31 October 2013

Scots justice for Brooks & Coulson!

A final thought for October. Let's make it a finicky, legal one. As you cannot have missed, the trial of Andy Coulson and Rebekah Brooks has begun in earnest in London's Old Bailey.  

James Doleman, who brought us his comprehensive, diligent, fair-minded and contemporaneous blog on Tommy Sheridan's perjury trial, will be covering the case down in London for The Drum.  

I'm under no illusions that Scots law represents the distinctive spirit and wisdom of the Scottish people, and an important pillar of our independence within the Union. Beyond the not proven verdict, most folk seem to have little sense about how law differs, north and south of the border. There are some areas, however, where Scots law seems demonstrably saner than that applied by our English neighbours. Today's developments in Brooks and Coulson's phone hacking trial offer an illustrate example. 

In Scotland, in a jury trial, once the fifteen have been empanelled, they're presented with the indictment which the Crown intends to prove against the accused. (See, for example, the indictment proved in the second, part-televised Nat Fraser trial).  That's the essence of the case. If the prosecution substantiates its case with sufficient credible and reliable evidence, the accused goes down. If not, he or she is acquitted. The indictment having been impressed on the mind of the trier of fact, the Scottish prosecutor immediately cracks on with their first witness, and their case.  No onions are produced. No emotive opening address to the jury is given, offering a foretaste of the state's case against the soul in the dock.  None of the evidence is anticipated by either party to the case.  And it is the evidence, after all, which really matters.

Compare and contrast this with today's opening speech from Andrew Edis QC under English law, which has got all of the papers salivating about just how cordial relations were between Coulson and Brooks.  I'm sure Mr Edis is a diligent officer of the court, and his reference to the romantic peccadilloes of the defendants has a sound basis in evidence.  But his opening speech is not evidence, only the anticipation of evidence, and yet it is the first and shaping voice which the twelve jurors in the Old Bailey will hear, in assessing this case.

It may well be that evidence of a romantic connection casts important light on the closeness of the relationship between the co-accused being tried.  If so, let witnesses speak to it. Produce the letter in court. That's what the case turns on, not the rhetoric of the prosecutor. In Scotland, the trial process would reflect that, and give the evidence priority. In England, Mr Edis is allowed to anticipate his evidence, and firmly implant the idea of an affair in the mind of the jury, before a single soul with direct knowledge of the facts or circumstances has spoken to it. Whether or not the allegation is true, this strikes me as infelicitous in a process which is meant to turn in its entirety on the proof put before the court.  That's the English system, but I don't care for it.

The end of the Coulson and Brooks trial at the Central Criminal Court will also differ in important ways.  It is for the presiding judge in both jurisdictions to sum up, giving the jury legal direction on their decision-making. That's entirely proper. But English and Scots law diverge on the proper role of court here too.  In England, as the exhaustive summing up in the recent and controversial Farooqi case exemplifies, the trial judge is expected to take jurors through, and comment on, the evidence. Hours can pass, as he or she does so. 

In a case chalked in to last weeks and months, this summing up may encompass vast quantities of material, doddering along after the prosecution and defence counsel's own, presumably extensive, canvassing of the evidence produced. I'm no expert on English law, but one can only imagine that these summings up are full of perils for the judge, and offer rich pickings for convicted defendants to appeal where, over the course of the judge's summary of the case, the defence case is underegged, neglected, or (arguably) episodically misrepresented.

In Scotland, by contrast, judges are seriously discouraged from expressing any view on the evidence whatever. Their task is to ensure, to the best of their ability, that jurors understand the legal tests that they are applying under the criminal law.  It is not sheriff's job to hold jurors' hands in the exercise of their duty, or to offer their own detailed and often subjective commentary on the evidence which has been adduced by the prosecution and the defence. The trier of fact is left to try the facts. And you'll rarely encounter any "fragrant Lady Archers" emanating from the lips of judges north of the border. 

And a damn good thing too, you might well think.


  1. The downside to what you say is that as a juror (my only experience) you have no idea what's going on when the first witness rolls up in a smart suit and starts telling you a detailed part of a story when you don't even know the plot outline. It's a very purist way of going about things, and in a sense admirable, but it's not very helpful to a juror who has been ripped out of the comfort zone and plonked down in the middle of something that has totally unfamiliar procedures and rules. I suggest that during the first day of a trial (at least) a Scottish jury is all going WTF? - and in their efforts to get their heads around what the story is, the salience of the opening evidence may be entirely missed.

    1. kininvie,

      An interesting point which a few other folk on twitter echoed in response to this article. On the other hand, the big problem with opening speeches is that they claim that witness X, Y and Z will say A, B and C before anybody else has opened their mouths. A moderately bewildered jury which gradually orientates itself on the basis of the evidence obviously faces challenges - as you say - but seems preferable to me.

  2. It does seem odd. Of course the relationship between Coulson & Brooks is very important to the case as it's about proving a conspiracy. But you would think that would be evidenced at the time that, err, the evidence was being produced. As it is, it has the feel of a movie not a trial.

  3. The other thing to add is that the affair between Brooks & Coulson was an open secret as Guido Fawkes more or less told us at the time that the letter was discovered. Well who told him? That is a more serious issue than who was bedding who in Chipping Norton.

    1. Observer,

      Curious. Wasn't aware of that. Not being a regular visitor of that site, the tale entirely passed me by...