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.

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

“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

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