Widening access to the stocks and gallows?

The Scottish Government’s recent court closure reforms have raised the question of how easily the Scottish public should be able to participate in their justice system.

Whilst the court closure issue rumbles on, the livingrooms of the public have recently played host to an almost cinematic experience of access to criminal justice. On 9 July 2013, for the first time in almost 20 years, documentary footage of a criminal trial was broadcast on television. Following the overturning in 2011 of Nat Fraser’s 2003 murder conviction, his retrial in the High Court of Justiciary was shown on Channel 4 in a 97 minute documentary, aptly named “The Murder Trial”.

Many solicitors and advocates may have felt uneasy about the television adverts that were broadcast in advance of the screening of the documentary. Would “The Murder Trial” sensationalise justice? Would it degrade the criminal justice system? Would it throw witnesses, the jury, Lord Bracadale, Alex Prentice QC and John Scott QC to tabloid scrutiny? Or would such concerns prove to be oversensitive, based on a distrust of contemporary media and broadcasting culture?

One thing was certain: we wanted to watch it, particularly as Lord President Gill had determined that all filming applications were to be stalled in the run-up to the programme, to enable a review of the policy of allowing cameras into Scotland’s courts.

With its 9 July broadcast, therefore, Channel 4 enabled the Scottish legal profession to assess its reaction to a new platform of access to court. This author argues that, for the most part, “The Murder Trial” did not sensationalise justice, nor did it degrade the Scottish legal system. Yet it did not prove the case for allowing greater access to our courts in this way either.

Opening up the courts

Before considering these questions, it may be helpful first to set the context within our wider legal system’s experience of filming in court.

Live broadcasting by Sky is currently permissible in the UK Supreme Court and in the Privy Council. Filming is completely prohibited in all Crown courts in England & Wales, albeit that in October 2013 the Court of Appeal (criminal and civil divisions) will open its doors to fixed cameras.

Court authorities have traditionally disallowed the media to film criminal trials in the UK. Only in one recent Scottish criminal case has a television crew entered the courtroom, when an STV camera filmed Lord Bracadale passing sentence on convicted murderer David Gilroy, in April 2012.

Since the Scottish Government proposals have succeeded in respect of selective court closures across Scotland, there is perhaps an argument that easier access to the legal process should take place in new, non-traditional fora.

With Sir Mark Hedley recently opening the doors to the UK’s most secretive court, the Court of Protection, the issue of widening public access to the administration of justice has arguably never been more relevant.

Whilst televising is commonplace in America, criminal justice has never been this open in Scotland. Yet the profession must consider whether it is in the interests of society to project justice to this extent. Whereas international courts, such as the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice, permit camera access, it is not difficult to recall the media circus surrounding the broadcast trial of Amanda Knox in Italy.

Obvious arguments exist for and against allowing cameras into court. Whilst the public have a right to attend court proceedings as public gallery spectators, there are numerous obstacles for many who wish to do so.

Perhaps, therefore, the process of filming in court could demystify the legal process for the public, who have the right to see justice done. Projecting legal proceedings directly into the comfort of one’s own home could accordingly break down barriers and confusion surrounding the Scottish court process.

In promoting transparency, televising trials might increase public confidence in Scotland’s criminal justice system. The law may become more intelligible, or, alternatively, deficiencies may be rightly exposed.

Leading impressions

Considering the impact of the “The Murder Trial”, as a six week trial edited into 97 minutes, the programme was a bold televisual experiment. However, the overall reaction seems to be that it was executed very well. The majority of those who have taken the time to comment online seem to have been quite impressed by it – unless this was only due to the calibre of the other offerings on television that week!

With witnesses being examined in relation to “ground teeth” and “crocodile tears”, there was certainly no shortage of shocking material to attract the masses. Yet beyond the verdict that it was interesting and engaging to watch, and its effect in reigniting public interest in the Scottish criminal justice system, did “The Murder Trial” provide the ordinary woman or man with a helpful insight into the workings of the system?

An important feature of the documentary was the fact that the Scottish public were shown that entirely circumstantial evidence can serve to convict an individual of murder. Contrary to public belief, a body, a murder weapon or DNA evidence need not be the crux of the case against the accused. The documentary thus filled an important void, by showing an unusual type of murder case that is rarely examined in TV fiction.

