Does it matter that Quiz got the law so hopelessly wrong?

Last week, ITV premiered the three-part drama Quiz, based on the real-life story of the “coughing Major” Charles Ingram (who, despite his popular title, in fact engaged in no coughing himself), and his wife Diana, who along with co-conspirator Tecwen Whittock were convicted at Southwark Crown Court in 2003 of procuring the execution of a valuable security by deception, having apparently cheated their way to the £1million prize on Who Wants to Be A Millionaire.

Adapted from a successful stage play, it was in many respects an accomplished and entertaining piece of television, boasting a fine cast (topped by a terrifyingly Tarrant-like Michael Sheen) and compelling storytelling, gently inviting the viewer to question the safety of the convictions (which have always been denied). But the part which, inevitably, caught the attention of Legal Twitter was the re-enactment of the trial at Southwark Crown Court, which, it is fair to say, departed from reality in almost every conceivable respect.

As many have rightly pointed out, dogmatic fidelity to tedious reality does not make for great TV. And not even the most precious legal pedant – and I obviously include myself in this sad category – expects a three-hour drama to painstakingly chronicle the full in-and-out-of-court proceedings surrounding this four-week criminal trial. Selectivity and artistic licence are the bedfellows of a successful courtroom drama. Nobody wants to see three hours of junior counsel sitting in Southwark Crown Court waiting for a turgid pre-trial review to be called on for legal argument, or twenty minutes of embarrassed silence as the jury wait for the court to find a working DVD player.

But the number of errors that Quiz managed to cram into a relatively short space of time was remarkable. No legal consultant was listed on the credits (albeit there was a curiously-titled “court advisor”), leaving the writing and direction reliant on what I can only presume was either reruns of Judge Judy or uncredited legal consultancy from Vincent Gambini. From the very beginning to the very end, the most basic elements of the judicial process were misconstrued and misunderstood, leaving an unrecognisable portrayal of any criminal trial that has ever taken place in England and Wales.

The obvious question, again fairly raised by several non-lawyers (and repeatedly by my non-lawyer other half, head in hands, as we watched) is Does This Matter? Is this not simply what anybody has to endure when watching a fictionalised representation of their specialism? Is it any different to medics watching Holby City, or IT consultants watching anything with technology, or – to draw on perhaps the most unforgivable aspect (if true) of the Ingram saga, namely his claim not to recognise David Hasselhoff – lifeguards watching Baywatch?

The only difference, surely, is that lawyers are prima donnas sufficiently precious to compose laborious Twitter threads and blogposts on how and why the errors offend them?

These questions are, I’ll say it again, fair. And there is no doubt that I am being an arse. Let’s please make that clear. Pedantry is our stock-in-trade, and we can and do deploy it indiscriminately and, inevitably, sometimes needlessly. But I do think there’s a distinction, and a point, here. I think there is validity among the snark.

Before turning to why, it may help to list the errors, helpfully gathered by, among others, Fiona Robertson, Ishan Kolhatkar and Tom Sherrington:

