They spent HOW MUCH on transcripts?
All the reasons why it's very difficult to report on the British justice system.
I spent much of last week frenetically discussing the New Yorker’s massive reported feature on Lucy Letby via WhatsApp and DMs. I didn’t do this publically, and won’t link to the piece or go into too much detail about it. This is because doing so risks violating contempt of court laws, given that Letby is subject to ongoing court proceedings. These laws prohibit the publication of anything that might potentially prejudice a court case and prevent a free trial. The legal test is whether a particular piece of media creates “a substantial risk of serious prejudice”. (Archie Bland wrote a very well-argued Guardian piece about how these laws are outdated, to say the least, in the era of the internet: between social media, access to international news, and a readily available news archive, jurors can read whatever they want).
In brief, using court documents and transcripts, the New Yorker journalist Rachel Aviv questioned the soundness of Letby’s conviction. This was totally at odds with pretty much all the reporting of the case in the UK’s own media, where most reporting on the verdict (in August she was found guilty of murdering, and attempting to murder babies on a neonatal ward) took her guilt as fact. This was a huge story in the UK and I think it is interesting that an American magazine covered it from a completely different angle to the British press. Sometimes there is a real groupthink in any national media - I am including myself in this - and it takes an outsider to make a different argument. But something else that struck me is that there’s a strong culture in US journalism of probing potential miscarriages of justice. In the UK, there’s a much stronger tendency to accept court judgments as fact.
I’ve been thinking a lot about why this might be. Some of it, I think, is related to contempt of court laws. These kick in as soon as legal proceedings do, and given how dysfunctional and beset by delays the justice system is after 14 years of austerity, this means a long period in which reporting is prohibited. As Bland writes:
“it now takes an average of more than 300 days from the time of charge to the completion of a case, and if an arrest is publicly known the contempt clock starts even earlier.”
Publications and individual reporters and editors can face serious fines or even jail time for violating the rules. Plus, no-one wants to prevent a fair trial or delay a court hearing by publishing something prejudicial. Regardless, the end result is an extended periods in which reporting is impossible, and these periods get even longer if there is any kind of re-trial - as in the Letby case - or appeal.
But I think another significant limiting factor is the logistics. I don’t think most people understand quite how difficult it is to report on court cases in the UK after the event. My small forays into court reporting have always left me feeling like I must be missing something. The UK operates on a principle of open justice, which means that anyone can, in theory, attend a trial - not just the press but the public, too. This sounds straightforward but in practice it’s not that easy to even find out when a case is going to be heard. Listings are literally stuck on a piece of paper on a billboard in the relevant court on the morning of, or you can phone the court the day before to check the time of the session. Being able to do this requires knowing which court to call and roughly when it’s going to happen, neither of which are a given.
As a journalist, if you’re in the courtroom, you can report freely on what’s said in the courtroom - by barristers, witnesses, defendants, and so on - unless the judge imposes specific reporting restrictions. You will, most likely, also have acccess to a bundle of evidence and/or documents that will be passed around in the press gallery. You can make notes and report on these. You’ll hear the defence and prosecution make their opening and closing statements - sometimes print-outs of these statements are even handed out to the press gallery, or emailed round attendant journalists afterwards so they can quote accurately. This is all great - if you’re there.
The difficulty comes if you want to revisit a trial that you did not attend, as Aviv did in her New Yorker story: she wrote that her reporting “drew on more than seven thousand pages of court transcripts”. This might not jump out to most readers, but my first thought was: “how much did that COST?” In the US, journalists often use court transcripts to re-examine cases - they tend to be fairly readily accessible for free. In the UK, the situation is different. Court cases in the UK are usually recorded but not transcribed. So if you want a transcript, you have to pay for it to be transcribed by one of the court’s approved transcription agencies. I once looked into this, and found that it was £180 per hour plus VAT. Bearing in mind that most court cases sit for 4-6 hours a day and a case might run for weeks (the one I was looking into sat for four weeks; Letby’s for six months) you are quickly racking up costs of thousands or tens of thousands. When I found this out I thought I must have made a mistake, but I checked with various people and this is actually how it works. The prohibitive costs ares also a massive problem for people in prison who want to appeal convictions.
There’s no clear system for getting any of things you would have had free access to if you were sitting in the court room - bundles of evidence used in court, victim impact statements, prosecution and defence closing statements, the judge’s sentencing remarks. You literally can’t get them unless you manage to track down one of the lawyers involved and they decide to share it with you. (And this is hard to do, unless you already have some kind of connection with the legal teams, or unless they really want coverage. I’ve tried to do it several times with limited success).
Most papers have court reporters whose job it is to attend the big criminal courts daily and report on what’s going on; they’re in the room every day, often darting between multiple trials and producing on-the-day news coverage. This is invaluable public service work, not least because those people are embedded in the courts and know what’s coming up when. But the kind of long-form, in-depth, after-the-event re-examination of a trial that the New Yorker piece did is simply really, really difficult to do in this country - not just legally, but logistically.
Reading/listening
I am probably not the first person to recommend this to you, but the new series of the OG podcast Serial is truly excellent. It’s about Guantanamo - fresh, surprising stories told by insiders - and it’s a great example of what good long-form journalism can do. The fact that so much time has passed since some of the key events means that people are ready to share their stories in a way that might have been impossible before. It’s really enlightening
This Guardian Long Read story about Amit Shah, Narendra Modi’s right-hand-man, is excellent.
We hear incessantly about small boat crossings, but this Prospect feature on the criminal prosecution of a teenage migrant who piloted a dinghy that sank in the Channel offers a view of the human impact of harsh immigration policies.
Thanks so much for reading! As always, if you enjoyed this post, please share with anyone who might be interested, post on social media, hit subscribe, etc - it all helps it grow. Until next time!