Tag Archives: court tv

Was the BBC’s legal drama ‘Common’ a missed opportunity?

Common-BBC-cast

Did anyone watch Jimmy McGovern’s drama ‘Common’ on BBC1 last Sunday? I did, but not without serious reservations. I don’t really like TV legal dramas, particularly not the earnest, moralising ones: they tend to miss the subtle shades-of-grey ethical questions that real trials throw up, and the legal howlers in them are just too cringeable.

‘Common’ was not without mistakes. Defence counsel addressing a High Court Judge repeatedly as ‘Your Honour’ instead of ‘My Lord’ was the sort of clanger that, had it occurred in an actual court room, would have led to other counsel wanting to gnaw their wigs to ease the embarrassment.

But what put me off ‘Common’ in particular was its billing as an exploration of the legal concept of ‘joint enterprise’. To explain: since 1861 it has been the law that anyone who assists or encourages the commission of a crime can be tried just as if they had committed the crime themselves. Thus the gang-leader can be tried for the murder of a witness even though he only paid the hitman who ultimately pulled the trigger (‘encouragement’). The getaway driver can be tried for armed robbery even though he only waited outside while the rest of the gang carried the guns and grabbed the bank notes (‘assisting’). What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in.

And that is where, for me, ‘Common’ fell down. Because it proceeded on the basis that its protagonist, a likeable 17 year old called ‘Johnjo’, hadn’t intended that a crime be committed at all.

At the start of the programme Johnjo agrees to drive his mate Tony and others to a pizza shop where, unbeknown to him, they all plan to beat someone up. During the assault one of them, Kieran, fatally stabs a bystander. Johnjo then drives them away, still none the wiser as to what has transpired.

On the factual premise of the programme, therefore, Johnjo was not guilty of the murder, or the assault, because he had no inkling that either offence was going to be committed.

Despite that, the programme makers then used Johnjo’s predicament to include comments from various characters about how awful ‘joint enterprise’ was – but Johnjo’s case wasn’t about ‘joint enterprise’. Had a jury known all the facts and been directed about ‘joint enterprise’ correctly they would have returned a unanimous verdict of Not Guilty on him before trial counsel had blown the froth off their coffee.

The greatest shame is that it would have been so easy to rewrite the script in a way that would have highlighted the potential injustice that ‘joint enterprise’ does create.

The way to do that would have been to have written the drama from the point of view of Johnjo’s mate Tony. As I say, Tony, Kieran and others planned to beat someone up in the pizza shop. Had Tony known that Kieran was carrying a knife, and had Tony foreseen that during the assault Kieran might stab someone, intending to kill them or at least seriously injure them, then Tony would also have been guilty of the murder committed by Kieran – because Tony would have had the requisite degree of foresight and because the murder took place during Tony and Kieran’s illegal ‘joint enterprise’. That is how ‘joint enterprise’ works.

In order to be guilty of murder committed by your own hand you must intend to kill, or at least intend to inflict really serious injury. However, you can be guilty of a murder committed by an accomplice, but which you assisted or encouraged – provided you both intend to commit a crime – and you at least foresee the possibility that during that crime your accomplice might commit a murder with murderous intent.

In other words, you can be guilty of ‘joint enterprise’ murder without you yourself intending that anyone should be seriously hurt.

To what extent does such ‘joint enterprise’ liability constitute an injustice? Some might say that if you commit a crime with a homicidal maniac armed with a deadly weapon you deserve all you get. Others might say: you deserve to go to prison, certainly, but not to be convicted of murder.

But whatever the rights and wrongs, it is situations like the one I’ve just outlined, situations where people who richly deserve to spend, say three years in prison, are instead looking at sentences of, say, 20 years, that are exactly the kind of shades-of-grey moral questions that actually arise in our criminal justice system.

The sad thing is that those real-life situations are too subtle, too full of moral ambiguity, involving characters whose own repellent actions have put them too far beyond mainstream ethics, for them to be of any interest to TV dramatists.

Guest post, by David Allan, barrister.

Court TV – the downside

Introduction

I’m in favour of open justice. We need to do much, much more to open up the criminal (and civil) justice system to public scrutiny. As of Monday 28th October 2013 the Court of Appeal (both civil and criminal divisions) will be open for broadcasting. Basically, four courts will have cameras set-up permanently, and broadcasters will be able to dip in and out of 15 others in the RCJ.

The Lord Chief Justice is looking forward to it. Is this a good thing? Whilst I am not looking forward to being filmed whilst arguing a case in Court (especially if I am getting a kicking for reasons good or bad), is there any problem with it?

The arguments have generally been well rehearsed. I just want to raise two thoughts (one serious, one less so) that haven’t been much considered, two reasons why this may not be such a great step forward.

 Two thoughts

1. This isn’t particularly open

Will this help the public understand?

I have real concerns as to how accessible this will be. The Judges and advocates will have transcripts of the proceedings below, case summaries, skeleton arguments and ground of appeal. All of these are probably needed to make sense of what is going on.

A hearing in the Court of Appeal won’t start with a nice summary of the facts and the legal issues that the Court are considering. It will go straight into the argument on the basis that everyone present and involved in the hearing will have read all these documents. Without them, watching could be a very frustrating experience.

When I’ve been in the Court of Appeal (particularly on an appeal against sentence) I’ve often sat in the courtroom waiting for my case to get on. There will often be several cases before me being heard.

I’m a lawyer and frankly I often had no idea what the hell was going on. A lay person who had tuned it would, I imagine, have no clue at all. My first Court of Appeal case was an appeal against a sentence of 18 months. The hearing consisted of me standing up, the lead Judge saying “we’ve read your grounds of appeal, how about 12 months?” and me sitting down again. How helpful would that be to the public?

This isn’t an argument for not televising the courts – it’s an argument for actually having ‘open justice’ rather than talking about it.

In every case there will be, in electronic form, a Court of Appeal summary which contains the facts and the history of the case. Also, there will be typed grounds of appeal and skeleton arguments where both sides set out what their arguments are.

If we are committed to open justice, put all these online. Some cases (sex cases are an obvious one) would need redacting (as an alternative, whilst the system is getting up and running, these could be simply not posted on the web).

This would be far more useful at informing the public than televising the courts. It could go hand in hand with television, and would mean that people watching a case would be able to find out what all the folks in wigs are talking about.

Court TV is a gimmick, publishing the Court documents shows a true commitment to open justice. It’s perhaps more complicated, but if we are serious about opening up the Courts – do that as well.

2. The wrong Court?

This is just a thought. The Court of Appeal features the Criminal Justice System at its best. Everyone prepared and everything done properly (most of the time at least).

It would be far more illuminating to go down to the local Crown Court on a Friday and film the PCMH list – files lost, legal aid not in place, PSRs not produced on time, CPS not complying with Court Directions, prisoners taken to the wrong place, Judges trying to case manage based on a two page case summary, etc etc.

That way the public could really see what is going on in their name in the bulk of criminal cases. They would be truly appalled.