The interior of the Old Bailey criminal court in London in May 1910. (Photo: Topical Press Agency/Getty Images)
Show Hide image

The decline of the British trial

Once, UK courts were full of reporters and members of the public. Now, with the exception of rare spectacles, the press and public benches are usually empty – and we are all poorer for it.

“What thrill at the theatre or cinema compares with the excitement of attending a criminal trial, of beholding in the flesh the man or woman who may be guilty of some secret or bloody deed, and watching, half fearful, half shrinking, the great game played by judge and counsel with the accused’s life as stake?” So wrote Harry Hodge in his introduction to the first edition of Penguin’s Famous Trials series, launched in 1941 at the height of the Second World War.

The trials Hodge chose to introduce the series were of notorious cases from the preceding several decades: Madeleine Smith, the 21-year-old Scottish beauty charged in 1857 at the high court in Edinburgh with poisoning her lover; Dr Crippen, accused in 1910 of murdering his wife and fleeing the country with his lover, Ethel Le Neve, disguised as a boy. “All Great Britain was agitated over the trial,” wrote Hodge of the Smith case, which ended in the Scots law verdict of “not proven”.

By the time of the fifth edition of the series, in 1955, with the price now raised from a florin to half a crown, Hodge’s son James, the new editor, wrote that “the real murders described in this book are even more horrifying that those usually found between Penguin green covers”. They included that of Neville Heath, the sadistic killer of two young women in the immediate postwar period, and of George Lamson, a doctor who was hanged for poisoning a relative with a slice of Dundee cake to secure his share of an inheritance. “Factual and unbiased accounts of criminal trials broaden our outlook and give us fleeting glimpses of other modes of life,” wrote Hodge junior.

Heath’s trial in 1946 was such a hot ticket that people queued all night under blankets outside the Old Bailey in London for admission to the 30 seats in the public gallery, as if it were Wimbledon.

In some ways, the opening days last month of the Old Bailey trial of Rebekah Brooks, Andy Coulson and others, all pleading not guilty to charges related to the News of the World phone-hacking affair, were just like old times: the crowds, the queues, the bustle and excitement. Seventy journalists, representing all the British press, not to mention Al Jazeera, El Confidencial, and the Wall Street Journal, were on hand to report. Curious onlookers hung around in the street outside, gazing at all the frantic activity. But this was very much a throwback to another era.

When I first started covering criminal trials in the early 1970s, long queues were still common for high-profile murder cases. The public gallery would be full, people craning their necks to see the accused brought up from the cells. Today many murder trials take place without a single person in the press box or a single member of the public in the gallery.

So, whatever happened to British trials and why do they often pass us by unnoticed, except for the opening day’s prosecution case and the jury’s verdict?

One reason is that before daytime television the warm, centrally heated public galleries of courts provided the enthralling – and free – entertainment of which Harry Hodge wrote so enthusiastically. What could be a more absorbing way of spending a day than seeing the accused in a murder or kidnap case being cross-examined by a scathing QC (or, previously, KC) or sentenced by an unforgiving judge? But now, with a hundred television channels offering entertainment that blurs the lines between real and fictional crime, why bother to leave the house?

The other major reason for the decline of trials in the public consciousness is that the press no longer stimulates interest in them by sustained coverage. When there were three London evening papers with a total circulation of more than two million, trials accounted for a significant section of the news in the capital. A major murder case would lead to increased circulation.

An important factor in the interest in a murder trial was that cases could end with the judge donning his black cap and proclaiming that the accused be taken from this place and hanged by the neck until he was dead. The former editor of the Evening News Lou Kirby once told me that the abolition of hanging in 1965 significantly decreased interest in such trials. But even after Albert Pierrepoint had hung up his noose, with its 450 notches in it, there was still a healthy interest in and coverage of murder trials in the national press.

