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

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Fitter, dumber, more productive

How the craze for Apple Watches, Fitbits and other wearable tech devices revives the old and discredited science of behaviourism.

When Tim Cook unveiled the latest operating system for the Apple Watch in June, he described the product in a remarkable way. This is no longer just a wrist-mounted gadget for checking your email and social media notifications; it is now “the ultimate device for a healthy life”.

With the watch’s fitness-tracking and heart rate-sensor features to the fore, Cook explained how its Activity and Workout apps have been retooled to provide greater “motivation”. A new Breathe app encourages the user to take time out during the day for deep breathing sessions. Oh yes, this watch has an app that notifies you when it’s time to breathe. The paradox is that if you have zero motivation and don’t know when to breathe in the first place, you probably won’t survive long enough to buy an Apple Watch.

The watch and its marketing are emblematic of how the tech trend is moving beyond mere fitness tracking into what might one call quality-of-life tracking and algorithmic hacking of the quality of consciousness. A couple of years ago I road-tested a brainwave-sensing headband, called the Muse, which promises to help you quiet your mind and achieve “focus” by concentrating on your breathing as it provides aural feedback over earphones, in the form of the sound of wind at a beach. I found it turned me, for a while, into a kind of placid zombie with no useful “focus” at all.

A newer product even aims to hack sleep – that productivity wasteland, which, according to the art historian and essayist Jonathan Crary’s book 24/7: Late Capitalism and the Ends of Sleep, is an affront to the foundations of capitalism. So buy an “intelligent sleep mask” called the Neuroon to analyse the quality of your sleep at night and help you perform more productively come morning. “Knowledge is power!” it promises. “Sleep analytics gathers your body’s sleep data and uses it to help you sleep smarter!” (But isn’t one of the great things about sleep that, while you’re asleep, you are perfectly stupid?)

The Neuroon will also help you enjoy technologically assisted “power naps” during the day to combat “lack of energy”, “fatigue”, “mental exhaustion” and “insomnia”. When it comes to quality of sleep, of course, numerous studies suggest that late-night smartphone use is very bad, but if you can’t stop yourself using your phone, at least you can now connect it to a sleep-enhancing gadget.

So comes a brand new wave of devices that encourage users to outsource not only their basic bodily functions but – as with the Apple Watch’s emphasis on providing “motivation” – their very willpower.  These are thrillingly innovative technologies and yet, in the way they encourage us to think about ourselves, they implicitly revive an old and discarded school of ­thinking in psychology. Are we all neo-­behaviourists now?

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The school of behaviourism arose in the early 20th century out of a virtuous scientific caution. Experimenters wished to avoid anthropomorphising animals such as rats and pigeons by attributing to them mental capacities for belief, reasoning, and so forth. This kind of description seemed woolly and impossible to verify.

The behaviourists discovered that the actions of laboratory animals could, in effect, be predicted and guided by careful “conditioning”, involving stimulus and reinforcement. They then applied Ockham’s razor: there was no reason, they argued, to believe in elaborate mental equipment in a small mammal or bird; at bottom, all behaviour was just a response to external stimulus. The idea that a rat had a complex mentality was an unnecessary hypothesis and so could be discarded. The psychologist John B Watson declared in 1913 that behaviour, and behaviour alone, should be the whole subject matter of psychology: to project “psychical” attributes on to animals, he and his followers thought, was not permissible.

The problem with Ockham’s razor, though, is that sometimes it is difficult to know when to stop cutting. And so more radical behaviourists sought to apply the same lesson to human beings. What you and I think of as thinking was, for radical behaviourists such as the Yale psychologist Clark L Hull, just another pattern of conditioned reflexes. A human being was merely a more complex knot of stimulus responses than a pigeon. Once perfected, some scientists believed, behaviourist science would supply a reliable method to “predict and control” the behaviour of human beings, and thus all social problems would be overcome.

It was a kind of optimistic, progressive version of Nineteen Eighty-Four. But it fell sharply from favour after the 1960s, and the subsequent “cognitive revolution” in psychology emphasised the causal role of conscious thinking. What became cognitive behavioural therapy, for instance, owed its impressive clinical success to focusing on a person’s cognition – the thoughts and the beliefs that radical behaviourism treated as mythical. As CBT’s name suggests, however, it mixes cognitive strategies (analyse one’s thoughts in order to break destructive patterns) with behavioural techniques (act a certain way so as to affect one’s feelings). And the deliberate conditioning of behaviour is still a valuable technique outside the therapy room.

