TRUE Project holds mock trial
On 23 September, in the Council Chamber of Goldsmith’s University, Joshua Kern and Kirsty Sutherland were instructed to appear in a fictional trial designed to test jurors’ trust in user-generated evidence. The day’s trial proceedings were recorded and will be shown to research participants recruited to act as mock jurors, whose deliberations will be analysed.
Sir Howard Morrison KC presided as judge; the prosecution was represented by Helen Malcolm KC (Three Raymond Buildings) and Joshua Kern, and the defence was represented by Peter Haynes KC (St Philips Chambers) and Kirsty Sutherland. Nick Waters (Bellingcat) was examined, and cross-examined, as an expert open-source analyst.
The mock trial follows from a mock admissibility hearing Swansea University, GLAN and Bellingcat organised in 2021. Judge Joanna Korner CMG KC’s decision in that case is available here.
The fictional defendant was a pilot with the Saudi Royal Air Force and charged with one count under section 51 of the International Criminal Courts Act 2001: the war crime of intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities. The prosecution case was that on 7 May 2018, the defendant flew his fighter jet above Tahrir Street, on which is located the Office of the Presidency, and launched two air-delivered bombs. The prosecution argued that the attack was typical of a ‘double-tap’ strike, a controversial tactic in which a war plane attacks a site and returns to attack the same area again as people are carrying out rescue work.
The defence case was that the defendant was responsible for a single strike, conducted shortly after 7am when no civilians were present, at a different location which was not a civilian location, namely the Presidential Palace outside the centre of Sana’a. Two high-level Houthi leaders were present at the Presidential Palace, no damage was done to any surrounding property, and no civilians were harmed.
A video posted to Twitter and verified using open-source analysis by Bellingcat, a non-profit organisation that specialises in online investigations, was central to the prosecution’s case. It purportedly captured the second airstrike taking place while rescuers were trying to extract an injured person from rubble. The defence challenged the extent to which a jury can rely on a piece of content posted online, where the identity of the person who captured the content is uncertain, and as such cannot be called to give evidence.
Speaking after the mock trial exercise, Professor Yvonne McDermott Rees said, “This mock trial is a central component of the TRUE project, and it will be fascinating to see how jurors assess and weigh user-generated evidence in a realistic scenario. We are so grateful to the eminent lawyers, judge, and experts who generously gave their time to take part in the trial, which was a resounding success.”
