December 3, 2018:
‘One man’s transparency is another’s humiliation.’
– Gerry Adams
I have been getting behind in keeping my diary, through the demands of the approaching festive season and an irresistible TV channel. Talking Pictures specialises in many black and white films from yesteryear: particularly crime stories and extensive legal dramas. They are refreshingly familiar to barristers and solicitors of a certain age: showing a system that was far from perfect, particularly over disclosure, but had a balance which gifted some advantages to the Defence and some to the Prosecution in a way that defied precise scientific analysis but generally worked fairly within a jury system. Changes were introduced sparingly: permitting evidence to be read by agreement, for instance, or requiring notice of alibi. Most were statutory, introduced at a speed allowing absorption without fundamentally altering the essence of the system.
Unfortunately, the pace of statutory alteration grew during the 1990s, reaching a fever-pitch in the first ten years of the 21st century. Such was the volume of statutes dealing with the Criminal Law that over a 13-year period more Acts of Parliament in this area were passed than in the whole of the previous century. Recently, procedural and sentencing reform has been by the judiciary’s hand or bodies such as the Sentencing Council.
It took Paddy Corkhill, an irrepressible senior junior with a love for the grape, to bring it all home to me. I had invited him round for some prematurely seasonal mince pies with brandy butter and an always-welcome bottle of Aloxe-Corton. I switched on my favourite channel in time for us to watch a courtroom drama in which a wrongly accused man, fitted-up by the true murderer and plagued by the honest but mistaken evidence of a rather dim young teenager, was acquitted only because his loyal fiancée spotted the villainous witness she had seen from the public gallery unwisely revisiting the murder premises, together with some help from a very open-minded police officer who rather fancied her.
Paddy enjoyed every twist and turn. At the end, he stirred the dregs of the red wine by moving his glass round and looked at me. ‘Be difficult nowadays, wouldn’t it?’ he said. ‘What would be?’ I asked. ‘Making this film. I mean, it depends on the murderer giving evidence and that troubled child getting it all wrong.’ Spotting a second bottle of red wine on my shelf, this time a claret of a distinguished vintage, and before I could move it quickly out of harm’s way, Paddy had plunged the corkscrew into the cork and I realised a long night was ahead.
Sitting back on my sofa and producing a huge cigar, Paddy continued: ‘Nowadays, the murderer could shelter behind a courtroom curtain on the basis his testimony would then be more effective. You bet! And because the teenager is obviously vulnerable we would quite properly hear her evidence in-chief on video followed by a cross-examination with pre-constructed judicially approved questions, such as: “Mr Gordon says you didn’t see him coming out of the door that night. Is Mr Gordon telling the truth?” And that wonderful chase-scene when the police capture the true murderer and instead of saying “you’re nicked” would have to have said “you are under arrest. You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence,” whilst all the actors froze. The fiancée would not have recognised the murderer later anyway because she would never from the public gallery have seen him give evidence in the first place and anyway would probably have been asleep from boredom.’
There is no doubt that our well-meant changes have altered fundamental elements of the criminal trial. Some changes were statutory, others procedural and yet more involved interpretation of the law by the judiciary. The visitor from the 1950s would not only fail to recognise the trial system, but, in most trials, would not even be able to see crucial parts of them. There is a chilling effect. It starts at ‘Security’ on entering the building. It often ends in a complex sentencing phase involving voluminous sentencing guidelines and the judge having to gas incomprehensibly for half an hour before the poor miscreant even realises his fate. The combined effect is to push the public further and further away from seeing and understanding the process.
Dear Paddy: perceptive as always… Wouldn’t do to tell him though, so I just said: ‘Give me a puff on your Montecristo, you old soak!’