Before politics came to dominate public life, Scotland’s legal system and courts were much more prominent in people’s everyday experience.
Professor John Cairns of Edinburgh University explains: “Parliament House in Edinburgh, where the Court of Session sits, was the everyday resort of residents, and the Hall, which was the Outer House of the Court of Session, contained booths where merchandise was sold, as cases were conducted nearby.
“The courts offered spectacle and ceremony. Before 1747, most rural Scots would have been subject to the courts held in the Barony or Regality in which they lived. It was in these courts that they litigated or were sued. They were familiar with them and their procedures, just as town-dwelling Scots were familiar with the various courts of their burgh. Courts were not remote or distant.”
Today, our courts are less integral to the life of the average person, but they continue to capture the public’s imagination in crime fiction, true crime and courtroom drama.
But to what extent does this accurately depict the criminal justice system? Often, stereotypes are reinforced and unique features of the Scottish system are overlooked (a jury of 15, not 12; an “accused” in the dock, not a “defendant”). This lack of authenticity has made me question what can be done to ensure that courtroom scenes in fiction, film and television are truer to life.
This matters precisely because courts are no longer central to our lives. The average person knows little of Scotland’s justice system beyond what they have gleaned from fictional representation, yet it could become very real in a moment of personal difficulty or crisis.As for whose responsibility it is to put misconceptions right, the legal community itself has a leading role to play.
Advocates are court lawyers with expertise in questioning and cross-examining witnesses, and making persuasive submissions before judge or jury. All advocates are members of the Faculty of Advocates, which has a long tradition of public service and a strong commitment to educational initiatives.
The Faculty also has a long association with literature – Robert Louis Stevenson and Sir Walter Scott were, after all, advocates. Of modern authors, Alexander McCall Smith and Gillian Galbraith are advocates. In 1925, the National Library of Scotland was founded when the Faculty gifted its copyright collection of non-legal texts to the nation.
More recent support for educational endeavours includes mini trials. The inspiration of Lord Kinclaven, mini trials take lawyers into primary and secondary schools to offer workshops on our criminal justice system and coaching in trial advocacy.
The participants then stage their own mock trial, often in a local court, taking on the parts of lawyers, witnesses, accused and jury – all under the watchful eye of a legally-qualified “sheriff” (Minitrial.org.uk).
This year, for the first time, the Faculty sponsored an event at the Bloody Scotland international crime writing festival, which I was delighted to chair. I ‘cross-examined’ three successful lawyers-turned-crime-writers on the need for authenticity in crime fiction. As lawyers, they know the system while sometimes taking liberties for dramatic effect, and we enjoyed a lively debate exploring where each chose to draw the line.
I hope that the Faculty’s sponsorship of Bloody Scotland will lead to an ongoing relationship between lawyers and crime writers, and I was thrilled to meet with Lin Anderson, renowned Tartan Noir writer and co-founder of Bloody Scotland, and Professor Lorna Dawson, head of forensic soil science at the James Hutton Institute, Aberdeen, to discuss ways of working together.
Our proposed collaboration involves a courtroom dramatisation which would bring together Scottish crime writing, cutting-edge forensic science and real advocacy skill – a platform to showcase the best that each of our professions has to offer, in ways that both entertain and educate.
Educating and entertaining can and should go hand in hand. When courts impinge less directly on our lives but public fascination endures, we have an opportunity to illuminate the reality of our unique justice system.
Laura Thomson is a member of the Faculty of Advocates.