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.

****************

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

 

COVID 19: A PROTOCOL TO ASSIST SOLICITORS WHO ARE WORKING REMOTELY AND ADVISING SUSPECTS IN RELATION TO POLICE INTERVIEWS

I am pleased to publish a protocol for solicitors advising suspects at police stations during the COVID-19 crisis. It has been drafted by Keir Monteith QC, Lucie Wibberley, Patrick Roche and Vicky Meads.
The starting point is  no one should put themselves at risk…. the opening paragraph states:
  1. We need to act now to protect the lives of solicitors who are called to a police station and the lives of suspects who require representation. In short, solicitors should not be required to attend police stations and suspects should only be detained and interviewed in the most serious of cases.

Thereafter the protocol provides advice and assistance on the difficult decisions that are now having to be made including: whether to attend the police station, should there be an interview; if so should a prepared statement be served immediately or post event. Where possible, the authors have made reference to helpful codes of practice, a Home Officer Circular and case law.

The bigger picture is that there needs to be a joined up Government approach that provides consistency from arrest to final disposal – a proper triaging of cases.

 

Comments and observations are encouraged.
The protocol can be found by clicking on the link here.

Why is the dangerous Anjem Choudary being released onto our streets?

Anjem Choudary, the Islamist preacher convicted in 2016 of inviting support for Islamic State, is to be released from prison next month, despite being described by prisons minister Rory Stewart as “genuinely dangerous”. How, it has been (not unreasonably) asked, can this be? And what, if anything, can be done about it?

The first rule of Law Club is that you do not talk about Law Club, or at least do not talk about law cases until you have read any available judgment. To this end, the sentencing remarks of Mr Justice Holroyde when passing the 66-month (5 and a half year) sentence on Choudary in September 2016 are essential. They tell you most of what you need to know about the facts and the way in which the judge approached the sentencing exercise. But to supplement them, some further legal background may help.

Any defendant sentenced to a “fixed-term” sentence is automatically released at the half-way point of their sentence. This is automatic (by virtue of s.244 Criminal Justice Act 2003). It doesn’t depend on good behaviour, or successful rehabilitation, or satisfaction of any other condition. Why? Well, this is something covered in some detail in my book, (Chapter 10: The Big Sentencing Con), but the justifications offered are two-fold. First, releasing a defendant on licence means that the authorities have a measure of control over an individual as they reintegrate into society. There are conditions attached to the licence, usually including supervision by the probation service, and if the defendant breaches those conditions or commits (or is even accused of) a further offence, they can be recalled to prison to serve the remainder of their sentence. The second, unspoken reason, is one of practicality and cost. Prison is expensive, and the budget was cut by 40% in 2010. Locking up all or most prisoners for the full terms of their sentence would push our already-overcrowded and ungovernable prisons beyond salvation. Automatic release operates as a valve to relieve pressure on the system. You may not like those reasons, you may consider the latter in particular a darn unsatisfactory justification (I certainly do), but unless and until there is a rush of popular support for vastly expanding the prison budget, or a radical reimagining of how often we reach for custody as a sentence, it’s easy to see the political appeal. Pretend hardened crims are being handed whopping sentences, then let them out early so we don’t actually have to pay for it. It is equally easy to see how the public often feel misled, as automatic release – although often explicitly stated by the sentencing judge – is rarely explained properly in news reporting.

Fixed-term sentences are the most common form of sentence. But they are not the only type. For offenders who are deemed “dangerous” by the courts (“dangerous” defined as posing a “significant risk to members of the public of serious harm” through the commission of further specified offences), other options are available. For the most serious offences, a life sentence is available; for other specified offences, an “Extended Determinate Sentence” (EDS) can be imposed. The effect of an EDS is that a prisoner is not automatically released at the half-way stage of their sentence; instead, at the two thirds point of the custodial term, their case is referred to the parole board. If they can satisfy the parole board that their incarceration is no longer necessary for public protection, they will be released on licence (and there is, after that, a further extended period of licence). So, to give a worked example, let’s say Jim commits a fairly nasty armed robbery and is sentenced to an EDS comprising a custodial term of 10 years and an extended period of licence of 5 years. He will be referred to the parole board at the 2/3 stage of his 10-year custodial term (so after 6.7 years). If he satisfies the parole board, he will be released on licence for the remaining 3.3 years plus the 5-year extended licence period. (Although potentially, following the groundbreaking challenge to a parole board decision to release in the case of John Worboys, such a decision to release may be capable of challenge by interested parties.)

If he doesn’t satisfy the parole board, Jim stays where he is, potentially until he has served the full 10 years, upon which point he will be released on licence for the 5-year licence.

Anyway, back to Anjem Choudary. The judge, when passing sentence, expressed his view that Choudary was dangerous. However, crucially, he also explained this:

Although I have expressed my view as to the likelihood of your continuing to spread your message, and as to your dangerousness, the offence under section 12 is not one to which the provisions of Chapter 5 of the Criminal Justice Act 2003 apply, and the court therefore has no power to impose an extended sentence.

The offence of which Choudary was convicted did not carry an extended sentence. Nearly all terrorism-related offences do, but this rarely-deployed offence contrary to s.12 of the Terrorism Act 2000 is not on the list. Parliament, for whatever reason, did not see fit to do so. This meant that the only option open to the court was a determinate (fixed-term) sentence. The outcome was therefore inevitable from the moment Choudary was charged. There was never any prospect of him receiving anything other than a standard determinate sentence which would see him automatically released at the half-way stage, irrespective of whether he was reformed or, as the case may well be, even more of a danger to the public.

If this sounds highly undesirable, some comfort may be found in this: the government is alert to the gap in the law. The Counter-Terrorism and Border Security Bill proposes adding section 12 (among other terror-related offences) to the list of specified offences which carry extended sentences (H/T @leeofthebailey). But at present, we will have to rely upon the (one would imagine latex-trouser-tight) licence conditions and Choudary’s oversight by the security services to provide sufficient public protection.

Finally, to those wondering why, if Choudary was given a 66-month sentence in September 2016, he is being released now only 2 years later, instead of 33 months later, the answer is again in the sentencing remarks. Choudary had spent some time in custody awaiting trial, and some time on bail on an electronically monitored curfew. A day spent in custody on remand counts as a day towards sentence. A day spent on an electronically-monitored “qualifying curfew” (of at least 9 hours a day) counts as half a day in custody. Again, this is automatic.