Court in the act: John Mortimer's verdict on courtroom dramas

Since the earliest Greek theatre, courtroom dramas have fascinated us. But how realistic are they? Writer and QC John Mortimer examines the evidence
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The Independent Culture

From the plays of ancient Greece, where even the gods were put on trial, through The Merchant of Venice and down to Witness for the Prosecution, it has always been considered that the law and the theatre go very well together.

There is a great deal of truth in this. In the law courts everyone is acting, the judge is doing his best to imitate the weary cynicism betrayed by stage judges and hopes to get an occasional headline with such questions as "Who is Madonna?" Shady defendants facing charges of affray, or receiving stolen fish, take on the parts of cheerful cockney characters in a desperate attempt to make the jury like them. Barristers have to learn to adopt a series of parts, ranging from simulated anger to deep sorrow, at the way the police questioning was carried out. Whether or not these assumed characters produce a result which comes anywhere near the truth, the performance seems to be enjoyed by all concerned.

There is, of course, a difference between achieving success on the stage and in the courtroom. Boredom is fatal to any play, lose the interest of the audience for five minutes and you'll never get them back. It is, however, a weapon available to advocates. You can go on and on at a judge and watch him look nervously at the clock, in dread of missing his last train home to Haywards Heath, and when you have reduced him to a suitable state of anxiety he may do what you want in order to be in time for dinner.

Boredom is a feature of most trials but it is never referred to when they are adapted for the stage. Once, at the end of one particularly tedious case, I congratulated the jury at having sat through what was undoubtedly one of the most boring cases ever heard at the Old Bailey. The judge countered this by starting his summing up, "Members of the jury. It may come as a surprise to you if I tell you that the criminal law of England was not devised solely for the purpose of entertaining Mr Mortimer."

Entertaining may not be the sole purpose of the law, but it has been used in theatres since man began enacting human affairs. How much of the reality of a courtroom trial does its acted version manage to preserve? One difference is that a trial on the stage is always performed as though the characters were engrossed in listening, in silence, to every word. The first thing you notice when you go into a real court is the amount of whispering, note passing, murmuring of private jokes and flirtations being carried on between the shorthand writer and a jokey usher. Anxious barristers' clerks are desperately trying to persuade their masters to cut down their speeches because another, and more important, case is coming on in Queen's Bench Court 11.

Judges have been known to comment under their breaths to the young barrister, serving a term as a judge's helper, sitting beside him. One such young man told me that his judge went to the lengths of commenting on the case in sotto voce baby talk. When an accused killer entered the witness box the judge would mutter such comments as "isn't 'ou a naughty murderer" and "why didn't 'ou put on a nice clean shirt for the trial?" Such diversions no doubt go beyond the limits of sanity, but even in the most serious cases there is always someone telling jokes. Added to this, there is usually a collection of people coming in or out of the court, so that at times a courtroom begins to look more and more like a railway platform.

Trial scenes in plays rarely have these realistic touches. Shakespeare, who must have suffered from chattering and inattentive audiences, made the play scene in Hamlet more realistic by having the Prince in the stalls, carrying on a private conversation.

Another aspect of real trials is the behaviour of juries and the various ways lawyers have to appeal to them. Juries arrive in court with mixed feelings of self-importance and irritation. No doubt they are there to perform a vital public service but the case might drag on and interfere with their holidays. Close observation of the jury will tell a barrister who is on his side and who is against him. He then has to devote himself to encouraging his friends and doing his best to convert his enemies.

Over a long trial juries become close to each other and members may, in extreme instances, even fall in love. When allegedly erotic books were on trial, there were always only six copies for the jury, so they had to share with each other. Such relationships grew into something deeper. When the court was sitting very late the jury were sent to spend the night in an airport hotel. One of the ushers reported that doors were banging in the night.

Another and most tedious aspect of trials in court is the period when the arguments and the juries are sent out to come to a decision. A great deal of a barrister's life, in real trials, is spent drinking coffee and eating buns in the Old Bailey canteen, swapping legal anecdotes and trying to pass away the time until someone calls out "They're back". No audience would expect to be sent away for a long period of drinking coffee and eating buns.

In Legal Fictions, my two one-act plays, I hope the audience will not be disappointed and miss a courtroom scene. In one of them a seriously unsuccessful criminal and a barrister, whose past successes are largely in his imagination, rehearse a trial which has unexpected results.

The other play shows the futility of dealing with life as though we were all living in some great courtroom drama. The law has its duties in discouraging all sorts of offences, from armed robbery to parking on a double yellow line but, as I hope to show in the second play, life becomes impossible if you try to judge it in the crude ways of the criminal law.

Our private lives are too elusive, unexpected and mysterious to be satisfactorily explained by a judgement in court number three at the Old Bailey. To approach life as though it could be solved by rules, regulations and Acts of Parliament would be to explore none of its mysteries.

'Legal Fictions', the Savoy Theatre, London WC2 (0870 164 8787), today to 26 April.© Advanpress Limited 2008