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The Protection of the Accused from Miscarriage of Justice
Published online by Cambridge University Press: 04 July 2014
Extract
The criminal trial system is regarded as standing at the pinnacle of the state's machinery for dealing with crime. But the courts deal with only a small proportion of crimes committed. Their function is more indirect: to express societal disapproval through a public and somewhat theatrical show. This is not to denigrate the role of the courts or dismiss it as futile. The criminal trial does have important functions in the development of norms for criminal responsibility and in fostering respect for the law. But its success in this regard hinges on the extent to which it is perceived as a just and effective method for dealing with those charged with crime. Put crudely, the success of the criminal justice system turns in large measure in the success of the show it puts on. But theatre is good only for as long as it is able to carry the audience with it, which, in the case of the courts, this means as long as the public is prepared to accept their verdicts at face value.
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- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1997
Footnotes
*
University College, Oxford.
References
1 In England there are about 8.2m offences per year, of which 3.34m are reported and 2.1m are recorded, and only 0.55m are actually cleared up. Only 1.6 per cent of all crimes are dealt with by the courts, of which the great majority involve no trial at all since they end in guilty pleas and a bargained sentence.
2 Symbolism plays an important part in this show. Until relatively recently men in wigs marched through the town to assizes, and judges donned a red headgear when passing capital punishment. To this day English judges and lawyers wear peculiar costumes in court and the courtroom procedure has a theatrical air to it.
3 The Royal Commission on Criminal Justice, Cm. 2263, July 1993, henceforth referred to as Royal Commission Report or RCR for short.
4 The Commission made a large number of recommendations, running to some three hundred and fifty.
5 The Royal Commission writes: “Few people would nowadays regard the role of the police as being confined to arrest and questioning leading to a charge. The police are plainly involved in preparing the case for prosecution after charge …” RCR, at 17.
6 For discussion of this point see Zuckerman, , “Miscarriage of Justice — A Root Treatment”, [1992] Crim. L. R. 323, at 331 et seq Google Scholar.
7 Like policemen, scientists are under pressure to produce results and competition amongst them can be intense, with the result that some scientists have been known to take shortcuts.
8 Ibid.
9 Quite probably, expectancy effects were behind the otherwise inexplicable phenomenon of misidentification of the same suspect by a number of independent witnesses. We now know that police bias, and on occasion bias by forensic scientists, played a dominant role in the recent cases of miscarriage of justice in England.
10 Royal Commission on Criminal Procedure, Cmnd. 8092, 1981.
11 RCR, at 9.
12 RCR, at 13-4.
13 RCR, at 12-3.
14 RCR, at 9. The police are exhorted not to jump too quickly to conclusions and not to press too early for a confession but, instead, to first gather all the relevant evidence, including exculpatory evidence; RCR, at 10.
15 RCR, at 22.
16 RCR, at 28. The trial judge would have a discretion to admit in evidence an unrecorded confession even where the suspect repudiates it when it is put to him. RCR, at 60-1.
17 RCR, at 33.
18 RCR, at 40.
19 Rosenthal, R., “Interpersonal Expectations: Effects of the Experimenter's Hypothesis”, in Rosenthal, R. and Rosnow, R. L., (eds.), Artifact in Behavioral Research (New York and London, 1969) 219 Google Scholar.
20 RCR, at 57, 60.
21 RCR, at 60-1.
22 RCR, at 61-2.
23 RCR, at 54.
24 Between 6 and 10 percent outside London and between 14 and 16 percent in London; RCR, at 52-3.
25 RCR, at 64.
26 Of the 188 pages of the Report less than a third are concerned with the police stage.
27 RCR, at 91.
28 RCR, at 97.
29 Ibid.
30 RCR, at 99.
31 RCR, at 99-100.
32 RCR, at 97-8.
33 It is no reply to say that only after the accused has been charged and the prosecution's case has been disclosed to the defence can the latter know what line it is going to advance at the trial, because while the defence may broadly know what its strategy is going to be, it may still wish to keep its options open until it has seen how the prosecution's case has developed and how its witnesses have withstood cross-examination. Nor, as we have seen above, does the Commission's view that such a warning may result in pressure likely to produce false confessions stand up to scrutiny; see text pertaining to the note above.
34 RCR, at 35-9.
35 RCR, at 36. Given the assumption that it is in the interest of suspects who are confused, or even inarticulate, to maintain silence, one would have expected a discussion of the problem which is not confined to information to be provided to solicitors, thus leaving out of view unrepresented suspects who must be more vulnerable. The figures provided to the Commission suggest that some two thirds of suspects do not ask to see a solicitor. In 32 percent of the cases looked at, suspects asked for legal advice, and received it in 29 percent before being interviewed. The proportions were much higher in the Crown court study: 66 and 53 respectively; see RCR, at 35.
36 RCR, at 49-55.
37 The Royal Commission thought that the prospect for a scheme of solicitors always being on duty at police stations to be remote.