Alex Prentice QC’s rope analogy of circumstantial evidence also provided a useful lesson, explaining that this type of case involved multiple thin strands of evidence, which would come together to form a cable that is quite strong.

Dramatis personae

Another general observation was the personal reaction that the documentary provoked in respect of Nat Fraser himself. Did the public view him as a criminal, as he sat in the dock in between two police guards? Arguably not. Yet the footage of the accused equally did not evoke great sympathy either.

This neutrality and the fact that almost anything could be taken from Fraser’s reactions in the dock was important to show, given that misconceptions exist as to how easy it is to tell whether or not someone is guilty, just by first impressions of them.

This footage was particularly interesting due to the fact that, whilst he elected not to give evidence, throughout the documentary selective footage of Fraser was broadcast. This made for an interesting dynamic.

Throughout, he remained the focal point of the trial, watching all the evidence and taking notes as Crown witnesses were examined. At one point the viewer could even pause the picture and almost identify the content of his handwritten notes, which the camera had zoomed in on.

The very fact that the accused resolved not to give evidence also prompted the viewer personally to battle with the traditional misconception that silence is akin to guilt. Arguably, providing an opportunity for the viewer’s personal reflection on this point during the documentary was welcome.

By contrast, the absence of footage of the jury, who had not consented to being identified, was equally interesting. Sitting in the public gallery, one can easily watch the jurors’ reactions to the evidence led. Indeed, defence lawyers often rely on such inferences throughout the trial to gauge juror impressions of the evidence.

That the public in their livingrooms did not see a single face from the jury is arguably a positive thing from the perspective of education, as they were made to feel more like willing participants in the assessment of the evidence as a result.

A clear criticism of “The Murder Trial”, however, was the reliance on external interviews, which left this author less convinced of the informative value of televising justice in this format.

For example, the documentary included a great deal of archive footage and interviews with friends, relatives, witnesses (such as Hector Dick) and court reporter Brian Horne.

Whilst these interviews made for interesting viewing (and helped to portray the lasting emotional impact that such a crime can have), and were not given over-dramatic treatment, arguably they were at odds with the impartiality of the judicial process being depicted and distracted attention from the court proceedings.

Did hearing the opinion of the accused’s daughter, who was five years old when her mother disappeared, on the guilt or innocence of the accused, add anything to the public’s understanding of criminal justice?

She believed the accused to be innocent. And who did she believe was guilty? “Hector Dick”, she said. “A hundred per cent.” Indeed, she wouldn’t believe Fraser had committed the murder even if he confessed.

Footage such as this arguably distorts the viewer’s impression of the trial. More emphasis on the evidence led in court would have enhanced the public’s ability to immerse in criminal justice and authentically observe a murder trial in action.

A more positive use of extrajudicial footage could be seen in the scenes of Alex Prentice QC and John Scott QC during breaks, portraying the human face of the Scottish legal profession. This showed that working as a criminal prosecutor or a defence lawyer is a job. It does not mean that each party is at war, as television courtroom dramas often suggest. The competition and rivalry need not transcend beyond the forum of the trial, or so the documentary told us.

Impact of the verdict

Significantly, the relative shock of the verdict (to those who had not googled it beforehand) is perhaps the most persuasive argument against allowing more widespread filming in court of this nature, at least where broadcast in this format.

“Fascinating, watching the evidence on screen I wouldn’t have given the same verdict as the jury either. But they watched the proceedings for six weeks”, was the comment of one member of the public (from The Guardian’s online forum for comment).

Another noted: “Never underestimate the stupidity of people – juries make decisions based on all sorts of prejudices and beliefs that have nothing to do with the facts of a case.”

Personal assessments of the jury’s decision emerged, and this is arguably where the detrimental effect of the editing process was seen. On a personal assessment, the documentary arguably did give the impression of reasonable doubt in the case against the accused.

Focused in a 97-minute time frame, the elements of doubt within the Crown case were magnified, and this is perhaps why the guilty verdict shocked many of those who had not known of it in advance.

On the basis of what was shown within the four walls of the documentary, the jury’s decision was not easily anticipated. Whilst juror decision-making is usually a difficult and involved process, and very seldom in a trial is the guilt or innocence of the person sitting in the dock overwhelmingly obvious, the break in reasoning between the evidence portrayed and the verdict given to the viewer perhaps should present cause for concern.