When Rosemary West stood trial in Winchester in 1995, charged with the murders of ten young women, every national paper had a reporter in court every day. Such was the demand for press seats that we were informed by court officials at the start of the trial that if we failed to turn up for a single session, we would forfeit our seat for the entire trial. The Times had two full-time reporters there and some papers regularly sent in their “colour” writers so that they could stare at West for a moment or two and tell their readers that they had “locked eyes with the face of evil”. There were no fewer than five authors – Gordon Burn, Andrew O’Hagan, Howard Sounes, Brian Masters and Geoffrey Wansell – also present. An overspill court had to be provided to hear the opening address from a smart, up-and-coming prosecuting counsel called Brian Leveson.

But the days when criminal trials were reported in detail have ended. Forty years ago, there were seven Press Association reporters at the Old Bailey, while the Mail, Express, Times and Telegraph all had staffers there. Now there are only two PA staffers and no national paper still has a dedicated reporter there, the last incumbent being the Telegraph’s admirable Sue Clough. Like much of the press, they have switched their attention to greater coverage of celebrities – a mere tweet being enough to justify a story and an accompanying photograph – without the bother of time-consuming staff absence from the office. Few papers can still afford to dedicate a reporter to cover court cases in anything more than a sketchy fashion and too often the court report you read will have been written by a hard-pressed but uncredited agency reporter. Much of the detail, in which the devil operated, has been lost.

“The glory days are certainly over,” said one veteran reporter in the press room in the bowels of the Old Bailey in late September, when I visited the court. A significant murder trial with nine defendants in the dock was kicking off, the jury sworn, but there was little interest from the national media. Experienced court reporters shake their heads sadly and regret the drift.

“Newspapers and broadcasters are so driven by focus groups and marketing surveys that they have lost sight of what news actually is,” says Guy Toyn, director of Court News, Britain’s only specialist court agency. “When we publish material on our website, we often get responses like, ‘Why haven’t we seen this in a national newspaper?’ The fact is people are still absolutely fascinated by the dark and surreal side of life that is only ever revealed in court stories . . . For a regional newspaper, it is easier and cheaper for them to rewrite a company press release than actually dig out a great story – or to pay someone to do it for them.”

Local newspapers, also now a dying breed throughout Britain, relied on the courts as a staple of their coverage, a role noted approvingly by the judiciary. As Lord Denning wrote in The Road to Justice in 1955, “a newspaper reporter is in every court. He sits through the dullest cases in the court of appeal and the most trivial cases before the magistrates. He says nothing but he writes a lot. He is, I verily believe, the watchdog of justice.” No more.

Currently more than 1.5 million cases make their way through the 330 magistrates courts of England and Wales every year and around 130,000 cases through the 91 crown courts. Who notices? In Scotland, there are attempts to cut the number of courts to save money, which has met resistance; Sheriff Kevin Drummond told the Scottish Parliament’s justice committee: “I do not care whether the court is conducted in the back of a large furniture van; it should go to rural locations.” Quite right.

This is an international issue, too. Ed Vulliamy, in his haunting book about the aftermath of the Balkan conflict, The War is Dead, Long Live the War, noted that, when the stories of the appalling atrocities visited on the Bosnians were rehearsed in front of the International Criminal Tribunal in the Hague, “the public and press galleries were often empty”.

It was the Scottish lawyer William Roughead, who recognised the importance of the trial in society and pioneered its coverage. Joyce Carol Oates has acknowledged this in the New York Review of Books: “Roughead’s influence was enormous and, since his time, ‘true crime’ has become a crowded, flourishing field, though few writers of distinction have been drawn to it . . . his accounts of murder cases and trials have the advantage of being concise and pointed, like folk tales.”

So, perhaps it should be no surprise that Scotland has pioneered the televising of trials. This summer, the Scottish courts authorised the televising of a murder trial, shown on Channel 4. The retrial of Nat Fraser, for the 1998 murder of his wife, Arlene, was filmed with the (eventual) permission of the participants over a period of six weeks at the High Court in Edinburgh.

