Expert Comment: Trial by television?Thursday 23 October 2014
Professor Sir Mark Hedley, Former High Court Judge and Visiting Professor of Law at Liverpool Hope University, looks at the Oscar Pistorious trial through the eyes of judge Thokozile Masipa. He considers the implications of both televised trials and trials without a jury.
The trial, and its surrounding media circus, is now over. For many this has been compelling viewing and we should not underestimate the powerful impact of interlocking human drama. However, I found myself reflecting on it through the eyes of a Judge. From that perspective I offer some thoughts.
The presence of television imposes its own strains over and above those inevitable in a high profile murder trial. It means that there can never be a falling short in impeccable judicial conduct – not that one can complain of that - but it can be a real strain. A judge can venture little or no humour because of the risk of partial reporting and consequential misunderstanding; the only option is an impersonal detachment (which Judge Thokozile Masipa does seem to have achieved), but that is not always for the best of those intimately affected by the trial – a little human warmth has its place. Yet, it is vital that it remains a trial, however great its soap opera potential may be - a lesson clearly taught by the O.J. Simpson trial.
The absence of a jury greatly increases the responsibility on the judge even though there are two lay assessors. I have considerable experience of trying allegations of wrongful killing or serious injury or grave sexual abuse without a jury where one is dealing with surviving children in care proceedings, which may lead to parents never seeing their children again. Grave though that is, recording a conviction for murder with the appropriate sentence, and without a jury, presents a different set of complications and ethical questions.
Furthermore, in sharp contrast to a jury verdict, a judge sitting alone must give full reasons for the verdict. The UK criminal court has no equivalent to the lengthy judgment given by the judge in announcing her verdict; the nearest we get is the Judge’s summing-up before the jury retires. It is accepted, at least at present, that this is human rights compliant.
The Pistorious trial was, for Thokozile Masipa, therefore a far more demanding piece of work than our system would require, and I say that as one who has worked on high profile cases in the intense glare of publicity. I think the presence of television will have been the greater factor in that than having no jury. The pressure is utterly relentless, as clearly demonstrated by the very protracted sentence hearing and the debate surrounding it.
On the other hand, our courts are public courts, and in the 21st century it is difficult to argue that if any member of the public may attend, why not the cameras. The filming in this trial did not alight on the face of a private witness and presumably would not on that of a juror in our system. It is always essential to maintain gravitas and uphold the demands of fairness and justice; all would agree on that but there is much disagreement as to what that actually means in practice. In our system that is presently under active consideration but has not yet got beyond the filming of appeal cases.
The absence of a jury raises much more fundamental issues. Certainly, fully reasoned judgments are forthcoming and capricious reasoning will be prevented, but so will verdicts that may accord with justice but not with the law. In our culture juries are seen (and have been so for over 300 years) as the guardians of our liberties and as an essential protection from over-mighty authority. Their removal seems politically highly improbable in the light of our history.
Professor Sir Mark Hedley is a Former High Court Judge and is Visiting Professor of Law at Liverpool Hope University.