March 15 2023

Caged justice

Caged justice

In my Hancock’s-Half-Hour-directed-by-Kurosawa lockdown life, I injure my nostril doing a home Covid test. Not much blood. Have I left the swab stuck up there? Panic.

Meanwhile the population is dividing into shelterers and shoulder-bargers.

For distraction I turn to the fourth mock virtual jury trial run by Justice, the law reform and human rights organisation. It starts half an hour late because there are three rival jury lists. The judge assures us that no hearing in his experience has ever started on time: ‘There is always something, so don’t rush away saying the technology is no good.

The case, a fiction about vengeance and an unreliable barmaid, reads like a rejected Thomas Hardy plot. Prosecution counsel fastidiously pronounces glassing in inverted commas.

Last time the judge’s backcloth was an Osborne-and-Little-style repeat pattern of the royal coat of arms, but it has been swapped for a more dignified version. Prosecuting counsel has taped white paper over his enthralling scarlet paint but is terrifyingly backlit to begin with.

For John Cage fans there is silence and found noise. Muting is a constant problem and the judge explores elegant ways to ask jurors, counsel and clerk to watch this, e.g. ‘You would be held more effective as an advocate unmuted.’  Mike, the Unseen Voice of Tech, may have a hand in some of the muting. The judge is accidentally muted to the public for the summing up. Once he finds out, he gamely tries to fill us in. When he is troubled by reverb, we can hear it too.

Miscellaneous door closing, paper shuffling, drink slurping, traffic. Transmission freezes at about 13:34, but not for long. During the break, we get the judge speaking over a clicktrack of his own voice, and bursts of indecipherable chatter from a group clearly not social distancing (the jury?). Mike’s mic check.

The jury
Gathered in one place for the first time in this series, the jury are in what looks like a white-walled closed cafeteria. In their on-screen lab-rat cages, it is impossible to tell if they are social-distancing. Gratifyingly, the one called Michael Collins has an Irish accent. While the judge is assuring them that their safety is paramount and masks are provided for all, one juror is wearing a mask. By the end, three are masked.

They have been selected from people who are not shelterers. They are prepared to travel to the designated place, to be enclosed with others and to use public lavatories without fear of hazard. They may have to use public transport. When I attended a long-running trial at the Old Bailey, half the jury – who were selected because they were able to spend months out of the workforce – were obese. Where am I going with this? Nowhere. I am staying home.

Questions: how important is it to be in the physical presence of a witness? Are the pheromones and stress chemicals which you unconsciously detect a help or a hindrance? Even if a witness is easier to see on screen than across the courtroom, does the camera objectively reveal demeanour? And can you rule out online distractions? (Ooh look, bookshelves – let me judge you.)

The jury splits 7:5; we are not told which way.

From the estimable TV series Crown Court

We the people
While the jury deliberate, the judge discusses with prosecuting counsel how, in the absence of a Tannoy, the public can be informed when the jury is returning. He speculates that the public are getting on with ‘your novel, your crossword or your knitting’. His concern for the public is not mirrored in real life: the public gallery has effectively been junked for the duration, despite pious assertions to the contrary.

Now here’s a worry. Writing about this project on his blog Counsel of Perfection, barrister Maximilian Hardy says that a virtual public gallery ‘needs to function in such a way that the trial is not being recorded on mobile phones. The solution to this is to have supervised remote locations at which trial observers are able to log into a particular trial having surrendered any recording devices with the parties alerted to their presence.’ That excludes shelterers.

He doesn’t mention the need to stop people drawing from the live screen, which is illegal, even in your home. Courtrooms (below the Supreme Court) have to be drawn from memory. Look, I don’t make the rules.

This is the fictional case of  R v George Drew, indicted for s20 Offences Against the Person Act unlawful wounding. HH Alistair McCreath (who devised the case) is presiding at the virtual Crown Court, which he places in Erewhon, but let’s not go off on a Samuel Butler tangent about the potential criminalisation of shelterers.

The prosecutor is Mark Trafford QC. Defence Counsel is Louise Oakley.

For more information about this project, please see https://justice.org.uk/our-work/justice-covid-19-response/