England and Wales followed suit this October and the filming of legal arguments and the final judgments at the Court of Appeal are now allowed. “Justice must be seen to be done,” said the then courts minister, Helen Grant, announcing the move. The next step will be the filming of the sentencing process in crown courts, although “victims, witnesses, offenders and jurors will . . . not be part of broadcasts.”

The media organisations that use filmed court proceedings will supposedly cover the costs. This will not solve anything. As Helena Kennedy QC has written: “Voyeurism and money is behind this agenda and the justice system will not be the beneficiary.”

Nick Davies, the reporter who put in heroic work on the phone-hacking scandal, has written in the Guardian that criminal and civil courts “are probably the most productive single sources of stories in this country”. He is right. A morning in a magistrate’s court will tell you more about the state of the nation in terms of education, class, family, employment, immigration, consumerism, honesty, addiction to drink and drugs, sexual politics, housing, health and alienation than a dozen think-tank reports.

During the Olympics last year, I reported for the Guardian from the special court set up to deal with offenders arrested in connection with the Games. The court became a microcosm of world attitudes to the whole business of the Olympics and sport but it was almost empty of press or public. One case I covered was that of a Lithuanian man arrested for making Nazi salutes and monkey noises during his country’s basketball game with Nigeria; his puzzled defence was that this was perfectly normal behaviour where he came from and no one had ever complained before.

I also reported from Edinburgh’s Sheriff Court during the Festival there last year. What emerged was a portrait of a society where drink and drugs were the almost inevitable lubricant of social and criminal life. “No drink was involved,” said the prosecutor in one case, adding “unusually for this court”. Again I was alone in the press gallery in three different courts, where once would have been reporters from the Evening News and the (now defunct) Evening Dispatch.

Not for nothing has the trial formed such a key part of our film and television lives, from films such as Witness for the Prosecution back in 1957 to those 250 episodes of Crown Court that ran between 1972 and 1985. Neither is it a coincidence that so many of our most eloquent politicians come from a background in the courts, where an ability to charm and convince are important.

The late Labour leader John Smith, who had been an admired criminal advocate, was once said – and I hope this story is true because I have told it a few times – to have gone below court to express his regret to a client who, despite Smith’s best efforts, had been convicted. “Don’t worry,” said the defendant, albeit in dialect, “you were so good, I almost believed you myself.”

I am always amazed when someone says that they have never attended a trial. When friends come to London from abroad, I often encourage them to visit the Old Bailey or the Royal Courts of Justice, which seem just as vital to an understanding of the country as Tate Modern or Hyde Park. Does it matter? Yes, it does. Partly for the old reason (see above) that “justice not only has to be done, it has to be seen to be done” – or, as J B Morton wickedly added, “has to be seen to be believed”. But also because trials are essential to our understanding of how our society operates.

In the oft-quoted words of Lord Atkinson, in his judgment in Scott v Scott, in 1913, “the hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses . . . but all this is tolerated and endured because it is felt that in the public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means of winning for it public confidence and respect”.

To win that respect, the criminal justice system has to smarten up its act. There are far too many interruptions for legal arguments that could have been dealt with by email prior to the trial; far too many delays because a defendant has been brought late to court by whatever lackadaisical private security company has the job that week; far too many sighing judges because barristers or advocates arrive in court unbriefed.

Next year will be the 100th anniversary of the writing of Franz Kafka’s great novel The Trial, (although it was not published for a further decade). How fitting for the memory of Josef K if we were once again to take seriously the trial as a legal process that directly or indirectly affects the lives of millions of us, costs us billions of pounds a year, both in terms of its actual processes and its consequences behind the bars of our jails, but that now receives far too little attention. Time to halt the decline of the British trial.

Duncan Campbell is a former crime correspondent for the Guardian

Edel Rodriguez for New Statesman
Show Hide image

Rehearsing for war

From the Middle East to North Korea, Donald Trump is reasserting US military strength and intensifying the rivalry among the great powers.

