Rumour reaches me of a new miscarriage of justice series on television. And – hold on – it’s on Channel 5.
Actually, I don’t mind where it’s on, although it’s a sadness that the channels where you would expect to find such a series have tiptoed away from this example of true public service broadcasting.
It’s exciting that a broadcaster has recognised that miscarriages of justice are not, as one jaded tv executive said, ‘a bit 1980’s’. In fact these programmes (and I would say this, wouldn’t I) represent what today’s television should be doing – using the money, time and skills of the business to audit our criminal justice system – oh, and perhaps free the innocent along the way.
Channel 5 have also understood that miscarriages of justice programmes are, in journalistic terms, very good stories; a whodunit, a whodiddunt, and, with luck, a happy ending.
Perhaps that’s why there’s been a constant background rumble calling for the return of both Rough Justice and Trial and Error. I’m not sure that they can, or even should return. Television moves on, and even when we were making the programmes we felt the ground shifting underneath us. We were the dogged dinosaurs of television. Our programmes were expensive, dense and paid no very great regard to our audience’s attention span. Whisper it low, but the programme itself was never really the point – it was merely the means (that is, it provided the money) through which we could do our real work. Channel 5’s programme will have to be of its time.
So does that mean that we’re in for a series of Celebrity Jailbird, presented by Jeffrey Archer, with interactive voting and a rather inappropriate use of trapdoors? Will Channel 5 do what they did when they took over Big Brother, Channel 4’s grave, sociological study of behaviour in confinement, and turned it into a Daily Star bonkfest?
I’m sure they won’t, because some of the names I’ve heard associated with the series are those of people I respect. The last thing a programme maker wants when embarking on a new venture is the distraction of advice from an old – indeed a pensioner – campaigner. But, for what it’s worth, here goes.
- Make sure that your bosses know that these things cost money. Channel 5 must prepare to spend a lot of cash on projects that come to nothing (in the course of our researches we proved a lot of people more comprehensively guilty than the CPS ever knew).
- Spend time and money going to the crime scene and talk to the witnesses. You learn more from living on-site with a case than from any amount of googling. I’ve never met a witness who didn’t add something to the case. The example I always cite involved the drowning of a child who was drowned in a reservoir. A witness had been woken up by a scream from the bank outside, at a time which, if true, would have put the convicted man in the clear. But his evidence was disregarded, on the perfectly reasonable grounds that his house was too far away from the reservoir bank for him to have heard what he described. But – as he told me – he hadn’t meant the bank of the reservoir. ‘Look,’ he said, taking me to his bedroom window, ‘that’s the bank.’ And indeed it was – the disused railway embankment along which the child had been led to his death, at a time which meant that our man went free.
- Go to the defence solicitor. Don’t worry that he or she may think you’ve come to turn them over for the rubbish job they did at trial. I have always found solicitors the real heroes of miscarriage of justice cases, generously giving their time and opening their files for anyone who might be able to help a client they believe in. I could name them, but there are so many – and you know who you are.
- Go through the unused material. Try to see how it ended up as unused, and how the tunnel walls of police tunnel vision begin to exclude inconvenient evidence. This will be a more fruitful task than it was in my day, when defence solicitors were actually paid properly to read the material.
- Spend some money on experts – but make sure they are experts who are relevant, whose expertise is well regarded, and who bring something new to the party, possibly in a new area of the case. Re-analysing existing evidence won’t get you far – the Court of Appeal isn’t going to be impressed by expert C when they’ve already heard expert A arguing with expert B.
- Don’t pick up leftovers. A pull-together of – say – the Bamber case, showing all that’s wrong with it (and there is much) is just so much forensic daytime telly unless you can bring something new, relevant and powerful to the investigation. It would be great if a new programme, standing on the shoulders of others’ abortive endeavours, managed to find the key to unlock a case. But it would be lazy and catchpenny programme which simply warmed over evidence which had already uncovered, and repackaged it with some additional dramatic pieces to camera and an interview with some criminologist or superannuated Rumpole. Otherwise, it’s all – as Lord Lane described Rough Justice – ‘a mere entertainment’.
- Keep a corner of your mind ever sceptical. There’s a paradox that you have to be committed to a case to do it justice, but you won’t do it justice unless you keep questioning the strength of the evidence. You will want the new fibre evidence to put your man in the clear, but are you sure that it actually does?
- Use Channel 5’s money to make a difference. We all know that there’s something incomplete about Shaken Baby evidence. Move the argument on. Commission some decent, ground breaking research which might, at last, shift the forensic logjam.
- Do justice to the prosecution case. People don’t get convicted for nothing, and your audience know it. Outlining the prosecution case is also a pretty handy way of explaining what the case is about.
- Be as populist as you need to be, but pitch your programme – evidentially speaking – at the Court of Appeal (OK, the Court of Appeal on a good day). Or at least come up with something that will safeguard your case from the CCRC shredder; in other words, find something new which the original trial and appeal didn’t know about, and which would make a difference.
I’ve disregarded my own advice on any number of occasions; added to which I had a pretty stomach-turning line in self-righteous pieces to camera. But I wish you the very best of luck. I seem to keep coming back to this making a difference thing. It is, however, the point of what you’re doing. Otherwise, there are easier ways of making a living in television.
But none of them so worthwhile.
Author: David Jessel
David Jessel is a broadcaster, investigative journalist (Rough Justice and Trial and Error), campaigner and former commissioner at the Criminal Cases Review Commission.