The series continues with heightened drama but the representation of the legal process is corrupted by the story line.
In episode 3 the prosecution call DC Miller, the wife of the defendant, and while there is nothing intrinsically wrong with that; the law is that a wife is a competent witness against her husband, but she is not compellable. What that means is that her evidence is capable of belief but if she declines to give evidence she cannot be forced to do so. In the circumstances where she is known to have assaulted her husband, I think most barristers would be reluctant to call her. She added very little to the issues for the jury.
Episode 4 has a number of glaring errors in the trial scenes. It is a long time since a witness was allowed to make a dock identification. In a real trial, if that was to happen, the defence would ask for the jury to leave the court and make an application for a retrial. Actually it makes Justine look incompetent as she allows the witness to deviate from her witness statement by asking if she recognised the man. There was no need for the question; the witness had given the evidence about seeing a man already, although what evidential value that had was difficult to understand. If the judge ruled that the trial should continue, cross-examination would be much more rigorous. The witness would have been asked about her previous statement, the time she made it and why she had left out the name of the man she saw. It is one of the common mistakes that a witness makes to say I told the police but they left it out. The police officer who took the statement would then be called and would inevitably say that the witness had not identified the person they saw and the defence can then assert that the witness is at best unreliable or a liar.
I did like the part where the defence silk says to her junior who is convinced their client is guilty, ‘Don’t say that. We never know for sure. He gets his defence.’ The sort of comment a real barrister would make to a pupil, particularly one who is described by her opponent as a rottweiler.
I didn’t watch the first series, but the criticism about the courtroom drama in the current series has been such that I decided to catch up with the first two episodes with the benefit of the BBC i player I have now done that. Oh dear, they may have had a legal consultant but the script writer must have ignored any advice they were given. I know the fact that the Bar is a referral profession is inconvenient for drama, but the writer could have made a little more reference to reality. I cannot imagine any solicitor instructing someone who has not been in practice for three years ever; the law changes and the skills need to be kept up, never mind the question of a practising certificate.
Then the prosecuting barrister asks the police officer in the case to visit her at home to discuss his evidence about injuries to the defendant. The defendant’s wife appears to have been invited as well. I know she is an important character in the plot, but surely a little more thought might have dealt with this issue in a more realistic way. Then she discusses with them the injuries and tells them they need to find a good reason for the assault on a prisoner. No decent lawyer would do that; she was almost telling them what to say
In the trial process, prosecuting counsel would not refer to the confession in opening the case to the jury and arguments around the issue of admissibility of a confession are made in the absence of the jury. Defence counsel did quote the correct sections of the Police and Criminal Evidence Act, but that was the only bit that was right. Surely it would have been just as dramatic to have the legal argument in the courtroom and then switch to the family outside in the waiting area worrying about what was going on.
My main complaint is the idea that the prosecuting barrister is the bereaved family’s lawyer. Criminal Prosecution are taken on behalf of the state, ‘Regina v Miller,’ not the victim or their relatives. The way it has been portrayed is misleading to ordinary members of the public who may be involved as witnesses or where a family member is a victim of crime. Writers of popular series have in my view a responsibility to ensure viewers are not given a totally misleading impression of the way something as important as the criminal justice system works.