case of Smith v DPP and Commissioner of the Metropolitan Police [2011] UKSC 666 provides a sound legal basis for conducting such an interview. He summarises the case here.

As a result of this crucial case it is the right of any accused person who has breached bail conditions and is located in England to tell the prosecuting authorities where, when, and how he or she should be questioned. Given this decision it is unsurprising that supporters of Julian Assange are pointing out that he should be allowed to determine where and when he is questioned in relation to the accusations against him. After all it is an absolute right of the suspect or accused in any criminal case to control the process, fought for over many long years. I am only surprised that so many lawyers south of the border and in Sweden seem oblivious to this key legal principle.

This is, however, one of the worst examples of a Misleading Case I have ever seen.

Although it is true that factually this case is very similar to that one, the principle loveandgarbage extracts from it is closer to garbage than love.

What is overlooked here, and it really is a key part of the ratio, is that the maisonette was in West London. That was the narrow ground upon which the appeal was upheld.

As Lord Hope said:

“West London is generally understood to be a wonderful part of the world where people are of sufficient wealth that they can be trusted to answer the questions truthfully and honestly. I, like many of my brother judges, live in West London and some of my best friends are there. I am convinced that absolutely nobody who can afford to live there could be of such disreputable character that they would need to be treated like a common criminal in a police interview. It is on this narrow ground that we allow the appeal. If the Appellant had lived in, for example, Bermondsey, it would be a completely different matter and the Court would have to pay careful attention to such matters as the appellant’s income, schooling, background and demeanour before granting this right.”

In so ruling the Court made it clear that it was extending the principle established in Sturges v Bridgman (1879) LR 11 Ch D 852, which held that “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”, and firmly established that Londoners are to be afforded differential treatment based on their postcode.

It is not correct to describe the right as absolute. Indeed, given that the Ecuadorean Embassy is, allegedly, sovereign territory outside the United Kingdom, it is not clear whether the ratio would apply to such a case. The Court was emphatic that the interview, and the suspect had to be “in West London”. Assange, however, claims to be in the sovereign territory of Ecuador. Accordingly, there are strong grounds for arguing that he is not in West London at all, and should be interviewed like the ordinary inhabitants of Bethnal Green (DPP v Jones [2010] UKHL 123).

It is this sort of sloppy misreporting and misrepresentation of the law, coupled with an uncritical retweeting of anything that appears to support one’s case, that has bedevilled sensible discussion of this case. One hopes that from here on in things would be made clearer.

Quote of the Week

There are many places where you can find serious, informed and rigorous writing and speaking about this stupendously important case—unfortunately, the “Garrulous Law” blog is not one of those places.

I think that chap just made my week.

Assange Case Theories

You cannot help but have seen the decision of Ecuador to grant Julian Assange asylum from Sweden/USA/UK/etc. As expected, the internet has exploded with arguments and conspiracy theories.

You do not have to believe that Julian Assange is guilty to disbelieve the more ludicrous conspiracy theory being promoted by Wikileaks at the moment.

To understand this, let’s look at four possible ways of analysing what’s going on.

1. US Conspiracy

The central allegation is that the USA is using these proceedings to extradite him and subject him to a trial for treason, where he is at risk of being subjected to the death penalty.

Looking solely at what is the incontrovertible legal situation, this is what you have to be alleging if you want to make this story stick:

The United States, in order to prosecute an Australian national with a view to subjecting him to the death penalty, has persuaded two individuals to accuse him of a crime that is notoriously difficult to prove, in order to get him extradited from a country with a very US-friendly extradition treaty, to another country with much stronger protections against extraditions to the USA. This extraditing country is legally unable to extradite him to the USA if he faces the death penalty. This is done using a legal mechanism that then requires both countries to approve his extradition to the USA. This is to be done using a legal framework that has already taken the best part of two years with no end in sight, with multiple legal obstacles along the way in both the past and future.

Alternatively, they have done this to engage in extraordinary rendition of a man with a gargantuan media profile, and without regard to the major diplomatic outcry this would cause from the UK, Sweden, Australia, the EU and the rest of the world.

This is to be done in preference to:

Porn Trial: Is it Really the CPS’s Fault?

If you’ve been remotely following the legal news, you’ll have come across #Porntrial. I’m not going to go into the details, which are accurately summarised by Nick Cohen.

