From Victim to Suspect

Stephen Sedley

  • The Trial: A History from Socrates to O.J. Simpson by Sadakat Kadri
    HarperCollins, 474 pp, £25.00, April 2005, ISBN 0 00 711121 5

A modern criminal trial can be exceedingly inconvenient. The more fairly conducted it is, the less certain the outcome. The accuser can end up all but in the dock; the accused may walk away from a true bill. Churchill, well aware of this, wanted the Nazi leaders, when they were finally captured, to be taken out and shot. Roosevelt initially agreed. It was Stalin, who had found that trials could be exceedingly satisfactory in both procedure and outcome, who compelled first Roosevelt and then Churchill to take part in setting up the Nuremberg tribunal. Justice Robert Jackson, the US prosecutor, was in consequence able to describe the trial as ‘one of the most significant tributes that power has ever paid to reason’, and the British prosecutor, Sir Hartley Shawcross, to say without blushing: ‘There are those who would perhaps say that these wretched men should have been dealt with summarily without trial . . . But that was not the view of the British government.’

There was and is little doubt about the guilt of the accused at Nuremberg. But in the Western societies which Sadakat Kadri surveys, the time is past when the forensic conclusion was foregone and the trial – of Socrates for inculcating unofficial ideas in the young; of the white men arraigned before an all-white Mississippi jury for the abduction and murder of 14-year-old Emmett Till; of Sir Walter Raleigh for an imaginary treason – simply a public enunciation and endorsement of it. That at least is what we hope, though we are not permitted by Kadri to forget the English miscarriages of justice of the 1970s, which produced the sardonic maxim ‘Innocent until proved Irish’. Here, however, it is at least reasonable to think that the procedures introduced in 1984 for excluding all but tape-recorded police interviews conducted in the presence of a solicitor now make the faking and violent extraction of written confessions a remote possibility. And it is the confession, the ipsissima verba, the mea maxima culpa of the culprit himself or herself to which the trial process has always accorded an almost religious significance.

This at least was true in the era of the trial. Kadri glances bleakly at the incipient era of the non-trial, when individuals are detained on unspecified suspicions, held indefinitely in isolation, interrogated or simply humiliated by methods frequently indistinguishable from torture; tried – if they are tried at all – according to no known law by tribunals lacking most of the attributes of a court; and kept at all costs away from independent courts able to try them on real evidence and to order their release if they are not convicted. The distinguished South African jurist Richard Goldstone, no friend of terrorism, pointed out at the time that the Security Council’s post-9/11 resolution calling on all member states to legislate along the lines of the Patriot Act of 2001, which permits everything from indefinite executive detention to the requisitioning of public libraries’ lending records, was a tyrant’s dream. The courts of this country have since sought to reassert a measure of jurisdiction over foreign nationals detained indefinitely without charge or trial, as the courts of the US have begun to do over individuals condemned to detention without trial by the simple expedient of labelling them unlawful combatants, a category unknown to international law.

Outside the stockade, however, the trial remains very much part of the present, and Kadri’s book is a sinewy and knowledgable account of some of its historic extremes. It is not the anthology of celebrated cases that any competent researcher can assemble; nor a disquisition on the trial process, which, if it is not to be merely abstract, tends to be illustrated by frustratingly incomplete gobbets from the record; nor a weighty collation of transcripts; nor social history squinted at through the prism of the accusatory process. It is a book that manages to have the virtues of all these and the vices of none of them. In prose which succeeds in being both journalistic and literate, with only occasional lurches into flippancy, Kadri – a historian and lawyer – embeds his well-researched narratives of landmark trials in Europe and North America in a reflective account of the criminal trial process which, if in itself neither especially innovative nor profound, gives purpose and coherence to the story.

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