  1. Tecwen Whittock introducing himself for the first time to the Ingrams on the day of trial. Unless this was designed to be a deliberate misdirection by Mr Whittock for the benefit of those in the public gallery, this is nonsensical. There would have been numerous court hearings prior to trial at which the defendants would have been present.
  2. The prosecution barrister strolling around the courtroom during his opening speech to the jury. Unlike in America, advocates in English and Welsh courts stand still when they are speaking. If you walked around like this clown, you would be immediately told to stop.
  3. The prosecution barrister telling the jury that “You have a 50/50! Guilty or not guilty.” The burden and standard of proof, the foundation of the modern criminal justice system, is that the prosecution have to prove the case so that the jury is sure (or “beyond reasonable doubt” as it used to be known – “sure” is now the standard, although supposedly means the same thing). Cases in the civil courts are decided on the balance of probabilities – or ‘which scenario is more likely’. This “fifty fifty” bon mot from the prosecution barrister would have confused the jury, and, however tempting, would not have been used in this way.
  4. The Ingrams being interviewed together by the police. For what might strike you as obvious reasons, the police do not interview suspects side by side. Alleged co-conspirators have to be interviewed separately, so that they each independently have an opportunity to give their account and answer questions (and so that the police can see if any defences advanced match up). There was also no solicitor present. We all have a right to free and independent legal advice when arrested and interviewed by the police.
  5. The defence barrister being visited by the Ingrams alone at her chambers. Unless specially registered to conduct what is nowadays called “public access” work, barristers are only allowed to take cases that are referred to us by solicitors. The solicitor is the one responsible for all the litigation, and will attend any conferences (meetings) between barrister and client.
  6. “We never thought a high-profile barrister would touch our case with a bargepole”. Apart from the laughable notion of any barrister not wanting a case because it has had too much publicity, this perpetuates a misunderstanding of the role of criminal barristers. We don’t choose our cases based on the clients we like, or believe, or think have a “good case”. The “cab rank rule” means that, put simply, we take the next case that comes along. This is central to the running of our criminal justice system. It means that everybody gets represented, whatever they are accused of having done.
  7. Helen McCrory representing all three defendants. While in rare cases it may be possible for one lawyer to act for multiple defendants, in a conspiracy such as this, where there is ample scope for conflict of interest between defendants, it is inconceivable that only one barrister would be instructed. Even one as mellifluous as Helen McCrory. (And indeed, at the real-life trial, each defendant was represented by their own Queen’s Counsel.)
  8. The judge eating sweets in court. No judge would be seen eating sweets on the bench. (Emphasis on “be seen”)
  9. Witnesses merrily giving their own theories on guilt. Rules of evidence are strict. Witnesses are there to answer questions about what they saw, heard and know. They are not there to speculate, offer theories of guilt, or answer “why would X have done such a thing?” This is vital to a fair trial, as it is not the partially-informed opinion of the witness that matters, but the opinion of the jury, who has heard all the evidence. Any barrister asking such questions would be judicially smacked across the head. Any lay witness offering their own views on guilt would be immediately stopped.
  10. Barristers telling the jury that the charge, if proven, will result in a prison sentence. It is strictly verboten to address the jury on what sentence is likely to follow upon conviction. The jury should be focusing on whether the evidence proves the prosecution allegations, not on, for instance, whether they think the defendant “deserves” to go to prison.
  11. Barristers stopping halfway through questioning a witness to give an impromptu speech to the jury. Barristers are present to ask questions and make comment. The two are strictly delineated. You ask questions of witnesses, designed to elicit facts. And you then comment on those answers, and the other evidence, at the end of the case in your speech. You are not allowed to pepper your examination of a witness with off-the-cuff speeches. It simply doesn’t happen. And here it’s even worse, because we have…
  12. Barristers giving evidence. Barristers are not allowed to give evidence. We can, in speeches, comment on the evidence that others have given, but we are not witnesses, and cannot offer our own evidence on, say, the workings of human memory. The reason is simple: we are not witnesses, and cannot be questioned. So if the defence barrister offers cod science evidence about memory, for instance, there is no opportunity for the prosecution to cross-examine her, as they would do if that evidence came from an actual witness. Giving evidence is a cardinal sin.
  13. Mark Bonnar’s witness summons arriving mid-trial. There is no way (save for enormous cock-up) that a key prosecution witness would only find out after the trial has started that he is required to give evidence. He would have given a witness statement to the police at the outset of the investigation, and would have been warned to attend trial months in advance. He would only be summonsed if he had indicated an unwillingness to attend voluntarily. And as for the summons itself – what madness is this? EVtxOeEXQAEPS0a It is a mock-up of a summons from a civil case. There is no “claimant” in a criminal case. The party are “The Queen” and “[the defendants]”. There is no “claim number”. Somebody has gone to the effort of creating this bespoke document, which is as wrong as it is possible to be. And on a similar note…
  14. “The plaintiff”. The defence QC has apparently forgotten that this is a criminal trial, pitting the Crown against the Defendants, and is using the pre-1999 term for a claimant in civil proceedings.
  15. Witnesses sitting in the public gallery watching the evidence. Having answered to his unlawful summons, Mark Bonnar sits in the public gallery to watch the trial before giving evidence. This is strictly forbidden. And it’s important: witnesses should not know what evidence has gone before them. You want to minimise the opportunity for their evidence to be consciously or unconsciously influenced by what other people have said. Again, it’s essential to a fair trial.
  16. “Hello Kevin!” Questioning a witness is rarely as seen on TV. For one, examination in chief and cross-examination are seldom distinguished. (Examination in chief is questioning of a witness by the side calling the witness. These questions should be open and non-leading. Cross-examination is questioning by the other side, and is designed to be leading.) Secondly, the questioning of a witness can take a long time in real life. There is often a lot of groundwork-laying, a gaggle of pedestrian build-up questions, stuff that doesn’t make for good TV. And for dramatic purposes, this exercise has to be truncated, I accept. I’m not going to criticise that, as grating as it is to see conflation of cross-examination and evidence-in-chief, or the barristers not put key questions to the witnesses, or QCs sit down having asked just one ineffective question of the other side’s star witness. Creative licence can have this one. But “Hello Kevin”?! Any barrister greeting a witness in that way would have something heavy thrown at them. Not a gavel, however, because…
  17. GAVELS HAVE NEVER BEEN USED IN AN ENGLISH AND WELSH CRIMINAL COURT. During the trial, there is the sound of a gavel being frantically rapped as the judge shouts “order!” and threatens to “suspend the session!” Neither of these are phrases ever heard in our courts. Likewise..
  18. “Objection!” “Withdrawn” Again, just, no. These things do not happen. These are Americanisms, never seen in our courts. See also: “strike that from the record”, “sustained” and anything else that might conceivably be said by somebody whacking a gavel.
  19. Okie dokie!” As a candidate for “the very worst way to respond to a judicial reprimand”, this takes some beating.

