Monday, 18 May 2020

The adventure of the empty public gallery

What can the public see in today's hastily improvised, virus-adapted virtual courts?

Not much. The public gallery has for the most part been removed.

Today's lucky dip is in the Court of Appeal. Selected cases have been streamed from here since November 2018. The service has been suspended for the duration, but one exception is Hoareau & another v The Secretary of State for Foreign and Commonwealth Affairs. This concerns citizens of the Chagos archipelago in the Indian Ocean seeking to return to the islands following eviction by the UK to enable the US to build its Diego Garcia naval facility.

You are not allowed to reproduce court footage. Here is what remains after I've taken out the incriminating bits, plus some more to be on the safe side. Yes, I know we don't want people adding a dub reggae soundtrack, or editing a judge's words to make it sound as if he said X instead of Y. I get that. So I guess we're lumbered for now.

To test the water for virtual jury trials in a self-distancing age, the campaigning body Justice has been conducting mock hearings. It declared that the one on 6 May would have 'particular emphasis on how to recreate the solemnity of the court, and the rituals that contribute toward it.' But, even if you leave aside the overalls-and-spanner aura of the event itself, that whole idea is blown out of the water once you plonk a hearing down in the foetid bone-strewn cave that is YouTube. Your recommendations down the side will be a model of good taste but I've redacted some of mine. I am the thirteenth viewer present. Each participant (wigless and gownless) is separately boxed. A muted solicitor lurks in a blacked-out rectangle. The dolls' house look evokes Play School for anyone old enough. The sound is tinny and distorted; some words are lost.

In one rectangle the Master of the Rolls sits on a chair placed asymmetrically beneath the royal coat of arms. The rectangle to his right is a blurry, glaring, flashing representation of migraine, not safe for anyone with epilepsy. Compiled by some offstage Drosselmeyer (possibly a hard-pressed individual taking terrible risks to be at work) it contains a patchwork of four scenes, stitched together on one master screen. What we are seeing is a close-up film of this screen. The second-hand nature of the image accounts for the Vaseline-on-the-lens look.

I can see that people are trying very hard in ghastly circumstances and I am sure that things will improve.

Lord Justice Green has a half-timbered ceiling. We hear the reassuring tones of Sir James Eadie QC, appearing for the Secretary of State. His backlit features are hard to discern. He has obviously taken television training to heart and is keeping his head still. Unnaturally still. In fact... I think of Sherlock Holmes in The Adventure of the Empty House. To foil a would-be assassin, the great detective commissions a wax bust of himself so that he can appear silhouetted in his Baker Street window. The bust is occasionally moved by the faithful Mrs Hudson, keeping out of view. Could Sir James...? But no, his image has just frozen for the duration, like so much else of life.
Illustration by the great Sidney Paget
The virus has inevitably restricted court access for the public, and those people who can't get online simply don't exist. My one attempt so far to join the public in observing a hearing shared on meetings software was met by an unexplained refusal. It was however illustrated in sepia tones from memory, to comply with the law, by a court artist and I'm not allowed to show you that image either, because of copyright.

Those who are trying to widen access for all kinds of observers include Transform Justice and The Transparency Project

Thursday, 7 May 2020

Jammin' for Justice

We're jammin', we're jammin'
And I hope you like jammin' too

                                   - Bob Marley

We're all stuck, computer screens freeze into lockdown at will, and we're having to improvise like mad. 

What does social distancing mean for jury trials? The all-party law reform and human rights organisation Justice is experimenting with mock Crown Court trials online, to assess their workability and fairness. I'm tuning in to the fictitious case of R v Christopher Hallett, concerning alleged unlawful wounding with a wheel brace at a petrol station following an altercation about loud music played in an open-top car. 

It's delayed by an hour and a half because a juror has tech problems. Then we see the virtual court with judge, jury, clerk, counsel, defendant, and witnesses in turn, like a pile-up of Punch and Judy booths, but there's no sound. I'd like a lip reader with me and a sign language interpreter on screen.

Prosecuting counsel wins on colour. His striking scarlet background seems to reinforce his message. Colour affects emotions. Red is a political colour to some. I would impose a neutral background. 

Everyone else sits in the grey-to-magnolia spectrum apart from the judge, who appears in front of multiple versions of the royal coat of arms, wallpaper style. 

I am uncomfortable with the prominence of the jury. I would rather not see them at all, as the present format allows them to be identified by people beyond the court. I certainly don't want to draw them.
At last the sound comes on. The judge is warning the jury that it can be hard to concentrate on a virtual scene: 'I ought to notice if any of you drifts off... I will say generally "time to wake up" as it were...' He points out that the jury's on-screen view of the witness is 'as good as if not better than the view you get in court' but balances that by saying that a blind judge is not at a disadvantage. I think of Sir John Fielding, the blind eighteenth century magistrate whose innovations helped to bring about stipendiary magistrates and the Bow Street Runners.

Next, prosecuting counsel piles on the drama: the defendant used a wheel brace 'to strike, to assault, to hit...'

There is bundle malfunction. Everyone can see the document except the judge. 'Don't worry about me,' he says, probably for the first and last time in his career on the bench.

There is an awful lot of face-touching, mainly from counsel and judge. Defence counsel manages finger licking too. A juror sneezes.

I'm drawing in an aimless sort of way. Sketching in the courts below the UK Supreme Court is illegal. I recently got in touch with the Royal Courts of Justice to check that this applied to hearings that were currently streamed. They confirmed that I would have to draw from memory - either switching off my device or retreating to another room. I pointed out that the picture would look like a Francis Bacon screaming pope with a Laura Ashley border. Today I'm ignoring the stricture as this is a mock-up.

In a virtual courtroom, no one knows what else you might have on your split screen. I resisted the stream from the Metropolitan Opera (Hamlet by Ambroise Thomas) and a random episode of Crown Court, a magnificent TV series which you are too young to know about but can be found on YouTube.

The brief lunch break is like a Shakespearean scene of comings and goings, overhearings and misunderstandings in a twilit forest, with Puckish technology thwarting the unwary. Individual cells blacken and flicker back to life. The judge removes his wig for some more face and head touching and stares into his camera.

'The public are still listening,'  the clerk warns judge and counsel.

'I'm going to mute my video,' says the judge, 'in case some gossip comes into my head that I can't resist sharing with you and the whole world.'
Face-touching judge

After the break, glitches are resolved. Professor Linda Mulcahy from Oxford University, one of the independent academics who is evaluating the test, does a brilliant turn as a witness for the defence. When the jury retires, the judge reckons that they won't reach a verdict: 'I'll give you odds,' he says, but fails to run an illegal book.

'Have you reached a verdict?' asks the clerk.

'No,' says the forewoman. The judge beams. In a show of hands, seven would convict, three would acquit, two don't know.

This is the fictional case of R v Christopher Hallett, indicted for s20 Offences Against the Person Act unlawful wounding. HH Alistair McCreath is presiding at the virtual Crown Court, Pimlico. The prosecutor is Mark Trafford QC. Defence counsel is Rosina Cottage QC.