The surprise for the viewer was also, in itself, dangerous, as personal faith in the ability of the jury to determine a case may have been diminished for some. Others may have been alerted to the potential fallibility of juror decision-making, even if this stemmed from a (perhaps) inaccurate portrayal of the trial.

It is therefore unclear whether “The Murder Trial” served to convince the Scottish public that juries evaluate evidence carefully and come to the right decision, due to the potential for viewers to cast judgments on the guilt or innocence of an accused on the basis of what the director has presented before them.

For this reason, perhaps offerings such as “The Murder Trial” will contort the process of justice as we know it. For example, an acquitted accused’s personal or professional reputation could be destroyed instantaneously where edited coverage leads viewers to conclude that he or she is guilty notwithstanding acquittal.

A related observation concerns the change in some viewers’ perception of the accused’s guilt once previous convictions were heard at the sentencing stage.

“I was shocked at the verdict, but as soon as they went through the previous convictions I was less so... I was amazed how much my opinion changed by having that information”, observed one viewer (from The Guardian’s online forum).

Hearing the history of domestic abuse that had been inadmissible during the trial, at the stage of sentencing, ultimately highlighted the impartiality of our procedure in its ability to deliver true justice.

Had this information been available during the trial, it is arguable that members of the jury would have been even more willing to vote in favour of guilt. Such information might even have detracted from some of the evidence led at trial.

The education factor

The shock of the inadmissibility of this information may have left the public with little faith in why Scots law has this rule, because the documentary provided no elaboration. It could have explained, for example, that other jurisdictions share this rule and that it is essential to ensure that the Crown proves the case against the accused solely on the available evidence relating to the specific crime being tried.

Accordingly, further information would certainly enhance public understanding of criminal procedure. For example, the televising of Lord Bracadale’s opening guidance to the jury that the burden of proof is placed on the prosecution and that the accused should benefit from the presumption of innocence, were welcome scenes to be found in “The Murder Trial”.

The lack of any mention of corroboration and its role in Scotland (at least for now), was disappointing, as was the lack of explanation of our standard of proof, until the very end of the trial, when it was touched on in the footage of John Scott QC’s closing speech.

Educating the Scottish public as to what constitutes “beyond a reasonable doubt” is no mean feat. It is suggested that further experiments on televised access to justice should undertake this terrifying task (via the use of authority and members of the profession) if we are to enhance understanding of our justice process. If this did not actually feature in the live retrial, that in itself presents an opportunity for reflection.

A documentary showing the Scottish criminal court process in a jury case would also increase understanding of procedure by fully explaining why the judge is present, despite the jury acting as the decision-maker. “The Murder Trial” missed an opportunity here, despite Lord Bracadale being shown noting that he was “above proceedings”.

Equally, no explanation was offered of why the victim’s family were shown in the public gallery, yet also gave evidence. The public would be forgiven for having concerns about the impartiality of such witnesses on the basis of what they saw.

External interviews providing information on the justice process would therefore be more welcome in future than footage of emotive interviews with families of the victim or accused. Arguably, the public learned more about a Scottish criminal trial via John Scott QC’s explanation of the role of cross-examination, than through upsetting footage of Arlene’s sister explaining that she “knew Arlene was dead, it must be a sister thing”.

Equally, it is not clear what we gained from hearing the forensic expert’s “gut instinct” of the accused’s guilt, in spite of the conclusion that the forensic evidence objectively led him to. Nor from the jury minder’s input that the jury “will take into account their own emotions”.

On the other hand, and perhaps contradictorily, the fact that there was no closing voiceover was both significant and commendable. Despite the documentary having looked at the lives of the people involved in the case, it did not suggest that the ordeal for those involved was concluded neatly on sentencing. This served to highlight that there is often no concrete resolution for the victim’s family following a criminal trial.

Lord Bracadale’s explanation of the three verdicts open to a jury in Scotland also helped to demystify our criminal process.

A final benefit of the broadcast is that it enabled those from other jurisdictions to tune into our system of justice, even if it may not have been displayed truly “warts and all”. A personal favourite of the public comments (posted on The Guardian’s online forum) is: “Scots – spell it out plain – no flannel, no grand standing.”

As Lord Bracadale reminded us, the facts that we do not have opening speeches and that the judge does not sum up the evidence, are unique features of our legal system.