These infractions vary in their seriousness. But I do think it matters. It matters because the law affects us all, yet we understand so little about it. And while we may not all understand everything about other areas of public life, the point about justice – and criminal justice in particular – is that it is not merely an important public service, like health or education, but serves a key democratic function. Any of us can find ourselves dragged into a criminal courtroom – whether as a defendant, victim, witness or juror – and the role we play will be instrumental to the outcome. The discussions we hold publicly about the functioning of justice influence policy, which become laws, which have a direct bearing on our day-to-day lives. And if we don’t understand how justice works, and what our roles in it are, we can’t be expected to meaningfully contribute or participate to shaping it, or to performing whatever part we may one day be expected to. To give a colour example, it doesn’t matter whether or not you understand what your heart surgeon is doing, as long as it is done correctly. But it matters very much, to all of us, whether or not you understand what the rules are if you are a witness in a criminal case. It matters because if you do it wrong, there are significant consequences for you and for the person on trial. It matters because you deserve to know what the reality is likely to be. What actually happens in court. How you are going to be treated, and how you are expected to behave.

It matters to jurors. Expectations are moulded by what we see on television. It’s why there is despair at the semi-fictional presentation of forensic science – there is a despondency among prosecutors that many juries expect it to hold all the answers, and often it does not and cannot. If jurors don’t understand the role of the parties, including the advocates, they may draw unfair or irrational conclusions. Well that barrister didn’t cross-examine that witness by shouting at them and then pivoting to give us a mid-question speech about the fallibility of memory – maybe their case isn’t much cop.

It matters to defendants and victims. If you are arrested, it matters that you know your basic rights – e.g. the right to legal advice. Whether prosecuting or defending, I have lost count of the times that a client or complainant has observed, usually unhappily, that what happened in court wasn’t like they saw on TV. “Why didn’t you say X?” “Why didn’t you shout objection when the other barrister asked me that?” “Why didn’t you argue with the witness when they said Y?” Again, we can firefight those questions with relative ease, but the problem is that the further expectations and reality diverge, the less faith people have in their justice system, and the less cooperation we can expect from them. American criminal justice bears no resemblance to our version. Much of the pantomime, and the horror, that we read about concerning the conduct of lawyers and the system’s treatment of defendants and complainants in the US system is fortunately rare over here. But repeating the fiction that our models are the same compounds the confusion and the fear. We risk losing even more people before they set foot in the court building.

