by David Yuratich, Bournemouth University
The opening scene of Vengeance On Varos (1985) contains a
familiar dystopian trope. A prisoner is being tortured live on TV. This 'entertainment' is presumably being
televised across the whole planet, although the episode focuses on the
responses of Arak and Etta, a couple watching in their living room. Rather than being traumatised, they are
bored. 'Not him again?' says Arak, before complaining 'when did we last see a
decent execution?'. Etta, who appears entranced by the programme, reminds him
that there was one last week, at which point the two bicker about whether or
not that ‘episode’ was a repeat. Clearly this barbarity has been normalised. Equally worringly, it soon becomes apparent that when the Governor wishes to
implement a new policy, citizens vote through their TV screens - and if they
vote ‘no’, he dies live on air.
Throughout the episode the two discuss various scenes of torture and
oppression as if they were fictional programmes: ‘'I like that one [the
Doctor], the one in the funny clothes!'; 'I like this section, I wonder if they
know what's waiting?’; ‘Here comes the acid bath!’.
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| Viewers of Varos: Etta and Arak engage with the planet's televisual offerings |
These events are similar to
trials: the prisoner is on public display for questioning, and citizens are
called upon to decide the fate of the governor.
These scenes reflect English and Welsh (Scottish and Northern Irish law
is different) anxieties about televising justice. Varos usefully epitomises, albeit exaggeratedly, the uneases that
have informed a cautious attitude to televising trials. At present these are are not recorded or
televised. By trials I mean the initial criminal court case where a defendant's
guilt or innocence is established. In
contrast to trials, appeals are now often recorded and/or transmitted. The
Supreme Court streams selected cases through the internet, and has an excellent
YouTube channel where
lawyers, law students, and no doubt some slightly bored members of the public
can view recordings of their judgments.
Earlier this year the Court of Appeal also started to record selected
cases, although this is primarily for the media to use in reporting; it seems
more difficult for the public to access them online.
The Supreme Court’s proceedings,
which are only ever appeals, can be recorded and broadcast thanks to Section 47
of the Constitutional Reform Act 2005. The situation for other courts is
governed by the Crime and Courts Act 2013.
It does not explicitly ban the practice being extended into criminal
trials. Section 32(1) of the Act allows the Lord Chancellor, with the
‘concurrence’ of the Lord Chief Justice, to make orders that permit the
recording of images or sound in courts. There are two main barriers to
this. First, under Section 32(1)(b), it
can be made subject to ‘prescribed conditions’ including the agreement of the
parties involved. Second, under Section 32(3), a recording order may be
suspended 'in the interests of justice or in order that a person is not unduly prejudiced'. Given that both these safeguards are
broadly-phrased, they may prove difficult to define precisely; instead they
seem primarily governed by matters of policy.
Why then has the potential extension of recording not taken place? Why has the Lord Chief Justice recently told the
House of Lords Constitution Committee that he would like a ‘pause’ to take
stock of current practice before going any further? And how exactly does Varos serve as a useful illustration of
those fears?
Three complaints are played out
particularly well in this episode.
Specifically the concerns here relate to about televising trials, and
not about publicising them through other mediums: they are usually open to the
public and are reported and tweeted about regularly. Vengeance on Varos helps illustrate a distinct set of issues that
arise when broadcasting trials. First,
justice may become a spectacle. The act
of televising transforms what the people of Varos should see shameful events
(torture and death) into a commodified, not-quite real event situated on the
border between reality and fiction. As rued by another character later on, ‘the
spectacle of death is our only entertainment’ whilst one of the villains is
delighted at the ‘prime time viewing’. Guilt has apparently been assumed just
because the accused is on TV; the truth is irrelevant. As a consequence of the trials being seen as entertainment, a second issue arises: detachment. Arak
and Etta do not take what they are seeing seriously. They dehumanise those on
display. They forget that they are watching real people in real pain or facing
real consequences - recall the argument about whether they were watching a
repeat. The accused becomes ‘other’ and the watchers simply do not care what
happens to them. The third issue arises
from the fact that viewers vote for the Governor’s fate. His destiny is not decided by a jury or by
evidence - it is settled by the gut feelings of the watching public. Opinion,
not fact, is what matters here.
The events on Varos are of course
dystopian. Nonetheless, the three points
above are, to varying extents, caricatures of the real concerns that inform the
policy reasons against extending the recording of court proceedings in the
UK. Helena Kennedy warns
that the solemnity required by fair trials - respecting the rights of the
accused to make their case, to make sure decisions are made on evidence, and so
on - could be eroded if trials were televised.
This is because the events could easily become sensationalised by the
media. The accused might become
dehumanised; edited or distorted images from the trial could influence the jury
or dictate the public perception of the accused’s guilt whatever the verdict
actually is; this potential threat to the idea of ‘innocent until proven
guilty’ has been cited by one New
Zealand judge as a reason to ban recording in their courtroom. The Ministry of Justice itself has recognised
this potential problem and states that ‘the Government and the
Judiciary will not permit our courts to become show trials for media
entertainment’. Richard Sherwin
goes further, warning that blurring the lines between law and entertainment
could lead to the law going ‘pop’: if criminal trials are seen as entertainment
then their legitimacy as a forum for determining guilt and innocence may
dissolve, threatening the rule of law that he sees as underpinning a liberal
democratic society. Indeed, so numbed
are Arak and Etta to reality that when the Doctor eventually prevails and the
broadcasts are stopped, they cannot comprehend the ‘real world’.
One can look at the ongoing Oscar
Pistorius trial as a real illustration of these problems. Its coverage has in
many ways focused less on criminal proceedings and more on personalities and a
rather distasteful non-legal narrative about celebrities. Lord Chief Justice Thomas, in the evidence
referred to earlier, cryptically said that he was ‘troubled’ by the events in
South Africa, but did not wish to expand. Without wanting to put words into his
mouth, it is quite possible that he was referring to some of the concerns noted
above.
Vengeance on Varos clearly contains representations, albeit
exaggerated, of the policy reasons that for now prevent English and Welsh
courts from televising trials. This is
one of the great utilities of popular culture: it can place visualisations of
important ideas and arguments into an easily-accessible arena. Not all the arguments against televising
trials are covered in Varos of course
- there is little material in there about the potential impact on witnesses for
example. Similarly, the episode’s setting does not necessarily lend itself to a
celebration of the potential benefits of greater transparency to things such as
public education. It is nonetheless a
fascinating hour and a half’s viewing for public lawyers.
