Wednesday 5 October 2016

Mistrial of a Time Lord - further thoughts

By Craig Owen Jones
Bangor University

Danny Nicol’s recent comments on Doctor Who’s twenty-second season, otherwise known as "The Trial Of A Time Lord" (1986) achieve a great deal in drawing attention to the season’s tendency to play fast and loose with the most basic principles of jurisprudence. As an adjunct to Nicol’s characterisation of its problems, there are some interesting precedents in British television prior to the season’s broadcast that may benefit from scrutiny.

"The Trial of a Time Lord":
The Inquisitor questions the Doctor
Many of the germane aspects of the trial depicted in this peculiar quartet of serials from the Colin Baker era receive their most compelling treatments not in British science fiction (Blake’s 7’s (1978-81) dalliances with the device of the courtroom trial during its second season notwithstanding), but in the realm of comedy. The television run of Monty Python’s Flying Circus (1969-74) found the conduct of judges and policemen alike to be fertile ground. Both the death penalty and the rule against bias were satirised by a sketch in ‘The Spanish Inquisition’ (1970), in which a frustrated judge (Graham Chapman) rails against his inability to condemn the defendant in the light of the restrictions then recently placed on usage of the death penalty, asserting instead his imminent move to South Africa (‘England makes you sick!... I’m off, I’ve bought my ticket’), before declaring that, in a final fling before leaving, the defendant is sentenced to be burnt at the stake.

The question of reliability of police evidence, meanwhile, was mercilessly lampooned in the Monty Python’s Flying Circus episode ‘The Light Entertainment War’ (1974), in which a doltish police officer (Michael Palin) is in cahoots with Terry Jones’ judge, and (ineptly) gives evidence to implicate the defendant (Eric Idle) while reading from his notebook. The sketch was still considered sufficiently relevant in 1979 to warrant an airing during the Secret Policeman’s Ball, the series of occasional charity shows staged in aid of Amnesty International throughout the late 1970s and early 1980s, this time with Graham Chapman as the policeman and Peter Cook as the defendant.

Cook provides another example that is relevant to the issues under study. On the penultimate evening of the 1979 show’s run, Cook – taking his cue from the outrageously partial summing-up of Sir Justice Cantley during the Thorpe trial which had ended the previous week – delivered a monologue that has since become known as ‘Here Comes The Judge’ that combined observations on class and political leanings to impugn the judge’s impartiality with devastating effect. The monologue, which brought the house down, was so successful that it was shortly released as a spoken-word record, and is now acknowledged as a masterpiece of British comedy. Cantley’s couching of his comments in the language of impartiality bring to mind nothing so much as Lynda Bellingham’s Inquisitor, whose behaviour becomes increasingly inscrutable as the season progresses.
Satirising the police:
Not The Nine O'Clock News

The late 1970s in particular seems to have provided a good deal of grist for the satirist’s mill in the way of improper conduct in both the courtroom and the police station. Arguably the most successful satirical programme of the period, Not The Nine O’Clock News (1979-82) was the originator of several sketches to criticise the conduct of the police, including an uproarious monologue by Griff Rhys Jones that begins with an extreme close-up of what we assume is a yob bragging about his exploits during a riot in which he assaulted several people – ‘I hate mush, cos they make me puke, right?...’ – only for the camera to slowly zoom out, revealing that Jones is in fact wearing a police uniform (but see below). The much-criticised ‘sus laws’ that resulted in the disproportionate stopping and searching of black people provided a focus for another sketch that saw Jones playing a policeman, this time one ‘Constable Savage’, who is pulled up by his superior (Rowan Atkinson) for repeatedly arresting the same man, one Winston Kodogo; the sketch ends with Atkinson deciding the best place for Savage to continue his career is with the Special Patrol Group. The SPG also received bad press in The Young Ones (1982-84), in which the police in general are routinely portrayed as needlessly heavy-handed. In one episode, Alexei Sayle plays a police inspector in the guise of Benito Mussolini; in another, Rick (Rik Mayall) starts to play some music during a party, only to have his record player destroyed – mere seconds later! – by a police officer who asserts that ‘the neighbours have been complaining’.