And I don’t lay all these responsibilities at the door of TV writers, by any means. Public legal education is something we as a society – and in particular we in the legal profession – have done abysmally for years. We have not communicated anything to the public about how the justice system works; we have jealously guarded its secrets for our own purposes. This is one reason why I am happy to spend hours each week answering (often the same) questions about law and justice over email and social media, and why many colleagues do likewise. The government has until very recently been content with this state of affairs, as it allows politicians to do what they like to the justice system under a blanket of public ignorance. And I don’t expect people paid to create entertaining drama to make public legal education one of their aims.

But I find it frustrating that, when there is a platform, an opportunity, to show millions of us how the criminal courts operate, to add a dash of education to the entertainment, it is wholly disregarded for absolutely no good reason save for, I’m afraid to say, basic laziness. Where it takes place in the context of a drama advertised as the telling of a real-life story, whose climactic episode revolves around a trial that actually took place, to get so much wrong is frankly unforgivable. Given that this has been adopted as a platform for the Ingrams to launch an application to appeal out of time against their convictions, and that there is now apparently some fairly widespread public sympathy for their plight, there is surely a responsibility to avoid completely misleading the public. I’ve had a number of people asking me if I agree that the drama “proves” that the Ingrams got a raw deal. If that is how the trial was conducted, I would completely agree that it does. But it wasn’t. And this wasn’t simply edited highlights, drawing from the real transcripts; it was a child’s re-imagining of the court process.

And it is possible to get these things right. Asking a practising criminal lawyer to look over your script is commonplace. In the context of the budget for this show, paying a few hundred quid to somebody to cast their eye over the courtroom scenes – or even taking a day or two to visit a criminal court yourself, as the person writing a courtroom drama – does not seem a stretch. I think it’s the nihilism of low expectations to shrug away accuracy as anathema to entertainment, or unworthy of striving for. Great drama nourishes the viewer as well as sating them. I have faith in our best writers not only to aspire to this goal but to achieve it.

Of course some of the errors matter more than others. Individually, some can be filed under “legal arsewittery”. But collectively, inaccuracies in the way we depict our justice system damage our understanding of something that matters to us all, more than I think we realise.

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UPDATE: I was remiss in omitting this from the list of errors, spotted by the eagle-eyed Max Hardy:

 

21 thoughts on “Does it matter that Quiz got the law so hopelessly wrong?

  1. Having served on a criminal jury at Liverpool Crown court four years ago, I can say that from my experience there my fellow jurors regarded ‘sure’ as a lesser standing of certainty than ‘beyond reasonable doubt. A truly compelling [piece, by the way, Mr S.B.

  2. I didn’t see this piece of drama and now I have read your post, I am weighing up whether or not to try and find it on catch-up. On the balance of probabilities it is unlikely that I will waste my time, so I thank you for your assessment of the programme.

    Having read your critique, I get the feeling that you have just endured what police officers (serving and retired) have had to endure for countless years when watching crime/police dramas on television. Like the judicial process, the minutae of police investigation would be eye-wateringly boring for the average viewer. However, having said that, some of the legal, technical and historic inaccuracies I have seen over the years are countless and sometimes school-boyish beyond belief. If the lack of a mention in the credits is anything to go by, it appears that the use of qualified and experienced advisors when making these sorts of programmes is now fading into oblivion.

  3. Although not a lawyer I agree with the comments. However not having followed the case at the time, I am left, in the absence of an ‘informed account’ of the trial with the impression that they were wrongfully convicted, and that the jury had taken leave of whatever senses they might have possessed.

  4. Totally informative, educational and entertaining!
    I’m all in favour of SB-TV, the various series highlighting where fictional (in culture/art etc.) and real events get it right and wrong as a means to telling us it how it really is.

  5. Your comment: ‘I find it frustrating that, when there is a platform, an opportunity, to show millions of us how the criminal courts operate, to add a dash of education to the entertainment, it is wholly disregarded’ reminded me that ITV is a designated Public Service Broadcaster, and that, as such, it actually ought to be held responsible for providing such education. At the very least it ought to be insisting on some semblence of verity – from scriptwriters, production companies and the like – in programmes that claim to be based on actual events. Anyway, excellent and informative (and entertaining!) post. Keep up the good work!

  6. I agree that it does matter, because it is a disgrace to society that there are so many areas in which the justice system is not working well (to an observer not a participant) and people should be made more aware of defective political accountability for the situation. In these circumstances all citizens, be they TV writers or anything else, should therefore be aware of a responsibility not to misrepresent how the legal system works in practice.

