Sonar Members Club No38

since (Oct.) (2013)

The Wanninkopf case and the Dock

The goal of my blog post is to spark a dialogue between Japanese lawyers (or persons interested in law) and common law/ European lawyers.  I plan to publish on a range of topics and I hope that some of my friends and colleagues will join me in contributing in the future.  In many of my posts I will be focusing on issues relating to images and representations of justice.

For my first post today, I want to discuss the place of a defendant in criminal proceedings in the United Kingdom.  This is in my mind since I am teaching a course this week on the ‘vanishing trial’ in the US and Europe. The readings for the class include fascinating discussions on courtroom architecture and argue persuasively that in the UK we marginalise the accused in criminal proceedings by inter alia. placing the defendant in the Dock. The article focuses on some of the empirical findings in an article by Professor Linda Mulcahy, a professor of law and expert on law and architecture at the London School of Economics.

In England and Wales, the accused is kept in the dock either at the back of the courtroom (in the Crown Court) or at the side of the courtroom.  Sometimes he or she is placed behind glass with slits.  In her article, Mulcahy persuasively argues that the UK system is anachronistic in placing the accused in the Dock and potentially violates the presumption of innocence.  The inability of the defendant to communicate with ease with his or her lawyer, and his placing away from the main proceedings means that his communication is hampered.  This is in direct contrast to other jurisdictions where the defendant can effectively communicate with his or her lawyer.

In other jurisdictions such as the US the accused sits beside or directly behind the lawyer.   The accused sits with her lawyers, dressed in a business suit.  She is indistinguishable from her legal team.  A strategy adopted by legal professionals in the US as discussed in Mulcahy’s article.

The differences between the UK system and that of other countries as discussed by Mulcahy struck me last night when I watched a two part legal drama on the Wanninkopf case.  The Spanish drama available online on TVE1 (http://www.rtve.es/alacarta/videos/el-caso-wanninkhof/) is based on the facts presented in the legal proceedings against a woman who was found guilty by a jury of murdering 19 year old Rocio Wanninkopf in the south of Spain.  The woman was convicted by a jury trial and spent 17 months in prison before DNA evidence emerged which confirmed that the killer was a British man, responsible for killing another young woman and attempting to rape another.

 

 

Whilst Mulcahy’s article notes that the defendant in Spain and Italy are sometimes placed behind metal bars during a trial, in the programme the accused sits shoulder to shoulder with her defence counsel.  They regularly communicate, with Vicki providing him with crucial information about witnesses and, they communicate emotionally and physically, with the lawyer placing a reassuring hand on hers.  This physical communication sends an important message to the jury – it says she is not a monster but a friend – bringing her closer to the jury.   This form of communication is impossible in the UK where the defendant is using in the dock, sitting alone and isolated.

More generally, the mini series can be viewed as an indictment of the legal system in Spain.  As viewers we are asked to judge not only the accused, but also the whole legal process from the treatment of “Vicki” at the hands of the police to the verdict.  The programme paints a damning picture of the authorities, the media frenzy and the new jury system (jurado popular) culminating in the miscarriage of justice.  Thus whilst Vicki is able to sit beside her lawyer and is not isolated in a dock or behind bars, the jury have already assessed her and found her guilty in a “trial by media”.

In choosing to talk about the Wanninkopf programme, I would be interested to know whether Japanese lawyers see parallels in terms of the introduction of a jury system into a previously inquisitorial system.  The changes in 2009 in Japan come later than those in Spain but interesting comparative lessons could be shared.  What is clear from the Wanninkopf example is that the introduction of lay justice does not always result in a fair or legally sound outcome.  It would be interesting to know the impact that the jury system has had in Japan and to understand the place of the accused in the trial.

Mulcahy’s article on “Putting the Defendant in their Place”  is published in the British Journal of Criminology 2013.

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    4 comments already | Leave your own comment

  1. 東 賢太郎

    11/3/2013 | 4:09 PM Permalink

    Keina, welcome on board. As a person interested in law, or as a citizen may be called to serve as a saiban-in some day, I’m keen to learn from your subject. Saiban-in seems different from jury system, however, whichever it should be here, I’m not yet convinced that such a citizen participation in a way operating now in Japan may substantially help us to prevent miscarriage of justice. It is because that currently prosecutors are allowed to disclose evidences only partially. Lay judges may influence court decision in determining the amount of punishment to a limited extent but unlikely to set powerful precedent as the power solely belongs to Lawmakers in Japan. Our citizens also might not seem to have fully prepared to take part in. A lady who was obliged to see evidence photo of murdered dead body entered a lawsuit against government for causing her a mental disease. For some people it is not understood as an execution of rights but as simply an obligation.

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    • kyoshida

      11/3/2013 | 9:27 PM Permalink

      Azuma san, thank you for your welcome. In the UK, some people also see jury service as an obligation. I was once observing a trial where a juror (an 18 year old man) failed to turn up and his mother called in saying that he did not want to take part in the proceedings. The case was a gruesome one about rape and sexual abuse. The young man was told that he must attend and was warned by the judge that criminal proceedings could be brought against him for contempt of court.

      The law also changed in England and Wales in 2004 which means that everyone has to serve on juries including lawyers. This has caused some problems for senior lawyers who are often acquainted with other lawyers or judges on the case. See this article on people attempting to avoid jury service. http://www.thelawyer.com/news/practice-areas/judge-and-jury/111658.article

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  2. 須網 隆夫

    11/3/2013 | 9:38 PM Permalink

    Please allow me to join interesting discussion. I used to be a practicing attorney, having experience of handling with substantial number of criminal cases. First, like the US, in Japan, the accused sits before his or her defense lawyer and can freely communicate each other at any time in criminal procedures. I cannot understand why the accused must be in the Dock, not in the courtroom in UK. Secondly, I have a more positive impression to the newly introduced Saiban-in system. It is sure that the system is not perfect. But the lay participation has made considerable contribution to activation of the Japanese criminal justice which had been almost dead for many years.

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  3. 中村 順一

    11/5/2013 | 11:58 AM Permalink

    Keina,very much welcome on board. This is Johnny Nakamura of SMC in Tokyo. We met at the dinner at Kioi-cho in late August, We talked about your kindergarten in den-en-chofu “Chiisaki-Hana”, and we surprised that your ex-home at Den-en-chofu 2-chome was quite near my current home, may be just within two minutes walk.

    By the way, your choosing subject is quite interesting for me although it isn’t an area of my strength. When I was in UK in early 90’s, one of my colleagues took part in jury service, for him it was definitely an obligation, he mentioned to me that he was not confident at all to judge an unknown person, he was worried. Since we didn’t have that system in Japan at that moment, I was wondering if that system did work or not.

    I am so keen to talk with you or your friends also about other subjects, like history (in particular after 18th centuries all around Europe),geography (in particular UK),politics, economics, international relations, sports, movies etc.

    Anyway very much welcome to SMC again.

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