Would justice be the real victim in televised trials?

Should we televise trials? What about civil cases?

The answers may be different. Each should be driven out by legal principle. The lawyer’s duty depends on the context.

You believe what you are told but not blindly. The client is entitled to that much trust. In crime the defence need not tell the whole story. The prosecutor is not a persecutor and the standard is beyond reasonable doubt. The accused must, therefore, have fair notice of the whole evidence including the contrary and the inexplicable. It’s up to the Crown to prove its case, not for the defence to disprove it.

So, from the defence perspective, the less material gets out, the better. Doubt thrives in shadow.

The lawyer must give objective advice. If you don’t think your client’s line is credible or likely to succeed in law, you must say so as soon as you come to that view.

The great problem lies in maintaining objectivity. Any stake in the outcome - unpaid fees is the most common - gets in the way.

So do friendship, affinity, empathy and sympathy. This is why we have an independent bar and why it is such a precious thing.

The lawyer’s duty is to the system (sometimes ‘the court’).

We believe it is better that some guilty men are free than a single innocent convicted. ‘Innocent until proven guilty’, ‘no duty to help the prosecutor’ and the duty to disclose contrary authorities are key principles.

Thus, for example, the defence agent can’t present a position he knows to be false but can hear a confession and tell no-one.

Judges are expected to be impartial; decisions should flow without fear or favour. There is a duty to be objective in civil cases but they are entitled to be subjective in sentencing.

We believe that exemplary sentencing is valid but that mercy should temper justice. Nevertheless, some measure of consistency is important. Clearly these principles collide. The balance between them is in dynamic equilibrium with society.

So, is televising trials or verdicts a good thing? I think it is not.

A death show is the ultimate reality TV. Televising a murder verdict is, in a sense, that. Public execution was abandoned in the 19th century here, rightly so. What if the accused is innocent? Can his life be the same again? Even if guilty, YouTube and the internet means immortality. A conviction spent in law or quashed is small comfort.

Was the Pilley verdict broadcast to entertain the masses or to show justice was done and objectively fair? Kant would excuse a judicial execution to appease the public’s needs. I hope that that is not currently acceptable.

Television holds both the victim and perpetrator up to scrutiny. Often the victim is no innocent. Both then can be held up to public contempt and for centuries Scotland has known that, even for the guilty, as a civil wrong. That wholesome tradition is lost in broadcast and the risk to the victim may have a negative impact on reported crime.

The media portrays the public as vengeful. So for a judge, mercy is the harder path. The more so if sentencing is in the glare of spotlights. In my view the system is the less if we make it more difficult to be merciful.

Television provides a temptation to play to the gallery, and that entails a threat to objectivity.

A televised trial might be a marketing device for counsel and a temptation for judges to say more than they should. In crime the least said the better.

I think broadcasting is less damaging in civil cases. Mercy has no part, but the other criticisms apply.

Of course, in all cases, the more publicity a judge gets, the more difficult it is for him to live in anonymity. For judges who do not seek the spotlight, and there are many, it’s unhelpful to have your face a click away.

l John Stirling is a solicitor advocate and partner specialising in litigation and dispute resolution with Gillespie Macandrew