The effective “behavioural modification programme” first publicised by Weight Watchers in the 1970s is based on reinforcement and support techniques suggested by the behaviourist school. Recent research suggests that clever conditioning – associating the taking of a medicine with a certain smell – can boost the body’s immune response later when a patient detects the smell, even without a dose of medicine.

Radical behaviourism that denies a subject’s consciousness and agency, however, is now completely dead as a science. Yet it is being smuggled back into the mainstream by the latest life-enhancing gadgets from Silicon Valley. The difference is that, now, we are encouraged to outsource the “prediction and control” of our own behaviour not to a benign team of psychological experts, but to algorithms.

It begins with measurement and analysis of bodily data using wearable instruments such as Fitbit wristbands, the first wave of which came under the rubric of the “quantified self”. (The Victorian polymath and founder of eugenics, Francis Galton, asked: “When shall we have anthropometric laboratories, where a man may, when he pleases, get himself and his children weighed, measured, and rightly photographed, and have their bodily faculties tested by the best methods known to modern science?” He has his answer: one may now wear such laboratories about one’s person.) But simply recording and hoarding data is of limited use. To adapt what Marx said about philosophers: the sensors only interpret the body, in various ways; the point is to change it.

And the new technology offers to help with precisely that, offering such externally applied “motivation” as the Apple Watch. So the reasoning, striving mind is vacated (perhaps with the help of a mindfulness app) and usurped by a cybernetic system to optimise the organism’s functioning. Electronic stimulus produces a physiological response, as in the behaviourist laboratory. The human being herself just needs to get out of the way. The customer of such devices is merely an opaquely functioning machine to be tinkered with. The desired outputs can be invoked by the correct inputs from a technological prosthesis. Our physical behaviour and even our moods are manipulated by algorithmic number-crunching in corporate data farms, and, as a result, we may dream of becoming fitter, happier and more productive.

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The broad current of behaviourism was not homogeneous in its theories, and nor are its modern technological avatars. The physiologist Ivan Pavlov induced dogs to salivate at the sound of a bell, which they had learned to associate with food. Here, stimulus (the bell) produces an involuntary response (salivation). This is called “classical conditioning”, and it is advertised as the scientific mechanism behind a new device called the Pavlok, a wristband that delivers mild electric shocks to the user in order, so it promises, to help break bad habits such as overeating or smoking.

The explicit behaviourist-revival sell here is interesting, though it is arguably predicated on the wrong kind of conditioning. In classical conditioning, the stimulus evokes the response; but the Pavlok’s painful electric shock is a stimulus that comes after a (voluntary) action. This is what the psychologist who became the best-known behaviourist theoretician, B F Skinner, called “operant conditioning”.

By associating certain actions with positive or negative reinforcement, an animal is led to change its behaviour. The user of a Pavlok treats herself, too, just like an animal, helplessly suffering the gadget’s painful negative reinforcement. “Pavlok associates a mild zap with your bad habit,” its marketing material promises, “training your brain to stop liking the habit.” The use of the word “brain” instead of “mind” here is revealing. The Pavlok user is encouraged to bypass her reflective faculties and perform pain-led conditioning directly on her grey matter, in order to get from it the behaviour that she prefers. And so modern behaviourist technologies act as though the cognitive revolution in psychology never happened, encouraging us to believe that thinking just gets in the way.

Technologically assisted attempts to defeat weakness of will or concentration are not new. In 1925 the inventor Hugo Gernsback announced, in the pages of his magazine Science and Invention, an invention called the Isolator. It was a metal, full-face hood, somewhat like a diving helmet, connected by a rubber hose to an oxygen tank. The Isolator, too, was designed to defeat distractions and assist mental focus.

The problem with modern life, Gernsback wrote, was that the ringing of a telephone or a doorbell “is sufficient, in nearly all cases, to stop the flow of thoughts”. Inside the Isolator, however, sounds are muffled, and the small eyeholes prevent you from seeing anything except what is directly in front of you. Gernsback provided a salutary photograph of himself wearing the Isolator while sitting at his desk, looking like one of the Cybermen from Doctor Who. “The author at work in his private study aided by the Isolator,” the caption reads. “Outside noises being eliminated, the worker can concentrate with ease upon the subject at hand.”