As Vice-President Mike Pence arrived in South Korea from Washington on Sunday, he announced that the “era of strategic patience”, in which the US sought to monitor and manage the nuclear threat from North Korea without pushing the matter for fear of escalation, was over. “President Trump has made it clear that the patience of the United States and our allies in this region has run out and we want to see change,” Pence declared. The heat under a crisis that had already been bubbling ominously was turned up another notch.

Much has been written in recent years about the stability provided by the post-1945 world order and the dangers of letting it crumble. The conflict in Korea provided the first big test of that order almost 70 years ago, but the difficulty was never really resolved. It remains the proverbial “wicked problem” in international affairs, “frozen” in an obsessively monitored and deeply uneasy stalemate, demarcated by the Demilitarised Zone: a line 160 miles long and roughly two and a half miles wide scored across the middle of the Korean Peninsula, drawn with superpower supervision in 1953. Partition has allowed a strong and ­successful state to flourish in the South while the North has survived in a state of ­arrested development.

The problem has been passed down from generation to generation because attempting to solve the issue risked opening a Pandora’s box. The risks included the unleashing of huge military force, potential world war and a refugee crisis on a scale that could severely destabilise even China. By the 1990s, it was clear that the North Korean regime had fastened upon another strategy for survival as the Cold War passed into history and its sponsors in Beijing and Moscow began to question the value of such an ally: the acquisition of nuclear warheads. Pyongyang has long had the firepower to flatten Seoul in a matter of hours. The mission since has been to develop its missile technology to carry that material as far as possible – certainly to Japan, but ideally also to the west coast of the United States.

The day after Pence’s announcement, the US and South Korea undertook a joint air and army exercise to ensure readiness in the event of an attack from the North. This followed a joint naval war game earlier in the week and the US decision to send a navy group led by the nuclear-powered aircraft carrier USS Carl Vinson, which Donald Trump described as an “armada”, to the region. No sooner had the fleet appeared than Japanese sources reported that it had been followed by Chinese and Russian submarines as it entered North Korean waters. Such are the great-power manoeuvres of the 21st century – whether on air, sea or land – in which the world’s most potent military machines shadow the moves of their competitors, and openly rehearse for war.

***

Asia has not had a major inter-state war since the 1970s but it is not immune from the tragedies of power politics that have beset other rapidly developing parts of the world. Across the region, military spending is rising fast as states jostle in anticipation of a changing balance of power.

The purpose of Pence’s Asia-Pacific tour is to offer reassurance to America’s allies in the region, which have been watching the rise of China, in particular, with trepidation. The stark change of tone emanating from the White House – and change of gear – has been noted. After years of steady consistency in US grand strategy, there is a sense of a building crisis and the Americans are being watched in anticipation of their next move more closely than they have been scrutinised in many years.

Before he left South Korea, Pence also visited Panmunjom, where the 1953 armistice was signed at the end of the Korean War, as well as Camp Bonifas, a UN military compound near the Demilitarised Zone, set up to monitor the ceasefire that followed. It is an eerie echo from the past that Pence’s own father served in the war that divided the country. Edward Pence was awarded the Bronze Star on 15 April 1953 for heroic service. The vice-president proudly displays the medal, and a photo of his father receiving it, in his office. He is no doubt aware of the costs of a conflict in which an estimated 36,000 of his countrymen were killed.

Just over a thousand British soldiers also lost their lives in the Korean War after being sent to fight in a joint UN force. But it was far more deadly still for the peoples of the Korean Peninsula, killing more than a million people, including 400,000 troops for the People’s Volunteer Army, among whom was Mao Anying, the eldest son of Chairman Mao, the leader of the Communist Party of China and protector of the North.

