Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Wednesday, 18 April 2012

On the sentencing of David Gilroy

David Gilroy
Today is apparently a historic day in Scotland (indeed the UK), as for the first time permission was granted to allow TV cameras to film the sentencing of a convicted killer. So David Gilroy, who was found guilty last month of the murder of his girlfriend, Suzanne Pilley, and of concealing her body, was sentenced to life imprisonment, to serve at least 18 years.
You can watch it here, but before you get too excited, you should be aware that the conditions for the filming are strictly controlled. There is no view of the courtroom, no view of the accused, and the cameras are permitted to show only the judge as the sentence is delivered.

I have written in a previous post about the principle of televising sentencing, and I have no particular desire to repeat the same arguments at any length. In that post I suggested that this development was limited by, on the one hand, the blatant attempt to control the type of information or situation that was filmed, and on the other by the fact that it was not likely to be particularly entertaining. With these thoughts in mind it is worth viewing the video. It is hard to see much that is either of public interest or will interest the public here. The video is very dry and at nearly five minutes long requires a certain degree of concentration. Lord Bracadale is seated on the bench, in full judicial robes, against a rather drab brown wooden background (see above). He is filmed from below - no doubt to emphasise the authority of the judge (replicating the position of the public in the courtroom): we look up at such figures. His delivery is undramatic, narrating the facts of the case and explaining the sentence. He does not look into the camera and, save for a moment at the very end,exhibits a studied lack of awareness of its presence. He is no doubt making eye contact with the accused - but we cannot know this for sure (and we cannot see or hear any reaction), and as a result of this we are positioned as an observer of what appears to be a process of communication or explanation, but where only one side of the process is visible.

And this is the major limitation. The filming adds little to a written account, because it is only the judge's words and his studied neutrality which is shown. What might make it interesting, or explain how this is a social process, is excluded - and of course we must fall back on traditional resources to learn about this - the impressions of the journalist in the courtroom of the reaction of the accused, the statements by family or police on the steps of the courtroom. This is the familiar staging of the criminal trial in the television age.

Much has been written about how this represents a new commitment to openness, but I cannot see this. Of course it might be thought that showing this is better than showing nothing, but what is shown is so limited and controlled that I cannot see in it any real commitment to open justice.

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