  7. Before I appeared as an expert witness in an English civll case the barrister warned me “you must not behave like an American expert witness, at least as depicted on TV”. I took no offence: presumably weary experience had taught him the necessity of his remark.

  8. As to point 8: I remember a certain DJ who used to appear on the Bench with a Cornish pasty from Greggs, just over the road from his court, and stuff his face with it during the hearing. He was known for it.

  9. I appreciate you writing this and agree with most of the points you make, especially about the law being one of the few ways we can hold our politicians to account and how important that is in the current climate, as well as knowing for our own sakes how it works because one day we might be up in court. I feel guilty to have been one of the people tweeting ‘Does it really matter?’ at you so that you ended up spending part of your weekend posting, although you write so well that, from my selfish point of view, it was a very entertaining read and, as a pedant myself, you make me laugh.
    I’m posting this now as a suggested alternative scenario. To put this in context, I used to live with a solicitor who worked for a big City firm when I worked for the London office of a magazine publishing empire and when I used to come home and share with him the shenanigans that went on at work he used to shudder and say that they had day-long workshops and management training courses at his place to avoid whatever travesty I was telling him about. The wheels of the law and media worlds really do turn in different ways. You might be looking for logic with Quiz, and a trail of sensible decision-making that maybe just isn’t there.
    There’s a technical theatrical aspect to this as well. I wasn’t involved with Quiz and I don’t have the inside track on anything about it but I do know from experience that what works on stage does not work at all on screen – you only have to watch NTLive on YouTube to think: ‘What is this tosh?’ when you might have watched the same play quite happily from a theatre seat. For many reasons, more ‘suspension of disbelief’ goes on when you watch a play. Just the fact that something is on TV requires either more verisimilitude, or else completely different handling. Someone in your Twitter timeline talked about the pantomimic elements of Quiz’s courtroom scenes – there was a hammy element to those scenes that I would guess was 100% deliberate in the stage version and that the audience probably guffawed at, but that seems preposterous on the small screen. I don’t know if you saw One Man, Two Guvnors either at the theatre or livestreamed? It has Commedia dell’Arte roots and is very mannered as most theatre is – including the original stage version of Quiz, which was written as a comedy (and was nominated for Best Comedy at one point).
    Not everyone can write successfully for both the stage and TV – they are very different techniques, with the first relying on dialogue and the second being much more visual. We just don’t know enough about budgets, timelines or how decisions were made to know how Quiz was massaged from a stage show into a TV drama and clearly some of it didn’t please everyone but I suspect that wasn’t laziness as much as errors of judgment and/or production constraints. I am actually interested to know now about the process. Am also interested to know whether Legal Twitter was (or would have been) as outraged by the stage show as it was by the TV version? It’s a genuine question, and I don’t know the answer. But would it have been easier to brush off the silly tropes by saying ‘It was just a daft play?’ rather than ‘It was presented as fact, thousands of people watched this on TV and are now convinced the Ingrams are innocent?’
    The other thing I wanted to say (and that a tweet wasn’t long enough for) was that where I think Quiz has value above its entertainment value was that it shows that we all make snap decisions based on very little evidence all the time, and how the more you know, the less certain you are about anything. We need more of that in the world, I think.
    You were very self-deprecating in your post and addressed the point that the legal profession can be cliquey which shuts the public out, and I think that’s why the pearl-clutching outrage from Legal Twitter grated on me as many of the tweet-complaints about Quiz had a ‘And by contrast, what clever, in-the-know lawyers were are! And how dumb civilians are who don’t understand our ways’ subtext. For the avoidance of doubt, there was none of that in your post. It’s obvious you care about justice and being truthful. I wish you all the best and please keep on keeping on.

  10. James Graham appreciated many of the discrepancies.
    It was artistic license taken by a man who based QUIZ upon the book I co-authored with the late Bob Woffinden: Bad Show.
    Had the Judith Keppel coughs been played at trial, then the chances of a conviction would have lessened.
    Had they been played at ´Disclosure´ then I have my doubts there would even have been a trial.