Lastly, worthy of comment is Lord Bracadale’s intervention in the evidence of Hector Dick, to warn him of his duty under oath to answer questions truthfully. This example of judicial guidance within the trial was crucial in terms of the public viewing criminal justice. It also raises critical questions of the editing process. Had this footage not been included, at times, during the questioning of this particular witness, Scotland’s High Court might have been portrayed almost as a kangaroo court.

This reflection leads me onto my final criticism, being the most serious reservation that I have with the format of access to justice presented by “The Murder Trial”. This is that the question of the extent of significant information that was omitted by the editors remains open.

Editing future justice

In a six week trial edited into 97 minutes, editing was key. In a compressed documentary, the public could only be shown carefully selected moments of a very long and involved process. Whilst it is far less likely that people would tune in to watch a much larger extent of material from the trial (justice can be boring), the very point that the majority of those who viewed the documentary would not have seen the six week retrial meant that it was impossible for individuals to determine whether what they had been shown was an accurate reflection of the full trial, or material that was selected to meet the desire to tell a good story.

Did it demonstrate the phenomenon of trial by television, for television, on television? To an extent, it did verge uncomfortably on the side of dramatisation at times, and if televising trials is to become a more regular occurrence, a wide variety of issues will need to be scrutinised in respect of the editing process. A greater emphasis on the length of the trial in reality would also have helped to shatter misconceptions about the pace of the court case.

Whilst the viewer need not share the juror’s obligation of impartiality, distorting the reality of what happens in court will surely not further public understanding of the court process. Rather, it is more likely to regress it. A balanced picture of criminal justice could be sacrificed in favour of a sequence of dramatic events, if the editing process is not closely regulated.

For instance, in light of the fact that key evidence was omitted from “The Murder Trial” and shown later as clips during the closing speeches, was it essential to include footage of Arlene Fraser’s sister in the witness stand correcting Alex Prentice QC, when asked: “You have a sister, Arlene Fraser?”, with the emphatic response “I had a sister”?

Of course, there is equal scope for selective reporting via traditional media. Perhaps the issues facing the media in respect of self-regulation should thus be classed separately and distinctly within this debate, with such arguments not tarnishing the potential benefits of televising court proceedings.

Public appetite

“The Murder Trial” has shown us that filming in court need not necessarily descend into an O J Simpson frenzy, simply by virtue of proceedings being televised.

As an experiment it has served us well. It was captivating to watch and it was not a scandal to Scottish criminal justice. As it did not “cheapen” court, we should be assured that the next step will not be cameras in the jury room, or prime-time reality television trials, shown live to enable the viewer to vote on the issue of guilt.

However, “The Murder Trial” could have done a great deal more to advance public understanding of the court process and access to justice. Moreover, it was difficult to escape from the impression that it had been directed and edited throughout.

For this reason, it did not prove that the presence of cameras in court will tell the public substantially more about the reality of the Scottish justice system than can be made available via the news and other media outlets. It remains to be shown whether such a format for access to justice can be improved to a stage at which its authenticity and accountability to criminal justice can be more closely guaranteed.

It is unlikely that the televising of the Nat Fraser retrial will herald the end of traditional justice any time soon, sacrificing it to the camera’s glare. With daily offerings of the Houses of Parliament being broadcast globally, the filming of public inquiries such as Leveson, and easy access to hospital emergency and maternity departments through television shows such as One Born Every Minute and 24 Hours in A&E, perhaps it is time for our legal system to embrace the accessible era better.

Recent broadcasting suggests that there is increased public demand for insight that needs to be satisfied. Yet the categories of legal cases that more members of the public tend to take an interest in are those involving gory details (most often located in murder trials) or celebrity scandal.

Are the public interested in such cases because they wish to bear witness to their legal system? Or do they simply draw crowds, as did the stocks and the gallows? In these changing times, we must ensure that the legal profession continues to greet modern culture thoughtfully.

Justice need not be romanticised or glamourised in court proceedings, or presented as anything other than reality. The Scottish legal system exists to provide a vital service to the Scottish people. As Alex Prentice QC reminded the jury in his closing speech: “This is not play or a film. This is a real case, involving real people.”

Whether for entertainment or for information, Scottish criminal justice truly became a public affair following the televising of Nat Fraser’s retrial on 9 July 2013. If we are to continue to move beyond the narrow confines of the court building, we must first hope for increased authenticity and proportionate editing. Failing that, perhaps we must learn to distinguish better between illusion and reality.