History throws up strange parallels. When the Korean War began in 1950 it was understood to be the first serious test of the international system established after the Second World War. It is striking just how many of the same ingredients remain, including the identity of some of the main protagonists. On 25 June 1950, a border conflict between North and South Korea escalated into full-scale war when Kim Il-sung’s Korean People’s Army – backed by China, and with the tacit support of the Soviet Union – invaded the Republic of Korea in the south, claiming that it represented the legitimate government of all Korea. This is a claim that the regime of his grandson Kim Jong-un has not abandoned to this day.

Two days after the invasion, on 27 June, the UN Security Council voted to send a joint force, under General Douglas MacArthur of the US, the former supreme commander of Allied forces in the south-west Pacific area, to protect the sovereignty of the South and repel the invaders. Much more was at stake than the question of territorial integrity or preserving international law. By bringing the Americans into confrontation with the Chinese – and with the Russians seen to be the steering hand in the background – the conflict had all the ingredients for rapid escalation.

From the start, there were concerns that the Americans might overdo the brinkmanship, even under the cautious leadership of Harry Truman. Fears that the self-confident MacArthur would exceed his brief were confirmed when the UN forces pushed back into North Korea in October. In response, the Chinese Communists, who believed that MacArthur had designs on China itself, flooded across the Yalu River in their tens of thousands.

It was in the autumn of 1950 that the danger of another world war, this one involving nuclear weapons, reached its peak. On 28 November, after a grave reverse for the UN forces, MacArthur stated that the advent of 200,000 Chinese had created “an entirely new war”, with much higher stakes than before. Suddenly, the prospect that the US might resort to using an atomic bomb against the North Koreans, or even the Chinese forces, seemed plausible.

While the nuclear scare passed, the war rumbled on towards an ugly stalemate over the next three years. A temporary solution of sorts was found with the 1953 armistice. But there was no resolution to Korea’s frozen war. In a way that no other totalitarian state has managed, the North zipped itself into a hermetically sealed chamber, preserving a three-generation dictatorship that is both comically anachronistic and frighteningly modern in its missile technology.

***

Some of this complicated backstory was explained to Donald Trump by China’s president, Xi Jinping, during his recent visit to the United States. Trump – who had been pressuring China to do more to deal with the North Korean regime – appears to have been receptive to what he heard.

“After listening for ten minutes,” he said, “I realised it’s not so easy.”

This is the first critical test of the “new era in great-power relations” which Xi has been floating for a number of years, but Trump has now decided to put to the test. According to Trump’s most recent tweets, Beijing has continued to work with the US on the North Korea problem. He has welcomed its contribution but insisted that America’s own willingness to deal with the problem does not depend on China. In other words, there is no master plan being played out here, even if – as seems credible – America did hack North Korea’s latest missile launch to make it a damp squib.

The Trump administration is not creating the conditions for a new long game, building a fresh multilateral consensus to contain the North Korean threat. Instead, with a newfound sense of momentum serving as a tail wind, it senses a moment to “solve” one of the longest-running and most treacherous problems in international affairs. It has decided, at the very least, to severely clip the wings of Kim Jong-un’s regime. And in doing so, it has set out to demonstrate that when America speaks, it speaks with effect.

Like much current presidential policy, “the Trump doctrine” is being made on the hoof. Much of the hyperactivity of the past month or so was not scripted but emerged in response to overt challenges – beginning in Damascus and panning to Pyongyang – to the United States and the “red lines” it has laid down in the past. One foundation stone of Trump’s approach to the world is firmly in place, however: the willingness to reassert US military power with swift and decisive effect. The idea that the “America First” slogan implied anything resembling isolationism is crumbling. The growing sense that it does imply unsentimental and unvarnished power politics in the name of the US interest rather than multilateral niceties is closer to the truth.

Under Barack Obama, the US sought to withdraw from those areas in which he felt that the US had overstretched itself under his predecessor. Obama opted for a more rapier-like and cost-effective form of power projection. He drew down from formal military operations in Iraq and Afghanistan, while presiding over a huge uptick in drone warfare, cyber capabilities and selective but deadly use of special operations. Much of the full range of US power was submerged in various “secret wars”, and the diplomatic compass was reset to pivot east. This was because, as a legacy of the 9/11 attacks, national security was geared towards the containment of an elusive and amorphous enemy – various offshoots of the global jihad movement – that operated on the periphery of America’s radar.