Satirising the police interview video:
Alas Smith and Jones
But the treatment of police officers that is most relevant in respect of Trial Of A Time Lord’s preoccupation with the admissibility of the evidence provided by the Matrix is found in Alas Smith And Jones (1984-98), the vehicle of NTNOCN alumni Griff Rhys Jones and Mel Smith. In a keenly-observed sketch set in the interview room of a police station, we see the interviewer (Jones) questioning a suspect (Smith). Smith’s character is clearly innocent, but Jones’ gleeful demeanour derives from his transparent attempts to tamper with the evidence – the video of the interview shows evidence of several clumsy edits, and in the final seconds of the video, Smith finally appears bloodied and bruised, implying his maltreatment in the cells. The sketch was broadcast in 1992, several years after the introduction of recorded interviews in 1984, but it is hard not to view it as a direct response to that policy. What it questions is not the principle of recording, but the fidelity to the truth of that which is recorded. When we hear the evidence of a witness as recorded in an interview room shorn of context, to what extent may it be relied upon?


Such depictions of the adversarial process play, of course, devil’s advocate. Smith and Jones do not seriously claim that the recording of police interviews should be dispensed with as useless or unreliable. But they do succeed in interrogating our understanding of such interviews as infallibly truthful sources of evidence. The police interview sketch takes the point to its furthest extreme; it is Kurosawa’s Rashomon played for laughs. But in its highlighting of the mutability of evidence presented at one remove, in videoed, taped, or written form, it asserts the centrality of authority, of ruling by the sword. After all, the Time Lords are more or less all-powerful; and there are several moments in Trial Of A Time Lord where the court gets perilously close to dispensing the cosmic equivalent of victor’s justice. Unlike the science fiction comedy Red Dwarf episode ‘Justice’ (1991), in which the crew enter a penal space station enveloped by a ‘justice field’ within which the consequences of an unjust act are instantly played out on the perpetrator – in Trial the gap between the act of interrogation of one’s actions and determining ways of dealing with them in a just fashion is improbably broad. As Nicol notes, the contradiction between the format of the trial and the outcome is never resolved – charges are summarily dropped, and the process is never properly concluded.

Given the preponderance of satirical commentaries on these issues noted above, it is tempting to view Trial in the same way, as a metatextual comment on the way in which Doctor Who was being treated by the BBC at the time. As is well known, season twenty-three’s story arc was occasioned by producer John Nathan-Turner’s conviction that the show was experiencing something akin to being on trial, with frequent changes to format and scheduling and near-constant criticism of its tone both within the BBC and from viewers irate at the gory, violent tenor of the programme under the editorship of Eric Saward. This seems on the face of it to be a legitimate rationale for the haphazard trial process that we see. After all, Doctor Who was not above satirising the British establishment in the 1980s – one thinks of The Happiness Patrol (1988), a trenchant comment on the Thatcher ministry. Showing a frustratingly Kafkaesque Gallifreyan system of jurisprudence could, in the right hands, have constituted a powerful riposte to the show’s treatment by the BBC.

Campy dialogue:
The Doctor and the Valeyard

But this seems altogether too cosy an explanation of the strange perorations and verbose exchanges of Trial Of A Time Lord’s courtroom scenes to be admissible. For one thing, the season achieved its final form in the most haphazard fashion; the final serial, a two-parter entitled ‘The Ultimate Foe’, was famously written at breakneck speed by Pip and Jane Baker when Saward resigned as script editor before the season’s conclusion. Furthermore, the courtroom two-handers between the Doctor (Colin Baker) and the Valeyard (Michael Jayston), while often glossed as ‘comic’ in scholarly commentaries, are anything but. The schoolboy insults the Doctor launches in his interlocutor’s direction are risible and painted in the broadest of strokes, and the Valeyard’s replies are campy and unconvincing. Crucially, even viewers at the time viewed these scenes as poorly conceived and unfunny, even if the intent on the writers’ part was to introduce levity into what on paper were needlessly wordy exchanges. Ultimately, it is difficult to think of Trial as anything other than a noble failure, a stab at a grand and lofty narrative that falls flat due to a combination of silly posturing between protagonist and antagonist, pedestrian storytelling, and an almost complete lack of internal logic in terms of the trial that lies at its heart.

Monday 3 October 2016

Mistrial of a Time Lord

By Danny Nicol,
Professor of Public Law
University of Westminster.


“The Trial of a Time Lord” (1986) was a 14-part serial, the longest in Doctor Who’s history.   In it, the Doctor (Colin Baker) is put on trial by his own people, the Time Lords, for interfering in the affairs of other peoples and planets.   The trial is presided over by the Inquisitor (Lynda Bellingham) and the Doctor is prosecuted by an official called as the Valeyard (Michael Jayston).   

Doc in the dock: the Doctor makes a
point in his defence
The trial provides the opportunity to relate several of the Doctor’s adventures which the Valeyard deploys as evidence of his guilt.  Professor James Chapman has criticised these various segments as unengaging, and has condemned the over-arching narrative as inconsistent, incoherent and poorly-structured (Inside the Tardis: The Worlds of Doctor Who, 2nd edition, London: Tauris, 2013, pp.158-9).  Be that as it may, this post focuses not on the merits or demerits of the serial, but on the procedural shortcomings of the trial.   