A recurring theme of the coverage has been to blame the CPS, and Keir Starmer personally as DPP, for pursuing these cases. In short, prosecutions weren’t in the public interest and charges should not have been pressed.

But is it fair to lump all the blame on the CPS this way?

The public interest test is not as straightforward as commentators imagine. How it works is set out in detail in the Code for Crown Prosecutors. Specifically:

4.12 A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender’s record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest.

The CPS is required to work from a presumption that prosecution is in the public interest, and only decide otherwise if there are specific factors pointing against that presumption (again, these can be found in the CCP). If someone has done something that meets the evidential test for criminal liability, then one has to assume prosecution is in the public interest absent any special factors. In this case, it’s hard to see what those factors could have been.

The CPS’s public interest test does not allow them to decide which laws they wish to enforce. It is there for exceptional circumstances that suggest prosecution should not occur. But it works upon the basis that behaviour attracting criminal liability should be prosecuted in the absence of those circumstances.

The real problem here isn’t with the DPP or the CPS. The problem is with the law. This is an area that is notoriously retrograde. Laws on ‘extreme pornography’ were criticised at the time for the potential to result in precisely such a prosecution as happened here. They remain deserving of that criticism. Section 63 CJIA ’08 is sloppy, poorly-defined, unjustified knee-jerk legislation.

Put simply, a prosecution such as that of Simon Walsh was simply waiting to happen. That the CPS were obliged to prosecute is not particularly their fault: faced with a straightforward contravention of the law and an absence of special factors, their discretion was seriously limited. They don’t get to choose which laws to enforce.

The real target of people’s attentions should not be the CPS, but the law they were required to enforce.

Learning by Rote

Howard Jacobson defends the art of learning poetry by rote.

The poetry we commit to memory when we are young stays with us as a solace and an inspiration – an emotional no less than an intellectual resource – long after we have forgotten the mere accidents of our lives.

It’s a common complaint of student on, for example, the GDL, that there is too much rote learning. There is a general reluctance to see rote learning as having educational value, favouring instead the teaching of analysis as all.

I remember this when taught History, where the ability to critically analyse the era was given primacy to the detriment of learning the hard facts and events of the era.

This is problematic. Rote learning is an absolutely vital skill. All the analytical skills in the world are pointless if you can’t remember to what principles and facts they apply.

It is of course true that analytical skills are important and essential, but they require that you know the basic facts and principles.

You can’t properly analyse, for example, a historical question unless you know the underlying facts, assumptions and context. Those have to simply be remembered. There is no getting around it.

Likewise in law, you have to remember legal principles, case names, and material facts. You also have to get to grips with the factual basis of a case and remember the salient details. It looks deeply unimpressive in court to have to constantly keep checking things compared to the advocate who can do so from memory. You need this contextual knowledge in your head so you can bring it to bear quickly.

More generally, rote learning speeds you up to do the more important bits of analysis. For example in maths, if you know your times tables by rote, you can free up time and effort to focus on the more difficult parts of a problem, instead of having to go through a laborious and repetitive process of working out the more basic elements.

Similarly in law if you can remember, for example, the American Cyanamid; Ready Mixed Concrete; or Ghosh test (Interim relief; employee status; criminal dishonesty), you can save time by getting onto the important part of your job as a lawyer: applying and assessing how the law works, rather than what the law is.

Good analysis and insight also require rote learning. First, it builds up your contextual knowledge. The more you know, the deeper, better and more insightful your analysis can be. Moreover, the process of committing matters to memory forces you to understand them. You are more likely to understand a legal principle that you have spent time committing to memory than one you have simply highlighted.

Rote learning and analysis are not in conflict; they complement. You need to remember certain things

On a presentational level too, if you can remember by rote key cases and principles, you not only save time, but come across as more reliable than someone fumbling through their books and papers for the salient principles and facts. If a judge asks you a question, an immediate and correct response if far more impressive.

People often complain that the GDL, for example, is an exercise in pure rote-learning. It isn’t; the bulk of the marks come from the ability to analyse and apply the law. There is considerably more rote learning than other courses, but that is in fact an extremely useful exercise that helps you in the long run.

It is true that the lawyer’s real skill is to apply the law. But knowing it is a prerequisite. And if you’re being paid to do the former rather than the latter, the less time you have to spend overall doing the latter makes you a better lawyer. That is best achieved by committing the key principles and ideas to memory.

There is, for once, no way round it.

The blog of a barrister

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