One of my Facebook friends, Nancy Lebovitz, made a suggestion yesterday which I found not only brilliant, but potentially as far-reaching in its effects as was adding the third actor in Greek drama. It will almost certainly never be put into practice, but it intrigued me so much I wanted to try it out. Hence, this. Since it's a derivative work, in at least two senses, I have made it freely available.]
REGINA v. MALPASS
An interesting innovation in British jurisprudence was given its first test this week in the Ardle and Scoones embezzlement trial. Edwin Malpass, a junior accountant employed by that firm, was accused of embezzling the sum of fifty thousand pounds. Mr Justice Prong, in his opening remarks, said:
This case, ladies and gentlemen of the jury, sees the inauguration of a controversial new procedure in criminal law. Opinions have been sharply divided as to its desirability; several prominent justices and members of the House of Lords have spoken strongly against it, and a certain Mr Haddock, with whom we are all familiar, has written to the Times expressing his dismay, saying that this new practice will "take all the fun out of it." We may feel that in matters where a citizen's life and liberty hang in the balance, "fun" is a singularly inapposite term to employ; but there is no doubt that if this new custom is adopted, the face of litigation in this country will be altered beyond recognition. With this in mind, I should like to explain the new position to you.
You are familiar, as are all educated men and women of this country, with the positions of counsel for the prosecution, represented here by my learned friend Sir Malachi Frog, QC, and counsel for the defence, a role admirably filled by my learned friend Sir Wetherby Toad, QC. The third counsel, however, will not be familiar to you, and I confess is not to me, though I gather that she is Ms Eiluned Probyng, niece of the distinguished Professor Goronwy Probyng, whose scientific researches have led to so many intriguing cases before this Court. Her role, as I understand it, is to speak neither for the prosecution, nor the defence, nor for the law (for that is my job), but for truth, facts, and reason.
Now you may feel, enthusiastic supporters of the British system of justice as no doubt you all are, that this position might seem redundant; for surely truth, facts and reason are the sole and entire business of this Court and its fellows, and only the most depraved and cynical scofflaw could suppose otherwise. I have to inform you that, prima facie, you are mistaken. The job of counsel for the prosecution is simply and solely to obtain the conviction of the defendant; the job of counsel for the defence is to secure his acquittal. Your job, ladies and gentlemen of the jury, is to choose between these two alternatives, and mine is to employ such meagre knowledge of the law as I possess to guide you in that choice. If, in the pursuit of these several and conflicting objectives, it becomes possible to arrive at some dim and inchoate idea of what actually was done and by whom, this is in the nature of a happy accident, and is no part of the intention of any one of us.
Such, at least, is the view taken by those who govern the course of the British legal system, and Ms Probyng stands before us as the representative of an attempt to redress that perceived deficiency. It has been argued that this will simply muddy the waters of justice, making it impossible to convict or acquit anyone; though surely it must be generally agreed that if that is the effect of truth, facts and reason, then it must of necessity be the right effect. If the only conclusion to which the facts of a case point is that we do not and can never know who is guilty of what, then it is surely merely spiteful to punish the person who seems most likely in our own minds to have done the deed. It will certainly have no deterrent effect on the real malefactor, if any, or on others of his or her kind, redounding only to the discredit of the police and the courts. It is essential, if justice is to be done and to be seen to be done, that the police arrest the right person, and that the law convicts him fairly and unassailably. If that cannot be done, then we might as well admit that the criminals have won and go fishing.
I am happy to say, though, that in the vast majority of cases that have been brought before me, the facts are readily ascertainable and clear in their indications. The only obstacles to the determination of a correct conclusion therefrom, in these cases, are, I regret to say, learned counsels for the defence and for the prosecution; for in pursuance of the goals which they have been set, videlicet, to acquit or to convict, our enlightened system allows them licence to embellish, to embroider, to festoon the facts with rhetorical and emotional furbelows and flourishes which quite obscure their true nature; to emphasise one fact and obfuscate another; to interpret the testimony of honest witnesses in whichever way best serves their case. A speech by either one of my learned friends, ladies and gentlemen, is a theatrical performance, and were it not for the gravity of the occasion would be a delight to watch; but the performance is that of a conjurer, and depends for its efficacy on you not seeing what is, as it were, up their sleeves.
No more. That is the message that Ms Probyng's presence in this Court conveys; for in her capacity as advocatus veritatis, she has licence to question not only witnesses as they are summoned, but learned counsel themselves, as to the completeness and veracity of their statements. I believe, for my own part, that this will, in the long term, be a good thing; for it will deny learned counsel the easy options of misdirection, invective, rodomontade and "playing to the gallery," and will force them back on the thing for which they are supposed to be remunerated by a grateful nation, the practice and pursuit of the law. Their arguments will become all the keener, their questioning the more pertinacious, their summings-up refreshingly freer of melodrama and crocodile tears; and with any luck we shall arrive at clearer and more reliable verdicts as a result.
Sir Malachi, you may now open for the Crown.