But the real metrics of great power are those now on display off the coast of North Korea. For all the advances in drone technology, the missiles that cause the gravest threats to humanity are those on the scale that the North Korean regime is attempting to build. Trump’s test was one that a president of the United States would have to face sooner rather than later.

Not since Ronald Reagan has the US been so willing to engage in naked displays of its own military potency in quick succession – and seek to gather diplomatic yields from them as swiftly as possible. The past fortnight brought a missile attack on an airbase manned by the Assad regime – changing the tenor of US-Russian relations overnight – and the dropping of the so-called Moab (“mother of all bombs”) on an Isis affiliate in Afghanistan. The latter was a far cry from the “clear, hold, build” counterinsurgency operations in vogue half a decade ago. But it did fit with a campaign promise by the new president that he would “bomb the shit out of Isis” should the opportunity arise.

Does this fit into a wider pattern or constitute a new approach? The Trump administration is eager to leverage any opening that might have been created. In Seoul, Pence wasted no time in joining the dots: “the world witnessed the strength and resolve of our new president in actions taken in Syria and Afghanistan”. North Korea, he continued, “would do well not to test his resolve, or the strength of the armed forces of the United States in this region”.

It is the generals who have increasingly set the tone for Trump’s foreign policy. During the 2016 election campaign, he promised to give the Pentagon more leeway than it had under Obama to focus on “winning”. The new national security adviser, H R McMaster, and the defence secretary, General James Mattis, are now the steering hands.

Neither man has followed the rather crass and short-sighted fashion for running down diplomacy. Mattis once said that if the state department budget was cut, he would need more ammunition. McMaster is an urbane thinker who knows that the use of force must always be carefully calibrated and is just one tool in a continuum of factors. In this respect, it is a problem that so many jobs in the state department remain unfilled. Now that muscle has been flexed, the experienced negotiators and diplomats should be flooding through the door.

***

The policy of “strategic patience” was based on an understandable calculation. But, in hindsight, it does appear that North Korea has suffered from neglect. Mitchell B Reiss, one of the most experienced diplomats who led efforts on North Korea in the 1990s, notes that, despite unprecedented co-operation between the US and China in recent weeks, including open threats of economic pressure and military action, they were still unable to prevent North Korea from testing ballistic missiles on 16 April. Even though the missiles exploded immediately after lift off, “The failure of Washington and Beijing to stop the test in the first place has important implications for the Trump administration’s future policy options and for stability in north-east Asia.”

In Reiss’s view, it is “highly unlikely that the North can be cajoled, threatened or given incentives to surrender its nuclear weapons”. The uncomfortable truth is that “short of regime change, which could inflame the entire Korean Peninsula in war”, the US cannot halt the North’s nuclear weapons programme. But that does not mean there are no options. Slowing the pace and raising the costs would be “prudent steps”. More, too, could be done, Reiss says, to “interdict imports of sensitive technologies, to sanction Chinese and other nationals who act as purchasing agents for the nuclear and missile programmes, and to punish Chinese banks that help finance these programmes through so-called secondary sanctions”.

In the end, so much comes down to US-China relations. Could this be the basis for a reset and a new accommodation between Beijing and Washington? How much further is China willing to go to use its leverage on the North, which depends on it for energy and food? And how patient will the Trump administration be if its new strategy does not yield tangible results of the sort that are sometimes elusive in the long and often open-ended game of deterrence? 

John Bew is a New Statesman contributing writer and the author of “Realpolitik: a History” (Oxford University Press)

John Bew is a New Statesman contributing writer. His most recent book, Realpolitik: A History, is published by Oxford University Press.

This article first appeared in the 20 April 2017 issue of the New Statesman, May's gamble

0800 7318496