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.
- 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.
- 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.
- 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.
- 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.
- 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.
- “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.
- 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.)
- The judge eating sweets in court. No judge would be seen eating sweets on the bench. (Emphasis on “be seen”)
- 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.
- 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.
- 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…
- 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.
- 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? 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…
- “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.
- 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.
- “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…
- 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..
- “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.
- “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.
UPDATE: I was remiss in omitting this from the list of errors, spotted by the eagle-eyed Max Hardy:
The court toilets are not broken in Quiz, most unrealistic thing in the whole programme.
— Maximilian Hardy (@MaxJLHardy) April 15, 2020