John Forsyth: Evolutionary need for more evidence

LAST week’s Justice Committee round table on “the role of the media in criminal trials” was a decent beginning at exploring the principal area in which the general public gets a glimpse of the criminal justice system.

LAST week’s Justice Committee round table on “the role of the media in criminal trials” was a decent beginning at exploring the principal area in which the general public gets a glimpse of the criminal justice system.

The elegantly barbed exchanges between Donald Findlay QC and lifelong newspaper man Magnus Linklater about which of them is most trapped in the past were a delight in themselves.

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However, it was only a glimpse. The vast bulk of criminal justice administration takes place largely unobserved and, regrettably, unreported. A tiny minority of prosecutions go to trial. The greater number are filtered out, first by the police, who can administer cautions, or by procurators fiscal who offer various diversions from prosecution or, in the process of plea negotiation, up to and including the scheduled day of the trial itself.

The role of the media in those trials that do take place has been in constant evolution. I had cause recently to listen to the tape of a radio programme I made 15 years or so ago about the last man to be executed in Scotland. Henry John Burnett was hanged at Aberdeen’s newly refurbished gallows on 
15 August 1963.

Two anecdotes by Robert Henderson stood out. By chance he found himself acting as prosecution junior in a capital murder trial as his first case of any sort. He recalled that the occasion was such that the Gordon Highlanders provided a guard of honour outside the courtroom and the trial judge, Lord Wheatley, emerged to inspect the troops before beginning the trial. The Aberdeen Press and Journal carried a verbatim account of the evidence as it was delivered in court. The public benches were full, with a queue outside of citizens ready to take the place of anyone who left early.

After the verdict was delivered Henderson and his senior, Bertie Grieve, found themselves in the queue at the train station ticket office with the foreman of the jury. In those days it was not forbidden to speak to jurors. They didn’t have to probe deeply for an account of the deliberations that had led to the majority verdict.

It was only in the 1920s that photographers became barred from trials. There are photographs in the files of Oscar Slater and Dr Crippen, among others, listening to the evidence against them.

Donald Findlay noted that the public benches in most trials are now populated only by those for whom hanging around trials is a hobby.

TV documentary makers are currently negotiating a scheme with the Lord President’s office that will allow them to broadcast edited versions. It would be naïve to believe that, as with the broadcasting of parliament, the parties will not incorporate the presence of cameras into the way they conduct themselves – “donutting” at question times, for example – or that broadcasters won’t press against the limits of whatever rules are agreed in search of drama.

The challenge of new media isn’t that they will offer a new route to conveying to the public courtroom events as they unfold. That’s just another stage of evolution. The issue is that the internet is never corrected or weeded. Aamer Anwar wondered what this does to rehabilitation of offenders and several more agreed that the temptation it offers to jurors to second guess evidence can be irresistible. I look forward to the Justice C committee probing further and more deeply.