Modern anti-distraction tools such as computer software that disables your internet connection, or word processors that imitate an old-fashioned DOS screen, with nothing but green text on a black background, as well as the brain-measuring Muse headband – these are just the latest versions of what seems an age-old desire for technologically imposed calm. But what do we lose if we come to rely on such gadgets, unable to impose calm on ourselves? What do we become when we need machines to motivate us?

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It was B F Skinner who supplied what became the paradigmatic image of ­behaviourist science with his “Skinner Box”, formally known as an “operant conditioning chamber”. Skinner Boxes come in different flavours but a classic example is a box with an electrified floor and two levers. A rat is trapped in the box and must press the correct lever when a certain light comes on. If the rat gets it right, food is delivered. If the rat presses the wrong lever, it receives a painful electric shock through the booby-trapped floor. The rat soon learns to press the right lever all the time. But if the levers’ functions are changed unpredictably by the experimenters, the rat becomes confused, withdrawn and depressed.

Skinner Boxes have been used with success not only on rats but on birds and primates, too. So what, after all, are we doing if we sign up to technologically enhanced self-improvement through gadgets and apps? As we manipulate our screens for ­reassurance and encouragement, or wince at a painful failure to be better today than we were yesterday, we are treating ourselves similarly as objects to be improved through operant conditioning. We are climbing willingly into a virtual Skinner Box.

As Carl Cederström and André Spicer point out in their book The Wellness Syndrome, published last year: “Surrendering to an authoritarian agency, which is not just telling you what to do, but also handing out rewards and punishments to shape your behaviour more effectively, seems like undermining your own agency and autonomy.” What’s worse is that, increasingly, we will have no choice in the matter anyway. Gernsback’s Isolator was explicitly designed to improve the concentration of the “worker”, and so are its digital-age descendants. Corporate employee “wellness” programmes increasingly encourage or even mandate the use of fitness trackers and other behavioural gadgets in order to ensure an ideally efficient and compliant workforce.

There are many political reasons to resist the pitiless transfer of responsibility for well-being on to the individual in this way. And, in such cases, it is important to point out that the new idea is a repackaging of a controversial old idea, because that challenges its proponents to defend it explicitly. The Apple Watch and its cousins promise an utterly novel form of technologically enhanced self-mastery. But it is also merely the latest way in which modernity invites us to perform operant conditioning on ourselves, to cleanse away anxiety and dissatisfaction and become more streamlined citizen-consumers. Perhaps we will decide, after all, that tech-powered behaviourism is good. But we should know what we are arguing about. The rethinking should take place out in the open.

In 1987, three years before he died, B F Skinner published a scholarly paper entitled Whatever Happened to Psychology as the Science of Behaviour?, reiterating his now-unfashionable arguments against psychological talk about states of mind. For him, the “prediction and control” of behaviour was not merely a theoretical preference; it was a necessity for global social justice. “To feed the hungry and clothe the naked are ­remedial acts,” he wrote. “We can easily see what is wrong and what needs to be done. It is much harder to see and do something about the fact that world agriculture must feed and clothe billions of people, most of them yet unborn. It is not enough to advise people how to behave in ways that will make a future possible; they must be given effective reasons for behaving in those ways, and that means effective contingencies of reinforcement now.” In other words, mere arguments won’t equip the world to support an increasing population; strategies of behavioural control must be designed for the good of all.

Arguably, this authoritarian strand of behaviourist thinking is what morphed into the subtly reinforcing “choice architecture” of nudge politics, which seeks gently to compel citizens to do the right thing (eat healthy foods, sign up for pension plans) by altering the ways in which such alternatives are presented.

By contrast, the Apple Watch, the Pavlok and their ilk revive a behaviourism evacuated of all social concern and designed solely to optimise the individual customer. By ­using such devices, we voluntarily offer ourselves up to a denial of our voluntary selves, becoming atomised lab rats, to be manipulated electronically through the corporate cloud. It is perhaps no surprise that when the founder of American behaviourism, John B Watson, left academia in 1920, he went into a field that would come to profit very handsomely indeed from his skills of manipulation – advertising. Today’s neo-behaviourist technologies promise to usher in a world that is one giant Skinner Box in its own right: a world where thinking just gets in the way, and we all mechanically press levers for food pellets.

This article first appeared in the 18 August 2016 issue of the New Statesman, Corbyn’s revenge