The analysis does not purport to be comprehensive.  Indeed the procedural deficiencies in “The Trial of a Time Lord” are so substantial as to merit a major article in the field of Law and Television.  Instead this post merely flags up a few of the issues of procedure with which the narrative engages (and does so without giving the game away about the plot’s moment of revelation). 

A first issue in the trial is what lawyers call public interest immunity.  This is the notion that certain information can be withheld from the court in the public interest.  When the Doctor is on the planet Ravalox certain dialogue incriminating the Time Lords is removed from the evidence.  In 1968 in Conway v Rimmer ([1968] AC 910) Britain’s top court the House of Lords held that it was for the court - not the government - to strike a balance between two public interests involved: the public interest in withholding the information versus the public interest in ensuring justice in the case.  Here, the Inquisitor shows undue deference to the Time Lords’ decision on suppressing the information: she does not really interrogate the public interest in non-disclosure.

Impartial arbiter?
The Inquisitor adjudicates
A second issue is the assumption that the Matrix cannot be challenged.  The Matrix is the computer-based depository of all Time Lord knowledge and experience.  When the Doctor insists that evidence from the Matrix has been falsified, the Inquisitor pre-judges the issue, telling the Doctor “your accusation would be laughable if it were not so outrageous”. The problem of certain forms of evidence being considered unchallengable may have had resonance in the mid 1980s when “The Trial of a Time Lord” was written.  It was an era in which the evidence of the British police, whilst often relied upon at trial, was becoming increasingly discredited as miscarriages of justice mounted up.  As a result the Police and Criminal Evidence Act 1984 ushered in the tape-recording of interviews.  Such recordings now form the focus of a very large number of criminal trials, as well as a long-standing trope in British television crime drama.

A third issue is the upgrading of the charge against the Doctor from interference to genocide.  Late in the trial we learn that the Doctor has destroyed an entire alien species, a race of sentient plants known as the Vervoids.   Instantly the Valeyard insists that the capital charge of genocide be added to the charges against the Doctor.   Yet the rules of procedural fairness include the right to adequate time to prepare one’s case (see for instance the ruling of the High Court in R v Thames Magistrates’ Court ex parte Polemis [1974] WLR 1371).  To add new charges mid-trial would be an outrageous breach of that principle.

The Valeyard presses for the ultimate sanction
A fourth issue is the death penalty. The Valeyard strongly presses for the death penalty.  In Britain, Parliament effectively abolished the death penalty in 1965 after several miscarriages of justice, and in 2004 the UK government accepted the 13th Protocol to the European Convention on Human Rights which created an obligation in international law not to reintroduce it.   Britain does not extradite individuals who would face the death penalty in trials elsewhere.  The presence of the death penalty in Gallifreyan law marks Gallifrey as a more primitive society than Britain.

A fifth issue is the rule against bias.   It is a vintage principle of common law that judges should be impartial vis-à-vis the parties to a case (see e.g. Dimes v Grand Junction Canal I [1852] 10 ER 315).   The principle has also been enshrined in Article 6 of the European Convention on Human Rights.  Yet for all her gravitas, the Inquisitor eventually shows herself far from impartial: she defends rather too vigorously the Time Lords’ decision to extract the Doctor from time and space to face trial just as his companion, Peri, needed rescuing from imminent destruction.   Bias in the opposite direction is apparent at the trial’s end: the Inquisitor drops all charges against the Doctor because the Time Lords owe him a debt of gratitude for having saved their skins.   So much for the due process of law.

Eventually the Time Lords emerge discredited from the trial because of their own constant interference in time and space.  It is Time Lord hypocrisy which “The Trial of a Time Lord” ultimately condemns.  But as a result the appalling lapses in judicial procedure get sidelined.  Yet these deficiencies fall well short of the common law principle that it is not enough for justice to be done, it must be manifestly be seen to be done – through compliance with the requirements of procedural fairness.  This raises the important question of whether a conviction, however justified in substance, should ever be lawfully obtained on the basis of an unfair procedure.  The procedural corruption of the trial alone justifies the Doctor’s stirring denunciation:

In all my travellings throughout the universe, I have battled against evil, against power-mad conspirators. I should have stayed HERE! The oldest civilization: decadent, degenerate and rotten to the core! … Daleks, Sontarans, Cybermen - they're still in the nursery compared to us! Ten million years of absolute power - that's what it takes to be really corrupt!