    I appreciate your comments upon how court procedures were misrepresented.
    But you yourself failed to note what made THIS TRIAL UNIQUE.
    The normal adversarial system of justice works fairly well when respected as Prosecution presents charges, Defence counters, jury deliberates and judge presides.
    Here however, what was not picked up on was how the court actually precisely mirrored the environment in which the crime for which The Millionaire Three stood accused took place. In that there was focus by people with coughing difficulties upon people speaking.
    I drew the attention of a man who attended all eighteen days of the trial, Jon Ronson, to this. He was then moved to contribute this piece to the Guardian of July 17th 2006 – Are the Millionaire three innocent?

    Are the Millionaire three innocent?
    Jon Ronson

    Jon Ronson: I was sure the three ‘quizzers’ convicted of defrauding Chris Tarrant’s show were guilty. But now I …

    The same mirroring, and yet again unappreciated, occurred the week after the trial on the BBC´s Have I Got News For You? when Paul Merton joined in the global taking of the piss as he described the plan of reading out the answers and the accomplice would cough on the right one.
    Just after his saying “cough” came a cough from the audience.
    He said, ” I haven´t got to the answers yet!” to widespread laughter.

    Indubitably this is the same familiar syndrome of experiencing the need to yawn when you see someone else yawn now transposed from the visual context to an auditory one. Particularly if you feel tired or the individual is boring the equipment off you.

    Has The Secret Barrister ever heard of such an occurance in the annals of Justice?
    Would he agree with me that, in this one instance, it was not via the adversarial system that justice manifested.
    It was via myth (?)
    I apologise on behalf of myself, the late Bob Woffinden and the screenwriter for any procedural inaccuracies upon which your professional eye picked up.
    But I beg you to entertain the idea that this was, in all senses of the term, a SHOW TRIAL.
    In this unique case, the only portrayal justice might find was a denouement via the agency of comedic, dramatic (and singing and dancing!) thespians.
    And therefore to grant us just a little license as we, in our efforts to bring about a successful appeal in a real court, misrepresented one.

    And that appeal has already been initiated.

    In April 2018, Nicholas Hilliard visited London´s Noel Coward Theatre to watch QUIZ, the play based upon his successful prosecution of The Millionaire Three, and posed for a photograph with the actor who portrayed him; Paul Bazeley.
    In January 2015, Hilliard became the Recorder of London, the senior judge at London´s Old Bailey court.

    Atop the Old Bailey stands F.W. Pomeroy´s sculpture of Lady Justice. The golden finial, inspired by the Roman Goddess Iustitia, has been there for over a century now, holding the sword of truth aloft in one hand and the scales of justice in the other.

    She sports no clown´s mask.

    But the people want bread and the circus.

  11. Pingback: Barristers lose it over Quiz's courtroom blunders - Legal Cheek

  12. I am a Witness Support volunteer working in Bristol courts and, although I enjoyed the show, I was appalled at the cavalier way in which the courtroom scenes were depicted. All the errors you list were obvious and, mostly, laughable, but you are correct, it does give the general public entirely the wrong idea of what to expect if or when they attend Court.

  13. “Okie dokie!” As a candidate for “the very worst way to respond to a judicial reprimand”, this takes some beating.’

    Admittedly it was in the finals of a mooting competition; and admittedly it was before I was called, but I once replied to a judicial comment: “My lord… whatever”. I was teased mercilessly for months afterwards. (Even though I won the moot.)

  14. Interestingly unlike in other dramatisations we were not told what happened subsequently. Mr Ingram was found guilty a few months later at Bournemouth Crown Court on separate charges of insurance fraud.

  15. Another error was that surely the defendants would be in the luxurious double glazed dock at the back of the court room which appeared in the show to be used as an overflow for the press.

  16. I’m a Scottish lawyer, and from my perspective it 100% matters – as anyone who has EVER had to deal with the public knows, you have to spend a certain amount of time unravelling expectations as to what being involved in a criminal case might involve.

    We also have the cross-border issue: people who’ve seen English drama, or read about English cases, thinking that the law must be the same in Scotland. Can I not choose to be tried in front of a jury? Not in Scotland you can’t, no.

    And what it is with the effing gavels?

  17. And alas, we now have a portion of fellow citizens who have learnt their British Constitutional law from viewing the West Wing tv series.

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