Vengeance on Varos: or, why English and Welsh trials aren’t televised

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!’.

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.