A superior model

Well here we are in the middle of a general election campaign and the flaws of the process are beginning to show. One person says something and another shouts 'that's not true'; then someone else makes a counter-allegation and someone else says 'that is not true' and meanwhile we all go back to reading the magazine section of the newspaper and become far more polarised among ourselves on such burning questions as whether John Terry should have kept the England captaincy and whether Wayne Bridge should or should not play in the World Cup.

Listening and reading about the latest row about Gordon Brown: 'Bully, yes or no?' makes me think fondly of our own dear trial practices compared to the playground squabbling that is the grown up general electioneering of our rulers. If Gordon had been a criminal lawyer then he would have known well the perils of putting his own good character in when he did the Piers Morgan interview on the softer side to Gordon, complete with cut-away shots to Sarah. Any old criminal hack knows that if you put your character in, it risks going in 'warts and all'. So, really it seems only equitable that the allegations about temper and temperament go in as well. After all, the Criminal Justice Act 2003 covers it, as did the common law before: you can't go round slinging mud or saying you are a saint when there is potentially stuff out there that might qualify those assertions in the eyes of the jury. It is basic stuff '“ like landing on a hotel on Mayfair in Monopoly '“ if you do it you are broke.

On trial

So, wouldn't it be better if election campaigns were conducted like trials, with a judge and jury (the electorate). We can have the three main parties as the, well, the three parties (they need not sit in the dock) and they can each be represented. The good thing about that is that the first and golden rule of the ethics of advocacy has to be applied: nobody must knowingly mislead the court. That will be a tricky one, but will mean that what they do say and submit '“ their case '“ must be their case, they cannot say something and not mean it. This would mean that promises are genuine. They could also be made to disclose their cases in advance (the manifesto covers this) but, like a defence case statement, this would trigger the disclosure provisions, and each party would have to disclose material that would undermine their case or materially assist the opposition.

Procedurally, everyone gives their evidence and is cross-examined and re-examined, and everybody makes their submissions and the others have to listen courteously and await their turn '“ so no brawling on Newsnight, for example, where everybody shouts at each other and nobody gets heard. Then the judge sums up each case '“ dealing of course with issues of character, and reminds the jury that they do not determine their verdicts on character alone, but that such evidence is just one part of the evidence to be taken into consideration. Then they go out to reach a verdict based on being sure, rather than what's in it for them.

Well '“ what a winner. This would stop a lot of the froth and the accusations, spin and counter-spin. Everybody would have to say what they mean within the rules, rather than just engaging in a big fight over the airwaves. All of them would have to think very carefully about what they said, and give a signed proof of evidence, and, after all, nobody wants knowingly to mislead the court '“ heavens forbid, imagine if the elected prime minister and ministers had misled the court, they would be prosecuted for perjury!

A more civilised process

Ah, but it would not be fun any more, the politicians would say '“ no more battle buses and soapboxes and ringing bells, kissing babies and cups of tea with old dears, or striding through busy hospital wards beaming at ill people and getting in the way of the staff who are trying to make them better; no more people dressed up as toffs or bottles of beer running about to persuade us (on an intellectual level) who is better served to run the country (rather than a student rag week). There would be no more slow-motion compassion or righteous indignation, or daft statements that insult our intelligence. We might get a bit nearer to a more civilised process though.

In the end that is what a trial is: civilised. Terrible things may have happened, or are alleged, and polarised witnesses give difficult, personal evidence before a room full of strangers, some of whom are wearing odd clothes, and each is listened to patiently, courteously, given time and breaks where necessary, and leaves with as little damage done as possible. The people in the public gallery generally behave themselves, as does the defendant and the witnesses. Old-fashioned formal language carries clear sense without obfuscation. Everyone knows where to stand, when to sit down and shut up and when the stage is theirs '“ all theirs '“ without interruption or heckling. Almost everybody, including the defendants '“ even the convicted ones '“ respect the system for all of those reasons because they have had a fair, transparent and honest trial. No wonder politicians hate lawyers.

So it's heigh-ho and all aboard the battle-bus and don't forget the soapbox and the scary posters and the funny suits and the babies and the old folk and the ill folk. Make sure you've got everything; everything that is, except your civility, intelligence and judgement '“ three things we find in a court room everyday.